Opinion
A131250
02-14-2012
THE PEOPLE, Plaintiff and Respondent, v. BEATRICE AGUIRRE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. Nos. FCR252739, FCR277956)
Beatrice Aguirre (Aguirre) was convicted of two drug-related offenses and placed on probation, subject to conditions including completion of a drug treatment program. She appeals from the order revoking her probation for being dismissed from the treatment program, claiming her due process rights were violated by the admission of the "testimonial hearsay" of her probation officer and a laboratory report of her drug test. We conclude a discharge summary from the drug treatment program was properly admitted and provided sufficient evidence Aguirre violated the terms of her probation, and affirm.
B ACKGROUND
Aguirre was on probation arising out of two underlying drug possession convictions at the time of the probation revocation hearing in November 2010. In 2008, Aguirre pleaded guilty to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) The court ordered she be placed on probation and complete a drug treatment program pursuant to Proposition 36. (Pen. Code, § 1210 et seq.) Aguirre admitted violating the terms of her probation three times. The court reinstated her probation twice, but after the third probation violation, terminated her Proposition 36 probation and placed her in felony drug court. The drug court found her in violation of her probation three more times. On July 23, 2010, the court ordered Aguirre to spend five days in custody for the third violation. While being booked into jail that day, she was found with methamphetamine. The district attorney charged Aguirre with possession of methamphetamine, with two prior prison term allegations.
On August 13, Aguirre pleaded no contest to the new possession charge, and was placed on Proposition 36 probation, this time with the condition she successfully complete the Namaste drug treatment program. The court summarily revoked her probation on October 1, 2010 after the Namaste program discharged her.
Following a contested probation revocation hearing on November 12, 2010, the court found Aguirre had violated the terms of her probation in both cases. The court sentenced her to the midterm of two years in the first case, plus a consecutive eight-month term in the second case. This timely appeal followed.
D ISCUSSION
Aguirre maintains she was denied her due process rights because the trial court improperly revoked her probation based on her probation officer's testimonial hearsay. She also claims the laboratory report indicating her specimen was dilute, though "presumably of sufficient indicia of reliability" was, "by itself . . . not proof by a preponderance of the evidence that appellant had violated her probations." And, she asserts the discharge summary from the drug treatment program " 'function[ed] as the equivalent of in-court testimony' " and thus was testimonial hearsay.
We review the revocation of probation for abuse of discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 443, 445.) "Although a court may not act arbitrarily or capriciously in revoking probation [citation], its discretion in this matter is very broad . . . ." (People v. Breaux (1980) 101 Cal.App.3d 468, 475.) We likewise review the determination that hearsay evidence was admissible at the probation revocation hearing for abuse of discretion. (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066 (O'Connell).)
Probation revocation hearings are fundamentally different than criminal trials. Because "[r]evocation 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," the full protection provided to criminal defendants does not apply. (Morrissey v. Brewer (1972) 408 U.S. 471, 480.) In contrast to a criminal trial, at a probation revocation hearing there is no right to a jury, a reduced burden of proof (preponderance of the evidence), and "[r]elaxed rules of evidence." (Jones v. Superior Court (2004) 115 Cal.App.4th 48, 60-61; see People v. Maki (1985) 39 Cal.3d 707, 715 (Maki).)
"Probation revocation proceedings are not 'criminal prosecutions' to which the Sixth Amendment applies." (People v. Johnson (2000) 121 Cal.App.4th 1409, 1411.) Rather, a due process standard is used to determine whether hearsay evidence admitted during revocation proceedings violates a defendant's rights. (Morrissey v. Brewer, supra, 408 U.S. at p. 482.) "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." (Id. at p. 481.)
In determining whether hearsay bears a substantial degree of trustworthiness such that it may be admissible at a probation revocation hearing, courts have distinguished between "testimonial hearsay" and non-testimonial hearsay. (People v. Gomez (2010) 181 Cal.App.4th 1028, 1037 (Gomez); People v. Johnson, supra, 121 Cal.App.4th at pp. 1410-1413.) The "need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness's demeanor." (People v. Arreola (1994) 7 Cal.4th 1144, 1157, 1159.) If the hearsay evidence sought to be introduced is testimonial in nature, such as prior testimony, "good cause" must be established. (Ibid.)
In contrast, "[d]ue process does not prohibit the [use of documentary evidence, as long as it is] . . . accompanied by reasonable indicia of reliability . . . ." (Gomez, supra, 181 Cal.App.4th at p. 1034; see also Maki, supra, 39 Cal.3d at pp. 715-717.) 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 is 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." (People v. Arreola, supra, 7 Cal.4th at p. 1157.)
Sufficient reliability can appear from the document itself, indicating the document is what it purports to be, and the absence of any evidence to the contrary. (Maki, supra, 39 Cal.3d at p. 717.) In Maki, the court found an invoice and hotel receipt had sufficient indicia of reliability where they each bore the issuing company's name and the defendant's signature, the documents appeared to be of the type customarily relied upon for billing and payment of money, and there was no evidence tending to contradict the information in the invoice or the inference for which it was used. (Ibid.) Similarly, in Gomez, supra, 181 Cal.App.4th 1028, the court considered the admission of a probation report which included information gleaned from "electronic probation records" showing the probationer did not "report to the probation department as directed, make restitution payments, or submit verification of his employment and attendance at counseling sessions." (Id. at p. 1038.) The court held "[a]lthough the probation report would constitute testimonial hearsay under the expansive definition developed in recent confrontation clause cases, such as Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 . . . , 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." (Id. at p. 1039.)
O'Connell, supra, 107 Cal.App.4th 1062, involved circumstances similar to those presented here. The probation officer's report asserted the defendant had violated the terms of a deferred entry of judgment program by failing to attend a drug treatment program. Attached to the probation report was a written report by the manager of the drug counseling program stating the defendant completed none of the required 20 sessions and had been terminated from the program for excessive absence. At a hearing on the defendant's alleged violation of the requirement to participate in the program, the trial court overruled the defendant's hearsay objection and admitted the drug counseling program manager's report. (Id. at pp. 1064-1065.) On appeal, the court found the program manager's 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 noted that unlike former testimony, the drug program report "was prepared contemporaneously to, and specifically for, the hearing where appellant's lack of compliance with the . . . program was at issue." (Id. at p. 1067.) The court declared: " '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.]' " (Id. at p. 1066, quoting People v. Brown (1989) 215 Cal.App.3d 452, 454-455.)
The evidence at Aguirre's probation revocation hearing included the September 25, 2010 written discharge summary of her case manager, Hilary Bittner, at the Namaste program. Bittner reported: "[Aguirre] was discharged from the program today. This staff was testing the whole house[.] [Aguirre] stated that she could not go to the bathroom. While I was waiting for her another [client] who also stated she could not go came to me and told me that she was dirty and she had gotten high with [Aguirre]. When this staff confronted [Aguirre] she stated she had not used and wanted to be tested right away. This staff then performed a urinalysis on [Aguirre] and when she handed me the cup it was cold and the contents were clear as water. I tested the liquid and it came back negative. I informed Monique Davis of the situation and was advised to discharge [Aguirre]. [Aguirre] claims she did not use. This staff is sending her test to the lab to be tested for all drugs and also to see if it is really urine." Attached to this discharge summary was a printout from Redwood Toxicology Laboratory of test results of a urine test collected on September 25, 2010 by Hilary Bittner, indicating no detectable drugs and stating "Specimen is dilute."
Because Aguirre was not identified by her full name but as " BE AG" on the test result printout, she maintains the lab report was not, "by itself . . . proof by a preponderance of the evidence" that she violated the terms of her probation. Though it may not have been sufficient proof "by itself," it was attached to her discharge summary and provided part of the requisite indicia of reliability to the discharge summary.
Ayesha Wilder, Solano County Probation Department's "Prop 36 court liaison and felony drug court officer," supervised Aguirre. Wilder testified Aguirre was ordered to complete the Namaste program, but failed to do so and was discharged. Wilder received the written discharge summary from Namaste. She then had a telephone conversation with Monique Davis, with whom she was familiar, who confirmed Aguirre was discharged from the Namaste program "[d]ue to her initial resistance to testing and then submitting a severely dilute drug test."
The probation report indicated that Aguirre told Wilder "she was kicked out [of Namaste] because someone said she was using (drugs). . . . [Aguirre] stated that she did not refuse to test. She went on to state that program staff told her the urine sample was too light, and then said it was too cold. [Aguirre] stated that the program told her that they would not send out the sample, and told her to leave." Aguirre told Wilder "in the past, she did give many diluted tests, but she believes that the past is now 'haunting [her].' "
The trial court ultimately concluded: "I think that the information from the Namaste [program] is reliable. It's one of the programs that has a contract with Solano County. We've referred a number of people there before. They have successfully treated a number of people. And the probation officer's testimony provided enough reliability to the memo. [¶] So, I'm going to find that [Aguirre] is in violation of probation."
We likewise conclude the written discharge summary of Aguirre's case manager at the Namaste program bore the requisite indicia of reliability to be admitted at the probation revocation hearing without violating her due process rights. Wilder, Aguirre's probation officer, verified the information contained in the discharge summary. She contacted Monique Davis of the Namaste program and confirmed Aguirre was discharged from the program "[d]ue to her initial resistance to testing and then submitting a severely dilute drug test." Hilary Bittner, Aguirre's case manager, had personal knowledge of Aguirre's reluctance to test and her subsequent submission of a urine sample that was cold and clear. The probation report also indicated Aguirre confirmed she was discharged for submitting a urine test that was cold and appeared diluted, though Aguirre denied using drugs. And, as in O'Connell, the Namaste discharge summary was prepared temporally close to, and for, the revocation hearing. (O'Connell, supra, 107 Cal.App.4th at p. 1067.)
People v. Shepherd (2007) 151 Cal.App.4th 1193, on which Aguirre relies, does not compel a different conclusion. In Shepherd, the court found a probation violation based solely on the hearsay testimony of Shepherd's probation officer that a program administrator at Shepherd's treatment program told him Shepherd was dismissed from the program after smelling of, and testifying positive for, alcohol. No other evidence corroborated the statements, and it was not clear from the probation officer's testimony whether the program administrator herself observed appellant's alleged probation violation, or whether she was simply reporting what she had been told by others. (Id. at pp. 1198, 1203.)
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The discharge summary had sufficient indicia of reliability to be admissible. The court did not abuse its discretion in admitting this documentary hearsay, nor in finding Aguirre violated the terms of her probation.
D ISPOSITION
The order is affirmed.
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Banke, J.
We concur:
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Marchiano, P. J.
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Margulies, J.