Opinion
G053221
01-24-2018
THE PEOPLE, Plaintiff and Respondent, v. JOE RAYMOND RIOS, Defendant and Appellant.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13NF1968) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kazuharu Makino, Judge. (Retired Judge of the Orange Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
The court revoked probation and imposed a state prison term for defendant, Joe Raymond Rios, following a hearing at which a transcript of defendant's preliminary hearing in another case was admitted into evidence. Defendant's trial counsel failed to object. On appeal defendant argues the preliminary hearing transcript was inadmissible, because he was deprived of his constitutional right to confront and cross-examine adverse witnesses as guaranteed by the Fourteenth Amendment to the United States Constitution. We agree, but conclude the error was harmless. Alternatively, defendant argues his trial counsel rendered ineffective assistance. We need not reach the issue because we exercise our discretion to decide the constitutional challenge even though defendant forfeited the issue by failing to raise it in the trial court. Accordingly, we affirm.
FACTS
In May 2014 defendant pleaded guilty to first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a); count 1), first degree robbery (§§ 211, 212.5, subd. (a); count 2), false imprisonment (§ 236; count 3), and possession of marijuana for sale (Health & Saf. Code, § 11359; count 4), and admitted allegations that during the commission of counts 1, 2 and 3 he personally used a deadly weapon (knife) (§ 12022, subd. (b)(1)). The court dismissed the enhancement as to count 3. The court suspended execution of a four-year prison term and placed defendant on formal probation.
All further statutory references are to the Penal Code unless otherwise stated.
In April 2015 defendant's probation officer filed a petition for arraignment on a probation violation alleging appellant violated two specific probation conditions: (1) that he violate no law; and (2) that he complete 60 days of community service in lieu of 60 days in jail. As to the "violate no law" condition, the petition alleged in April 2015 defendant committed robbery (§ 211) and spousal battery (§ 243, subd. (e)(1)) by using physical force to take his wife's cell phone.
In June 2015, the People filed a new case against defendant numbered 15NF1501. The information alleged defendant possessed marijuana for sale (Health & Saf. Code, § 11359; count 1), cultivated marijuana (Health & Saf. Code, § 11358; count 2), and committed theft of utility services over $950 (§ 498, subds. (b)(1), (d); count 3).
We granted the People's request for judicial notice of the entire court file in case No. 15NF1501.
The court held a preliminary hearing in case No. 15NF1501 in November 2015. The People called three witnesses. Police Officer Jason Celmer testified a fellow officer had been investigating other cases involving defendant and told him defendant was involved in a marijuana growing operation. Eventually Celmer was led to a commercial complex on Via Burton in Anaheim. He used keys confiscated from defendant in an earlier arrest to open one of the locks on a back door. They picked a second lock and used a sledgehammer to open the next door. After opening an interior door, he smelled marijuana. They found evidence of a large indoor marijuana growing operation with high wattage lighting, plants installed on shelves, filters, timers, a water system, and a filtration system. There were also bags and buckets of soil and growing chemicals.
Celmer testified when investigating marijuana operations, he looks for signs of electrical modifications to buildings, because indoor growing operations usually require a large amount of electricity. While inspecting the Via Burton property, Celmer observed it appeared the electricity had been bypassed, altered and run throughout the building. When they checked the exterior panels, it appeared the panel was not drawing electricity to the business, so he knew there was something wrong. However, defendant was not on the lease at the Via Burton address.
Christopher Dalton, a revenue protection coordinator with the City of Anaheim, testified he investigates and tries to recover revenues lost to electricity theft. He investigated possible electricity theft at Via Burton and found the inside of the meter panel had been tampered with. He recognized the building housed a marijuana grow, because it contained an intricate series of relays and timers associated with each of the different rooms, and the equipment in the rooms was consistent with marijuana cultivation. Based on Dalton's calculation, the loss to the city was $14,997.84. However, Dalton testified defendant was not on the electrical bill before it was terminated.
Sergeant John Hoetker testified he interviewed defendant after he had been booked and arrested. Defendant told Hoetker he was an electrician, he owned his own electrical business, and he had done electrical work for marijuana grows in the past. He denied being currently engaged in that business. Hoetker found photos of the Via Burton marijuana grow operation on defendant's cell phone. There was also a photo of an electrical connection for transferring electrical into the Via Burton business. It appeared to be an electrical panel, circuitry and wires consistent with a marijuana grow. Defendant claimed he did not know how the photos ended up on his phone. Defendant told Hoetker he had some kind of establishment at the Via Burton address in the past. Throughout his interview defendant appeared to be familiar with the Via Burton location.
Following the preliminary hearing, in December 2015, the People orally requested the petition for arraignment on probation violation be amended to add that defendant violated the "violate no law" condition by possessing and possessing for sale marijuana, specifically referencing case No. 15NF1501. The People did not request the petition be amended to include the utilities theft charge as a basis for the "violate no law" probation violation.
In January 2016 (before disposition in case No. 15NF1501) the court held a hearing on the probation violation petition. At the commencement of the hearing, the court acknowledged one ground for the violation of probation consisted of the three charges in case No. 15NF1501. The People submitted the transcript of the preliminary hearing from case No. 15NF1501 (transcript) and then called probation officer Paul Fleming to testify. Fleming testified defendant violated probation by committing the three felonies charged in case No. 15NF1501 and in being arrested for domestic violence.
Following Fleming's testimony, the People moved to admit the transcript into evidence. Defendant's trial counsel did not object, and the court received it into evidence. The People requested the previously stayed four-year prison sentence be imposed. Defendant's counsel argued defendant was adamant he was innocent of the charges and if he went to trial, he would be found not guilty. The court stated, "Well, the preliminary hearing was conducted. And actually the preliminary hearing is the same standard as at a probation violation. And the preliminary hearing was done with live percipient witnesses subject to cross-examination. [¶] So just based on the transcript, he's in violation of his probation. The court finds the defendant in violation of his probation."
In February 2016, the trial court imposed the previously imposed but suspended sentence of four years in state prison. Defendant appealed.
During the pendency of the appeal, in January 2017 defendant pleaded nolo contendere to count 3 in case No. 15NF1501, a misdemeanor, and on the People's motion, the court dismissed counts 1 and 2. Defendant was ordered to serve 364 days in jail.
DISCUSSION
Under the Penal Code, "the court may revoke and terminate [probation] if the interests of justice so require and 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 his or her supervision . . . or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses." (§ 1203.2, subd. (a).) "After the receipt of a written report from the probation or parole officer, the court shall read and consider the report and . . . the petition and may modify, revoke, or terminate the supervision of the supervised person upon the grounds set forth in subdivision (a) if the interests of justice so require." (Id., subd. (b).) "The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence." (§ 1203.3, subd. (a).) "Before any sentence or term or condition of probation or condition of mandatory supervision is modified, a hearing shall be held in open court before the judge." (Id., subd. (b)(1).)
Revocation of probation is not part of a criminal prosecution, and therefore the full panoply of rights due in a criminal trial does not apply to probation revocations. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) "It has been long recognized that the Legislature, through this [statutory] language, intended to give trial courts very broad discretion in determining whether a probationer has violated probation." (Id. at p. 443.) "No particular source, manner or degree of proof is required by statute." (People v. Martin (1943) 58 Cal.App.2d 677, 683.) "In placing a criminal on probation, an act of clemency and grace [citation], the state takes a risk that the probationer may commit additional antisocial acts," and "the state has a great interest in being able to imprison the probationer [for probation violations] without the burden of a new adversary criminal trial." (Rodriguez, at p. 445.) The standard of proof in probation revocation proceedings is proof by a preponderance of the evidence. (Id. at p. 447.)
The Transcript Was Inadmissible
Defendant argues the transcript was inadmissible under People v. Arreola (1994) 7 Cal.4th 1144 (Arreola), because the People failed to demonstrate the preliminary hearing witnesses were unavailable to testify at the probation violation hearing, or that other good cause existed for use of the transcript in lieu of live testimony. Therefore, according to defendant, he was deprived of his constitutional right under the Fourteenth Amendment to the United States Constitution to confront and cross-examine adverse witnesses. Although defendant forfeited the challenge by failing to object at trial (People v. Simon (2016) 1 Cal.5th 98, 139), we exercise our discretion to address the merits and agree the transcript was improperly admitted. (See In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7 [appellate courts typically engage in discretionary review only when forfeited claim involves important issue of constitutional law or substantial right].)
In Arreola, the Court agreed a defendant at a probation revocation hearing has the right to confront and cross-examine adverse witnesses. (Arreola, supra, 7 Cal.4th at p. 1148.) At that hearing, "the prosecution may not introduce the transcript of a witness's preliminary hearing testimony in lieu of the witness's live testimony 'in the absence of the declarant's unavailability or other good cause.'" (Ibid.) The court reaffirmed its holding in People v. Winson (1981) 29 Cal.3d 711 "requiring a showing of good cause before a defendant's right of confrontation at a probation revocation hearing can be dispensed with by the admission of a transcript in lieu of live testimony." (Arreola, at p. 1159.)
Here, the People made no effort to satisfy the unavailability or good cause requirement. The record is silent as to why the People failed to call Celmer, Dalton, or Hoetker as witnesses in the probation revocation hearing. The court erred in admitting the transcript.
The Error Was Harmless
After finding error in admitting the transcript, the court in Arreola stated, "The question remains whether the erroneous admission of the preliminary-hearing transcript prejudiced defendant. Because such error is of federal constitutional dimension, we must assess prejudice under the 'harmless-beyond-a-reasonable-doubt' standard." (Arreola, supra, 7 Cal.4th at p. 1161.) The court concluded the record, in conjunction with the court's having taken judicial notice of defendant's subsequent conviction for driving under the influence of alcohol, established error was harmless. (Ibid.)
The harmless-beyond-a-reasonable-doubt standard places the burden of showing harmlessness on the party that benefited from the error. (Chapman v. State of California (1966) 386 U.S. 18, 24.) Here the People argue defendant's nolo contendere plea to theft of utility services established any error in admitting the transcript was harmless. We have already taken judicial notice of the entire court file in case No. 15NF1501, which unequivocally reflects defendant's nolo contendere plea. As a result we agree the error was harmless.
Defendant argues in his reply brief the Arreola harmless error analysis is inapt, because "in this matter, the factual basis presented in the . . . transcript at the probation violation hearing which formed the finding of a probation violation was not the same factual basis of the conviction." The record reveals otherwise. As we have chronicled, the transcript contains ample evidence from which the court could find probable cause defendant was involved with illegally bypassing electricity at the Via Burton marijuana grow, including that he is an electrician by trade, had done electrical work for marijuana grows in the past, was familiar with the Via Burton address, and had photos of the Via Burton marijuana grow and electrical connection on his cell phone. If instead defendant means to assert he was not notified via the petition or otherwise that the People would use the crime of utilities theft to form the basis for his probation violation, it is a distinction without a difference. Defendant has not cited, and we have not found, case law supporting defendant's position.
Defendant's opening brief was filed in November 2016. He pleaded nolo contendere in January 2017 and filed his reply brief in March 2017.
Evidence of a prior conviction is admissible to prove commission of a probation violation. (See People v. Rauen (2011) 201 Cal.App.4th 421, 427 [finding at probation violation hearing that the defendant violated probation supported by substantial evidence of prior conviction following nolo contendere plea to two misdemeanor counts]; see People v. Chagolla (1984) 151 Cal.App.3d 1045, 1048 [The defendant's "second contention, i.e., the finding of probation violation based on the nolo contendere plea, though intellectually intriguing, is also without merit."]; see also § 1016 [plea of nolo contendere shall be considered the same as a plea of guilty].) Further, although the petition does not mention theft of utility services as a ground for the "violate no law" violation, there is no dispute the charge was included in the information as count 3. At the probation violation hearing, the court specifically referenced three charges in case No. 15NF1501, and Fleming testified defendant violated probation by committing the three felonies charged in case No. 15NF1501. Thus, a new probation revocation hearing would be a futile act, because on remand the trial court would have before it defendant's conviction on count 3. (See Areolla, supra, 7 Cal.4th at p. 1162.) The People would thus have no difficulty establishing defendant violated the "violate no law" condition of probation. Accordingly, the error was harmless.
As such, we need not address defendant's contentions the People failed to establish he also violated the probation condition requiring completion of 60 days of community service in lieu of 60 days jail or by engaging in a domestic violence dispute.
Because we reach the merits of defendant's constitutional challenge to admission of the transcript, we need not reach defendant's alternative argument his trial counsel rendered constitutionally ineffective assistance.
DISPOSITION
The postjudgment order is affirmed.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.