Filed 4/1/15 P. v. Duran 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.




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



THE PEOPLE,                                                                                  C076513

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF124372A)

         v.

GILBERT RAYMOND DURAN,

                   Defendant and Appellant.




         Defendant Gilbert Raymond Duran appeals the trial court’s finding that he
violated probation, contending there was insufficient evidence he willfully violated a
restraining order. We affirm the judgment.
                                                 BACKGROUND
         Defendant is the father of Mary Dominguez’s five children. They have known
each other since they were teenagers, and have been in an on-and-off relationship for
15 years. In March 2013 a restraining order was in place, prohibiting defendant from
going to Dominguez’s apartment. Defendant violated the restraining order, and while at



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Dominguez’s apartment, defendant pushed over her mother, Nellie Ramirez. Ramirez
fell, hit her head on the ground, and sustained a serious head injury.
         Defendant pleaded no contest to assault (Pen. Code, § 245, subd. (a)(4)),1 admitted
a great bodily injury enhancement (§ 12022.7, subd. (e)), and admitted he violated an
existing restraining order (§ 273.6). The trial court suspended imposition of sentence and
placed defendant on probation. The trial court also ordered defendant to stay 100 yards
away from, and have no contact with, Ramirez and to stay away from her residence,
vehicle, and place of employment. Among the terms and conditions of probation,
defendant was also ordered to obey all laws and court orders, including the restraining
order.
         On February 5, 2014, the People filed an order to show cause as to why probation
should not be revoked. The affidavit alleged a February 3, 2014, violation of
section 273.5, subdivision (a) for corporal injury to Dominguez.2 On March 12, 2014,
the order to show cause was amended to allege additional violations of section 273.6 on
September 5 and September 16, 2013. No victim was named.3
         Ramirez testified she was not certain what had happened in September 2013
because of the concussion she sustained as a result of defendant’s assault in March, but
she indicated her statements to the police were accurate. Ramirez and Dominguez lived
with each other off and on, in various apartments. Their apartments were very close to
each other, in the same complex. She stated on September 5, 2013, defendant came to
her home and knocked on her door. She told him to leave and he did. On September 16,




1   Undesignated statutory references are to the Penal Code.
2   The trial court found there was insufficient evidence to sustain this allegation.
3 The trial court had terminated the criminal protective order as to Dominguez on July 1,
2013. Thus, the only existing order was as to Ramirez.

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2013, he loudly knocked on her door at 3:30 a.m. and asked for her daughter. She called
the police because she was afraid and there was a restraining order in place. Ramirez
could not remember which specific apartment defendant came to, but at the time, she was
staying with her daughter, helping care for her children. Ramirez could see defendant
through the peephole or a window in the door, and she recognized his voice.
       The trial court found that while Ramirez was sometimes seemingly evasive and
unsure in her testimony, she was credible when she testified that she saw defendant
outsider her door on September 5 and September 16. Given the existing restraining
order, the trial court found defendant had violated probation. The trial court sentenced
defendant to an aggregate term of five years in state prison.
                                       DISCUSSION
       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].” (§ 1203.2, subd. (a).) “The standard of proof in probation revocation
proceedings is proof by a preponderance of the evidence.” (People v. Stanphill (2009)
170 Cal.App.4th 61, 72; see People v. Rodriguez (1990) 51 Cal.3d 437, 443.) The trial
courts have very broad discretion in determining whether a probationer has violated
probation, and only in extreme cases should an appellate court interfere with that broad
discretion. (Rodriguez, at p. 443.)
       Where the trial court resolves conflicting evidence to determine whether a
probationer willfully violated probation, review on appeal is based on the substantial
evidence test. (People v. Kurey (2001) 88 Cal.App.4th 840, 848.) “Under that standard,
our review is limited to the determination of whether, upon review of the entire record,
there is substantial evidence of solid value, contradicted or uncontradicted, which will
support the trial court’s decision.” (Ibid.) We find there is substantial evidence
supporting the trial court’s findings that defendant violated his probation.

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       In September 2013 there was a restraining order in place that required defendant to
stay 100 yards away from Ramirez and her residence. Defendant was aware of this order.
Ramirez and Dominquez lived together on and off. In March 2013, also in violation of a
restraining order, defendant went to Dominquez’s home and Ramirez was there. In
September 2013 Ramirez was staying with her daughter, helping care for Dominguez and
defendant’s children. Sometimes Dominguez lived with Ramirez at Ramirez’s apartment
and sometimes Ramirez lived with Dominguez at Dominguez’s apartment. The two
incidents here took place within 11 days of each other, where defendant went to an
apartment and Ramirez was there. Given that defendant was also the father of
Dominguez’s children, the long-term nature of his relationship with Dominguez, and the
close proximity of the apartments, it was reasonable for the trial court to infer that
defendant was aware of the child care arrangements for his children and, specifically, that
Ramirez was staying with Dominquez, caring for their children, and would be at the
apartment.
       Defendant relies on People v. Galvan (2007) 155 Cal.App.4th 978, 982 and
People v. Zaring (1992) 8 Cal.App.4th 362, 375-379 to argue there was insufficient
evidence he willfully violated the order. Neither advances his position. Those cases
address the concept of “willfulness” in circumstances where it was physically impossible
for a probationer to comply with the conditions of probation due to circumstances beyond
the probationer’s control. Here, it was not impossible for defendant to comply with the
conditions of probation due to circumstances beyond his control. If defendant wanted to
visit his children or Dominguez, all defendant had to do was call Dominguez and ask if
Ramirez was staying with her and the children. If so, he could avoid that location and
make other arrangements. This is not an unreasonable burden to place on defendant to
ensure compliance with the restraining order.
       On the record before us, we find there was sufficient evidence to support the trial
court’s finding that defendant willfully violated his probation.

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                                 DISPOSITION
     The judgment is affirmed.



                                               RAYE   , P. J.



We concur:



     NICHOLSON          , J.



     BUTZ               , J.




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