Filed 5/2/13 P. v. Denning CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D061658

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN279200)

FREDERICK DENNING,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Daniel B.

Goldstein, Judge. Affirmed.

         On February 28, 2011, Frederick Denning was convicted of driving under the

influence causing injury (Veh. Code, § 23153, subd. (a)), driving with a measurable

blood alcohol causing injury (Veh. Code, § 23153, subd. (b)) and possession of an open

container in a motor vehicle (Veh. Code, § 23223). It was also found that Denning

personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) and had driven

with a blood alcohol of 0.15 or more (Veh. Code, § 23578).
       On May 2, 2011, Denning was sentenced to a six-year term of imprisonment, the

execution of which was stayed for five years subject to a grant of probation. One of the

terms of probation was that Denning was not permitted to drive a car unless licensed and

insured as required by state law.

       On June 20, 2011, the court granted Denning's request for a restricted license to

drive to and from work and court-ordered programs and school.

       On December 13, 2011, probation officers arrested Denning for driving with a

suspended license and for driving in violation of the conditions of his probation.

       Following an evidentiary hearing the court revoked probation and executed the

previously suspended prison sentence.

       Denning appeals contending the trial court erred in admitting a Department of

Motor Vehicles (DMV) printout, which showed his license had been suspended in May

2011; that there is insufficient evidence that he willfully violated the conditions of

probation; that the condition of probation which restricted his driving ability was vague

and that the court abused its discretion in declining to reinstate him to probation in lieu of

the prison sentence. We will find the challenge to the probation condition has been

forfeited for failure to raise it in the trial court. We will reject the other contentions and

affirm the trial court's decision.

                                     STATEMENT OF FACTS

       Since this appeal challenges the revocation of probation we will not discuss the

facts of the underlying offenses. Suffice that Denning was found guilty of driving with a

blood alcohol of 0.22 and that he injured a person in the accident.

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       The factual background of the court orders and Denning's conduct are somewhat

confusing, however we will list some of them chronologically:

       1. On February 28, 2011, Denning was convicted of the underlying crimes.

       2. On March 29, 2011, DMV issued a driver's license to Denning, based upon a

previous application.

       3. On May 2, 2011, Denning was granted probation subject to certain conditions,

including that he not violate any laws, that he surrender his license, and that he not drive

a car unless licensed and insured as required by state law.

       4. On June 20, 2011, Denning requested a restricted license. Defense counsel told

the court that Denning "actually did a bench trial with a visiting judge. And his license

was reinstated by the DMV approximately a year ago, actually back in April. But when

he was sentenced the judge put a mandatory one year license suspension, which is

accurate, but ultimately he already served out his suspension, so he is asking for a

restricted license."

       The court granted his request for a restricted license. However, the DMV printout,

which was admitted in evidence at the revocation hearing, showed Denning's license was

suspended on May 2, 2011, and that the notice had been sent to him at his home address

on May 12, 2011.

       Probation officer Robert Frejek testified at the evidentiary hearing. He said he had

met with Denning a number of times at the address to which the DMV notice had been

sent. Frejek told Denning a number of times he could not drive a car as it would be a

violation of the terms of his probation.

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       In August 2011, Frejek met with Denning who said the court had granted him a

restricted license. Frejek reminded Denning he still had to get a valid license from DMV.

Denning said he had tried but that DMV told him he was not eligible until May 2012.

Denning denied driving and said he used public transportation and the assistance of

friends instead.

       As of September 2011, when Frejek met with Denning, Denning advised he still

did not have a license and knew he was not permitted to drive.

       In December 2011, the probation department learned that Denning had been seen

driving. They scheduled a compliance interview with Denning for December 13, 2011.

       Following the meeting Frejek observed Denning get into the driver's seat of a car

and start the engine. Frejek then arrested Denning for violation of probation. During the

discussion that followed, Denning admitted he had been driving, but contended he had no

choice. He also said he had driven to his last court appearance.

                                      DISCUSSION

                                             I

                           ALLEGED EVIDENTIARY ERROR

       During the evidentiary hearing the prosecution offered a certified copy of the

DMV printout of the notice to Denning that his license had been suspended effective

May 2, 2011. Denning objected principally on hearsay grounds. The trial court found

the document was an official record; that it was self-authenticating and that in any event

it was admissible in a probation revocation proceeding. Denning contends the court

abused its discretion in admitting the DMV record.

                                             4
                                   A. Standard of Review

       The trial court's decision to admit or exclude evidence at a probation revocation

hearing "will not be disturbed on appeal absent an abuse of discretion." (People v.

Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198; People v. Abrams (2007) 158

Cal.App.4th 396, 400.)

                                     B. Legal Principles

       Probation revocation hearings are not part of the criminal prosecution, thus a

defendant does not have the full range of rights that he or she would have in a criminal

trial. (People v. Shepherd, supra, 151 Cal.App.4th at p. 1198; Morrissey v. Brewer

(1972) 408 U.S. 471, 480.) The Sixth Amendment right to confrontation does not apply

to probation revocation hearings. (People v. Johnson (2004) 121 Cal.App.4th 1409,

1411.) The probationer's right to cross-examination and confrontation is thus based on

the due process clause of the Fourteenth Amendment. (Ibid.)

       Where appropriate, materials such as documentary evidence, not based on live

testimony, may be admissible in revocation proceedings. (People v. Maki (1985) 39

Cal.3d 707, 715; People v. Areola (1994) 7 Cal.4th 1144, 1156-1157.)

       In People v. O'Connell (2003) 107 Cal.App.4th 1062, 1064, the court approved of

the admission of an "Adult Program Termination Report" indicating the probationer had

failed to complete required classes. The court determined the report had the requisite

indicia of reliability and trustworthiness to justify its use at a revocation hearing. (Id. at

pp. 1066-1067.) Courts have also approved of the admission of probation reports and



                                               5
documents in revocation hearings. (People v. Abrams, supra, 158 Cal.App.4th at p. 401;

People v. Gomez (2010) 181 Cal.App.4th 1028, 1034.)

       Evidence Code section 1280, the so-called "official records" exception to the

hearsay rule, provides:

           "Evidence of a writing made as a record of an act, condition, or
           event is not made inadmissible by the hearsay rule when offered in
           any civil or criminal proceeding to prove the act, condition, or event
           if all of the following applies: [¶] (a) The writing was made by and
           within the scope of duty of a public employee. [¶] (b) The writing
           was made at or near the time of the act, condition, or event. [¶] (c)
           The sources of information and method and time of preparation were
           such as to indicate its trustworthiness."

       This section permits the introduction of official records without the necessity of

requiring a witness to testify as to identity or mode of preparation if the record supports a

finding the record is trustworthy. (People v. Martinez (2000) 22 Cal.4th 106, 129.)

                                        C. Analysis

       The document at issue in this case is a certified copy of a DMV notice to Denning

about the suspension of his driver's license. It reflects the actions of the agency and

shows it was mailed to Denning's address. Denning has always acknowledged the

address was correct. In addition, Denning admitted to the probation officer that he knew

his license had been suspended and that he had learned from DMV that he would not be

eligible for a license until May 2012, exactly a year from the date of suspension as set

forth in the notice.

       We are satisfied that the DMV document was of sufficient trustworthiness to

permit the court to admit it into evidence at the revocation hearing.


                                              6
                                             II

                           SUFFICIENCY OF THE EVIDENCE

       Denning contends there is not sufficient evidence in this record to support a

finding that he willfully violated the terms of his probation. He bases his contention

principally on the confusion caused when defense counsel in June 2011 was able to

convince the court to grant a "restricted license." That action was based on counsel's

representation that Denning had completed his suspension. The representation was not

correct, since prior to that time DMV had suspended Denning's license and had provided

him notice of the suspension. Denning persists, however, in the argument that the

confusion created by the court's June 20, 2011 order demonstrates there is not sufficient

evidence to support the finding. As we have noted previously, Denning not only received

notice of his license suspension as well as multiple warnings from his probation officer,

he also admitted to the probation officer that he knew the license was suspended and that

he learned from DMV he would not be eligible for reinstatement until May 2012.

       We believe a review of the entire record demonstrates there is sufficient evidence

to support a finding of willful violation of the conditions of probation.

                                  A. Standard of Review

       In order to prove a violation of probation the prosecution must establish such

violation by a preponderance of the evidence. (People v. Rodriguez (1990) 51

Cal.3d 437, 441-443.) On appeal, we review the trial court's decision under the familiar

substantial evidence standard of review. (People v. Kurey (2001) 88 Cal.App.4th 840,

848-849.) Under that standard, we evaluate the entire record, drawing all reasonable

                                              7
inferences in favor of the trial court's findings. We do not make credibility decisions, nor

do we reweigh the evidence. Our task is simply to determine whether there is sufficient,

substantial evidence from which the trial court could have found the prosecution satisfied

its burden of proof. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.)

                                        B. Analysis

       While it is true that the action of the defense in persuading the court in June 2011,

to authorize a "restricted license" added confusion to the record, it does not undermine

the sufficiency of the evidence to support a willful violation of the probation condition

prohibiting driving unless Denning was licensed and insured as required by state law.

The record clearly supports an inference that Denning was fully aware, after June 2011,

that he was not properly licensed by DMV and that he was not permitted to drive without

a valid license. The court admitted the DMV notice issued in May 2011 that Denning's

license was suspended May 2, 2011. The court could also reasonably find Denning

received that notice.

       Further, the probation officer testified to repeated warnings he gave to Denning

after June 2011, that he was not permitted to drive. Denning acknowledged that

limitation and explained to the probation officer that he had unsuccessfully attempted to

get a new license. It was Denning who told the officer that he had been advised by DMV

that he would not even be eligible for a new license until May 2012.

       Thus, when Denning drove to the probation office in December 2011, he was

aware he was not authorized to do so. He also admitted earlier driving and that he

actually had not taken a bus to one of his court appearances as he had previously

                                             8
indicated. In short, the DMV record and the probation officer's testimony constitute

sufficient substantial evidence to support the trial court's decision.

           C. Denning's Challenge to the Probation Condition Has Been Forfeited

         As an alternative argument that the evidence is insufficient, Denning, for the first

time on appeal raises a claim that the condition was vague as applied. Relying on In re

Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), Denning contends the condition

prohibiting driving was unconstitutionally vague, largely because of the modified order in

June 2011. We find the issue has been forfeited for failure to raise the issue in the trial

court.

         The vagueness challenge is based on the notion the defendant must be given fair

warning of the prohibited conduct. (Sheena K., supra, 40 Cal.4th at p. 890.) The

vagueness doctrine only requires a reasonable certainty as to what is prohibited. (People

v. Morgan (2007) 42 Cal.4th 593, 605.)

         The probation condition at issue here is crystal clear, do not drive unless licensed

and insured as required by state law. There is nothing vague about the condition.

Denning seeks to challenge the condition as applied, in light of the court's modification

order in June 2011. An appellant cannot challenge a condition of probation for the first

time on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237; People v. Gardineer (2000)

79 Cal.App.4th 148, 151.)

         By failing to object to the condition in the trial court Denning deprived that court

of the opportunity to review the challenge and to make modifications if necessary. The



                                               9
lack of objection also deprived us of a record of the trial court's analysis had the issue

been raised.

       The decision in Sheena K., supra, 40 Cal.4th at pages 887 to 888, dealt with a

condition that was vague on its face. It did not require examination of the factual

circumstances of the case and how the condition might have been unclear to the

defendant. The case does not challenge the holding in People v. Welch, supra, 5 Cal.4th

228, 237. Forfeiture in this case is particularly appropriate because the basis of the

purported challenge on appeal is that the condition became vague as applied after the

defense, and based on inaccurate information obtained a partial modification of an earlier

license suspension. As we pointed out above, however, Denning was well aware he did

not have a valid license when he was driving in this case. He was also keenly aware he

would not be eligible for a valid license until May 2012, and that he could not drive

without that license. Thus, we reject Denning's challenge on the ground of vagueness.

                                              III

                    THE COURT DID NOT ABUSE ITS DISCRETION

       Finally, Denning contends the trial court abused its discretion in executing the

suspended prison sentence instead of reinstating his grant of probation. The contention is

without merit.

                                  A. Standard of Review

       Trial courts have broad sentencing discretion, including whether to revoke or grant

probation. (People v. Rodriguez, supra, 51 Cal.3d at p. 445.) Such decisions are granted

great deference and will only be set aside when the record discloses a manifest abuse of

                                              10
the court's discretion. (People v. Pinon (1973) 35 Cal.App.3d 120, 123; People v. Urke

(2011) 197 Cal.App.4th 766, 773.)

                                        B. Analysis

       Denning essentially argues his otherwise good performance on probation renders

the trial court's decision to impose the previously stayed sentence unreasonable. This is a

classic case of the exercise of discretion. The trial court was fully aware of the facts and

considered various alternatives, before deciding that return to probation was not

appropriate. Is it possible that another judge with the same information might have

reached a different result? The answer is obvious, certainly reasonable minds could

differ in this case as to the proper course of action. However, the fact there were other

alternatives available does not make a trial judge's decision to reject those alternatives an

abuse of discretion.

       Denning's crime was serious and caused life changing harm to the victim.

Although Denning appeared to follow most of the conditions of probation, willful driving

without a license poses the very risk the probation condition was designed to prevent,

which is a repeat of his earlier offense. The trial court could consider Denning's actions

to be a willful disregard of the court's orders and a sign that he did not fully appreciate

the gravity of the underlying offense and its risk of harm to others. The trial court did not

abuse its discretion in this case.




                                              11
                                DISPOSITION

    The judgment is affirmed.




                                              HUFFMAN, Acting P. J.

WE CONCUR:



                   NARES, J.



                  HALLER, J.




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