Filed 12/16/13 P. v. Crawley CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B243199

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA045326)
         v.

TRAVIS L. CRAWLEY,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Hayden A.
Zacky, Judge. Affirmed.
         Christine J. Esser, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
                                     _____________________________
       While on probation after pleading no contest in 2009 to one count of second
degree robbery, Travis L. Crawley was charged with residential burglary. Crawley was
found not guilty after a jury trial; but the court, based upon the same evidence, found he
had violated his probation and imposed the previously suspended five-year prison term
for robbery. Crawley appeals, contending the evidence was insufficient to support a
finding he had violated his probation and the trial court abused its discretion and violated
his right to due process by failing to credit the eyewitness’s in-court testimony that
Crawley was not one of the burglars. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. Crawley’s Prior Robbery Conviction and the Subsequent Burglary Charge
       In April 2009 Crawley was charged with two counts of second degree robbery
(Pen. Code, § 211), each with a criminal street gang enhancement (Pen. Code, § 186.22,
subd. (b)(1)(C)). Pursuant to a negotiated agreement, Crawley pleaded no contest to one
count of robbery and the remaining count and special allegations were dismissed.
Crawley was sentenced to five years in state prison; execution of sentence was stayed;
and Crawley was placed on probation for five years on various terms and conditions
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including serving 166 days in county jail and performing 20 days of work for Caltrans.
       In a criminal complaint filed October 20, 2011 Crawley was charged with having
committed first degree residential burglary (Pen. Code, § 459) on October 7, 2011.
Crawley was arraigned on November 17, 2011 and pleaded not guilty. On the same date
Crawley’s probation was summarily revoked based on the burglary charge. The hearing
on the probation violation was continued pending resolution of the criminal charge.
       At the outset of trial on the burglary charge, the court advised Crawley and his
counsel it would be considering the evidence presented not only for purposes of the new
criminal charge itself but also to determine whether Crawley had violated his probation.


1
       Crawley admitted probation violations in 2010 and 2011. On each occasion
probation was reinstated with additional terms (either additional Caltrans service or
county jail time).
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       2. The Evidence at the Burglary Trial
       Vikkii Nunley and Crawley were friends. Crawley spent the night of October 6,
2011 at Nunley’s apartment in Lancaster but ultimately declined the invitation to go the
following morning to Las Vegas with Nunley, her boyfriend and another friend to
celebrate Nunley’s birthday, explaining he needed to work. When Nunley returned home
on Sunday evening, October 9, 2011, she found her front door, which she had locked
when she left, kicked in. The flat-screen television from her upstairs bedroom and a gold
ring, which had been in a box on the counter in her bathroom, were missing. Nunley
called the police emergency number.
       On October 10, 2011 Nunley spoke to her next-door neighbor, Jamal Flanagan,
who told her he had seen two men carrying her television out through the walkway.
Flanagan said he had called the police and made a report. Nunley asked Flanagan what
the men looked like and, according to Nunley, “He said he didn’t see one, but one of
them was light-skinned and I was just with him.” However, Flanagan did not know who
it was. Nunley then went to her Facebook page, reviewed the photographs of her friends
to see who matched that description and came to Crawley’s. She showed Flanagan two
photographs but apparently specifically asked him if Crawley was the individual he had
seen. Flanagan said yes.
       On October 18, 2011 Los Angeles Sheriff’s Deputy Julia Vezina showed Flanagan
a photographic lineup (a “six-pack”), and he quickly identified Crawley as one of the two
men involved in the burglary. According to Flanagan, Crawley had acted as the lookout,
and the other individual had carried the television away from Nunley’s apartment. The
two men then escaped with the television over the wall of the bordering complex. When
Deputy Vezina contacted Flanagan a short time later regarding an attempt to identify the
second suspect, Flanagan told the deputy he was no longer interested in assisting with the
case and refused to meet with her.
       Deputy Vezina arrested Crawley on October 18, 2011. Prior to being questioned,
Crawley was advised of his right to remain silent, to the presence of an attorney, and, if

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indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602,
16 L.Ed.2d 694].) Crawley told Deputy Vezina he had been working with Carlos Rivera,
his boss, doing renovation work on two houses at the time of the burglary. When Deputy
Vezina called the phone number Crawley provided for Rivera, Crawley’s brother
answered. The following day Deputy Vezina interviewed Rivera at a home (apparently
where he was working); both Crawley’s brother and his mother were present when the
deputy arrived, and Rivera appeared very nervous.
       Virgil Carter testified he saw two young (between 17 and 20 years old), African-
American males walking through the carport of the apartment complex carrying a large
television sometime before noon on October 7, 2011. They were each wearing a hoodie
and blue jeans. He saw them a second time without the television set.
       A recording of Flanagan’s telephone call with the police emergency operator on
the morning of the burglary was played for the jury. At 10:20 a.m. Flanagan reported he
just saw somebody steal a television, “They’re, they’re walking away now.” Flanagan
gave the address of the apartment complex and said he was not sure which apartment
they had come from. As he was talking, the individuals hopped the gate to the apartment
complex just behind his. The operator then asked for a description and specifically
inquired, “Black, White, Hispanic?” Flanagan replied, “Two Black guys. One of them,
umm, they’re both light skinned, one of them had a brown, I mean a grey hoodie on and a
yellow and grey hat. They both had blue jeans on.”
       At trial Flanagan acknowledged he had been outside his apartment when he saw
two young men, one with a television, running away and had made the emergency call in
response, but added, “I don’t remember in detail, though . . . .” Flanagan spoke to a
police officer shortly after the emergency call, but insisted he did not remember what he
had said. Shown a copy of a report with his statement describing in detail the suspects
and the television set they were carrying, as well as their escape route, Flanagan
conceded he must have said what was recorded in the report, but again insisted he did not
remember. During his testimony Flanagan interjected several times and then testified

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directly that, although Crawley fit the description he had given, he was not the person he
had seen walking away with the television. (“The dude that I saw, that’s not him right
there.”)
       Flanagan claimed he had not identified Crawley to Nunley when she showed him
Crawley’s Facebook picture and explained, when he had identified Crawley in the
photographic lineup, he simply was “[g]oing off” the Facebook photograph and Nunley’s
insinuation that Crawley had been involved in the burglary. (Flanagan claimed he did not
tell Detective Vezina about Facebook because she had not asked him.) Flanagan also
testified he had seen Crawley’s brother, Tevin Crawley, several days before his trial
testimony and Tevin, not Travis Crawley, was the one Flanagan had seen with the
television. Flanagan denied he had been threatened with respect to his testimony or
possible identification of the individuals involved in the burglary.
       Police reports indicated the burglary occurred between 10:20 a.m. and 10:30 a.m.
on October 7, 2011. Cell phone records showed six calls on Crawley’s cell phone
between 10 a.m. and 11 a.m., all of which had been relayed from a tower two blocks from
Nunley’s apartment complex. Different towers would have been reflected for those calls
if Crawley had actually been at the two work sites he identified and his cell phone was
with him at the time.
       Crawley did not testify in his defense. He presented the testimony of a friend of
Nunley’s, Shatera Harris, who said Nunley had told her about a year before the burglary
the ring (which had belonged to Nunley’s grandmother) was missing. Harris also
testified the television set in Nunley’s bedroom was broken prior to the burglary. Finally,
Harris said she had seen Nunley hug Crawley about a week before he was arrested and
say, “I’m sorry, I didn’t mean to blame you. I know it wasn’t you . . . .” The defense
also called Tracy Stewart, a community service officer with the sheriff’s department in
Lancaster. Stewart testified on October 10, 2011 she had interviewed Flanagan, who
described the suspects as a Black female with a light complexion and a Black male, also
with a light complexion and wearing a hoodie.

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       The court’s minute order of June 27, 2012 indicates the jury retired to commence
deliberations at 9:42 a.m. At 11:20 a.m. the jury informed the court it had reached a
verdict. The jury found Crawley not guilty of burglary.
       3. The Probation Revocation Hearing
       No additional evidence was presented at the probation revocation hearing, which
was held on June 29, 2012, two days after the jury returned its not guilty verdict in the
criminal trial. The court gave its tentative ruling that Crawley had committed the
burglary and thus violated his probation, briefly reviewing the evidence and indicating its
view that Flanagan had lied on the witness stand. The court also cited In re Coughlin
(1976) 16 Cal.3d 52, a unanimous Supreme Court decision that held, “[T]he fact of an
acquittal establishes only that the trier of fact entertained a reasonable doubt of
defendant’s guilt. . . . [S]uch a doubt, of itself, would not preclude revocation of
probation.” (Id. at p. 59.)
       After giving the People and defense counsel an opportunity to argue, the court
found, by a preponderance of the evidence, that Crawley was in violation of probation.
The court imposed the previously suspended five year prison term for the prior robbery
conviction.
                                     CONTENTIONS
       Because Flanagan testified at trial that Crawley was not one of the burglars and the
jury found Crawley not guilty of the crime, Crawley contends (a) the evidence was
insufficient to support the court’s finding of a probation violation, and (b) rejection of
Flanagan’s testimony and reliance instead on his out-of-court, hearsay identifications of
Crawley was an abuse of discretion and violated his right to due process.
                                       DISCUSSION
       1. Substantial Evidence Supports the Decision To Revoke Probation
       A court may revoke probation “if the interests of justice so require and the court,
in its judgment, has reason to believe from the report of the probation or parole officer or
otherwise that the person has violated any of the conditions of his or her probation . . . .”

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(Pen. Code, § 1203.2, subd. (a); see People v. Galvan (2007) 155 Cal.App.4th 978, 981;
People v. Stanphill (2009) 170 Cal.App.4th 61, 72.) We review a decision to revoke for
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substantial evidence (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681),
according great deference to the trial court’s ruling, “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.’” (People v. Urke (2011)
197 Cal.App.4th 766, 773; accord, People v. Pinon (1973) 35 Cal.App.3d 120, 123.)
“Before a defendant’s probation may be revoked, a preponderance of the evidence must
support a probation violation.” (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197;
accord, People v. Rodriguez (1990) 51 Cal.3d 437, 447 [standard of proof for finding
probation violation is preponderance of the evidence].)
       Here, as discussed, the same judge presided at the burglary trial and the probation
revocation hearing. The evidence before the court, although not sufficient to persuade
the jury to find Crawley guilty, amply supported the finding, by a preponderance of the
evidence, that he had in fact committed burglary and thus violated his probation. The
court explained it found Flanagan’s pretrial statements to Nunley and Deputy Vezina
identifying Crawley as one of the two perpetrators to be reliable and rejected Flanagan’s
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in-court disavowal of those identifications as not credible. The court’s credibility


2
        “The standard of appellate review for determining the sufficiency of the evidence
is settled.” “In conducting such a review, we ‘“presume[] in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.” [Citation.]’
[Citations.] ‘Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence.’” (People v. Lee (2011) 51 Cal.4th 620, 632.)
3
         In the words of the court, “In my opinion, Jamal Flanagan was the definition . . . of
a recanting witness who got up there on the stand and clearly, in my opinion, lied to the
jury. . . . [H]e must have volunteered at least a dozen times that you were not the guy. . . .
[I]t didn’t fool me.” The court also questioned Flanagan’s explanation he had identified
Crawley only because Nunley had shown him Crawley’s Facebook photo and suggested
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determination, uniquely its to make in any event, was reinforced by Deputy Vezina’s
testimony regarding Flanagan’s initial cooperation followed by his announcement that he
was no longer willing to assist the police and his refusal to meet with her a second time.
Nunley’s testimony that Flanagan told her, before she showed him any photographs, that
she was “just with him” when discussing the young, light-skinned, African-American
male burglar further supported the reliability of the out-of-court identifications. Finally,
the court also found the cell phone records, which placed Crawley (or at least his cell
phone) close to the site of the burglary when he claimed to be some distance away,
                                  4
“powerful evidence” of his guilt. No more was required.
       The two out-of-court identifications were admissible under Evidence Code section
1235 once Flanagan testified inconsistently with those statements at trial. (See People v.
Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4 [prior inconsistent statements are admissible
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under Evid. Code, § 1235 to prove their substance as well as to impeach the declarant].)
And it is now well-established even a single out-of-court identification without additional
corroboration may be sufficient to sustain a finding an individual committed a crime.
(People v. Cuevas (1995) 12 Cal.4th 252, 257; see People v. Roa (2009) 171 Cal.App.4th
1175, 1180.)
       As the trial court explained at the revocation hearing, an acquittal at a criminal
trial does not preclude revocation of probation based upon evidence that the
defendant/probationer committed the offense. (In re Coughlin, supra, 16 Cal.3d at p. 52;



he was one of the perpetrators, noting Flanagan “never told the deputy that the reason he
picked you is only because he saw you on Facebook.”
4
       “[T]hen the phone records came in, and [the prosecutor] . . . was able to put . . . that
number that you gave deputies to a cell tower within close proximity to the burglary. And
to me, that was very powerful evidence because had you been working where you said you
were, your cell phone would have pinged off a different cell site miles . . . away.”
5
       Crawley concedes Flanagan’s out-of-court identifications were admissible under
Evidence Code section 1235 but disputes their reliability because, in his view, they were
not corroborated by other evidence.
                                              8
see People v. Towne (2008) 44 Cal.4th 63, 84 [discussing In re Coughlin].) Contrary to
Crawley’s argument, People v. Robart (1973) 29 Cal.App.3d 891, a case discussed and
distinguished by the Supreme Court in In re Coughlin, does not require a different result.
       In Robart probation was revoked following an acquittal on new charges “without
holding any hearing whatever on the nature of the underlying evidence.” (In re
Coughlin, supra, 16 Cal.3d at p. 58.) The appellate court properly reversed that finding,
the Supreme Court held, but did not establish a rule that an acquittal bars the court from
considering the underlying evidence in the case to establish a ground for revocation of
probation. (Ibid.) That is, a court revoking probation “cannot rely solely upon the filing
of a criminal charge against a defendant, once he has been acquitted of those charges”
(ibid.), but is not precluded from considering at a probation revocation hearing evidence
concerning that offense. (Id. at p. 59.)
       Here, unlike in Robart, a separate revocation hearing was held. The trial court,
which had heard all the evidence, provided a tentative ruling that outlined its views
supporting revocation of probation and gave counsel a full opportunity to argue. The
procedure followed was entirely proper. By reason of the difference in standards of proof
in criminal and probation revocation proceedings, there is no case law or policy
justification for concluding Crawley’s acquittal by the jury prevented the court from
considering the same underlying facts to find a violation. Given the extreme deference
we pay to the trial court’s credibility determinations, Crawley’s claim of insufficient
evidence must be rejected.
       2. Crawley’s Due Process Claim Lacks Merit
       Crawley’s due process argument—one not raised during the revocation
proceedings and, therefore, forfeited (see People v. Polk (2010) 190 Cal.App.4th 1183,
1194 [failure to object on ground asserted on appeal results in forfeiture even if defendant
asserted other arguments])—is in reality a replay of his substantial evidence challenge to
the finding of a probation violation. Crawley insists the court ignored or improperly
disregarded Flanagan’s in-court testimony and/or improperly relied upon Flanagan’s false

                                             9
out-of-court identifications (labeled “false” only because Flanagan subsequently testified
they were not true). Those credibility determinations were properly for the court to
make. There was no abuse of discretion or due process violation.
                                     DISPOSITION
       The order revoking probation and imposing the previously stayed state prison
sentence is affirmed.




                                                 PERLUSS, P. J.

       We concur:



              WOODS, J.



              ZELON, J.




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