Filed 4/20/15 P. v. Sekerke CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                        D066432

        Plaintiff and Respondent,

        v.                                                         (Super. Ct. No. CPR130208)

KEITH SEKERKE,

        Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Desiree

Bruce-Lyle, Judge. Affirmed.

         Theresa Osterman Stevenson, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and

Respondent.

         In November 2010, Keith Sekerke was sentenced to five years in state prison. In

March 2013, he was released from prison and placed on postrelease community
supervision. In May 2014, the San Diego County Probation Officer filed a petition for

revocation of Sekerke's postrelease community supervision based on the allegation

Sekerke did not comply with his probation officer's direction to enroll in and complete an

outpatient drug treatment program. The court, serving as the hearing officer, found

probable cause existed to support the petition and preliminarily revoked Sekerke's

postrelease community supervision status.

       In July 2014, following an evidentiary hearing, the trial court affirmed the

revocation, reinstated Sekerke's postrelease community supervision status on the same

terms and conditions originally granted, and ordered him to serve 180 days in custody.

Sekerke appealed, claiming the trial court abused its discretion because the evidence was

insufficient to revoke his postrelease community supervision status.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On November 1, 2010, Sekerke was sentenced to five years in state prison

following his conviction for possession of a deadly weapon by a prisoner (Pen. Code,

§ 4502, subd. (a))1 and misdemeanor battery by a prisoner on a non-confined person

(§ 4501.5). On March 21, 2013, he was released from state prison and placed on

postrelease community supervision with the San Diego County Probation Department for

three years.

       On April 21, 2014, Sekerke was assigned to San Diego County Probation Officer

David Pittman. That day, Pittman interviewed Sekerke, told him he would be required to


1      All statutory references are to the Penal Code.

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participate in an outpatient drug treatment program, and asked him to return to the office

on April 30 for a referral to that program. When Sekerke did not report to the office as

instructed, Pittman called him and told him to come to his office the next day, Thursday,

May 1, at 8:00 a.m.

       On May 1, Sekerke reported to Pittman at 9:15 a.m.2 Pittman gave him the

referral and told him to go to the McAlister Institute to check into an outpatient treatment

program. Pittman then called McAlister to tell them Sekerke would be late, since intake

was scheduled to begin at 9:15 a.m. McAlister told Pittman if Sekerke was late they

would have to reschedule his intake for the following day, May 2.

       Later that morning, when Sekerke arrived, McAlister told him he would have to

reschedule. Pittman and Sekerke disagree about what happened next. According to

Pittman, Sekerke was supposed to check in the next day, as Pittman had discussed with

McAlister over the phone while Sekerke was still in his office. According to Sekerke,

McAlister rescheduled his intake for Monday, May 5. Sekerke did not check in on May 2

and, on May 5, Sekerke called McAlister to tell them he could not come in because of a

conflicting doctor's appointment. He also called his private medical insurance, hoping to

make arrangements for intake at a different treatment center.

       Sekerke never returned to McAlister. On May 12, Pittman arrested Sekerke for

not complying with his directions to enroll in and complete an outpatient drug treatment




2     At the hearing, Sekerke testified that he arrived at or near 8:00 a.m., but because
he was late to McAlister nonetheless, the difference is immaterial.
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program. Sekerke asserts he would have enrolled in a different program, one covered by

his private medical insurance, if not for the arrest.

       On May 19, 2014, Pittman filed a petition for revocation of Sekerke's postrelease

community probation status. The court, serving as the hearing officer, found probable

cause existed to support the petition and preliminarily revoked Sekerke's postrelease

community supervision status. On July 9, 2014, the San Diego County Superior Court

conducted an evidentiary hearing pertaining to Pittman's petition for revocation. The

court affirmed the revocation, reinstated Sekerke's postrelease community supervision

status on the same terms and conditions as before, and ordered him to serve 180 days in

custody.

       Sekerke filed a timely notice of appeal on July 31, 2014, alleging the trial court

abused its discretion by revoking his postrelease community supervision status based on

insufficient evidence.

                                        DISCUSSION

                                                 I

                                     Standard of Review

       A trial court may revoke a defendant's probation on a finding by a preponderance

of the evidence that the defendant violated one or more probation conditions. (People v.

Rodriguez (1990) 51 Cal.3d 437, 441-442.) This standard applies similarly to a trial

court's ability to revoke a defendant's postrelease community supervision status, which is

akin to a grant of probation. (Id. at p. 447.)



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       A trial court's finding that a violation has occurred is reviewed for abuse of

discretion. (People v. Rodriguez, supra, 51 Cal.3d at p. 442; § 1203.2, subds. (a) & (b).)

But where, as here, the trial court was required to resolve conflicting evidence during

revocation proceedings, and the defendant subsequently claims the trial court based its

decision on insufficient evidence, review on appeal is limited to the determination of

whether, on review of the entire record, substantial evidence supports the trial court's

decision. (People v. Kurey (2001) 88 Cal.App.4th 840, 848; People v. Johnson (1980) 26

Cal.3d 557, 578.) The reviewing court must construe the record in the light most

favorable to the judgment below, leaving credibility of witnesses solely within the

purview of the trier of fact. (Kurey, at pp. 848-849 [all conflicting evidence resolved in

favor of decision]; Johnson, at p. 578.)

                                             II

                      Postrelease Community Supervision Violation

       The trial court found Sekerke in violation of his postrelease community

supervision conditions for not reporting to McAlister, an outpatient drug treatment

program, as directed by his probation officer. The court stated, "They directed him to

return on May 2nd without the need for another referral, which is based on the testimony.

He failed to report on May 2nd. End of story."

       Sekerke contends the record is insufficient to establish by a preponderance of the

evidence that he willfully violated the terms of his postrelease community supervision.

He claims neither Pittman nor McAlister instructed him to report for intake on May 2,



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and the trial court's finding to the contrary was based on an assumption not supported by

substantial evidence.

       Pittman's testimony indicates, however, that Sekerke did not report as directed.

First, Pittman testified that on May 1, before Sekerke left his office, Pittman called

McAlister to tell them Sekerke would be late, and McAlister told Pittman they would

likely have to reschedule Sekerke's intake for the following day, May 2. Pittman then

testified McAlister in fact rescheduled Sekerke for May 2, and Sekerke did not report on

that date. In response to a question asking Pittman whether he knew on which date

Sekerke was rescheduled for intake, Pittman stated, "Yeah. It was May 2nd. It was

Friday." And in response to a question asking Pittman whether Sekerke showed up to

that appointment, he stated, "No-show on Friday, May 2nd; no call on May 2nd to the

program."

       Sekerke asserts he was rescheduled for intake on May 5, not May 2. The trial

court, siding with Pittman, disagreed. "[S]ubstantial evidence—that is, evidence which is

reasonable, credible, and of solid value—such that a reasonable trier of fact could find the

[applicable burden was met]," supports the trial court's decision. (People v. Johnson,

supra, 26 Cal.3d at p. 578.) Pittman's testimony convinced the trial court Sekerke did not

enroll in McAlister in violation of Pittman's instructions. Pittman's testimony constitutes

substantial evidence. The trial court is in a better position to observe the witnesses and to

generally get a feel for the case. Because we must construe the record in the light most

favorable to the judgment below, we affirm.



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                               DISPOSITION

      The order is affirmed.




                                             McDONALD, J.

WE CONCUR:


NARES, Acting P. J.


HALLER, J.




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