Filed 6/16/15 P. v. Young 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                          B258505

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA387051)
         v.

ROSS YOUNG,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County,
Clifford L. Klein, Judge. Affirmed.
         Robert Booher, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Chung L. Mar and Jessica
C. Owen, Deputy Attorneys General, for Plaintiff and Respondent.


                                      ___________________________
       In November 2012, Ross Young pleaded no contest to one count of second degree
robbery pursuant to a negotiated agreement. Imposition of sentence was suspended, and
Young was placed on three years probation. In 2014, Young’s probation was revoked
after he was found in possession of a handgun and oxycodone; and he was sentenced to
three years in state prison. Young appeals from the order revoking probation, contending
the trial court failed to employ the proper standard of proof to determine whether he had
violated the conditions of his probation. Although the trial court erred, the error was
harmless, and we affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND
       At the probation violation hearing, Los Angeles County Sheriff’s Deputy Ryan
Walker testified that he and his partner initiated a traffic stop of Young, who was driving
a car registered to Christina Perodin. There were two male passengers in the car. Young
admitted to the deputies that he did not have a valid driver’s license and was currently on
probation. During a search of the car, the deputies found a clear plastic bag, containing
10 to 11 oxycodone pills, in the center console of the passenger compartment and a round
of live ammunition inside a tennis shoe in the trunk. Young acknowledged that he had no
prescription for the oxycodone pills.
       The deputies detained Young and decided to conduct a probation compliance
check of his residence. When they arrived at the residence, Young told the deputies that
his bedroom was a converted porch with a door at the front of the house. Inside the
bedroom, the deputies found a loaded .380-caliber semiautomatic handgun inside a
knitted glove sitting on top of a potted plant near the entrance.1




1     The bullet recovered from the trunk was not for a .380-caliber semiautomatic
handgun.


                                              2
       Young did not testify in his defense; he called two witnesses at the probation
violation hearing. Melissa Young (Melissa)2, Young’s aunt, owned the house where
Young lived. Melissa testified that the oxycodone pills belonged to Perodin, Young’s
finance, who had been prescribed the drug.3 Melissa also testified that the handgun had
been found weeks earlier in Nickerson Gardens by another nephew, Emmanuel Moore.
       Emmanuel Moore testified as a defense witness. According to Moore, to enter
Melissa’s house from the front, it is necessary to go through the door to Young’s
bedroom. As a result, Moore testified, many people travel through Young’s bedroom.
Moore denied having told Melissa the gun was his or having hidden the gun. Moore
testified that he had never known Young to have a gun.

              c. Counsels’ Argument and Trial Court’s Findings

       The prosecutor argued the recovery of the handgun in Young’s room and the
oxycodone in a car Young was driving established he was in possession of both items in
violation of his probation. Defense counsel argued that, by relying solely on where the
gun and oxycodone were found, the People failed to prove by a preponderance of the
evidence that Young either owned or possessed them.
       When counsel concluded their arguments, the trial court stated, “The burden is
strong suspicion or more likely than not.” The court then observed to be persuaded by
the defense argument, it would have to believe Young was “just extremely unlucky.”
The court discounted Melissa’s testimony as not credible and concluded, “I believe that
there is a strong suspicion that Mr. Young is in violation of probation.”




2      Because Young and his aunt, Melissa Young, share the same surname, to avoid
confusion, we refer to Melissa Young by her first name. (See People v. Jones (1996) 13
Cal.4th 535, 538, fn. 2.)

3     The defense introduced into evidence an empty pill bottle with a prescription in
the name of Parodin for oxycodine.

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                                      DISCUSSION
       Young is not challenging the sufficiency of the evidence to support the trial
court’s finding that he violated the conditions of his probation. Instead, Young contends
the court abused its discretion and violated his due process rights by improperly using the
lower strong suspicion or probable cause standard applicable at a preliminary hearing to
hold a defendant to answer (see Galindo v. Superior Court (2010) 50 Cal.4th 1, 6), rather
than the preponderance of the evidence standard appropriate for a probation violation
hearing (see People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066).
       “Ordinarily statements made by the trial court as to its reasoning are not
reviewable. An exception to this general rule exists when the court’s comments
unambiguously disclose that its basic ruling embodied or was based on a
misunderstanding of the relevant law.” (In re Jerry R. (1994) 29 Cal.App.4th 1432,
1440, citing People v. Butcher (1986) 185 Cal.App.3d 929, 936-937.) Appellate courts in
criminal cases may “consider a judge’s statements when, taken as a whole, the judge’s
statement discloses an incorrect rather than a correct concept of the relevant law,
‘embodied not merely in “secondary remarks” but in [the judge’s] basic ruling.’”
(People v. Tessman (2014) 223 Cal.App.4th 1293, 1303 (Tessman).)
       The record in this case demonstrates the trial court failed to apply the proper
standard of proof in making its ruling. Immediately following counsels’ arguments, the
court announced the applicable standard of proof was “a strong suspicion” or “more
likely than not,” and ultimately based its ruling on “a strong suspicion” that Young had
violated his probation. Thus, the court conflated two different standards of proof: The
preponderance of the evidence standard, by which a fact is proved, if “it is more likely
than not that the fact is true,” (CALCRIM No. 375) and the probable cause standard,
which signifies a lower standard of proof. The probable cause standard “refers to a state
of facts as would lead a man of ordinary caution and prudence to believe and
conscientiously entertain a strong suspicion of the guilt of the accused.” (People v.
Hurtado (2002) 28 Cal.4th 1179, 1189.) In criminal proceedings, probable cause
embodies a lower standard of proof than beyond a reasonable doubt, a preponderance of

                                             4
the evidence and a prima facie showing. (People v. Tuadles (1992) 7 Cal.App.4th 1777,
1783, citing Illinois v. Gates (1983) 462 U.S. 213, 232, 235.)
       The People’s reliance on Tessman, supra, 223 Cal.App.4th 1293, People v.
Sangani (1994) 22 Cal.App.4th 1120 and Ross v. Superior Court (1977) 19 Cal.3d 899 to
argue the trial court correctly employed the preponderance of evidence standard is not
persuasive. In Tessman, the defendant stole jewelry from two victims and was charged
with commercial burglary after selling some of the stolen jewelry to a pawn shop.
(Tessman, supra, 223 Cal.App.4th at pp. 1296-1297.) Following a bench trial, the court
found the defendant guilty, reasoning in part the defendant knew or reasonably should
have known the pawned jewelry was stolen. (Id. at p. 1301.) On appeal, the Tessman
court held, in the context of the trial court’s “entire statement of decision,” its erroneous
reference to what the defendant should have known was merely a “slip of the tongue” or
a secondary remark. (Id. at p. 1304.) The appellate court explained because the trial
court had clearly determined elsewhere in its statement of decision the defendant had
stolen the victims’ jewelry, the misstatement did not reflect its “actual conclusions or
reasoning.” (Ibid.)
       In Sangani, the defendants were convicted following a bench trial with dumping
and recklessly storing hazardous waste. (Sangani, supra, 22 Cal.App.4th 1138.) On
appeal, one of the defendants contended the trial court applied an improper standard in
holding him personally liable for the illegal conduct because the People misstated the
standard during argument. (Ibid.) In rejecting this claim, the Sangani court noted the
defendant had not pointed to a single statement by the trial court which suggested it had
applied the wrong standard. (Ibid.)
       In Ross, the trial court did not state it was applying the beyond the reasonable
doubt standard of proof in finding the defendants guilty of contempt for violating a court
order. (Ross, supra, 19 Cal.3d at pp. 902-905.) On appeal, the defendants argued in the
absence of an affirmative showing the trial court had employed the correct standard of
proof, error must be presumed. (Id. at p. 913.) The California Supreme Court
determined nothing in the record indicated the trial court was unaware of, or had decided

                                              5
to depart from, its obligation to apply the reasonable doubt standard. (Ross, supra, 19
Cal.3d at p. 915.) Furthermore, the trial court had characterized the contempt
proceedings as quasi-criminal to the parties at one point. (Ibid.)
       Here, unlike Tessman, Sangani and Ross, nothing in the record suggests that the
trial court actually applied the preponderance of evidence standard and that its
misstatement of the proper standard of proof was merely a slip of the tongue or a
secondary remark. Indeed, the court’s oral pronouncement plainly and unequivocally
shows the court erroneously based its ruling on the probable cause standard.
       Although the trial court erred in this case, the error was not prejudicial. Penal
Code section 1203.2, subdivision (a) authorizes a court to 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, has become abandoned to improper
associates or a vicious life, or has subsequently committed other offenses, regardless
whether he or she has been prosecuted for such offenses.” Among the conditions of
Young’s probation were that he obey all laws and not possess any deadly or dangerous
weapons, “including firearms, knives or other concealable weapons.”
       There was substantial evidence presented by the prosecutor that Young possessed
a handgun and oxycodone, which violated the conditions of his probation. Furthermore,
the record shows the trial court disbelieved the testimony of the defense witnesses. Thus,
while the court improperly relied on the wrong standard of proof at the revocation
hearing, in light of the People’s evidence and the trial court’s credibility determinations,
the error was plainly harmless, whether viewed through the prism of federal
constitutional law (Chapman v. California (1967) 386 U.S. 18, 24) or state law (People v.
Watson (1956) 46 Cal.2d 818, 836.)




                                              6
                                    DISPOSITION

      The order revoking probation is affirmed.




                                                ZELON, J.




We concur:




      PERLUSS, P. J.




      STROBEL, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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