Opinion
F075119
06-13-2018
THE PEOPLE, Plaintiff and Respondent, v. JEREMY LEE WILLIAMS, Defendant and Appellant.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. MCR052214)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
Defendant Jeremy Lee Williams contends on appeal the trial court abused its discretion when it found he violated the terms and conditions of his mandatory supervision. Specifically, he contends (1) the trial court admitted inadmissible hearsay at the revocation hearing, (2) his due process rights were violated at the revocation hearing because he was denied an opportunity to confront and cross-examine the witnesses against him, and (3) the Evidence Code should be applied to revocation hearings. We affirm the order revoking defendant's mandatory supervision.
PROCEDURAL SUMMARY
On September 1, 2015, defendant pled no contest to possession of a stolen vehicle (Pen. Code, § 496d, subd. (a)) and admitted having served a prior prison term (§ 667.5, subd. (b)). The plea agreement provided that defendant would serve four years in county jail, split into one year in county jail and three years on mandatory supervision.
All statutory references are to the Penal Code unless otherwise indicated.
On September 30, 2015, the trial court sentenced defendant to the split term, as agreed. One of the terms of defendant's mandatory supervision was stated by the court as follows:
"You're ordered to enroll in and complete an inpatient substance abuse treatment program to the satisfaction of your probation officer, with consent to release of information. [¶] You're ordered to waive time credits if the program is not successfully completed. You are ordered to report in person to your probation officer within one day of completion or termination from the program."
This term was also recommended in the probation report and reiterated in the minute order.
On May 9, 2016, the probation officer filed a petition for revocation of defendant's mandatory supervision, alleging that "on April 23, 2016, [defendant] was terminated from the WestCare inpatient treatment program and failed to report to the Madera County Probation Department within one day of termination, as evidenced by West Care status alert form and Madera County Probation Department incident report." The officer requested the issuance of a bench warrant because defendant's whereabouts were unknown.
On May 18, 2016, the trial court issued a bench warrant for defendant's arrest.
On May 19, 2016, defendant admitted the allegations in the revocation petition. The trial court revoked and then reinstated mandatory supervision on the original terms and conditions, reminding defendant that he still needed to complete a program, and ordered him to serve 90 days in jail.
On August 29, 2016, the probation officer filed a second petition for revocation of defendant's mandatory supervision, alleging that "on August 3, 2016, [defendant] was terminated from the West Care inpatient program and failed to report in person one day of termination from the program, as indicated by West Care status alert form and Madera County Probation Department Incident Report," and that "on or about August 5, 2016, he moved from his reported residence and his whereabouts are unknown, as indicated by Madera County Probation Department Incident Report."
On September 9, 2016, the trial court issued another bench warrant for defendant's arrest.
On September 12, 2016, the trial court was advised that defendant refused to appear in court. The court ordered the use of all reasonable force to produce defendant in court.
On September 15, 2016, defendant appeared and denied the petition's allegations.
On December 16, 2016, the trial court held a contested hearing on the mandatory supervision violation. Defendant's probation officer, Julian Badillo, testified that defendant had been enrolled in an inpatient program at WestCare pursuant to the terms of his mandatory supervision. Badillo said he personally drove defendant to the program.
Badillo testified that on August 3, 2016, he received an email from Oscar Navarro, a staff member at the WestCare inpatient program. Attached to the email was a status alert form stating that defendant had been terminated from the program for using drugs in the facility. After receiving the email, Badillo received a call from someone else at WestCare's inpatient program.
Defense counsel repeatedly objected to admission of the status alert form as hearsay and as lacking foundation. As a result, further evidence was elicited showing the following: The email came from the WestCare inpatient program email address, not a private email address. The WestCare letterhead was on the status alert form. The form stated defendant's name, the date, Navarro's name and telephone number, and also the name and telephone number of the program contact at WestCare. The form stated it was from Navarro to Badillo. The form noted that defendant was discharged and terminated from the program on August 3, 2016. The form stated: "Description of incident: Client was terminated from the program for using drugs in the facility." The form was electronically signed by Navarro. Although Badillo had not dealt with Navarro in the past, he had received 10 to 15 emails from the WestCare program dealing with the probationers in the program. All of the emails were in a similar style and format, and all contained accurate information. The court admitted the status alert form exhibit over the defense counsel's objection.
Badillo also testified he gave defendant one day to report to probation after being terminated from the program, but defendant failed to do so. Badillo searched for defendant at his two previous residences and could not find him.
After considering the evidence and hearing argument, the trial court found that defendant had violated his mandatory supervision by failing to complete the inpatient program and by failing to report to probation within one day of being terminated from the program.
On January 25, 2017, at the sentencing hearing, the trial court revoked and terminated defendant's mandatory supervision and ordered him to serve the balance of the previously imposed four-year jail sentence and pay the previously imposed fines and fees.
On February 6, 2017, defendant filed a notice of appeal.
DISCUSSION
I. Hearsay
Defendant contends the email and status alert form and Badillo's testimony were inadmissible hearsay.
In determining that the status alert form was admissible, the trial court in this case relied on People v. O'Connell (2003) 107 Cal.App.4th 1062 (O'Connell). !(RT 933-934)! In O'Connell, the trial court admitted 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 noted that defendant had completed " '0 of 20 sessions.' " (Id. at p. 1066.) The O'Connell court 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." Accordingly, the court concluded the report was admissible at the revocation hearing. (Id. at pp. 1066-1067.)
Defendant argues the court's reliance on O'Connell was misplaced because in this case the status alert form was authored not by the program's manager as in O'Connell, but by Navarro, someone Badillo had not dealt with before. Further, the status alert form was not prepared in response to a referral by the court as in O'Connell, and Badillo did not know the name of the person he spoke to on the telephone at WestCare. Thus, defendant says, O'Connell does not support the conclusion that the email and status alert form were sufficiently trustworthy and reliable to be admissible at the revocation hearing.
"Despite the relaxed rules of evidence governing probation revocation proceedings, a court is not permitted ' "to admit unsubstantiated or unreliable evidence as substantive evidence ...." ' [Citation.] [¶] As long as hearsay testimony bears a substantial degree of trustworthiness it may legitimately be used at a probation revocation proceeding. [Citations.] In general, the court will find hearsay evidence trustworthy when there are sufficient 'indicia of reliability.' [Citation.] Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion." (People v. Brown (1989) 215 Cal.App.3d 452, 454-455.)
The revocation process is similar for parole, probation, mandatory supervision, and postrelease community supervision. "In 2012 the Legislature amended section 1203.2 to incorporate parole into the statutes governing revocation of probation, mandatory supervision, and postrelease community supervision. [Citation.] Its stated intent was 'to provide for a uniform supervision revocation process for petitions to revoke probation, mandatory supervision, postrelease community supervision, and parole.' " (People v. DeLeon (2017) 3 Cal.5th 640, 647.)
At the revocation hearing, the trial court repeatedly required further testimony regarding the foundation and reliability of the email and status alert form in response to defense counsel's objections. The evidence ultimately produced was adequate to establish that the status alert form and the information it contained bore a substantial degree of reliability and trustworthiness so as to satisfy O'Connell. Thus, the trial court did not abuse its discretion in admitting the evidence.
II. Due Process
Defendant also argues his due process rights were violated at the revocation hearing because he was denied an opportunity to confront and cross-examine the witnesses against him.
"Although probation violation hearings involve the criminal justice system, they are not governed by all the procedural safeguards of a criminal trial. [Citations.] Specifically the Sixth Amendment's right of confrontation does not apply to probation violation hearings. [Citation.] A defendant's right to cross-examine and confront witnesses at a violation hearing stems, rather, from the due process clause of the Fourteenth Amendment. [Citation.] Those confrontation rights, however, are not absolute, and where appropriate, witnesses may give evidence by ' "affidavits, depositions, and documentary evidence." ' (People v. Abrams (2007) 158 Cal.App.4th 396, 400, fn. omitted (Abrams); see Morrissey v. Brewer (1972) 408 U.S. 471, 489 [parole revocation " 'process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial'].)" We turn to a review of the relevant law.
In People v. Winson (1981) 29 Cal.3d 711 (Winson), the Supreme Court concluded the trial court erred in admitting a preliminary hearing transcript as evidence at the defendant's probation revocation hearing. The court stated: "Our conclusion that a finding of good cause is required before the preliminary hearing transcript may be used at a revocation hearing is thus compelled by the high court's precise enunciation of minimum due process requirements in such proceedings. It also is compelled by the emphasis of the Supreme Court on the equal value of cross-examination and the opportunity for observation of the witness' demeanor." (Id. at p. 717.) The court emphasized that "within this context the right of confrontation is not absolute. Confrontation may be denied if the trier-of-fact finds and expresses good cause for doing so. Thus, the risk of harm to an informant may suffice to deny a parolee the right to confrontation. [Citations.] Generally, if the witness is legally unavailable, the former testimony may be admitted. Similarly, where 'appropriate,' witnesses may give evidence by document, affidavit or deposition." (Id. at p. 719.) The court observed that "[t]he issue of whether former testimony may be utilized in lieu of a witness' personal appearance is best resolved on a case-by-case basis." (Ibid.) The court was persuaded by this combination of circumstances: "[T]he testimony at issue was that of the sole percipient witness to the alleged parole violation, a finding of no legal unavailability was made in the underlying proceedings in which the charges were then dismissed, no additional evidence was introduced which established the witness' unavailability, and the court made no specific finding of good cause for denying the right to confront and cross-examine." (Ibid.)
In People v. Maki (1985) 39 Cal.3d 707 (Maki), the court noted its observation in Winson that the right of confrontation is "not absolute and where ' "appropriate," witnesses may give evidence by document, affidavit or deposition.' " (Id. 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.)
In People v. Arreola (1994) 7 Cal.4th 1144 (Arreola), reaffirming its holding in Winson, the court concluded that the arresting officer's testimony at a preliminary hearing was inadmissible at the probation revocation hearing absent a showing of good cause or witness unavailability. (Arreola, at pp. 1159-1161.) The court explained that 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.)
The court explained the rationale for the different treatment of documentary evidence and former testimony 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 O'Connell, as we have explained, the trial court admitted a one-page report from a drug treatment program stating that the defendant had been terminated from the program. The court concluded 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." (O'Connell, supra, 107 Cal.App.4th 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. Shepherd (2007) 151 Cal.App.4th 1193 (Shepherd), the court found Arreola and Winson controlling and concluded that the testimony of the defendant's probation officer consisted of inadmissible hearsay. (Shepherd, at pp. 1199-1203.) 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 Abrams, the trial 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. (Abrams, supra, 158 Cal.App.4th at p. 401.) The court 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 court noted that the procedural protections of probation revocation hearings are born out of the due process clause of the Fourteenth Amendment. (Abrams, at p. 400, fn. 1.) The 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. (Id. 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' ...." (Abrams, supra, 158 Cal.App.4th 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.' " (Abrams, supra, 158 Cal.App.4th 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 the defendant's failed reporting made by a different probation officer. (Id. at pp. 1032-1033.) Neither probation officer testified. Concluding the report was admissible, 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 status alert form from WestCare stating that defendant was terminated from the program "bore the requisite indicia of reliability and trustworthiness so as to be admissible." (O'Connell, supra, 107 Cal.App.4th at p. 1067.) The purpose of testimony by Navarro, the source of the form, would be simply to authenticate the form containing information that Navarro would likely not recall from actual memory and 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 Navarro's demeanor would not be important. Additionally, defendant did not dispute the allegation he had been discharged from the WestCare program. In the absence of any evidence contradicting the information in the form, we fail to see why it would be necessary to bring in a live witness to prove what the form showed. (Gomez, supra, 181 Cal.App.4th at p. 1039.)
III. Evidence Code
Defendant urges us to consider applying the Evidence Code to revocation hearings. Doing so in his case, he asserts, would have rendered the status alert form and Badillo's testimony inadmissible and required the testimony of a competent representative of WestCare to testify to the facts regarding defendant's participation in the program.
Defendant relies on Evidence Code section 300, which provides:
"Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a court of appeal or superior court, including proceedings in such actions conducted by a referee, court commissioner, or similar officer, but does not apply in grand jury proceedings."
Despite this statute, many years ago, our Supreme Court observed "the inapplicability of certain evidentiary rules and the lower standard of proof obtaining at a probation revocation hearing." (People v. Coleman (1975) 13 Cal.3d 867, 876.) The court explained:
"The United States Supreme Court has taken pains to point out that 'the revocation of parole 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 revocations .... Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions .... ( ) ... We emphasize there is no thought to equate ... parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.' (Morrissey v. Brewer, supra, 408 U.S. at pp. 480, 489.) Parole and probation revocation proceedings are, of course, equivalent in terms of the requirements of due process. (Gagnon v.
Scarpelli [(1973)] 411 U.S. [778,] 782)." (People v. Coleman, supra, 13 Cal.3d at p. 876, fn. 8.)
More recently, Jones v. Superior Court (2004) 115 Cal.App.4th 48 reviewed the differences between revocation hearings and trials: "While we need not elaborate here on all of the material distinctions between a probation revocation hearing and a trial, we mention a few to illustrate the fundamental difference between these two types of criminal proceedings. There is no right to a jury trial in a probation revocation proceeding. (People v. Dale (1973) 36 Cal.App.3d 191, 195.) The standard of proof that applies at a probation revocation hearing is proof by a preponderance of the evidence, rather than the beyond-a-reasonable-doubt standard that applies to criminal trials. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) Relaxed rules of evidence apply at a probation revocation hearing. (See ... Maki[, supra,] 39 Cal.3d [at p.] 715 [stating that in such proceedings courts have shown a 'willingness to consider otherwise inadmissible hearsay evidence when accompanied by reasonable indicia of reliability']; People v. Brown[, supra,] 215 Cal.App.3d [at p.] 454 ['As long as hearsay testimony bears a substantial degree of trustworthiness it may legitimately be used at a probation revocation proceeding'].) The exclusionary rule does not apply to a probation revocation hearing. (People v. Harrison (1988) 199 Cal.App.3d 803, 811 ['[F]ederal law does not require application of the exclusionary rule to probation revocation hearings'].)" (Id. at pp. 60-61.) --------
As we have explained, a large body of law has established that " '[m]ore lenient rules of evidence apply [at probation revocation hearings] than at criminal trials [citations], and the facts supporting revocation need only be proved by a preponderance of the evidence.' " (People v. McGavock (1999) 69 Cal.App.4th 332, 337.) These cases support the admissibility of otherwise objectionable evidence during postconviction proceedings such as sentencing and revocation of probation, parole, or mandatory supervision. Hearsay evidence is admissible at revocation hearings, "[a]s long as [it] bears a substantial degree of trustworthiness," as determined by the trial court. (In re Miller (2006) 145 Cal.App.4th 1228, 1235; O'Connell, supra, 107 Cal.App.4th at p. 1066.)
This body of law relies on constitutional principles developed by the United States Supreme Court. (See, e.g., Abrams, supra, 158 Cal.App.4th at p. 400, quoting Morrissey v. Brewer, supra, 408 U.S. at p. 489; People v. Lamb (1999) 76 Cal.App.4th 664, 683, citing Williams v. New York (1949) 337 U.S. 241, 251 and Williams v. Oklahoma (1959) 358 U.S. 576, 584 ["a sentencing court may consider a broad range of information in deciding whether to grant probation in a particular case. Due process does not require that a criminal defendant be afforded the same evidentiary protections at sentencing proceedings as exist at trial .... A sentencing judge may consider responsible unsworn or out-of-court statements concerning the convicted person's life and characteristics."]; Winson, supra, 29 Cal.3d at pp. 713-714 [in light of federal and state authorities concerning due process rights at parole or probation revocation hearing, preliminary hearing transcript was improperly admitted without a showing of good cause].)
Based on these legal principles, we find defendant's argument unpersuasive.
DISPOSITION
The trial court's order revoking defendant's mandatory supervision is affirmed.