Opinion
F072503
09-11-2017
THE PEOPLE, Plaintiff and Respondent, v. JULIO CESAR ESCOBAR, Defendant and Appellant.
Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. F15902440 & F14909812)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Franson, J. and Smith, J. --------
-ooOoo-
In case No. F14909812, appellant Julio Cesar Escobar pled no contest to possession of metal knuckles (Pen. Code, § 21810); in case No. F15902440, he pled no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).
On October 6, 2015, the court found Escobar violated his probation in both cases through his failure to complete a drug treatment program.
On October 9, 2015, the court sentenced Escobar to a four-year term in case No. F15902440 and a concurrent two-year term in case No. F14909812.
On appeal, Escobar contends his due process right to confrontation was violated by the admission of a letter from the Salvation Army, Stockton Adult Rehabilitation Center (Salvation Army) at his probation violation hearing. We affirm.
FACTS
On October 19, 2014, Escobar pushed his father away from a stove so he could light a marijuana cigarette. During an ensuing argument, Escobar hit his father in the jaw and the back of his head. Officers who arrested Escobar found metal knuckles wrapped in black tape in one of his pants pockets (case No. F14909812).
On November 25, 2014, the court placed appellant on probation for two years.
On April 6, 2015, the court revoked and reinstated probation after Escobar admitted violating his probation by being out of contact with his probation officer in an unrelated misdemeanor case.
On April 17, 2015, Escobar demanded money from his father and attempted to grab his wallet. When his father tried to get away, Escobar hit him with a wooden stick and punched him in the face (case No. F15902440).
On May 29, 2015, Escobar pled no contest to the assault charge in case No. F15902440 and, based on his plea in the new case, the court found Escobar in violation of his probation in case No. F14909812. The court then placed him on probation for three years on certain terms and conditions, including that he complete the Salvation Army inpatient drug treatment program. The court also revoked probation and reinstated it in case No. F14909812 on the same terms and conditions imposed in that case.
On August 10, 2015, in both cases the probation department filed a "VIOLATION OF PROBATION HOLD AND HEARING NOTIFICATION."
On October 6, 2015, the court held a probation violation hearing. During the hearing, the prosecution proffered a letter dated June 26, 2015, from Edward Carlos, an intake coordinator at the Salvation Army, which, in pertinent part, stated that Escobar "was admitted into The Salvation Army, Adult Rehabilitation Center on June 24, 2015, and discharged without completing the program on June 25, 2015." The court admitted the letter over the defense's objection on confrontation and lack of foundation grounds. Based on the letter, the court found Escobar violated his probation in both cases.
On October 9, 2015, the court sentenced Escobar in both cases to a state prison term of four years as noted above.
DISCUSSION
In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court held that the Sixth Amendment's confrontation clause bars the admission of testimonial hearsay statements unless the declarants are shown to be unavailable and the defendant had a previous opportunity to cross-examine them. (Id. at p. 68.) In Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, the court held that the admission of sworn certificates by laboratory analysts, which stated that material seized by police and connected to petitioner was cocaine of a certain quantity, violated the petitioner's Sixth Amendment right of confrontation. (Id. at p. 311.) Escobar concedes that the right of confrontation in a probation violation hearing flows from the Fourteenth Amendment's due process right. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411.) Nevertheless, he contends that Crawford and Melendez-Diaz compel a finding that the Salvation Army letter was testimonial and that its admission at his probation violation hearing violated his due process right to confrontation. We disagree.
"The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation." (Black v. Romano (1985) 471 U.S. 606, 610.) "The fundamental role and responsibility of the hearing judge in a revocation proceeding is not to determine whether the probationer is guilty or innocent of a crime, but whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain his conditional liberty." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 348; People v. McGavock (1999) 69 Cal.App.4th 332, 337.)
Hearsay evidence may be used at probation revocation hearings if it bears a substantial degree of trustworthiness. (Morrissey v. Brewer (1972) 408 U.S. 471, 489; People v. Maki (1985) 39 Cal.3d 707, 715-717 (Maki ).) The determination of trustworthiness rests within the discretion of the trial court. (People v. Brown (1989) 215 Cal.App.3d 452, 454-455.) "A trial court's decision to admit or exclude evidence in a probation revocation hearing will not be disturbed on appeal absent an abuse of discretion." (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198 (Shepherd).)
In People v. Arreola (1994) 7 Cal.4th 1144, 1150 (Arreola), the defendant objected on several grounds to the use of a preliminary hearing transcript at a probation revocation hearing. The defendant asserted hearsay and lack of foundation in that there had been no showing of the declarant's unavailability or other good cause. The trial court admitted the transcript without finding good cause. (Id. at p. 1151.)
Reaffirming its holding in People v. Winson (1981) 29 Cal.3d 711, Arreola concluded that the arresting officer's testimony at a preliminary hearing on new charges forming the basis for revocation of probation was inadmissible at the probation revocation hearing absent a showing of good cause or witness unavailability. (Arreola, supra, 7 Cal.4th at pp. 1159-1161.) Moreover, the good cause showing must be considered together with other relevant circumstances, including the purpose for which the evidence is offered, the significance of the evidence to the factual determination upon which the alleged probation violation is based, and whether other admissible evidence corroborated the evidence in question. (Id. at p. 1160.)
In Shepherd, supra, 151 Cal.App.4th 1193, the court found Arreola and Winson controlling and concluded that the testimony of defendant's probation officer consisted of inadmissible hearsay. (Shepherd, supra, at pp. 1199-1203.) In Shepherd, the probation officer testified that he had spoken to a program administrator from the residential treatment program who told the probation officer that the defendant had been asked to leave the program after smelling of and testing positive for alcohol consumption. The program administrator did not testify at the hearing, and no other evidence supported the administrator's alleged out-of-court statements. Furthermore, it was not clear from the probation officer's testimony whether the program administrator herself observed the defendant's alleged probation violation, or whether she was reporting what she had been told by others at the program. (Id. at p. 1198.)
In Maki, supra, 39 Cal.3d 707, the court noted its qualification in Winson that the right of confrontation is "not absolute and where ' "appropriate," witnesses may give evidence by document, affidavit or deposition.' " (Maki, supra, at p. 710.) The court concluded that a car rental invoice, used to show the defendant failed to obtain consent to leave the area, had sufficient indicia of reliability because it indisputably contained the defendant's signature, dispelling the dangers of hearsay evidence. A hotel receipt, also admitted into evidence, although not signed, corroborated the car rental invoice. (Id. at pp. 714-717.)
The rationale for the different treatment of documentary evidence and former testimony was explained by our Supreme Court as follows:
"There is an evident distinction between a transcript of former live testimony and the type of traditional 'documentary' evidence involved in Maki that does not have, as its source, live testimony. [Citation.] As we observed in Winson, the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness's demeanor.
[Citation.] Generally, the witness's demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts, where often the purpose of this testimony simply is to authenticate the documentary material, and where the author, signator, or custodian of the document ordinarily would be unable to recall from actual memory information relating to the specific contents of the writing and would rely instead upon the record of his or her own action." (Arreola, supra, 7 Cal.4th at p. 1157.)
In People v. O'Connell (2003) 107 Cal.App.4th 1062 (O'Connell ), the alleged inadmissible hearsay consisted of a single-page report from the program manager of a drug treatment program. The report stated that the defendant had been terminated from the program due to "[t]oo [m]any [a]bsences." The program manager added, " 'This client completed 0 of 20 sessions.' " (Id. at p. 1066.) The court in O'Connell determined that the report 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." (Id. at pp. 1066-1067.) The court distinguished case law dealing with the use of former testimony, finding the report "was prepared contemporaneously to, and specifically for, the hearing where [the defendant's] lack of compliance with the deferred entry of judgment program was at issue." (Id. at p. 1067.)
In People v. Abrams (2007) 158 Cal.App.4th 396, 401 (Abrams), the court relied on hearsay testimony from one probation officer based on the statements of another probation officer in a probation report, and probation department records, as the basis for revoking the defendant's probation for failing to report to the probation department. The Abrams case held that "[a]lthough probation violation hearings involve the criminal justice system, they are not governed by all the procedural safeguards of a criminal trial." (Id. at p. 400.) The Abrams court distinguished the Crawford case noting that Crawford involved the confrontation clause of the Sixth Amendment, whereas procedural protections of probation revocation hearings are born out of the due process clause of the Fourteenth Amendment. (Abrams, supra, 158 Cal.App.4th at p. 400, fn. 1.)
The Abrams court then found that the information relied upon by the testifying probation officer, statements by a colleague, and information gathered and documented by the probation office itself, carried the indicia of reliability for purposes of revoking a defendant's probation even though this information was technically hearsay. (Abrams, supra, 158 Cal.App.4th at pp. 401-405.) In so finding, the Abrams court stated, "The presence of [the probation officer's colleague] likely would not have added anything to the truth-furthering process, because he would be testifying to a negative: that defendant did not make any appointments and that [the colleague] had not spoken to defendant. [Citation.] Adding a computer custodian of records to recount the process of logging in calls likewise would have been of little assistance. The credibility of those two witnesses was not critical to the court's determination whether defendant had violated his probation. As the court in Arreola stated it: 'the witness's demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts ....' [Citation.] ... [Citation.] We conclude that the evidence from the probation reports had sufficient 'indicia of reliability'...." (Id. at p. 404.) The court then stated the following principles: "Evidence that is properly viewed as a substitute for live testimony, such as statements to a probation officer by victims or witnesses, likely falls on the Winson-Arreola side of the line. [Citations.] We hold the rule is otherwise where the evidence involves more routine matters such as the making and keeping of probation appointments, restitution and other payments, and similar records of events of which the probation officer is not likely to have personal recollection and as to which the officer 'would rely instead upon the record of his or her own action.' " (Id. at p. 405.)
In People v. Gomez (2010) 181 Cal.App.4th 1028 (Gomez), the trial court admitted into evidence "a probation report which showed that defendant failed to report to his probation officer, pay restitution, or submit verification of his employment and attendance at counseling sessions." (Id. at p. 1031.) The report was prepared by a probation officer who relied upon electronic probation records and statements about defendant's failed reporting made by a different probation officer. (Id. at pp. 1032-1033.) Neither probation officer testified. In admitting the report, the Gomez court stated: "Any testimony by [the probation officers] would necessarily have been based upon an examination of the probation department's records. For this reason, their demeanor while testifying would not have been helpful in determining the truth of the facts they reported: defendant's failure to report to probation, pay restitution, attend counseling, and provide proof that he was employed. Nor would cross-examination of either officer have been likely to elicit any facts pertinent to the inquiry facing the trial court." (Id. at pp. 1038-1039.)
Here, as in Maki, O'Connell, Abrams, and Gomez, the letter from the Salvation Army stating Escobar was admitted into the program on June 24, 2015, and discharged the following day without completing the program "bore the requisite indicia of reliability and trustworthiness so as to be admissible." (O'Connell, supra, 107 Cal.App.4th at pp. 1066-1067.) The letter appears to have been faxed to the Fresno County Probation Department on the day after Escobar was discharged from the program. Further, the letter included the letterhead of the Salvation Army's Stockton Adult Rehabilitation Center, it was prepared by Carlos and appears to contain information that Carlos was aware of personally or from program records that he would be privy to as the intake coordinator. Moreover, the purpose of Carlos's testimony would be simply to authenticate the letter that related information Carlos was unlikely to recall from actual memory of its specific contents and that Carlos would instead have to rely upon the record of his own action. (Arreola, supra, 7 Cal.4th at pp. 1156-1157.) Thus, the need for confrontation and to view Carlos's demeanor would not be important. Additionally, Escobar did not dispute the allegation in the letter that he had been discharged from the Salvation Army program. In the absence of any evidence contradicting the information in the letter, we fail to see why it would be necessary to bring in a live witness to prove what the letter shows. (Gomez, supra, 181 Cal.App.4th at p. 1039.)
Escobar relies on Melendez-Diaz to contend that some of the cases cited above, like O'Connell and Abrams, are not controlling because they predated Melendez-Diaz and that Gomez is not controlling because it relied on O'Connell and Abram and did not examine the impact of Melendez-Diaz. We disagree.
In Gomez, the court considered Melendez-Diaz and found it not controlling. The court stated:
"Although the probation report [at issue] would constitute testimonial hearsay under the expansive definition developed in recent confrontation clause cases, such as Melendez-Diaz ..., the confrontation clause is inapplicable to the probation revocation context. But within the parameters established by the body of precedent applicable to probation revocation, we conclude that the probation report was admissible and its admission did not violate defendant's due process right of confrontation." (Gomez, supra, 181 Cal.App.4th at p. 1039.)
Moreover, Escobar does not provide a reasoned analysis why Melendez-Diaz's expansive definition of testimonial evidence under the Sixth Amendment's confrontation clause should apply to his more limited right of confrontation under the Fourteenth Amendment. Thus, we conclude that the admission of the letter from the Salvation Army did not deny Escobar his due process right to confrontation.
DISPOSITION
The judgment is affirmed.