Opinion
Opinion on pages 1-8 omitted.
HEARING GRANTED [*]
[166 Cal.Rptr. 254]Appellate Defenders, Inc. and Andrew J. Freeman and Elaine A. Alexander, San Diego, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth and Steven H. Zeigen, Deputy Attys. Gen., for plaintiff and respondent.
WIENER, Associate Justice.
Defendant's appeal from the order revoking his probation raises the question of whether a witness' testimony contained in the preliminary hearing transcript of a criminal case in which defendant is a party may be introduced at his revocation hearing when the same witness is not unavailable. (See Evid.Code, §§ 1291 and 240.) We conclude where the hearsay evidence represents the entire case against him it may not be admitted, for to do so denies him due process of law. We reverse the order.
Procedural Background
Defendant was convicted in 1978 of assault with a deadly weapon. He was placed on formal probation for three years on conditions, among others, that he spend one year in the county jail and not violate any state laws. Three weeks after he was released from custody, he was arrested and charged in Case No. CR45552 with attempted robbery and assault with a deadly weapon against Gerald Winther. Winther testified at the preliminary hearing on January 9, 1979. On February 27, defendant was given notice to show cause why his probation should not be revoked. On March 16, after an evidentiary hearing the court ruled the prosecution had not exercised due diligence in attempting to locate the witness (Evid.Code, § 240, subd. (a)(5)) and denied the use of the preliminary hearing transcript in Case No. CR45552 which was then dismissed.
At the probation revocation hearing on April 13 and 23, the court ruled Winther's preliminary hearing testimony was admissible, revoked defendant's probation, and sentenced him to prison for four years.
Facts
Winther testified he saw defendant with co-defendant May at a restaurant about 5:00 p. m. on December 19, 1978. Winther knew May, spoke briefly to him, ate dinner and left the restaurant. As he was walking through an adjacent alley, May grabbed [166 Cal.Rptr. 255] him from behind and shoved him against the wall. May said, "Up your money." Defendant pulled a knife, cut Winther's jaw and stabbed him in the back of the head.
In response to the victim's cries for help, the police were called. Officer Copher of the San Diego Police Department spoke with the victim on the sidewalk near the alley. Winther described one of his assailants as Mexican-looking, 5 feet 10 inches, approximately 165 pounds, with teardrop tatoos by his eyes. Three days after the incident Winther immediately identified defendant's picture from a photographic lineup and said, "He's the one with the knife."
When defendant was arrested on December 20, 1978, he was with Mike May. Both men were carrying knives.
Defendant testified he had run into May by accident at the restaurant. He left the restaurant alone, went to his apartment, and fell asleep about 5:00 p. m. May later entered the apartment through a window and began watching T.V.
Lisa Wennstrom testified she was a friend of defendant. In the early evening of December 19, 1978, when she was walking toward her apartment near the site of the attack she heard someone yelling for help and for the police. A short time later a young man ran up and said he had just been mugged. He said one was a blond stocky kid he knew was Mike and the other was a tall, dark, Mexican-looking kid. At this juncture, Wennstrom supplied May's last name, asked if the other man had teardrops and a mustache, and gave him the name "Richard."
Discussion
In establishing minimal due process standards for parole and probation revocation proceedings, the Supreme Courts of the United States and California have both specifically included "the right to confront and cross-examine adverse witnesses." (Morrissey v. Brewer (1972) 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484; Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656; People v. Vickers (1972) 8 Cal.3d 451, 457-458, 105 Cal.Rptr. 305, 503 P.2d 1313.) The high court made clear, however, that the full panoply of rights accorded a defendant in a criminal trial are not required in parole and probation revocation hearings for ". . . there is no thought to equate this second stage of 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. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484.) "Thus, hearsay evidence, such as police reports and probation records, are admissible in revocation hearings. (People v. Rafter (1974) 41 Cal.App.3d 557, 561, 116 Cal.Rptr. 281; see also People v. Vickers (1972) 8 Cal.3d 451, 457-458, 105 Cal.Rptr. 305, 503 P.2d 1313; In re Thomas (1972) 27 Cal.App.3d 31, 34-35, 103 Cal.Rptr. 567." (People v. Cambitsis (1980) 101 Cal.App.3d 141, 144, 161 Cal.Rptr. 441, 443.)
Where hearsay evidence impacts on the right of the probationer to confront and cross-examine an adverse witness, there must be a finding of good cause for the denial of that right. (Morrissey v. Brewer, supra, 408 U.S. at p. 489, 92 S.Ct. at 2604; People v. Vickers, supra, at p. 459, 105 Cal.Rptr. 305, 503 P.2d 1313.) Good cause exists, for example, where it is determined the evidence is merely cumulative. (People v. Peterson (1973) 9 Cal.3d 717, 728, 108 Cal.Rptr. 835, 511 P.2d 1187.)
Defendant's objection to the introduction into evidence of the preliminary hearing transcript on due process grounds was overruled without explanation. In light of its earlier ruling the witness was not unavailable, and the fact that no additional evidence was presented on this point, presumably the court relied on the difference between a probation revocation proceeding and a criminal trial. We assume it found there was no further need for defendant to confront and cross-examine Winther because of defendant's earlier opportunity and right at the preliminary hearing to cross-examine the declarant on the same factual matter [166 Cal.Rptr. 256] with the same interest and motive as he would have at the revocation hearing.
The question presented to us, although in a setting in which the unavailability of the witness was not resolved, has recently been addressed in People v. Cambitsis, supra, 101 Cal.App.3d 141, 161 Cal.Rptr. 441. There, the court explained because due process safeguards guaranteed to a defendant are less comprehensive in a probation revocation hearing than for a criminal trial with evidentiary rules more relaxed and the standard of proof less stringent that "it would seem appropriate to loosen the requirement of unavailability " required by Evidence Code section 129. (Id. at p. 156, 161 Cal.Rptr. at p. 444, italics added.) Our case is obviously more difficult for we must decide whether the "loosening" of the requirement of unavailability really means its elimination with the practical effect that in every case the preliminary hearing transcript will be routinely used instead of testimony from witnesses present at the hearing. We believe the Cambitsis court used the word "loosen" advisedly for it undoubtedly wished to avoid the problem posed in the instant case.
In Cambitsis probations were revoked because defendants attended a race track and cashed forged tickets in violation of their probation conditions. The main witness against them was the parimutuel clerk who cashed their tickets on February 21. The witness whose testimony was read was a taxicab driver who had picked up the defendants at an inn across the street from the race track three days later on February 24, and drove them to the airport. Defendants presented alibis, including one for February 24. Under such circumstances, where the testimony from the transcript was cumulative to that of the parimutuel clerk, the court's use of the taxicab driver's preliminary hearing testimony did not violate due process.
Similarly, this court in People v. Burden (1980) 105 Cal.App.3d 917, 166 Cal.Rptr. 542, held it was not a denial of due process to allow hearsay testimony where the use of that testimony seemed to stem from a deliberate choice on the part of defendant and the testimony itself was also cumulative to that given by another witness who personally appeared at the hearing to face cross-examination.
The key witness here was Winther. It was his testimony standing alone which implicated defendant and on which defendant's violation of probation was grounded. It is clear that if Winther had been found unavailable as a witness pursuant to Evidence Code section 240, subdivision (a)(5), his preliminary hearing testimony would have been admissible at both the criminal trial and the probation revocation hearing. (See Evid.Code, § 1291, subd. (a)(2); People v. Benjamin (1970) 3 Cal.App.3d 687, 693-698, 83 Cal.Rptr. 764.) Although the trier of fact in the preliminary hearing has a lesser burden of proof than the fact finder at the guilt trial, the interest and motive for cross-examination of the witness at both proceedings are deemed sufficiently similar so as to preclude the application of the witness-confrontation constitutional right. (People v. Salas (1976) 58 Cal.App.3d 460, 468, 129 Cal.Rptr. 871.) One justification for the right of confrontation the opportunity to cross-examine is satisfied by furnishing to the defendant a chance to fully cross-examine the witness under circumstances which produce reliable evidence. (See gen. Jefferson, California Evidence Benchbook, pp. 43-52.)
There is, however, another purpose underlying the right of confrontation. That purpose is to permit the trier of fact to see the witness. (Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.) Every jury is told, "the believability of a witness and the weight to be given to his testimony" turns on many factors "including the demeanor of the witness while testifying and the manner in which he testifies." (CALJIC No. 2.20 (1979 revision); Evid.Code, § 780, subd. (a).) The appellate process itself is based on the premise that only those who see and hear live testimony from witnesses are able to weigh that testimony. Appellate courts have taken some delight in describing the difference between the record [166 Cal.Rptr. 257] on appeal and the reality of those events at trial. A written transcript of testimony has been characterized as "but a pallid reflection of what actually happens in a trial court." (Meiner v. Ford Motor Co. (1971) 17 Cal.App.3d 127, 140, 94 Cal.Rptr. 702, 710.) Also, " 'The best and most accurate record is like a dehydrated peach; it has neither the substances nor the flavor of the fruit before it was dried.' It resembles a pressed flower." (Broadcast Music v. Havana Madrid Restaurant Corp., 175 F.2d 77, 80 (2d Cir.).)
"On the cold record a witness may be clear, concise, direct, unimpeached, uncontradicted but on a face to face evaluation, so exude insincerity as to render his credibility factor nil. Another witness may fumble, bumble, be unsure, uncertain, contradict himself, and on the basis of a written transcript be hardly worthy of belief. But one who sees, hears and observes him may be convinced of his honesty, his integrity, his reliability." (Meiner v. Ford Motor Co., supra, 17 Cal.App.3d 127, 140, 94 Cal.Rptr. 702, 711.)
Hopefully, expressions by appellate courts on the importance of seeing the witness are more than flights of literary fancy. Each such statement is the judicial reemphasis of the difference between a record of testimony and the observation of that person while the record is being made. It is with this oft repeated theme in mind we examine the "good cause" necessary to remove defendant's right to confront and cross-examine witnesses at a revocation hearing. We believe "good cause" should not be so malleable as to include within its definition testimony from every earlier judicial proceeding regardless of the circumstances and evidence upon which the probation violation is based.
The determination of "good cause" is more properly made on a case-by-case basis. The first question to be answered in every case is whether the witness is legally unavailable. If this question is answered in the affirmative, the evidence may be admitted. If answered in the negative, other factors such as notice to the defendant to adequately prepare for the hearing, other evidence baring on the alleged violation, the nature of the probation conditions, and the time span between the prior judicial proceeding and the revocation hearing itself must be considered. Undoubtedly, other factors may be considered to determine whether due process is satisfied if hearsay evidence is used. Upon application of those factors to the circumstances of this case, defendant was denied due process of law.
Disposition
The order of revocation is reversed.
GERALD BROWN, P. J., and STANIFORTH, J., concur.
[*]See 29 Cal.3d 711 for Supreme Court opinion.