People v. Cummings CA4/2

Filed 2/18/22 P. v. Cummings CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E076942

v. (Super.Ct.No. 21PA000383)

DAVID TYMEL CUMMINGS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Heather E. Shallenberger, under appointment by the Court of Appeal, for

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L.

Amann, Deputy Attorneys General, for Plaintiff and Respondent.

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 I.

INTRODUCTION

The trial court revoked defendant and appellant David Tymel Cummings’s parole

after he failed to charge the battery on his global positioning system (GPS) tracking

device as required and failed to attend his sex offender treatment program. The court

sentenced him to serve 180 days in county jail. On appeal, defendant contends (1) the

trial court erred when it admitted inadmissible hearsay evidence at his parole revocation

hearing, and (2) the trial court erred in finding he willfully violated his parole. We reject

these contentions and affirm the order revoking his parole.

II.

BACKGROUND

On September 27, 2020, defendant was released on parole following a four-year

prison term for sexual battery in violation of Penal Code1 section 243.4, subdivision (a).

One of his parole conditions required him to wear a GPS or other device for continuous

electronic monitoring. (§ 3010.10 [requiring paroled sex offenders to wear a GPS

device.].) Defendant was required to charge his GPS device at least twice a day (every

12 hours) for a full hour each time. Additionally, he was required to immediately contact

his parole agent if the GPS device vibrated or made an audible tone. A separate parole

condition required him to attend and participate in an approved sex offender program that

consisted of group and individual treatment sessions.

1 All further statutory references are to the Penal Code unless otherwise stated.
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 Following a parole revocation petition alleging that defendant had disabled his

GPS device and failed to attend a group session of his treatment program, the court held a

formal parole violation hearing. At the hearing, the People presented the testimony of the

parole agent who had been assigned to supervise defendant. The agent’s unit monitored

the locations of 296 sex offenders via a GPS monitoring system called VeriTracks.

The agent testified that on March 11, 2021, the VeriTracks monitoring center

notified his supervisor that defendant’s device had been rendered inoperable by a dead

battery. The agent also received a text from the monitoring system alerting him that

defendant’s battery was dead. The agent looked defendant up on the VeriTracks system

and verified that his battery was dead. According to the VeriTracks file, the battery went

dead at approximately 1:34 a.m.

The March 10, 2021 VeriTracks records indicated that defendant charged the GPS

device in the morning for approximately 55 minutes and then in the evening for

approximately one minute. The agent testified that both of these charging attempts did

not comply with defendant’s requirement to maintain his GPS device.

After the agent learned that defendant’s GPS was dead, he tried to contact

defendant by phone but received a message indicating the recipient could not be reached

at that time. Defendant made no attempt to contact the agent. The agent called

defendant’s mother, who told him that she had spoken to defendant via Facetime on his

computer, and he told her that he was on his way to the parole office. The agent told her

that defendant was in “dead battery” mode, and he needed to report immediately to get on

the charger.
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 Defendant was arrested at approximately 10:30 a.m. on March 11, 2021, a block

and a half from the parole office at the Daily Press building.

As to the second alleged violation, the agent testified that defendant was

participating in group and individual sex offender therapy at “Open Door.” The agent

learned that defendant had missed a March 10, 2021 session of that program through an

email that day from the Open Door office manager.

Due to Covid-19, the sex offender program was being held remotely via Zoom or

GoToMeeting. Defendant was homeless. The agent testified that he did not know if

defendant had access to Zoom; however, he said if he did not, then he could call in and

use telephone audio. The agent had several times observed defendant with a phone,

including when he used his phone to attend an intake of the Open Door program.

Defendant had changed his phone number and phone several times.

The agent had told defendant that the parole office could assist him with attending

his sex offender class. Indeed, the parole office had paid for phones for other parolees so

that they could attend sex offender treatment.

Defendant testified that on March 10, 2021, from approximately 3:00 to 5:00 p.m.,

he was in front of the parole office to charge his GPS device and to attend an Open Door

session. According to defendant, the agent or some other representative was supposed to

be there to aid him in taking his class because he did not have a working cell phone. He

acknowledged he attempted to charge his device at 5:04 p.m. while he was at the parole

office because he was “trying to ensure that [he] got a good charge in order to make it

through 12 hours that would be needed in order to go [] until the next morning.”
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However, he was unable to do so because the power had been turned off. Therefore,

defendant went to the Daily Press building, where he plugged his GPS device into an

external outlet to charge it. Defendant claimed that he left his device plugged into the

outlet but acknowledged that the Daily Press would sometimes turn off their external

outlets because homeless people using the outlets were “basically . . . stealing power.”

Defendant acknowledged that he spoke with his mother via FaceTime the morning

of his arrest at approximately 8:00 a.m. He said he used his fiancé’s cell phone to make

the call. He explained to his mother that he did not know whether the plug that he had

used at the Daily Press worked properly.

Following argument by the parties, the court found that the People had shown by a

preponderance of the evidence that defendant had violated both parole conditions by

failing to attend his sex offender treatment program and by disabling his GPS device.

The court revoked and reinstated defendant’s parole with the condition that defendant

serve 180 days in county jail. Defendant timely appealed.

II.

DISCUSSION

Defendant argues that the trial court violated his due process rights by admitting

“unsubstantiated” hearsay at his parole revocation hearing—namely, the content of the

VeriTracks records showing that he failed to maintain the required battery charge on his

GPS device, and the email from Open Door showing he missed a treatment session.

Defendant further contends that the trial court abused its discretion by finding he

willfully violated his parole. For the reasons set forth below, we disagree and affirm.
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 A. Mootness

Preliminarily, we note that the parties agree that this appeal is not moot. Though

defendant has already served his 180-day sentence, he remains on parole until October

19, 2023, and a ruling in his favor in this appeal would reduce his current parole term by

180 days. (See § 3000, subd. (b)(6) [“Time during which parole is suspended because the

prisoner . . . has been returned to custody as a parole violator shall not be credited toward

any period of parole unless the prisoner is found not guilty of the parole violation.”];

People v. Ellison (2003) 111 Cal.App.4th 1360, 1368-1369 [notwithstanding completion

of sentence, appeal not considered moot where the sentence may have negative collateral

consequences.].) Courts in some cases have found appeals moot where the defendant

was no longer in confinement or on parole when the appeal was heard. (See, e.g., People

v. DeLeon (2017) 3 Cal.5th 640, 645-646.) Because defendant is still serving a parole

term that could be shortened if he prevails here, we agree with the parties that the appeal

is not moot.

B. Hearsay Objections

Hearsay is a “statement that was made other than by a witness while testifying at

the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code,

§ 1200, subd. (a).) At trial, hearsay evidence is admissible only if it falls within an

established exception to the hearsay rule. (Evid. Code, §§ 1200, subds. (a) & (b), 1201.)

However, at probation or parole revocation hearings, hearsay “that bears a substantial

guarantee of trustworthiness is admissible . . . . ‘In general, the court will find hearsay

evidence trustworthy when there are sufficient “indicia of reliability.” ’ [Citation.]”
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(People v. Buell (2017) 16 Cal.App.5th 682, 689.) “[T]he revocation of parole [or

probation] is not part of a criminal prosecution and thus the full panoply of rights due a

defendant in such a proceeding does not apply to parole [or probation] revocations.”

(Morrissey v. Brewer (1972) 408 U.S. 471, 480; see People v. Arreola (1994) 7 Cal.4th

1144 (Arreola).) The admission of hearsay at a parole revocation hearing may be error

where it fails to satisfy the minimal due process requirements for the hearing, such as the

opportunity for the defendant to be heard and to present evidence, and “the right to

confront and cross-examine adverse witnesses (unless the hearing officer specifically

finds good cause for not allowing confrontation).” (Morrissey, at p. 489; see Arreola, at

pp. 1152-1154.)

Hearsay thus should be excluded from a probation or parole revocation hearing

when the “need for confrontation is particularly important . . . because of the opportunity

for observation of the witness’s demeanor.” (Arreola, supra, 7 Cal.4th at p. 1157.)

Hearsay evidence that is properly viewed as a substitute for live testimony, such as

statements by victims or witnesses, should also be excluded. (People v. Abrams (2007)

158 Cal.App.4th 396, 405 (Abrams); see Arreola, supra, 7 Cal.4th at p. 1157.)

On the other hand, at a parole revocation hearing, hearsay is admissible when

confrontation will not materially aid the decisionmaker. This may be the case with

records that show “routine matters such as the making and keeping of probation

appointments, restitution and other payments, and similar records of events.” (Abrams,

supra, 158 Cal.App.4th at p. 405; see Arreola, supra, 7 Cal.4th at p. 1157.) A probation

or parole officer is not likely to have personal recollection of these matters and would
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have to consult records, such as testifying to the failure of a parolee to report. (People v.

Gomez (2010) 181 Cal.App.4th 1028, 1038 (Gomez).) Cross-examination and demeanor

of the witness are not significant factors in evaluating the credibility of an officer’s

foundational testimony about the contents of the parole agency’s records. Such records

generally bear indicia of reliability and are admissible at a parole revocation hearing.

(Ibid.; Arreola, at p. 1157; Abrams, at p. 405.)

We review the trial court’s admission of hearsay evidence for an abuse of

discretion. (People v. Rodriguez (2017) 16 Cal.App.5th 355, 373 (Rodriguez).) We will

not disturb the court’s ruling “ ‘except on a showing the trial court exercised its discretion

in an arbitrary, capricious, or patently absurd manner that resulted in a manifest

miscarriage of justice.’ [Citation.]” (People v. Goldsmith (2014) 59 Cal.4th 258, 266

(Goldsmith).)

1. VeriTracks Records

Defendant contends that the VeriTracks device charging and battery expiration

records constituted inadmissible hearsay. The People contend that the evidence was not

hearsay but rather a computer-generated record that was the result of an automated

process free of human intervention. We agree with the People that the evidence did not

qualify as hearsay. While upon objection a proponent of introducing computer-generated

records must provide foundational evidence the computer was operating properly, such

evidence is not hearsay. (Rodriguez, supra, 16 Cal.App.5th at p. 374.) Although the trial

court did not overrule the defendant’s objection on this basis, we may affirm the trial

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court’s ruling if it is correct upon any theory supported by the record. (People v. Zapien

(1993) 4 Cal.4th 929, 976.)

In Rodriguez, the court concluded that “[t]he computer-generated report of the

GPS data generated by defendant’s ankle monitor did not consist of statements of a

person as defined by the Evidence Code, and did not constitute hearsay as statutorily

defined.” (16 Cal.App.5th at p. 381.) Rodriguez explained that other cases, including

out-of-state cases, distinguished “ ‘between computer-stored records, which memorialize

the assertions of human declarants, and computer-generated records, which are the result

of a process free of human intervention.’ ” (Id. at p. 380.) Because in that case the

defendant’s ankle monitor automatically transmitted information to the software server,

from which a GPS report was retrieved, there was “ ‘no statement being made by a

person regarding the data information so recorded.’ ” (Id. at p. 381.)

Here, like the GPS evidence in Rodriguez, the VeriTracks computer-generated

evidence did not constitute hearsay. As in Rodriguez, defendant’s device automatically

sent signals of his location to the GPS, which automatically generated the computer data

about defendant’s location on the specific dates and times, as well as his charging history,

so that there was no statement being made by a person regarding the data information

being recorded. (See Goldsmith, supra, 59 Cal.4th at pp. 273-274 [digital photographs

automatically taken by a machine and data, such as date and time, which a computer

automatically generates and imprints are not hearsay]; People v. Nazary (2010) 191

Cal.App.4th 727, 754 [computer-generated receipts, which show the date, time, and

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totals, are not statements of a person], overruled on other grounds in People v. Vidana

(2016) 1 Cal.5th 632, 647-648.)

The agent testified to his familiarity with, and knowledge of, how the VeriTracks

system worked. He described how the Victorville GPS unit used VeriTracks to monitor

GPS devices for the 296 sex offenders under its supervision and explained how it would

keep track of information such as their “voltage, the batteries, the location, and it also

stores all their informational data, addresses.” While parole agents could place notes

from the VeriTracks information in a parolee’s case file, the agent explained that “the

actual documentation is stored in the VeriTracks system.” He testified that the system

“notifies us of events, alerts, charging. It . . . shows us how long the person is charged,

when they plugged in, when they unplugged. It monitors pretty much every detail of the

device, itself.” The agent had used VeriTracks numerous times to locate and make

contact with defendant. He testified that when VeriTracks system detects a dead battery

on the GPS device, it triggers VeriTracks to send a text message to the parole agent of

record. The agent further explained that this happened in defendant’s case, causing him

to personally review defendant on the VeriTracks system, verify that he had a dead

battery, and observe his charging patterns on March 10, 2021.

While defendant claims the information in the VeriTracks system is not wholly

computer-generated, he does not dispute that the information about charging times, dead

battery, and location was all computer-generated. That information did not represent

statements placed into the computer by out-of-court declarants. Additionally, there is no

indication here that parole agents can alter or manipulate someone’s GPS data transmitted
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by the device and depicted in the VeriTracks computer system. (See Rodriguez, supra,

16 Cal.App.5th at p. 381.) The critical information in this case (including the device’s

battery life and defendant’s charging history) was computer generated and thus did not

constitute hearsay under California law. Therefore, the trial court did not abuse its

discretion in permitting the agent to testify about the VeriTracks records.

2. Open Door Records

Defendant contends that the trial court violated his right to due process when it

admitted the agent’s testimony to the contents of the email he received from Open Door

pursuant to the business record exception to hearsay. (Evid. Code, § 1271.) The People

argue that even if the evidence was hearsay, it was nevertheless admissible as reliable

documentary evidence. We agree with the People.

In this case, the agent testified about defendant’s failure to perform a required act:

defendant did not attend his sex offender treatment program on March 10, 2021. As in

Abrams and Gomez, the presence of the Open Door office manager, “likely would not

have added anything to the truth-furthering process, because [she] would be testifying to

a negative.” (Abrams, supra, 158 Cal.App.4th at p. 404.) We have no reason to suspect

that the office manager’s demeanor would matter in evaluating the credibility of her

foundational testimony pertaining to the contents of an email regarding defendant’s

failure to attend the program. (Arreola, supra, 7 Cal.4th at p. 1157.) An email about this

simple matter that a person did not attend a session bears “the requisite indicia of

reliability and trustworthiness so as to be admissible” in a parole revocation hearing.

(People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066-1067 [single-page report from
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drug program manager stating a defendant had been terminated from the program due to

too many absences was “akin to the documentary evidence that traditionally has been

admissible at probation revocation proceedings” and “bore the requisite indicia of

reliability and trustworthiness so as to be admissible.”].) The purpose of calling the

office manager to testify would be simply to authenticate the email containing the

information that she would likely not recall from memory. (Arreola, at pp. 1156-1157.)

We have no reason to conclude that it would be important for defendant to confront the

office manager so the trial court could evaluate her demeanor.

In any event, defendant does not dispute that he did not attend his sex offender

treatment program on March 10, 2021. The agent testified that he learned from a

telephone call to an Open Door employee that defendant had missed a session on March

10, 2021, and had made no attempt to attend the program. In the absence of any evidence

contradicting this information in the email, we cannot see a due process violation in

failing to call the office manager to testify as to the truth of the contents of her email.

(Gomez, supra, 181 Cal.App.4th at p. 1039.) The trial court did not abuse its discretion

by permitting the agent to testify regarding the contents of the email from Open Door.

C. Willful Violation of Parole

Defendant contends the trial court’s revocation order must be reversed because the

evidence was insufficient to support a finding that he willfully disabled his GPS device or

failed to attend his sex offender treatment program. We disagree.

A trial court has “very broad discretion” when determining whether revocation is

warranted. (Rodriguez, supra, 51 Cal.3d at p. 443.) We review a revocation order for
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abuse of discretion and examine the trial court’s factual findings for substantial evidence.

(People v. Butcher (2016) 247 Cal.App.4th 310, 318.)

Under the substantial evidence standard, our task is to decide “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, fns. omitted.) If the evidence

reasonably justifies the trier of fact’s findings, the reviewing court’s opinion that the

evidence might also support a contrary finding does not warrant reversal. (People v.

Jones (2013) 57 Cal.4th 899, 961.)

Findings are “based upon a preponderance of evidence” that may include hearsay

from parole agents. (§ 3044, subd. (a)(5).) “Conflicts and even testimony which is

subject to justifiable suspicion do not justify the reversal of a judgment, for it is the

exclusive province of the trial judge . . . to determine the credibility of a witness and the

truth or falsity of the facts upon which a determination depends. [Citation.] We resolve

neither credibility issues nor evidentiary conflicts; we look for substantial evidence.

[Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)

“Any person who is required to register as a sex offender (Pen. Code, § 290) and

who is released on parole upon the condition they wear a global positioning system

(GPS) device, or other electronic monitoring device (§ 3010.10, subd. (a)), is prohibited

from removing, disabling, or rendering the device inoperable. (§ 3010.10, subd. (b)). If a
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parolee violates this provision, the parolee is required to be incarcerated in a county jail

for 180 days. (§ 3010.10, subd. (e).)” (People v. Schaffer (2020) 53 Cal.App.5th 500,

503, fn. omitted.)

To revoke parole, the evidence must support a conclusion that defendant violated

his or her terms of parole willfully. (See, e.g., People v. Galvan (2007) 155 Cal.App.4th

978, 984 [probation violation finding reversed because failure to report to probation as

required was not willful where defendant had been deported after release from county

jail]; People v. Zaring (1992) 8 Cal.App.4th 362, 379 [probation violation finding

reversed where appearing 22 minutes late for a hearing was not willful due to a change in

circumstances that required the defendant to take her children to school before going to

court].) Willfulness requires “ ‘simply a purpose or willingness to commit the act . . . ,’

without regard to motive, intent to injure, or knowledge of the act’s prohibited character.

[Citation.] The terms imply that the person knows what he is doing, intends to do what

he is doing, and is a free agent. [Citation.] Stated another way, the term ‘willful’

requires only that the prohibited act occur intentionally. [Citations.]” (In re Jerry R.

(1994) 29 Cal.App.4th 1432, 1438.)

In this case, defendant’s GPS parole condition required him to participate in

continuous electronic monitoring using a GPS device and charge the battery on his device

at least twice a day for a full hour, approximately 12 hours apart. He was also required to

contact his parole agent immediately when the GPS device vibrated or made an audible

tone. The agent testified that he had gone over the terms and conditions of his parole

with defendant, and it was uncontroverted that defendant understood these terms.
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 The agent testified that when defendant had previously told him he was having

issues with the device, the agent told him he was not charging it correctly and showed

him how it should be plugged in. Despite this, the charging records indicate that on

March 10, 2021, and March 11, 2021, defendant charged the GPS for 55 minutes on the

morning of March 10, but thereafter his charging periods were intermittent and short,

lasting only 60 to 90 seconds. Defendant initially claimed that he was unaware of

problems with the outlet, thought his device was charging consistently, and denied

hearing any audible vibrations indicating that his battery was dying. He then contradicted

himself and admitted that he knew there was a problem with the outlet and worried

whether the device was charged properly. Specifically, defendant testified that the outlet

at the Daily Press tended to be unreliable because the Daily Press would sometimes turn

off the power, but he also said a “big storm” had “[blown] through” the previous day,

causing power outages. Defendant acknowledged that when he spoke to his mother on

the morning of March 11, he told her he needed to go to the parole office to charge his

device because he was not sure the device had charged properly at the outlet at the Daily

Press. Defendant nevertheless did not go to the parole office or contact his parole agent,

as required by his parole terms. While he used his fiancé’s phone to call his mother, he

chose not to use the same phone to call his parole officer because he would violate his

parole terms by being with his fiancé, another felon.

The trial court was free to disregard defendant’s testimony as not credible and

conclude based upon the agent’s testimony that there was sufficient evidence that

defendant willfully violated the terms of his parole. Although defendant claimed his
15
device did not emit an audible vibrational tone to alert him to the dying battery, the agent

testified that when he retrieved the GPS device and plugged it in, it worked just fine. The

agent testified that he was familiar with the outlet at the Daily Press where defendant and

other parolees charged their devices and, contrary to defendant’s claims, it worked fine.

Even defendant acknowledged that his fiancé had used the same outlet at the Daily Press

to charge her cellphone and managed to get a full charge. The agent further explained

that defendant’s charging history involved having his device on and off the charger. It

was within the court’s discretion to accept the agent’s testimony, which provided

substantial evidence supporting the court’s finding that defendant willfully violated the

terms of his parole by not properly charging his GPS device and failing to immediately

contact his parole agent.

Substantial evidence likewise supported the trial court’s finding that defendant

willfully violated the terms of his parole by failing to attend a session of the Open Door

sex offender treatment program. While he claimed he stood outside the parole office on

March 10, 2021, from 3:00 p.m. to 5:00 p.m. because he assumed that his parole agent or

someone else at the parole office would assist him in accessing the class, defendant made

no attempt to contact the agent. Defendant offered no evidence that he made any attempt

to contact anyone at the parole office to assist him, nor that he tried to contact Open Door

for assistance. The failure to take any initiative to get assistance to attend his program

supports the trial court’s finding of a willful violation of his treatment condition. (See

Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787 [a person’s “[l]ack of diligence may be

16
deemed willful in the sense that the party understood his obligation, had the ability to

comply, and failed to comply.”].)

Having found substantial evidence to support the trial court’s ruling, we must

affirm the trial court’s finding that defendant willfully violated the terms of his parole.

III.

DISPOSITION

The order finding defendant in violation of his parole is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL
J.

We concur:

RAMIREZ
P. J.

CODRINGTON
J.

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