Filed 6/28/13 P. v. Cotton CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038176
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS090213A)

         v.

FAYLON DENIOUS COTTON,

         Defendant and Appellant.



         This appeal follows a probation revocation hearing and the subsequent sentencing
hearing that occurred on February 21, 2012.
         Pursuant to a plea agreement, Faylon Cotton (appellant) pleaded no contest to one
count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). In
exchange for his plea, appellant was promised that the court would consider placing him
on probation with a prison sentence imposed, but with execution suspended; and that if
the court chose not to admit appellant to probation, appellant would be able to withdraw
his plea.
         On March 22, 2011, the court imposed but suspended execution of a three year
prison sentence and admitted appellant to probation on the conditions, among others, that
he obey all laws and "not associate with any individuals who are on probation or parole."
Appellant accepted the terms of his probation. Appellant did not file a notice of appeal
from this hearing.
       Subsequently, on August 30, 2011, the probation department filed a notice of
probation violations. The probation officer alleged that appellant had violated his
probation by failing to obey all laws and by failing to refrain from having contact with his
brother Kajmar Cotton.1
       On October 18, 2011, following a contested probation revocation hearing
appellant was found to have violated his probation by committing a battery on Marjorie
Addison (his ex-girlfriend), and by associating with his brother contrary to the condition
of probation that he not associate with anyone who was on probation or parole.
       Thereafter, on December 12, 2011, appellant filed a motion to reopen the
probation revocation hearing so that he could present additional witnesses. Following a
hearing during which appellant's additional witnesses testified, the court denied the
motion to reopen.2
       It is with the denial of his motion to reopen the probation revocation hearing that
appellant takes issue. Specifically, appellant argues that the court abused its discretion in
denying the motion. In addition, appellant contends that the prohibition on his
associating with his brother was unconstitutional.
       For reasons that follow, we affirm the judgment.
                               Facts and Proceedings Below
       Briefly, we summarize the facts underlying appellant's conviction for felon in
possession of a firearm, but detail the testimony from the probation revocation hearing


1
       It appears that at the time appellant's brother was a parolee. His name is spelled
two different ways—Kejmar in the notice of violation of probation and Kajmar in the
reporter's transcript. For the sake of consistency we will use the spelling that appears in
the reporter's transcript.
2
       Subsequently, on February 21, 2012, the court ordered execution of the previously
imposed but suspended three year prison term.
                                              2
and the testimony from appellant's additional witnesses at the hearing on appellant's
motion to reopen.
Underlying Offense
       As to the underlying offense, the probation officer's report indicates that appellant
was a passenger in a Ford Explorer that was stopped for a traffic violation. After a police
officer discovered that appellant had a possible failure to appear warrant and was a
restrained person in a domestic violence restraining order that required him not to possess
any firearms, the officer asked appellant if he had any weapons on him. When the officer
told appellant that he was going to search him for weapons, appellant ran. The officer ran
after appellant. As he did so, the officer saw appellant reach with his right hand for his
front waistband area; the officer saw him produce a gun. The officer ordered appellant to
stop; the officer told appellant that if he did not stop he would be tased. Appellant failed
to comply and the officer tased him. Eventually, appellant was taken into custody.
Probation Revocation Hearing
       Marjorie Addison testified that she had dated appellant for approximately two
years and had lived with him "[o]ff and on" during that time, including in August 2011.
       Addison claimed loss of memory at the probation revocation hearing, although she
acknowledged that she had spoken to a Seaside police officer in August 2011. She could
not remember any of the specifics of the conversation other than she went to the police
station in order to get a restraining order. Repeatedly, she testified that she did not
remember what she told the officer; she said she had been under the influence of alcohol
and prescription medication when she spoke to the officer.
       Addison testified that on the day she spoke to the officer, she was in pain from a
fractured knee she had suffered after falling off her bicycle on August 20. She said she
was able to go dancing at a bar with appellant that night, but the next day when she
awoke her knee was hurting. She said she went to the hospital and told the doctor that
she had fallen off her bike.
                                              3
       Officer Uriah Allen testified that on the evening of August 25, 2011, Addison
came to the Seaside Police Department and requested to speak to an officer concerning
domestic violence. Addison told him that on the night of August 20, she and appellant
had had some drinks at a bar in Seaside. As they were leaving the bar, appellant became
angry with her because he believed she had "disrespected him." Appellant grabbed her.
As she pulled away from appellant he grabbed her again. As she tried to twist away from
appellant he pushed her to the ground and she injured her knee. Addison said that
appellant had "yell[ed]" at her and had both his hands around her neck. At the time
Addison made the report she was using crutches. Officer Allen testified that Addison did
not show any signs of intoxication when she was making the report.
       A deputy probation officer testified that she arrested appellant on August 26.
Appellant had a cellular telephone in his possession at the time of his arrest. On the
telephone, the officer found a photograph of appellant and his brother Kajmar kneeling in
front of a building. Although the officer was not sure, she thought appellant told her that
the photograph had been taken a few months earlier. The officer knew that appellant's
brother was on parole and that appellant was prohibited from associating with anyone
who was on parole. The officer testified that in April 2011, appellant had been
specifically told by his probation officer that he could not have contact with his brother
when the brother was released from prison absent prior court authorization.
       Detective Jackie Meroney interviewed appellant on August 31. As to the
August 20 incident, appellant told her that he and Addison were leaving a bar and
Addison fell and injured her ankle in the parking lot. Appellant explained that Addison
was intoxicated and had been smoking marijuana. Appellant also said that Addison had
fallen off her bicycle and hurt her knee. Appellant said that earlier on the day Addison
went to the Seaside Police Department, he had been to Addison's house with another
woman—the mother of his child—and told Addison he was moving out. Addison reacted
angrily and threw some of his belongings into the yard. According to appellant, he
                                             4
requested two "civil standbys"3 from the police on that day so that he could retrieve the
rest of his belongings from Addison's house. Appellant told Detective Meroney that on
the day after this incident, he went to the Santa Cruz Boardwalk with his brother Kajmar;
appellant said that Kajmar had recently been released from custody.
       Appellant did not present any evidence at the probation revocation hearing.
Rather counsel argued that Addison had falsely reported that appellant had assaulted her
because she was angry with appellant for leaving her for another woman. As to his
alleged association with his brother, counsel argued that it had not been proven when the
photograph of appellant and his brother had been taken, and in any event it was a "de[]
minimis type violation."
       At the end of the hearing, the court found by a preponderance of the evidence that
appellant committed "a battery or a 273.5(a) or a 245(a)" based on Addison's testimony
and that of Officer Allen and Detective Meroney. Further, the court found that appellant
associated with his brother, "contrary to the conditions of probation that he was under"
based on the testimony of "probation officer Marshall" and "the pictures that were on the
cell phone that was retrieved from" appellant. Based on these findings, the court found
that appellant had violated his probation.
Motion to Reopen the Probation Revocation Hearing
       As noted, appellant filed a motion to reopen the probation revocation hearing.
Prior to this motion to reopen, appellant had filed a Marsden motion. One of the chief
complaints in that motion was that his attorney had not called several witnesses to testify
at the probation revocation hearing.
       In appellant's motion to reopen the probation revocation hearing, he asked to
present several witnesses including Katrina Cameron (the mother of his child) and the

3
        "A civil standby is a situation wherein an officer is present at the request of a party
to a civil dispute in order to prevent violence. [Citations.]" (People v. McElroy (2005)
126 Cal.App.4th 874, 882.)
                                              5
Monterey police officer who provided a civil standby when appellant retrieved his
belongings from Addison's residence. In the written motion appellant asserted that his
"primary complaint at the Marsden Motion was that his attorney . . . had failed to call
certain witnesses in his defense" and that if the court were to permit these witnesses to
testify it "would come to a different decision and he would not be found in violation."
       The trial court held an evidentiary hearing on appellant's motion to reopen the
probation revocation hearing at which Cameron and an Officer Ethan Andrews testified.
Officer Andrews testified that on the evening of August 25, 2011, he and another officer
went to Marjorie Addison's residence in response to a telephone call regarding a
disturbance. Officer Andrews spoke to appellant outside the residence. Appellant told
the officer that he had broken up with Addison and she would not let him inside to
retrieve his belongings. Officer Andrews testified that he saw Addison "moving clothes
out of the residence, occasionally throwing them off the front steps." Addison appeared
angry. When he tried to speak to Addison she was "uncooperative."
       Cameron testified that she and appellant "have a child together and one on the
way." Cameron said that she accompanied appellant to Addison's residence twice on
August 25 in order for him to get his belongings. Addison was "[a]ngry and belligerent"
and threw appellant's belongings out of her residence. Cameron testified that Addison
said, " 'I knew he was going to go back to your [sic] baby's momma, and that's what you
get. You're going to prison, nigga.' "
       After listening to argument from counsel, the court ruled, "[t]he only possibly
different testimony you have presented today is the statement by Ms. Cameron that she
had threatened to send defendant to state prison. The rest of the testimony from the
officer to Ms. Cameron really is pretty similar to what I heard, what this Court heard
before. [¶] And even taking all of the testimony as true by both witnesses here, I don't
think that there's enough evidence presented for the Court to reopen the hearing on the
probation violation matters. So the Court denies the motion to reopen at this time."
                                             6
                                          Discussion
Denial of Motion to Reopen
       Appellant argues that the trial court abused its discretion in denying his motion to
reopen the probation revocation hearing. Respectfully, we disagree.
       Under section 1203.2, subdivision (e), the trial court has authority to set aside its
order revoking probation "for good cause upon motion made before pronouncement of
judgment." (§ 1203.2, subd. (e).)4 Implicit in that authority is the power to reopen the
revocation hearing to take additional evidence if necessary to determine the propriety of
setting aside the order revoking probation. (See People v. Jackson (1996) 13 Cal.4th
1164, 1205 [noting that a trial court has inherent authority under Code of Civil Procedure
section 128, subdivision (a)(8), to amend and control its process and orders so as to make
them conform to law and justice].)
       The decision to grant or deny the motion to reopen was within the discretion of the
trial court. (Cf. People v. Green (1980) 27 Cal.3d 1, 42, overruled on other grounds in
People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3; People v. McNeal (2009) 46 Cal.4th
1183, 1202 [decision whether to reopen trial for good cause within discretion of trial
court]; People v. Jasper (1983) 33 Cal.3d 931, 935 [timing of probation revocation
hearing within discretion of trial court].)
       Respondent argues "[b]y allowing appellant to present all of the evidence he
wished had been presented at the initial revocation hearing, the court did, for all practical

4
       Section 1203.2, subdivision (e) provides: "If probation has been revoked before
the judgment has been pronounced, the order revoking probation may be set aside for
good cause upon motion made before pronouncement of judgment. If probation has been
revoked after the judgment has been pronounced, the judgment and the order which
revoked the probation may be set aside for good cause within 30 days after the court has
notice that the execution of the sentence has commenced. If an order setting aside the
judgment, the revocation of probation, or both is made after the expiration of the
probationary period, the court may again place the person on probation for that period
and with those terms and conditions as it could have done immediately following
conviction."
                                              7
purposes, 'reopen' the hearing. The only thing the court did not do was change its
conclusion that a probation violation had been shown. No abuse of discretion appears
under these circumstances."
       Our review of the trial court's exercise of discretion is guided by the California
Supreme Court's decision in People v. Martinez (1984) 36 Cal.3d 816 (Martinez). In
Martinez, the defendant moved for a new trial on the ground of newly discovered
evidence. (Id. at p. 820.) The trial court denied the motion, finding that defense counsel
was not diligent in discovering the new witness. (Id. at p. 821.) In its analysis, the
Supreme Court first considered the significance of the proffered witness, noting that
numerous cases hold that a motion for a new trial should be granted when the newly
discovered evidence contradicts the strongest evidence introduced against the defendant.
(Id. at p. 823.)
       A comparison to the facts of Martinez is illustrative of why the "newly discovered
evidence" in this case was not sufficient for the trial court to reopen the probation
revocation hearing.5 In Martinez the defendant was convicted of second degree burglary.
(Martinez, supra, 36 Cal.3d at p. 819.) The only evidence against Martinez was a palm
print found on a newly painted drill press at the scene. (Id. at p. 822.) One of the
employees of the burgled business testified he had painted the drill press the day before
the burglary. (Id. at p. 819.) After trial, a defense investigator located a witness who
could offer testimony the drill press was painted up to two weeks before the burglary.
(Id. at pp. 820-821.) The Supreme Court concluded that although the jury may not have
believed the second employee, that employee's testimony was exculpatory and may have
raised a reasonable doubt, particularly in light of the limited evidence supporting the

5
       We assume for the sake of argument that the evidence was "newly discovered" and
that appellant showed diligence in producing this evidence. (See People v. Williams
(1962) 57 Cal.2d 263, 270 [to entitle a party to have a new trial it must appear that the
evidence, and not merely its materiality be newly discovered, and the party could not
with reasonable diligence have discovered and produced it at the trial].)
                                              8
defendant's conviction. (Id. at pp. 823-824). Thus, the court held the trial court abused
its discretion in not granting a new trial motion. (Id. at p. 827.)
       Here, in contrast to Martinez, we cannot say that the "newly discovered evidence"
contradicted the strongest evidence against appellant. At best, it confirmed appellant's
statements to Detective Meroney that Addison was angry with him—thus providing a
motive for her to lie—and that she threw some of his belongings into the yard. In ruling,
the court considered all the evidence appellant had to offer, assumed that it was true and
still found no good cause to reopen the hearing. The testimony of Cameron and Officer
Andrews did not exonerate appellant. In contrast, Officer Allen's testimony provided
strong evidence that Addison was hurt by appellant.6
       Furthermore, the trial court may consider the credibility as well as materiality of
the newly discovered evidence in its determination of whether introduction of the
evidence in a new hearing would render a different result reasonably probable. (See,
People v. Sousa (1967) 254 Cal.App.2d 432, 435 [the court is entitled to consider the
credibility as well as the relevance of the proffered testimony in determining whether to
grant a new trial motion]; Martinez, supra, 36 Cal.3d at p. 821 [the evidence must be
such as to render a different result probable on a retrial of the cause].) Here, Cameron
had a strong incentive to provide exculpatory information as she already had one child
with appellant and was pregnant with another of appellant's children. On cross
examination she acknowledged that she had a strong desire to reestablish a relationship
with appellant; that they had talked about their plans once he was released from jail; and
she would have liked to have him released from jail as soon as possible. The trial judge
was well within his discretion in implicitly finding that Cameron's testimony would not
have changed the result if he reopened the probation revocation hearing.

6
        Addison's testimony at the probation revocation hearing that she hurt her leg from
falling off her bike was not credible given that she testified that she went out dancing
following the alleged fall.
                                               9
       In sum, we cannot say that it was an abuse of discretion to not reopen the
probation revocation hearing. In short, we conclude that appellant has failed to
demonstrate a " ' "manifest and unmistakable abuse of discretion" ' " in the trial court's
denial of his motion to reopen the probation revocation hearing. (See People v. Delgado
(1993) 5 Cal.4th 312, 328 [the determination of a motion for a new trial rests so
completely within the court's discretion that its action will not be disturbed unless a
manifest and unmistakable abuse of discretion clearly appears].)

Challenge to the Probation Condition Forbidding Association with Probationers and
Parolees
       Appellant contends that the prohibition on him associating with his brother was
unconstitutional. We note that appellant was not prohibited from associating with his
brother per se. Rather he was prohibited from associating with probationers and parolees.
We find appellant's challenge to this probation condition to be untimely.
       "[A] defendant who elects not to appeal an order granting . . . probation cannot
raise claims of error with respect to the grant . . . of probation in a later appeal from a
judgment following revocation of probation." (People v. Ramirez (2008) 159
Cal.App.4th 1412, 1421 (Ramirez).) Since appellant did not appeal from the March 22,
2011, order granting probation, he cannot challenge the conditions imposed pursuant to
that order in this appeal from the February 21, 2012, order revoking his probation. (Ibid.)
       This is so because "[a]n order granting probation and imposing sentence, the
execution of which is suspended, is an appealable order. [Citations.]" (Ramirez, supra,
159 Cal.App.4th at p. 1421.) "In general, an appealable order that is not appealed
becomes final and binding and may not subsequently be attacked on an appeal from a
later appealable order or judgment." (Ibid.) As relevant here, "when a court imposes
sentence but suspends its execution at the time probation is granted, a defendant has the
opportunity to challenge the sentence in an appeal from the order granting probation.
[Citation.] If the defendant allows the time for appeal to lapse during the probationary

                                              10
period, the sentence becomes final and unappealable. [Citation.] This is so regardless of
the fact the defendant will not serve the sentence unless the court revokes and terminates
probation before the probationary period expires." (Ibid.)
       Appellant asserts that the constitutional infirmity in the condition at issue here
only "became clear" when he was found in violation of his probation even though the
condition was valid when it was imposed. Citing In re Sheena K. (2007) 40 Cal.4th 875,
887–889, appellant argues that this court can review constitutional challenges to
probation conditions involving pure questions of law. His reliance on Sheena K. is
unavailing. In contrast to appellant, Sheena K. did not wait until her probation was
revoked to challenge a probation condition. She appealed from the order that imposed
that condition and challenged its constitutionality for the first time on appeal. (Id. at p.
878.) In that context, our Supreme Court concluded that "a challenge to a term of
probation on the ground of unconstitutional vagueness or overbreadth that is capable of
correction without reference to the particular sentencing record developed in the trial
court can be said to present a pure question of law" and thus may be reviewed on appeal
absent an objection in the trial court. (Id. at p. 887.) Appellant cites no authority for the
proposition that he can challenge a condition of probation following the revocation of
probation when he did not appeal the order that imposed that condition.7
       Appellant's challenge to the probation condition prohibiting him from associating
with probationers and parolees is untimely. Appellant has forfeited this challenge.




7
        Furthermore, appellant's challenge to the condition is not a facial challenge; nor is
it a challenge to the general rule that probation conditions may under certain
circumstances prohibit association with family members. Rather it a challenge to the
application of the associational limitation to this particular case and this particular
brother. As such appellant's challenge does not "raise pure questions of law" involving
review of only " 'abstract and generalized legal concepts . . . .' [Citation.]" (People v.
Urke (2011) 197 Cal.App.4th 766, 773, fn. 3.)
                                              11
                                 Disposition
     The judgment is affirmed.




                                   ___________________________________
                                   ELIA, J.


WE CONCUR:




____________________________
RUSHING, P. J.




____________________________
PREMO, J.




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