People v. Gooch

          ZELON, J.

         Appellant Russell Lee Gooch appeals from a post-judgment order revoking his probation and imposing a previously suspended state prison sentence. Following his conviction for stalking (Pen. Code, § 649.9, subd. (b)), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), and contempt of court (§ 166, subd. (c)(4)), Gooch was sentenced to state prison for a term of six years. The trial court suspended imposition of the sentence, placed Gooch on formal probation, and ordered him not to have any contact with the victim or her family for 10 years. In this proceeding, the trial court revoked Gooch’s probation based on a finding that he caused an instant messaging communication to be sent to the victim’s e-mail account in violation of the no-contact order. Because we conclude that the evidence was insufficient to support the trial court’s finding, we reverse.

         FACTUAL AND PROCEDURAL BACKGROUND

         On April 11, 2007, Gooch was charged in Santa Barbara County with one count of stalking in violation of section 646.9, subdivision (b), three counts of dissuading a witness by force or threat in violation of section 136.1, subdivision (c)(1), one count of making criminal threats in violation of section 422, and one count of contempt of court in violation of section 166, subdivision (c)(4). The charges arose out of allegations that, between late 2006 and early 2007, Gooch sent his former wife, Stacy Bruneau, numerous voice-mail, e-mail, and text messages that were harassing and threatening in nature. Following a jury trial, Gooch was found guilty of one count of stalking, two counts of dissuading a witness by force or threat, and one count of contempt of court.

         On May 9, 2008, Gooch was sentenced to a total term of six years in state prison. The trial court suspended the prison sentence and placed Gooch on formal probation for a term of five years. As a condition of his probation, Gooch was required to successfully complete the Delancey Street Foundation’s residential alcohol and drug treatment program; Gooch was transferred to the program immediately upon his release from police custody. The trial court also ordered Gooch not to have any contact with Bruneau or her immediate family for a period of 10 years.

         As of March 2009, Gooch was residing at the Delancey Street Foundation in Los Angeles and Bruneau had relocated to another state. On March 19, 2009, Bruneau logged onto her Yahoo! e-mail account. On the lower right corner of her inbox, Bruneau saw a pop-up window with an instant message stating that “RUSSELL would like to add you to his or her Online Contacts list, ” and a pushbutton to either “Accept” or “Decline.” The upper left corner of the pop-up window listed an electronic address of “rlgrn@sbc.” Bruneau believed that Gooch must have sent the instant message to her because when they were married, he had a Yahoo! e-mail account with the address “rlgrn@yahoo.com.” Gooch was a registered nurse at the time of their marriage, and Bruneau recognized the initials “rlgrn” as standing for Russell Lee Gooch, Registered Nurse. Bruneau was not aware of anyone else named Russell who would attempt to electronically contact her.

         Upon receiving the instant message, Bruneau became concerned that Gooch had been released from his residential treatment program and was attempting to contact her. According to Bruneau, she and Gooch had been in an abusive relationship from October 2003 to July 2005. Gooch abused Bruneau during their marriage by beating her, breaking her ribs, and threatening to kill or harm her. After their marriage ended, Gooch continued to threaten Bruneau through voice-mails and e-mails, and she eventually obtained a restraining order against him in response to the threats. Despite the restraining order, Bruneau remained fearful that Gooch would harm her or her family.

         On the day that she received the instant message, Bruneau called Investigator Tom Miller with the Santa Barbara County District Attorney to report the contact. At that time, she provided Investigator Miller with her Yahoo! user name and password so that he could directly access her e-mail account. Later that day, Investigator Miller logged onto Bruneau’s Yahoo! e-mail account. The pop-up window with the instant message again appeared on the lower right corner of Bruneau’s inbox. Investigator Miller printed a hard copy of the inbox screen image, but he neither preserved an electronic copy of the pop-up window nor attempted to electronically trace the source of the instant messaging communication.

         On May 18, 2009, Gooch was interviewed by his probation officer about the alleged contact with Bruneau. Gooch admitted that he had two e-mail accounts – a Yahoo! e-mail account with the address “rlgrn@yahoo.com, ” and an SBC e mail account with the address “rlgrn@sbcglobal.net.” However, he denied attempting to contact Bruneau through any type of electronic communication. According to Gooch, both Bruneau and his father were aware of his user names and passwords to his e-mail accounts, and his father regularly accessed the Yahoo! account to ensure it remained active. Gooch indicated that he did not know who might have sent the instant message to Bruneau, unless his father had done so inadvertently when he accessed the e-mail account or the message had been generated automatically by the e-mail system. Based on the alleged contact with Bruneau and his refusal to accept responsibility for it, Gooch was terminated from the Delancey Street Foundation in May 2009.

         The Los Angeles County District Attorney thereafter initiated probation violation proceedings against Gooch. At the probation revocation hearing, Investigator Miller and Bruneau testified on behalf of the prosecution. The witnesses similarly described seeing the pop-up window with the instant message invitation when they accessed Bruneau’s Yahoo! account, but admitted that the only action they took to preserve the message was to print a screen image of the inbox. The prosecution also presented the trial court with a declaration from a Yahoo! representative, Jeffrey Stanford. In his declaration, Stanford stated that “in order for a user to add someone as a Messenger ‘Contact, ’ that user must proactively request a person to become a contact. While Yahoo! may make suggestions to a user that he or she invite someone as a contact, the user must take action to do so. An invitation is not sent by Yahoo! automatically.”

         Gooch testified on his own behalf at the hearing. He denied having anything to do with the instant message that appeared in Bruneau’s inbox. As described by Gooch, at the time the message was sent, he was residing at the Delancey Street Foundation as part of an alcohol rehabilitation program where his days were strictly structured. At 8:00 each morning, after attending a group meeting, Gooch and approximately 50 other residents would take a bus owned by the Delancey Street Foundation to a warehouse facility. At the warehouse, Gooch worked in an office where he used a land line telephone to make calls soliciting contributions. There were always six or seven other people in the office with him also making calls. At 4:30 each afternoon, Gooch and the others would take the bus back to the residence and then spend the rest of the evening attending additional group meetings. Gooch admitted that he had a Yahoo! e-mail account with the address “rlgrn@yahoo.com” starting in 2000, and that his father would access the account from time to time so that it would stay active. Gooch testified, however, that he did not have any access to the internet from 2006 until May 21, 2009, after he was terminated from the Delancey Street Foundation.

         During the hearing, the parties stipulated that, when Gooch was at the Delancey Street Foundation, the program had a warehouse component where Gooch had access to a land line, but no access to a computer or to the internet, and that Gooch and the others were allowed to leave the warehouse as a group from time to time to take smoke breaks. It further was stipulated that, prior to his termination from the Delancey Street Foundation, Gooch was doing well in the program.

         Prior to the close of the hearing, defense counsel also provided the trial court with subpoenaed documents showing that Gooch had an SBC e-mail account with the address “rlgrn@sbcglobal.net, ” which had been deactivated for two years prior to the instant message appearing in Bruneau’s inbox. Additionally, the parties informed the court that Yahoo! only stored instant messaging communications for 60 days, and that both the prosecution and the defense had been unsuccessful in their efforts to electronically trace the instant message sent to Bruneau.

         At the conclusion of the probation revocation hearing, the trial court found that Gooch had violated the conditions of his probation by causing the instant message to be sent to Bruneau. The court revoked Gooch’s probation and imposed the previously suspended six-year sentence. Gooch filed a timely notice of appeal.

         DISCUSSION

         I. The Evidence Was Insufficient To Support The Probation Violation Finding

         On appeal, Gooch challenges the sufficiency of the evidence supporting the trial court’s finding that he violated the conditions of his probation by sending an electronic communication to Bruneau. Under section 1203.2, a trial court may revoke probation “if the interests of justice so require and the court, in its judgment, has reason to believe... that the person has violated any of the conditions of his or her probation....” (§ 1203.2, subd. (a).) At a probation revocation hearing, the prosecution has the burden of proving that the defendant violated probation by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447; People v. Stanphill (2009) 170 Cal.App.4th 61, 72.)

         The trial court is granted great discretion in determining whether or not a probation violation has occurred, and an appellate court generally will not disturb the decision to revoke probation absent an abuse of discretion. (People v. Rodriguez, supra, 51 Cal.3d at p. 443; People v. Kelly (2007) 154 Cal.App.4th 961, 965.) However, “where 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.” (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.)

         “‘To be sufficient, evidence must of course be substantial.... By definition, “substantial evidence” requires evidence and not mere speculation. In any given case, one “may speculate about any number of scenarios that may have occurred. A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.... A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.”’” (People v. Perez (1992) 2 Cal.4th 1117, 1133.) If there is no substantial evidence to support the finding of a probation violation, the trial court’s decision to revoke probation constitutes an abuse of discretion.

         Here, we conclude that the trial court abused its discretion in revoking Gooch’s probation because the evidence was insufficient to support a finding that Gooch caused the instant messaging communication to be sent to Bruneau. The evidence presented at the probation revocation hearing merely established that Bruneau received an instant message that referenced the first name “Russell” and the electronic address “rlgrn@sbc, ” and that Gooch previously had an SBC e-mail account with the address “rlgrn@sbcglobal.net.” However, none of the evidence supported a finding that the instant message was in fact sent from an electronic account belonging to Gooch, or that Gooch had access to an electronic account at the time the message was sent. Indeed, the undisputed evidence presented at the probation revocation hearing was to the contrary.

         Specifically, the evidence failed to establish that the instant message could have been sent from any type of electronic account belonging to Gooch. Although the message included a reference to “rlgrn@sbc, ” it was undisputed that Gooch’s SBC e-mail account with the address “rlgrn@sbcglobal.net” was inactive at the time the message was sent and had been deactivated for two years prior to the message appearing in Bruneau’s inbox. No other evidence was offered to demonstrate that, despite the deactivated status of Gooch’s SBC e-mail account, the message nevertheless could have been generated from that account. The Attorney General argues that a Yahoo! instant message is not actually sent from an e-mail account, but from a separate instant messaging account that is initially set up using an e-mail account. The Attorney General thus reasons that the fact that Gooch’s e-mail account was inactive at the time the message was sent is irrelevant to determining whether he may have sent the message through an independent instant messaging account that remained active. However, while both the prosecution and the defense seemed to agree in their statements to the trial court that an instant message is not sent from an e-mail account, neither party presented any evidence or argument as to the actual source of such messages.

         There was no evidence regarding what type of electronic account is required to use the Yahoo! Messenger service or what action is required to initially set up and then send messages through that account. Moreover, even assuming that a Yahoo! instant message is sent from an instant messaging account instead of an e-mail account, there was no evidence that Gooch ever had a separate instant messaging account. The evidence presented at the hearing merely established that Gooch had two e-mail accounts – a Yahoo! e-mail account and an SBC e-mail account – which, according to the parties’ representations to the trial court, could not have been used to send the instant message to Bruneau.

         Additionally, the evidence failed to establish that Gooch had access to any type of electronic account at the time the instant message was sent. To the contrary, the parties stipulated at the probation revocation hearing that, when Gooch was in the Delancey Street Foundation’s residential treatment program, he did not have access to a computer or to the internet. The Attorney General asserts that the stipulation regarding Gooch’s lack of internet access was limited to the time that he was working in the Delancey warehouse, and did not address whether he may have had internet access at other times in the Delancey program. We do not agree with the narrow reading given by the Attorney General, and it does not appear that the prosecution adopted such a reading at the probation revocation hearing. However, even if the stipulation is interpreted to mean that Gooch merely lacked access to a computer or to the internet while he was at the warehouse, the prosecution still failed to present any evidence to establish that Gooch had computer or internet access elsewhere in the program. In fact, the only other evidence offered at the hearing on the issue of electronic access was Gooch’s uncontroverted testimony that he did not have any access to the internet from the time he was incarcerated in 2006 until the time he was terminated from the program in May 2009. The evidence accordingly was insufficient to show that Gooch had either the means to send an instant message (i.e., an active electronic account), or the opportunity to do so (i.e., any access to the internet).

         In revoking probation, the trial court set forth four reasons for its finding that Gooch caused the instant messaging communication to be sent to Bruneau. However, none of those reasons was supported by any substantial evidence presented at the probation revocation hearing.

         First, the trial court found that there was sufficient circumstantial evidence that the instant message was sent from an SBC e-mail account belonging to Gooch because the message referred both to Gooch’s first name and to his e-mail user name, which was a unique combination of letters not likely to be used by anyone else. However, as discussed, there was no evidence offered to establish that the reference to “rlgrn@sbc” meant that the message was generated from any type of electronic account associated with Gooch’s SBC e-mail account. Instead, the undisputed evidence presented by the parties showed that Gooch’s SBC e-mail account had been deactivated for two years prior to the message being sent. The trial court’s inference that the message must have been sent from Gooch’s SBC e-mail account was therefore contrary to the evidence.

         Second, the trial court found that, while the parties had stipulated that Gooch did not have access to a computer, it was possible that he had access to a cell phone with internet connectivity. However, there was no evidence that Gooch ever had access to a cell phone while in the Delancey program, and, even assuming there might have been surreptitious cell phone access, the parties stipulated that Gooch had no access to either a computer or the internet. “A stipulation ‘is conclusive upon the parties, and the truth of the facts contained therein cannot be contradicted’ unless permission is given to withdraw from the stipulation. [Citations.]” (Spindell v. State Bar of California (1975) 13 Cal.3d 253, 260.) Further, assuming that the stipulation solely addressed Gooch’s lack of computer and internet access while working in the Delancey warehouse, as the Attorney General contends, there was still no evidence that Gooch had any access to the internet elsewhere in the Delancey program and Gooch affirmatively denied that he did. The trial court’s finding of possible internet access through a cell phone was purely speculative. (People v. Ramon (2009) 175 Cal.App.4th 843, 851 [“[A] mere possibility is nothing more than speculation. Speculation is not substantial evidence.”].)

         Third, the trial court found that, even if Gooch did not have access to the internet through a computer or a cell phone, it was undisputed that he had access to a land line phone which he could have used to direct someone else to send the instant message. This was the prosecution’s theory of the case at the probation revocation hearing; the prosecution posited that Gooch could have contacted his father via the land line phone and instructed him to log onto Gooch’s e-mail or other electronic account and to send the instant message to Bruneau. It is theoretically possible that Gooch’s father or some other unidentified third party accessed an electronic account belonging to Gooch, and then acting at Gooch’s specific direction, agreed to generate the instant message inviting Bruneau to be added to his online contact list. However, “[a] theoretical possibility is not the equivalent of substantial evidence.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 646.) Here, none of the evidence at the hearing established that Gooch ever used the warehouse land line to make any unauthorized calls to family members or friends, or that he ever asked any family members or friends to contact Bruneau on his behalf. The prosecution’s theory that Gooch’s father may have agreed to assist him in violating the no-contact order by sending the instant message was based entirely on speculation unsupported by any evidence.

         Fourth, the trial court found that Gooch must have caused the instant message to be sent to Bruneau because there was no explanation as to why anyone else would have sent the message. Given the absence of any other identifiable suspects, the trial court inferred that Gooch was the only one with a motive to do so. Throughout the probation revocation hearing, however, the burden of proof rested with the prosecution. (People v. Rodriguez, supra, 51 Cal.3d at p. 447; People v. Stanphill, supra, 170 Cal.App.4th at p. 72.) The prosecution thus had to establish by a preponderance of the evidence that the instant message was in fact sent by or at the direction of Gooch, and not simply that there was an absence of evidence that it could have been sent by someone else. “An absence of evidence is not the equivalent of substantial evidence. [Citation.] If an absence of evidence could satisfy the burden of proof, the concept of burden of proof would have no meaning.” (Roddenberry v. Roddenberry, supra, 44 Cal.App.4th at p. 655.) In other words, Gooch’s inability to identify other potential suspects for the trial court was not sufficient to satisfy the prosecution’s burden of proof.

         For these reasons, we conclude that there was no substantial evidence to support the trial court’s finding that Gooch violated his probation by causing the instant message to be sent to Bruneau. The trial court accordingly abused its discretion in revoking probation and imposing the previously suspended state prison sentence.

         II. Remand For Further Proceedings Is Not Warranted

         The Attorney General argues that, if this Court should conclude that there was insufficient evidence to support the finding that Gooch violated his probation, then the matter should be remanded to the trial court for further proceedings, “at which time the prosecution can present further evidence of the technical aspects of the involved computer systems.” In support of this request, the Attorney General reasons that, because a probation revocation hearing does not constitute a criminal trial on a new charge that could result in the imposition of punishment, the constitutional guarantee against double jeopardy is not implicated. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 343, fn. 5; In re Coughlin (1976) 16 Cal.3d 52, 61.) However, the Attorney General fails to explain what additional evidence could be offered on remand that would compel a different result in this case and why such evidence was not presented by the prosecution at the original probation revocation hearing. Moreover, a review of the record reflects that both the prosecution and the defense had ample opportunity to investigate the possible source of the instant message at issue and to present the trial court with any relevant evidence supporting their respective positions. In fact, when the defense sought additional time to investigate the case at the close of the probation revocation hearing, the prosecution opposed such request, noting that the Yahoo! “chat records are only maintained for 60 days so even if we continue it further[, ] we’re not going to get any[ ]more information on the chat than we have now.” Under these circumstances, remand for further probation revocation proceedings is unwarranted.

         DISPOSITION

         The order revoking Gooch’s probation and imposing the previously suspended state prison sentence is reversed.

          We concur: WOODS, Acting P. J., JACKSON, J.