Filed 6/22/16 P. v. Sevior CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B266100
                                                                     (Los Angeles County
         Plaintiff and Respondent,                                   Super. Ct. No. 5PH04344-01)

         v.

SHANN SEVIOR,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County,
Jacqueline H. Lewis, Judge. Affirmed.
         Lisa M. Sciandra, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn
McGahey Webb and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff
and Respondent.
      Appellant Shann Sevior challenges an order revoking his parole, contending
there is insufficient evidence to support the trial court’s finding that he had
engaged in criminal conduct. We affirm.

                           RELEVANT FACTUAL AND
                          PROCEDURAL BACKGROUND
      In 1989, appellant suffered a conviction for first degree murder (Pen. Code,
§ 187), and was sentenced to a prison term of 27 years to life. In February 2014,
he was released on parole under the supervision of the Division of Adult Parole
Operations (Division) of the California Department of Corrections and
Rehabilitations (DCR). Among the conditions imposed on his parole was the
requirement that he “not engage in conduct prohibited by law (state, federal,
county, or municipal).”
      On June 10, 2015, the Division filed a petition for the revocation of
appellant’s parole, charging that appellant had engaged in domestic violence (Pen.
Code, § 273.5) and absconded parole supervision. The petition alleged the
following facts: On April 19, 2015, shortly after midnight, Orange County
Sheriff’s Department deputy sheriffs responded to a disturbance call relating to a
residence in Anaheim. Upon arriving, they talked to Erika Logan, who identified
herself as appellant’s girlfriend. Logan said that she was asleep in her room when
she heard appellant yell, “Who is this?” She followed appellant outside her
residence, where she saw Christopher Cooper, her daughter’s boyfriend, standing
near Cooper’s parked car. Logan realized that appellant was angry at Cooper
because his car was blocking the driveway, and believed that appellant intended to
assault Cooper. Logan tried to restrain appellant, who pushed her away, and then
pushed Cooper’s face back with his hands. In an effort to separate appellant from


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Cooper, Logan placed herself between them, and told Cooper to run away. When
appellant followed Cooper, Logan tried to hold him back, but he pushed her to the
ground, causing her to scrape her right elbow, bruise her left knee, and experience
soreness in her left hip. Appellant then left Logan’s residence.
      At the probable cause hearing, prior to the presentation of evidence, the
prosecutor stated that the key parole condition violation alleged in the petition was
“really criminal conduct.” After the presentation of evidence, the trial court
determined that appellant had adequate notice that the “actual violation” charged
against him related to “the term and condition not to commit criminal conduct.”
The court found sufficient evidence to support that charge, and dismissed the
absconding charge. Regarding the pending parole revocation hearing, the court
stated: “[I]f the People show by a preponderance of the evidence that there was
criminal conduct related to either . . . Cooper or . . . Logan[,] . . . the court would
be finding that [appellant] was in violation of the terms and conditions of his
parole.”
      On July 15, 2015, following a contested parole revocation hearing, the trial
court found that appellant had violated his parole conditions by engaging in
criminal conduct. After revoking appellant’s parole, the court remanded him to
the custody of the DCR and the jurisdiction of the Board of Parole Hearings for
future parole consideration. This appeal followed.


                                           FACTS
      A. Prosecution Evidence
      Erika Logan testified that at the time of the parole revocation hearing, she
and appellant had been in a relationship for approximately seven years. On April



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19, 2015, she lived in Anaheim with her children. According to Logan, appellant
did not live with her.
      Logan provided the following version of the underlying events: On April
19, at approximately midnight, appellant woke her and asked, “Whose car is
parked out there?” She followed appellant outside the house, where he asked
Cooper to move his car. Logan stated that appellant never raised his voice,
engaged in an altercation with Cooper, or pushed her. According to Logan, during
the incident, she accidently tripped and fell to the ground. She denied calling the
police or making any statement to deputy sheriffs that night suggesting that the
incident involved an altercation.
      Following Logan’s testimony, the prosecution presented as witnesses
Orange County Sheriff’s Department Deputy Sheriff Alonzo Alvarez and DCR
Parole Agent Troy Milton. Alvarez testified that he talked to Logan on April 19,
2015. Logan told him that after appellant became upset regarding a “parking
issue,” he tried to push Cooper’s face with his hands. Logan saw the potential
fight, and attempted to separate appellant from Cooper. She restrained appellant,
who pushed her away, causing her to fall and suffer injuries. Alvarez saw a scrape
on Logan’s right elbow and a bruise on her left knee. In addition, Logan told
Alvarez that she felt a soreness in her left hip.
      Parole Agent Milton testified that after the deputy sheriffs prepared their
report regarding the April 19 incident, he interviewed Logan, who said that there
had been a “heated confrontation” between appellant and Cooper. She otherwise
denied that appellant pushed her, and attributed her injuries to an accidental fall.




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      B. Appellant’s Evidence
      Logan denied telling Deputy Sheriff Alvarez that her injuries resulted from
a push by appellant. She testified that Alvarez repeatedly coaxed her to
characterize the incident as domestic violence, and told her he “was . . . going to
see to it that [appellant] goes away for a long time.” According to Logan, the day
after the incident, she informed Alvarez that she did not want to “prosecut[e] it.”
      Appellant testified that on the night of the incident, he drove to Logan’s
home. Upon finding a car blocking access to Logan’s garage, appellant entered
the house and discovered that the car belonged to Cooper, who agreed to move it.
After awakening Logan, appellant returned to the house’s driveway, where Cooper
told him that he could not move his car because appellant’s car was blocking it.
When appellant disagreed, they “had a few words” not rising to a verbal
altercation. During the incident, Logan accidently fell. According to appellant, he
engaged in no physical altercation with Cooper, and never pushed Logan.


                                   DISCUSSION
      Appellant contends there is insufficient evidence to support the trial court’s
finding that he violated his parole conditions by engaging in criminal conduct. As
explained below, we disagree.
      Parole revocation determinations are subject to proof by the preponderance
of the evidence. (Pen. Code, § 3044, subd. (a)(5).) Generally, such
determinations are subject to review for the existence of substantial evidence.
(See People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We will imply
any findings sufficient to sustain the determination, and examine the record for




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substantial evidence to support those findings. (People v. Andary (1953) 120
Cal.App.2d 675, 680.)1
      Under the “substantial evidence” standard, the testimony of a single witness
ordinarily suffices to uphold a judgment “even if it is contradicted by other
evidence, inconsistent or false as to other portions. [Citations.]” (In re Frederick
G. (1979) 96 Cal.App.3d 353, 366.) The circumstances in which an appellate
court may properly decline to credit testimony are exceptional and rare. (People v.
Ennis (2010) 190 Cal.App.4th 721, 728-732.) “‘Testimony may be rejected only
when it is inherently improbable or incredible, i.e., “‘unbelievable per se,’”
physically impossible or “‘wholly unacceptable to reasonable minds.’”’
[Citation.]” (Id. at p. 729, quoting Oldham v. Kizer (1991) 235 Cal.App.3d 1046,
1065.)
      Here, Deputy Sheriff Alvarez and Parole Agent Milton testified regarding
Logan’s remarks to them concerning appellant’s conduct on April 19, 2015.
Under Evidence Code sections 770 and 1235, a witness’s prior inconsistent
statements may be admitted for impeachment purposes and as substantive
evidence, provided the witness is afforded an opportunity to explain them.



1      On review for substantial evidence, “‘we must view the evidence in the light
most favorable to the People and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and
of solid value, nonetheless it is the exclusive province of the trial judge . . . to
determine the credibility of a witness and the truth or falsity of the facts on which
that determination depends. [Citation.] Thus, if the verdict is supported by
substantial evidence, we must accord due deference to the trier of fact and not
substitute our evaluation of a witness’s credibility for that of the fact finder.
[Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)


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(People v. Brown (1995) 35 Cal.App.4th 1585, 1596-1597.) Such statements need
not have been testimony admitted into evidence at a prior hearing. (People v.
Ochoa (2001) 26 Cal.4th 398, 445, abrogated on another point in People v. Prieto
(2003) 30 Cal.4th 226, 263, fn. 14.) When the witness’s prior inconsistent
statements are properly admitted, the factfinder may credit or reject the version of
the pertinent events disclosed by the statements. (People v. Freeman (1971) 20
Cal.App.3d 488, 494-495.) On appeal, appellant does not suggest that Alvarez’s
or Milton’s testimony was incorrectly admitted.
       The version of the incident reflected in Logan’s statements to Deputy
Sheriff Alvarez amply supports the trial court’s conclusion that appellant engaged
in criminal conduct. According to those statements, appellant pushed -- or tried to
push -- Cooper’s face with his hands. When Logan attempted to restrain
appellant, he pushed her to the ground, causing her to suffer injuries. The
statements thus support the reasonable inference that appellant engaged in assault
or battery on Cooper (Pen. Code, §§ 240, 242), and also committed battery against
a person with whom he had a dating relationship, namely, Logan (id., § 243, subd.
(e)(1)).2




2      Generally, “[a] battery is any willful and unlawful use of force or violence
upon the person of another.” (Pen. Code, § 242.) As our Supreme court has
explained, “[a]ssault . . . lies on a definitional . . . continuum of conduct that
describes its essential relation to battery: An assault is an incipient or inchoate
battery; a battery is a consummated assault. . . . The criminal law . . .
independently sanctions the initiation of force or violence -- the ‘assault’ --
because it directly and immediately culminates in injury -- the ‘battery.’
[Citation.]” (People v. Colantuono (1994) 7 Cal.4th 206, 216 -217.) Each offense
is a general intent crime. (Id. at pp. 215- 217.)



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      Appellant contends there is insufficient evidence to establish the offense
initially alleged in the parole revocation petition, namely, infliction of corporal
injury on a cohabitant resulting in a traumatic condition (Pen. Code, § 237.5).
However, because the petition was effectively amended to charge appellant with a
violation of the parole condition prohibiting criminal conduct, his parole was
subject to revocation upon a determination that he had engaged in any criminal
conduct. As the record discloses substantial evidence to support that
determination, appellant’s contention fails.
      Appellant also contends the determination regarding his criminal conduct
fails for want of a specification of the pertinent crimes. We disagree. As noted
above, in examining the court’s determination for the existence of substantial
evidence, we imply findings sufficient to support that determination. Furthermore,
the record discloses that the court’s attention was directed toward the offenses of
assault and battery, as the prosecutor argued that the evidence established those
crimes. In sum, the trial court did not err in revoking appellant’s parole.




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                                 DISPOSITION
             The order revoking parole is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                            MANELLA, J.

We concur:




EPSTEIN, P. J.




WILLHITE, J.




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