Filed 1/17/14 P. v. Lancaster CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C069032

         v.                                                                      (Super. Ct. No. 72005780)

JONATHAN NELCE LANCASTER,

                   Defendant and Appellant.


         Following his convictions for stalking (Pen. Code, § 646.9, subd. (b)),1 perjury by
declaration (§ 118), and seven counts of disobeying a court order (§ 166, subd. (a)(4)),
defendant Jonathan Nelce Lancaster was granted probation under various terms and
conditions, including one that prohibited him from making contact with the victims and
another that required him to obey all laws. Finding defendant violated this latter
condition by knowingly possessing police reports and California Law Enforcement
Telecommunications System (CLETS) printouts pertaining to one of the victims with
knowledge he was not authorized by law to receive this information (§§ 11143, 13304),


1        Undesignated statutory references are to the Penal Code.

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the trial court ordered defendant to serve 45 days in jail, with credit for 20 days, and
reinstated probation.
       On appeal, defendant asserts there is no substantial evidence to support the trial
court’s finding he possessed these documents with knowledge he was not authorized to
receive them. As defendant points out, the trial court relied on the statement, “DMV
RECORD FOR LAW ENFORCEMENT USE ONLY,” (use notice) printed on two pages
of the CLETS printouts to find defendant knew he was not authorized to receive the
documents. Defendant argues: (1) the statement is ambiguous because “[t]here is no
context to the statement to put the reader on notice that the statement refers to the . . .
entire document”; and (2) “notice that ‘use’ is limited to law enforcement only, does not
provide notice that an unauthorized person cannot ‘possess’ the document.” In response,
the Attorney General argues that, in addition to this warning regarding use, defendant’s
knowledge that he was not authorized to receive the documents could be inferred from
the fact he lied about where he received them. We agree with the Attorney General and
affirm the judgment.
                                      BACKGROUND
                                     Underlying Crimes2
       We dispense with a detailed recitation of the facts surrounding defendant’s
underlying crimes. For our purposes, it will suffice to say defendant lived next door to
Linda and Mark Vierra in Olympic Valley, near Lake Tahoe. The Vierras operated a
snow removal business. An argument between Mark Vierra and defendant over politics
in 2006 led to a dispute over whether the Vierras were illegally operating their business,
which ultimately led defendant to willfully and maliciously harass and threaten the



2     The facts surrounding defendant’s underlying offenses are taken in part from our
unpublished opinion in People v. Lancaster (Feb. 16, 2011, C063410) [nonpub. opn.], of
which we take judicial notice. (Evid. Code, §§ 451, 452, subds. (a) & (d), 459.)

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Vierras between January 2008 and March 2009 in violation of section 646.9, subdivision
(b). Incidents of harassment occurring in April and May 2008 were in violation of a
temporary restraining order obtained by the Vierras, amounting to seven violations of
section 166, subdivision (a)(4). Defendant also submitted a willfully false declaration in
violation of section 118.
       Tried by jury and found guilty of the foregoing crimes, defendant was granted
probation under various terms and conditions, including one that prohibited him from
making contact with the Vierras and another that required him to obey all laws.
                                  Violation of Probation
       In April 2011, the District Attorney filed a petition to revoke defendant’s grant of
probation. The petition alleged defendant violated section 166, subdivision (a)(4), by
contacting Linda Vierra. This petition was subsequently amended to allege three
probation violations: (1) defendant contacted, harassed, or annoyed Linda Vierra;
(2) defendant violated sections 13304 and 11143 by knowingly possessing police reports
and CLETS printouts pertaining to Mark Vierra; and (3) defendant failed to pay court-
ordered restitution and fees. Because the trial court found only the second of these
allegations to be true, we will not further address the other two.
       With respect to the second alleged violation, defendant stipulated he was in
possession of police reports and CLETS printouts pertaining to Mark Vierra. These
documents were seized from his home in Ben Lomond, near Santa Cruz, during a
probation search. They were in an envelope addressed to Lynsey Paulo, an investigative
reporter for television station KCRA, Channel 3, in Sacramento. Also in the envelope
was a letter to Paulo, dated August 15, 2009, written from the Placer County Jail while
defendant was awaiting trial on the underlying charges. The letter thanked Paulo for
doing a story on “illegal snow removal companies in Placer County,” recounted
defendant’s version of the events leading to his arrest for what he characterized as
“trumped up” and “bogus” charges, and implored the reporter to investigate “corruption

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in the justice system in Placer County.” The letter claimed the “corrupt Tahoe D.A.”
refused to “hand over police reports, 911 logs and other discovery” defendant and his
attorney Julia Young had “repeated[ly] requested to prove (a) Mark Vierra’s history of
drug [and] alcohol problems, (b) Mark Vierra’s history of domestic violence against his
wife and children and (c) [defendant’s] innocence.” The letter stated Young had
“received some of the information [they had] been trying to get” and then recounted
defendant’s interpretation of several incidents in which, according to defendant, “the
corrupt Tahoe D.A. declined to prosecute Mark Vierra.” The letter continued: “The
selective enforcement and prosecution against me is a huge violation of my civil and
constitutional rights. [¶] As I have told you before, I filed complaints with the Placer
County Grand Jury, the California State Attorney General. All of my complaints directly
named Tahoe District Attorney Chris Cattran and Tahoe Commissioner Trilla Bahrke.
They are corrupt and use and abuse their office and power to do favors for their friends.
They don’t prosecute them when they commit crimes and the[y] use the law to harass and
intimidate people like me.” Finally, attached to the letter were the police reports and
CLETS printouts forming the basis for defendant’s violation of probation.
       During the hearing on the probation violation, defendant testified Young gave him
the police reports and CLETS printouts while he was in jail, he “had no idea” he was not
authorized to have them, and he believed “these documents were obtained through the
discovery process prior to [his] trial.” According to defendant, Young gave him two
copies of the documents. Defendant gave one copy, along with a copy of the letter, to
another inmate who was supposed to mail the package to Paulo after his release from jail.
The package was apparently hand delivered to Paulo.
       Young testified in rebuttal. After reviewing the documents, Young testified she
had never seen one of the police reports (pertaining to an incident of child abuse
allegedly committed by Mark Vierra against his 13-year-old son, L.V.), she was not sure
whether she had seen a second police report (pertaining to an incident in which Mark

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Vierra allegedly violated a restraining order obtained by another man, Arnold Allen), and
she had seen the third police report (pertaining to an incident of domestic violence
allegedly committed by Mark Vierra against his wife). Young testified she had not
received any CLETS printouts regarding Mark Vierra and did not release these
documents to defendant. She also pointed out the printouts had not been Bates stamped,
which was the general practice of the Placer County District Attorney’s office, and the
only discovery she had received relating to defendant’s case came from that office.
Young further testified she did provide defendant with redacted copies of his police
reports prior to trial. After defendant was released from jail, Young’s secretary gave him
a complete copy of the discovery in a sealed envelope. Young did not review these
documents before they were given to defendant.
       Defendant again took the stand following Young’s testimony. He testified that he
remembered receiving documents at the conclusion of the case and these documents did
not include the police reports attached to the letter to Paulo. Defendant maintained he
received the documents at issue in this case from Young while he was in jail.
                                     Trial Court Ruling
       After entertaining argument on the probation violation, the trial court found
defendant violated sections 13304 and 11143. The trial court first explained both
sections make it a misdemeanor offense for any person, except those specifically referred
to in Evidence Code section 1070 (i.e., newspersons), to knowingly possess a record if
the person also knows he or she is not authorized by law to receive the record. Finding
defendant knew he was not authorized by law to receive the police reports and CLETS
printouts, the trial court explained: “In this case, [defendant] testified that he received
this information from his lawyer, Julia Young, before the criminal trial. Now, the only
other way that I could determine that he could have received it, that is legally, is based on
some testimony that the secretary gave discovery to [defendant] at the conclusion of the
case in a sealed envelope. [¶] [Defendant] testified he was 100 percent sure that he got

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all of the documents that were seized before the trial in jail. That does away with the
secretary inadvertently providing the information at the end of the trial.” The trial court
then recounted Young’s testimony that she had not received any CLETS information
about the victims in defendant’s case, she had not seen the police report pertaining to the
alleged incident of child abuse, the documents seized from defendant’s home had not
been Bates stamped, and she had not provided these documents to defendant. The trial
court also pointed out that two of the CLETS pages included the line: “DMV RECORD
FOR LAW ENFORCEMENT USE ONLY.” Based on the foregoing, the trial court
concluded defendant knowingly possessed the police reports and CLETS printouts while
knowing he was not authorized by law to receive these documents, commenting: “I think
that the information written clearly right on the face of that document that it’s for law
enforcement purposes only, ‘DMV record. For law enforcement use only,’ indicates that
having that in his possession and looking at that would certainly notify him of that.
Again, I don’t know where he got it, but I know he didn’t get it from [Young].”
                                       DISCUSSION
                                               I
                                 General Legal Principles
       At the time of the probation revocation hearing, former section 1203.2,
subdivision (a), provided, in relevant part, that “the court may revoke and terminate . . .
probation if the interests of justice so require and the court, in its judgment, has reason to
believe from the report of the probation officer or otherwise that the person has violated
any of the conditions of his or her probation . . . or has subsequently committed other
offenses, regardless whether he or she has been prosecuted for such offenses.” (Stats.
1989, ch. 1319, § 1, p. 5305; see People v. Rodriguez (1990) 51 Cal.3d 437, 447.)
       “Revocation of probation is not part of a criminal prosecution, and therefore the
full panoply of rights due in a criminal trial does not apply to probation revocations.
[Citation.] ‘In placing a criminal on probation, an act of clemency and grace [citation],

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the state takes a risk that the probationer may commit additional antisocial acts,’ and ‘the
state has a great interest in being able to imprison the probationer [for probation
violations] without the burden of a new adversary criminal trial. [Citation.]’ [Citation.]
The standard of proof in probation revocation proceedings is proof by a preponderance of
the evidence. [Citation.]” (People v. Stanphill (2009) 170 Cal.App.4th 61, 72.)
       “We review a probation revocation decision pursuant to the substantial evidence
standard of review [citation], and great deference is accorded the trial court’s decision,
bearing in mind that ‘[p]robation is not a matter of right but an act of clemency, the
granting and revocation of which are entirely within the sound discretion of the trial
court. [Citation.]’ [Citation.] [¶] ‘The discretion of the court to revoke probation is
analogous to its power to grant the probation, and the court’s discretion will not be
disturbed in the absence of a showing of abusive or arbitrary action. [Citations.]’
[Citation.] ‘Many times circumstances not warranting a conviction may fully justify a
court in revoking probation granted on a prior offense. [Citation.]’ [Citation.] ‘ “[O]nly
in a very extreme case should an appellate court interfere with the discretion of the trial
court in the matter of denying or revoking probation . . . .” ’ [Citation.] And the burden
of demonstrating an abuse of the trial court’s discretion rests squarely on the defendant.
[Citation.]” (People v. Urke (2011) 197 Cal.App.4th 766, 773.)
                                             II
                                Sufficiency of the Evidence
       Sections 11143 and 13304 both provide: “Any person, except those specifically
referred to in Section 1070 of the Evidence Code, who, knowing he [or she] is not
authorized by law to receive a record or information obtained from a record, knowingly
buys, receives, or possesses the record or information is guilty of a misdemeanor.”
Section 11143 applies to “state summary criminal history information” (§ 11140, subd.
(a)), i.e., “the master record of information compiled by the Attorney General pertaining
to the identification and criminal history of any person, such as name, date of birth,

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physical description, fingerprints, photographs, dates of arrests, arresting agencies and
booking numbers, charges, dispositions, and similar data about the person.” (§ 11105,
subd. (a)(2)(A).) Section 13304 applies to “local summary criminal history information”
(§ 13301, subd. (a)), i.e., “the master record of information compiled by any local
criminal justice agency . . . pertaining to the identification and criminal history of any
person, such as name, date of birth, physical description, dates of arrests, arresting
agencies and booking numbers, charges, dispositions, and similar data about the person.”
(§ 13300, subd. (a)(1).) Under both provisions, a person is not “ ‘authorized by law to
receive a record’ ” unless “authorized by a court, statute, or decisional law.” (§§ 11140,
subd. (b), 13301, subd. (b).)
       Defendant stipulated to the fact he knowingly possessed the documents at issue in
this case and does not dispute he was not authorized by law to receive them. Instead, he
challenges the sufficiency of the evidence to prove he knew he was not authorized to
receive the documents. Specifically, defendant argues the use notice contained on two
pages of the CLETS printouts, (1) is ambiguous because “[t]here is no context to the
statement to put the reader on notice that the statement refers to the . . . entire document,”
and (2) “notice that ‘use’ is limited to law enforcement only, does not provide notice that
an unauthorized person cannot ‘possess’ the document.” The first argument is rejected.
Having reviewed the documents containing the use notice, we have no problem
concluding a reasonable reader of that notice would understand it to refer to the entire
document.
       The second argument fails because defendant relies only on the language of the
use notice and does not address the additional evidence of knowledge. As defendant
points out, the words “use” and “possess” do not mean the same thing. “Use” means,
among other things, “to put into action or service: avail oneself of: EMPLOY,” and “to
carry out a purpose or action by means of: UTILIZE.” (Merriam-Webster’s Collegiate
Dict. (11th ed. 2006) p. 1378, col. 2.) “Possess” means, among other things, “to have

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possession of, take possession of.” (Id. at p. 968, col. 2.) In this regard, “possession”
means “the act of having or taking into control” and “control or occupancy of property
without regard to ownership.” (Ibid.)
       In light of the definitional difference between “use” and “possess,” defendant
argues that “the statement ‘DMV Record For Law Enforcement Use Only’ provides no
notice to an unauthorized person as regarding possession.” This argument would have
more force if sections 11143 and 13304 prohibited the use of records by unauthorized
persons and defendant was found to have used such a record based on mere possession of
the record. But that is not the situation here. Our question is whether, in the context of a
probation violation, notice that the use of a document is limited to law enforcement
provides some evidence the unauthorized possessor is aware that possession of the
document is also prohibited. We conclude the use notice in this case should have raised a
red flag in defendant’s mind regarding his possession of the documents.
       We need not decide whether the use notice, by itself, would be enough to support
the trial court’s finding defendant knew he was not authorized to receive the documents
because there is additional evidence. As mentioned, Young testified she did not give the
documents to defendant, which directly contradicted defendant’s testimony concerning
where he received them. The trial court believed Young and disbelieved defendant. We
are bound by this credibility determination. (People v. Tully (2012) 54 Cal.4th 952, 994.)
Providing false testimony evidences consciousness of guilt. (People v. Beyah (2009) 170
Cal.App.4th 1241, 1249; People v. Showers (1968) 68 Cal.2d 639, 643.) Under these
circumstances, we conclude the trial court could properly have determined defendant’s
false testimony about where he received the documents evidenced his consciousness of
the fact he was not authorized to receive them. This evidence, in addition to the use
notice printed on two of the CLETS pages, provided substantial evidence supporting the
trial court’s finding―by a preponderance of evidence―that defendant knew he was not
authorized to receive the documents.

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                                 DISPOSITION
     The judgment is affirmed.



                                               HOCH   , J.



We concur:



     RAYE      , P. J.



   MURRAY      , J.




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