Opinion
E044849
8-5-2008
In re JAMES E, a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JAMES E., Defendant and Appellant.
Dabney B. Finch, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Emily R. Hanks, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
James E. appeals the juvenile courts finding that he violated three terms of his probation. He argues the juvenile courts finding should be reversed because it was based solely on inadmissible hearsay evidence that should have been excluded or stricken as he requested during the hearing on the alleged violations.
FACTUAL AND PROCEDURAL BACKGROUND
A petition filed pursuant to Welfare and Institutions Code section 602, subdivision (a), alleged that on March 1, 2007, minor committed a second degree commercial burglary in violation of Penal Code section 459. On March 7, 2007, minor admitted he committed the burglary and stipulated to the police report as a factual basis for the admission. On April 6, 2007, the juvenile court declared the minor a ward of the court; pursuant to the recommendations of a probation officer, the minor was released to the custody of his father and placed on probation subject to various terms and conditions, including participation in the "Success" program. The record indicates the minors performance on probation and in the Success program was poor, and he repeatedly violated a number of the terms of his probation. However, in this appeal, the minor only challenges the juvenile courts finding he violated his probation on October 15, 2007, by resisting an officer and consuming alcoholic beverages.
The challenged probation violations were charged in a petition filed November 8, 2007, pursuant to Welfare and Institutions Code section 602, subdivision (a). The petition alleged minor violated the terms of his probation on October 15, 2007, by failing to obey a police officers request to stop, by being under the influence of alcohol, and by being away from home during curfew hours.
In a prior petition filed pursuant to Welfare and Institutions Code section 602 on October 29, 2007, minor was charged with violating the law by resisting an officer on October 15, 2007, in violation of Penal Code section 148, subdivision (a)(1). However, the juvenile court dismissed this earlier petition on November 30, 2007, when the officer did not personally appear to testify at the hearing.
On November 30, 2007, the juvenile court held a hearing on the truth of the probation violations alleged in the petition. The minors probation officer was the only witness to offer testimony at the hearing. He identified the minor, and over the objections of minors counsel, he testified the minor was in violation of his probation on October 15, 2007, because he ran from a sheriffs deputy, was drinking alcohol, and was away from home outside his curfew hours without prior permission and without being in the immediate presence of his parents. The probation officers testimony was based on his knowledge of the terms of minors probation, as well as the contents of a police report and a citation issued to the minor on the date in question.
Minors counsel objected to the probation officers testimony on grounds of hearsay and lack of foundation, arguing it was inadmissible because the probation officer had no firsthand knowledge and had not actually observed any of the alleged violations. The juvenile court overruled the objections. Based solely on the probation officers testimony, the trial court found true the first two allegations that minor violated the terms of his probation by failing to obey a police officers request to stop and by consuming alcoholic beverages. However, the trial court found untrue the third allegation that minor violated his probation by being away from home outside his curfew hours without prior permission or in the immediate presence of his parents. On December 14, 2007, the juvenile court ordered minor to serve 78 days in juvenile hall with release on January 23, 2008, minors 18th birthday.
DISCUSSION
Minor argues the trial court abused its discretion and violated his right of confrontation by admitting hearsay evidence of the alleged probation violations through his probation officers testimony about the contents of the police report. According to minor, the trial court should have required live testimony by the police officer or officers who actually witnessed the alleged probation violations, particularly when the People offered no legitimate reason why the officers were not present and able to testify.
The People argue we should dismiss the appeal as moot because the minor has completed his custody time, his probation has been terminated, and he was released into his own custody. However, these circumstances do not render the minors appeal moot. "[I]f a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot." (In re William M. (1970) 3 Cal.3d 16, 23.) "[W]e should not avoid the resolution of important and well litigated controversies arising from situations which are `capable of repetition, yet evading review." (Id. at p. 23, fn. 14.) The scope of evidence admissible in juvenile detention proceedings is an issue of broad public interest. (In re Korry K. (1981) 120 Cal.App.3d 967, 969.) The issue presented is also one that is likely to recur. We therefore consider the merits of minors claim.
Probation revocation is not part of a criminal prosecution, and, as a result, "the full panoply of rights due a defendant in [a criminal] proceeding does not apply." (Morrissey v. Brewer (1972) 408 U.S. 471, 480.) The right of confrontation in a probation revocation proceeding is not absolute, and where appropriate, courts may consider "the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence." (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, fn. 5.) As the Supreme Court stated in Morrissey v. Brewer, supra, 408 U.S. at page 489, "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."
Evidence Code section 1200, subdivision (a), defines "hearsay evidence" as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." Subdivision (b) of Evidence Code section 1200 states as follows: "Except as provided by law, hearsay evidence is inadmissible." Penal Code section 1203.2 and Welfare and Institutions Code section 777, subdivision (c), expressly authorize the admission of hearsay evidence in a probation revocation proceeding. Under Penal Code section 1203.2, subdivision (a), probation may be revoked or terminated "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, . . ."
Welfare and Institutions Code section 777, subdivision (c), provides that a juvenile court "may admit and consider reliable hearsay evidence at [a probation revocation] hearing to the same extent that such evidence would be admissible in an adult probation revocation hearing, pursuant to the decision in People v. Brown [(1989) 215 Cal.App.3d 452 (Brown)] and any other relevant provision of law."
In pertinent part, Brown states that, "As long as hearsay testimony bears a substantial degree of trust-worthiness 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. [Citation.]" (Brown, supra, 215 Cal.App.3d at pp. 454-455.) In addition, probation violations need only be "established by a preponderance of the evidence." (Welf. & Inst. Code, § 777, subd. (c).)
Minor contends the issues he raises are governed by our Supreme Courts decision in People v. Arreola (1994) 7 Cal.4th 1144 (Arreola). We agree. In Arreola, and in an earlier case entitled People v. Winson (1981) 29 Cal.3d 711 (Winson), our Supreme Court held that a showing of good cause is required before a preliminary hearing transcript of an important percipient witness to the alleged probation violations can be used in lieu of live testimony by the witness.
The probationer in Winson was charged with attempted robbery and assault with a deadly weapon. The victim identified the probationer as one of the assailants during the preliminary hearing on these charges but could not be located at the time of trial. (Winson, supra, 29 Cal.3d at pp. 713-714.) As a result, the prosecutor requested to introduce the preliminary hearing transcript at the trial on the new charges. However, the trial court denied use of the transcript and found the prosecution had not exercised due diligence in keeping track of the victim. The new criminal charges were dismissed. (Id. at p. 715.) At a subsequent hearing to determine whether the probationer was in violation of his probation in a prior case, the prosecutor again sought to introduce a transcript of the victims testimony from the preliminary hearing to prove there was a violation of probation. (Ibid.) The probationer objected based on lack of notice, due process, and denial of the right to confrontation. However, the trial court admitted the transcript over the probationers objections, heard other evidence, rejected the probationers alibi, and found him in violation of his probation. (Ibid.)
Our Supreme Court in Winson reversed, concluding the transcript was improperly admitted because "the testimony at issue was that of the sole percipient witness, . . . 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." (Winson, supra, 29 Cal.3d at p. 719.) Most significantly for our purposes, the Supreme Court noted it would have been insufficient evidence of a probation violation if the probation officer had simply summarized the content of the preliminary hearing transcript in a probation report. (Id. at p. 718.)
In Arreola, the probationer was charged with driving under the influence of alcohol, reckless driving while evading a police officer, operating a vehicle with a suspended license, and resisting a police officer. The probationer was notified that the People intended to offer the transcript of the arresting officers testimony at the preliminary hearing to establish probation violations in an earlier case. (Arreola, supra, 7 Cal.4th at pp. 1149-1150.) Because the probationer had been given notice, the People argued Winson did not apply. (Id. at p. 1151.) Without making a determination of good cause, the trial court admitted the transcript and revoked probation based on the evidence in the preliminary hearing transcript. (Ibid.) Our Supreme Court reversed, reaffirming Winson, and concluding a showing of good cause was required before the transcript could be admitted. (Id. at p. 1159.) The Supreme Court also stated a determination of good cause must be made on a case-by-case basis. Good cause exists when the declarant is unavailable or cannot be brought to the hearing without great difficulty or expense, or when the declarants presence would pose a risk of harm to the declarant. (Id. at pp. 1159-1160.) Other relevant circumstances must also be considered, including the purpose and significance of the evidence, and whether there is other corroborating evidence. (Ibid.)
Here, the probation officers testimony was essentially a substitute for the live testimony of the adverse percipient witnesses, i.e., the police officers who actually witnessed the events serving as the basis for the alleged probation violations. The probation officers testimony about the alleged probation violations was hearsay, because it was based on out-of-court statements offered for the truth of the matters asserted. As a result, the admissibility of the probation officers testimony depended upon a showing of reliability and good cause. (Arreola, supra, 7 Cal.4th at pp. 1159-1160.) Over the minors objections, the testimony was admitted without a showing of reliability or good cause. Therefore, we conclude the juvenile court should have sustained the minors objection to the admission of the testimony.
In reaching our finding of error, we reject the Peoples contention the facts before us are more analogous to those considered in cases such as People v. Maki (1985) 39 Cal.3d 707 (Maki) and Brown, supra, 215 Cal.App.3d 452. In Maki, our Supreme Court concluded documentary hearsay evidence in the form of a receipt for a rental car was admissible to show the defendant violated his probation by leaving the area without prior permission from the probation officer. The Supreme Court stated the case was "a close one" but reasoned there was sufficient "indicia of reliability" when the receipts were considered in the context of other supporting evidence. The receipt was seized from the defendants home, along with a similar hotel receipt, and the probation officer brought a copy of the two receipts to a probation revocation hearing for consideration by the court. The defendants verifiable signature appeared on both receipts, along with the emblems of the rental car company and the hotel. Both receipts were "of the type relied upon by parties for billing and payment of money." (Maki, at pp. 709, 716-717.) The Supreme Court concluded the receipts "were properly considered by the trial court and provided a sufficient basis from which it could conclude that defendant violated the terms of his parole by leaving the area without permission." (Id. at p. 717). In addition, the Supreme Court stated defendants confrontation rights were not infringed by the admission of the receipts as evidence when nothing was offered to contradict the information shown therein. (Ibid.)
Likewise, the appellate court in Brown, supra, 215 Cal.App.3d 452, concluded the trial court properly admitted a police officers hearsay testimony "relating the findings of a chemists test on confiscated substances at a probation revocation proceeding." (Id. at p. 453.) The appellate court reasoned the officers testimony about the chemists findings was trustworthy and reliable because the officer explained he "routinely passed the confiscated substances on to the police chemist who subsequently conducted the test." (Id. at p. 455.) As such, the test results were part of the " `regular business " of the police laboratory, and there was nothing to indicate they were anything but trustworthy and reliable. In addition, other evidence was presented to corroborate the results of the testing. (Ibid.)
Our Supreme Court has drawn an important distinction between the type of testimony at issue in Brown and testimony by a witness who directly observed conduct by the probationer, which could be used to establish a violation of probation. "[T]he need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witnesss demeanor. [Citation.] Generally, the witnesss 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.)
Here, a copy of the police report and citation are included in the record. Unlike Maki, however, there is nothing to indicate these documents were actually presented to the juvenile court for consideration on the question of whether minor violated his probation on October 15, 2007. Unlike Brown, there is no foundational testimony in the record to support the admission of the content of these documents as reliable hearsay through the probation officers testimony. Nor is there any corroborating evidence of the alleged violations. Therefore, cases such as Maki and Brown do not support the Peoples contention that the probation officers testimony about the contents of the documents was admissible during the minors revocation hearing as reliable hearsay.
According to our Supreme Court in Arreola, supra, 7 Cal.4th at page 1161, the erroneous admission of hearsay testimony in the context of a probation revocation proceeding is of federal constitutional dimension and is therefore subject to the " `harmless-beyond-a-reasonable-doubt " standard of prejudice. In the event of prejudice as a result of the erroneous admission of hearsay testimony, our Supreme Court also indicated remand for a new probation revocation hearing would be an appropriate remedy. (Ibid.) We must therefore consider whether the error was prejudicial.
Our review of the record reveals the error was harmless beyond a reasonable doubt and, as a result, remand for a new probation revocation hearing would be futile. During the original hearing, the minor did not seriously contest or offer any evidence to contradict the factual basis for the alleged violations. Nor has he suggested he has any basis for doing so. In fact, after the juvenile court found the alleged probation violations true, and before the final disposition hearing, the probation officer interviewed the minor while preparing a final report to present to the court. During the interview, the minor admitted the violations and stated he "wanted to plead guilty, but his attorney wanted to fight the case."
The record gives us no reason to believe either of the officers who were percipient witnesses to the alleged probation violations could not be made available to testify on remand. In addition, there is supporting documentary evidence of the probation violations—the police report and the citation issued to the minor on October 15, 2007. Copies of these documents are included in the record, and both bear accepted indicia of reliability. With proper foundational testimony, it appears these documents could be admitted if necessary as reliable hearsay or as an exception to the hearsay rule for records of a public employee pursuant to Evidence Code section 1280.
The record indicates one of the officers was on vacation at the time of the original probation revocation hearing.
Although the probation officer only referred to one citation during his testimony, the record actually includes two citations issued on October 15, 2007. One citation was issued to the minor for resisting the officer and for being drunk in public. The other citation was issued to the minors mother as parental notification of the cited violations. The officer signed both citations under penalty of perjury. Without admitting guilt, both the minor and his mother signed the citations promising to appear in the juvenile court.
The officer signed the citation under penalty of perjury. Without admitting guilt, the minor appears to have signed the citation promising to appear in the juvenile court. The record also shows the officer signed a juvenile probable cause declaration under penalty of perjury, which referred to an "attached report." We presume the police report was the referenced attachment. The report includes a cross-reference to the citation number, which matches the number shown on the citation issued to the minor. The report states the officer was dispatched to investigate a "fight in progress." When he arrived at the scene, the apartment manager told him the suspect fled. He was then advised by radio that another officer was chasing the suspect, and he saw the minor suspect pass in front of his patrol car being chased by the other officer. He told the minor to stop, but he continued to run, so the officer pursued him on foot. "[U]nknown citizens" in the apartment complex stopped the minor, who was then handcuffed, placed in the officers patrol car, and transported to the police station. Thus, the contents of the report indicate the officer who authored the police report directly observed conduct by the minor, which may be sufficient to establish the alleged probation violations, and signed a declaration to the truth of the matters asserted under penalty of perjury. The report appears to have been prepared near the time of the alleged probation violations, as it is dated October 15, 2007, and shows it was faxed on October 25, 2007.
DISPOSITION
The judgment is affirmed.
We concur:
HOLLENHORST, J.
GAUT, J.