Filed 9/22/20 P. v. Webb CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B300739
(Super. Ct. No. KA101455)
Plaintiff and Respondent, (Los Angeles County)
v.
RUSSELL ROBERT WEBB,
Defendant and Appellant.
Russell Robert Webb appeals the trial court’s order
revoking his probation and imposing a previously suspended six-
year prison term for first degree automated teller machine (ATM)
robbery (Pen. Code,1 § 211). Appellant contends the court abused
its discretion in revoking probation and declining to reinstate
probation. We affirm.
FACTS AND PROCEDURAL HISTORY
Because appellant pleaded no contest prior to a preliminary
hearing, the relevant facts are derived from the probation report.
All statutory references are to the Penal Code unless
1
otherwise stated.
In March 2013, appellant and codefendant Ephraim Cho were
members of the Hellside criminal street gang. Cho was
romantically interested in “Kathy,” who was in a relationship
with appellant’s friend, victim Benjamin Chen. Kathy told Chen
that Cho was “actively pursu[ing] her” and “want[ed] them to end
their relationship.”
On March 13, appellant called Chen and told him to meet
him at a church and that “if he did not come out and talk to them,
things could get worse.” When Chen approached the church, he
saw Kathy speaking to appellant and codefendant David Han, a
member of the Hanzkook Boyz criminal street gang. Cho drove
up in a vehicle and demanded that Chen get in. Chen got into
the front passenger seat and Han got in the back seat. Cho
identified himself as a Hellside member, pointed a gun at Chen,
and threatened to shoot him. Cho also pulled out a knife and
threatened to stab Chen.
Cho drove Chen to a parking garage, continued to threaten
him, and demanded money from him. Cho then drove Chen to
Chen’s house, where appellant got into the vehicle. Cho drove
Chen, Han and appellant to an apartment complex. Appellant
initially stayed in the car while Cho and Han took Chen to an
apartment within the complex. Inside the apartment, Cho
continued to threaten Chen and punched him in the face.
Appellant subsequently entered the apartment. While appellant
was present, Cho kicked Chen in the face and stomped on his
ankle. Cho pulled out a knife, held it against Chen’s neck, and
threatened to stab him.
Cho left the apartment and went to pick up Kathy while
appellant and Han stayed with Chen. Appellant and Han told
Chen he should not leave because it would “make matters worse.”
Cho subsequently returned to the apartment and threatened to
shoot Chen if he did not give him money.
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Han drove Cho and Chen to Chen’s home, where Chen
retrieved his ATM cards. Han then drove Chen to several banks,
where Chen withdrew a total of $2,400. Chen gave the money to
Han.
Appellant was subsequently charged with kidnapping to
commit another crime (§ 209, subd. (b)(1)), two counts of first
degree ATM robbery (§ 211), and second degree robbery (§ 211).
It was further alleged that a principal (Cho) personally used a
deadly weapon in committing the kidnapping (§ 12022, subd.
(b)(1)), and that the robberies were committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(C)).
On March 27, 2014, appellant pleaded no contest to one
count of first degree ATM robbery. The trial court sentenced him
to the upper term of six years in state prison, suspended
execution of the sentence, and placed him on five years of formal
felony probation. The terms and conditions of probation required
appellant to, among other things, report to probation within 72
hours of his release, “keep [his] probation officer advised of [his]
residence and telephone number at all times,” and “obey all laws
and . . . all orders, rules, and regulations of the probation
department and of the court.” The court asked appellant if he
accepted these terms and conditions, and appellant replied in the
affirmative.
Appellant initially reported to probation every month as
ordered by the probation department, but stopped reporting after
March 2, 2015. On June 29, 2015, appellant’s probation was
revoked and a bench warrant for his arrest was issued.
In May 2019, appellant was discovered to be in Hawaii and
was extradited to California. The court set the matter for a
probation violation hearing and ordered a supplemental
probation report. The supplemental probation report, prepared
by Deputy Probation Officer Sean Iverson, stated among other
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things that “since his grant [of probation], [appellant] has
sustained five misdemeanor arrests and convictions for theft in
Hawaii. Based on the frequency of arrests, it appears that
[appellant] may have fled California and had been residing in
Hawaii for an extended period of time. [¶] Despite [appellant’s]
young age and no prior engagement in the criminal justice
system, he was complying with the orders of the court and
probation department. [Appellant] was reporting monthly,
sometimes twice a month, through March 2015. From April
2015, [appellant’s] whereabouts had been unknown, which as
previously noted, he was in the state of Hawaii.”
The report further stated that “[appellant] has shown to
have an increasing propensity for engaging in criminal activity
. . . [and] appears to have developed a disregard for the judicial
system as well as for the public, which is cause for concern. . . .
[H]e appears to be a flight risk based on his recent criminal
activity in the state of Hawaii. [¶] If found in violation of
probation, it is imperative that he be held accountable, while
ensuring the safety and well being of the public.” The report
“recommended that [appellant] be found in violation of probation,
that probation be revoked, and [that the] previously pronounced
sentence be placed in full force and effect.”
Officer Iverson testified for the prosecution at the probation
violation hearing. Probationers are “typically” required to check
in with the probation department once every month, either in
person at the probation department office kiosk or “in [the] field.”
After reviewing appellant’s records, Officer Iverson determined
that the last time he checked in with probation was March 2,
2015, and that since then the probation department had not
heard anything from appellant and had no knowledge of his
whereabouts until he was found in Hawaii. Officer Iverson also
searched available databases to determine if appellant had been
4
convicted of any crimes since he last reported to probation and
discovered he had been convicted of theft in Hawaii on July 9,
2015, June 15, 2016, November 15, 2016, and May 2, 2019.
Records of the five convictions were admitted into evidence.
Appellant, against the advice of his attorney, testified on
his own behalf. He admitted failing to report to probation after
March 2, 2015, but purported to excuse this failure by offering
that his identification and all of his other belongings were stolen
while he was in Hawaii and that he “didn’t have the means to fly
back.” He also claimed he “had no probation officer to call
because he said he retired” and that in committing the thefts he
“did what [he] felt like [he] had to do to eat and . . . get by by
[him]self.” He also offered that prior to going to Hawaii he
reported to probation every month and claimed he “got permitted
by the supervisor at the time to travel and work there.” Because
of this, he “couldn’t receive any help or guidance” on how to get
back to California and added, “my reason I’m back now is because
I was extradited.” Appellant offered that “given the chance to be
reinstated on my probation, I would check in just as normal.”
At the conclusion of the hearing, appellant’s attorney did
not dispute that appellant had absconded from probation or that
since doing so he had been convicted of five separate theft
offenses. Counsel argued, however, that appellant had
committed the thefts in Hawaii “as a matter of necessity.”
The trial court found appellant in violation of probation,
revoked probation, and ordered execution of the previously
imposed six-year prison sentence. The court reasoned:
“[Appellant] fled the jurisdiction of the court. [He] did not have
permission to travel out of the state. [His] statement to this
court was an admission of his violation. [He] admitted to
violating the law not on one occasion, two occasions, three
occasions, but five different occasions. [Appellant’s] explanation
5
was completely hollow and false to this court. . . . I believe the
testimony to this court was an effort to try and avoid any
potential sentence in this matter.”
DISCUSSION
Appellant contends the court abused its discretion in
revoking probation because the evidence presented at the
probation violation hearing was insufficient to establish that he
violated his probation. He complains the court “found that
appellant violated probation by fleeing the jurisdiction of the
court, moving to Hawaii without obtaining permission, and by
failing to obey all laws . . . without taking judicial notice of any of
the imposed probation conditions, and the prosecution never
proved that any of these conditions was [sic] imposed.” Although
the supplemental probation report reflects that appellant violated
the conditions of his probation that required him to obey all laws
and the rules and regulations of the probation department, he
notes that the report was not offered into evidence at the
probation violation hearing and claims he “had never been
ordered to remain within the jurisdiction of the court or obtain
permission before moving” and that “[t]here was also no evidence
establishing that he did not obtain permission before moving.”
We are not persuaded.
Section 1203.2, subdivision (a) authorizes the court to
revoke probation after proper notice and a hearing if “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 their supervision . . . or has
subsequently committed other offenses, regardless of whether the
person has been prosecuted for those offenses.” (Italics added.)
“‘As the language of section 1203.2 would suggest, the
determination whether to . . . revoke probation is largely
discretionary.’ [Citation.] ‘[T]he facts supporting revocation of
6
probation may be proven by a preponderance of the evidence.’
[Citation.]” (People v. Galvan (2007) 155 Cal.App.4th 978, 981-
982.)
“[W]here the trial court was required to resolve conflicting
evidence, review on appeal is based on the substantial evidence
test. 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. In
that regard, we give great deference to the trial court and resolve
all inferences and intendments in favor of the judgment.
Similarly, all conflicting evidence will be resolved in favor of the
decision.” (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.)
Even without the benefit of the supplemental probation
report or other parts of the record establishing the conditions of
appellant’s probation, the court was presented with sufficient
evidence at the hearing to find that appellant had violated
probation. It is undisputed that appellant was on supervised
probation. At the probation violation hearing, Officer Iverson
testified that supervised probationers are typically required to
“check in” with the probation department once a month. The
officer also testified that the probation department’s records
demonstrated that appellant had last checked in on March 2,
2015. For over four years, the probation department was
unaware of his whereabouts. Moreover, appellant admitted in
his sworn testimony that prior to March 2015, he had reported to
the probation department at least once a month. He also
admitted that he failed to report to probation while he was in
Hawaii. He claimed that he once contacted the probation
department while he was in Hawaii, but that claim was
contradicted by Officer Emerson’s testimony. The court could
thus properly find, by a preponderance of the evidence, that
7
appellant had absconded from probation, i.e., that he “fled the
jurisdiction of the court” and “did not have permission to travel
out of state.” It would appear manifest that “[t]he probation
officer in California could not supervise a probationer who had
deserted probation and fled to another state.” (People v.
Washington (2002) 100 Cal.App.4th 590, 593.)
Moreover, the evidence presented at the probation violation
hearing established that during the four years appellant was in
Hawaii, he was convicted of five separate thefts. The undisputed
fact that appellant committed additional crimes while on
probation is sufficient by itself to support the revocation of
probation. “[O]ne of the most common probation conditions [is]
the implicit condition to obey all laws.” (People v. Hall (2017)
2 Cal.5th 494, 502.) “The proscription against criminal conduct is
so basic it is a condition of probation even if it is not expressly set
forth in the order.” (People v. Thrash (1978) 80 Cal.App.3d 898,
902.) Indeed, section 1203.2, subdivision (a) makes clear that the
commission of additional offenses while on probation is sufficient
by itself to warrant a revocation of probation. It is thus
irrelevant whether the evidence at the probation violation
hearing established that the requirement to “obey all laws” was
an express condition of appellant’s probation.
In re Marco A. (1996) 50 Cal.App.4th 1516, which appellant
offers in support of his claim, is plainly inapposite. In that case,
the prosecution filed a unitary Welfare and Institutions Code
sections 602 and 777 petition alleging assault with a deadly
weapon and felonious battery. At the time of the alleged offenses,
the minor was absent without leave (AWOL) from a prior
placement but this fact was not alleged in the unified petition. At
the hearing on the petition, the arresting officer testified that the
minor had admitted possessing a knife since he “AWOL’ed.” At
the end of the hearing, the juvenile court found the minor acted
8
in self-defense and found the allegations in the petition not true.
(Marco A., at p. 1519.) The prosecutor then sought to amend the
petition to include a new allegation that the minor violated the
terms of his probation because he admitted he was AWOL. The
court permitted the amendment, found the allegation true beyond
a reasonable doubt, and committed the minor to the California
Youth Authority. (Id. at p. 1520.) In reversing, the court of
appeal found that although the minor admitted he was AWOL,
there was no evidence presented at the hearing as where he had
been committed or under what authority he was committed. The
court reasoned that “[t]hese facts undoubtedly were readily
available in [the minor’s] own file. No one, however, offered the
file and no request was made the court take judicial notice of it.”
(Id. at p. 1521.)
Here, Officer Iverson testified that appellant had stopped
reporting to probation and that thereafter his whereabouts were
unknown. In his sworn testimony, appellant also admitted that
he had failed to report to probation for over four years, yet
claimed this failure was not willful. Moreover, it is undisputed
that during those four years appellant committed numerous
additional crimes. The court was thus presented with all the
evidence it needed to find appellant had violated his probation.
We also reject appellant’s claim that the court abused its
discretion in declining to reinstate probation rather than
ordering execution of the previously-imposed prison sentence.
The trial court is vested with broad discretion in determining
whether to reinstate probation following revocation or probation.
(People v. Jones (1990) 224 Cal.App.3d 1309, 1315.) “‘[O]nly in a
very extreme case should an appellate court interfere with the
discretion of the trial court in the matter of denying or revoking
probation.’” (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) This
plainly is not such a case. Appellant’s claim to the contrary
9
downplays the significance of the facts that he absconded from
probation supervision for over four years and committed
numerous additional crimes. His poor performance on probation
was an aggravating factor (Cal. Rules of Court, rule 4.414(b)(2)),
and a single aggravating factor is sufficient to justify the denial
of probation. (People v. Mehserle (2012) 206 Cal.App.4th 1125,
1158.) Moreover, the court is presumed to have considered all
the relevant criteria relating to the grant or denial or probation.
(Cal. Rules of Court, rule 4.409.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
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Jack P. Hunt, Judge
Superior Court County of Los Angeles
______________________________
Jenny M. Brandt, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, Kristen J. Inberg, Deputy Attorney
General, for Plaintiff and Respondent.