Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCWL-CRCR-05-64114-02
McGuiness, P.J.
Appellant James Arthur Barry, Jr. appeals from a judgment revoking his probation and sentencing him to six years in state prison. He seeks reversal of the judgment, arguing that the trial court revoked his probation based solely on inadmissible hearsay evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 7, 2005, pursuant to a negotiated plea agreement, appellant pled no contest to one count of lewd and lascivious acts with a child under the age of 14 years, a violation of Penal Code section 288, subdivision (a). On June 21, 2005, the trial court imposed the middle term of six years in state prison, suspended execution of the sentence, and placed appellant on probation for 60 months. As a condition of probation, the court required appellant to enroll in and successfully complete a program designed to treat sexual offenders.
All further statutory references are to the Penal Code unless otherwise specified.
Deputy probation officer Michael Neal supervised appellant’s probation. Neal directed appellant to attend the Narum Clinical Associates sex offender treatment program in Humboldt County, where appellant had planned to reside. Neal received confirmation that appellant had enrolled in the program. Subsequently, Gail Narum of Narum Clinical Associates advised Neal by telephone there was a problem with appellant’s participation in the program. At Neal’s request, Narum sent by fax to Neal a memorandum dated August 15, 2006, reflecting that appellant had been terminated from the sex offender treatment program for violating two of the program’s rules. Specifically, the memorandum indicated that appellant had lied about starting a sexual relationship with another adult, in violation of program rules requiring that sexual contact with new partners be approved in advance and that program participants not lie to the therapy group. The memorandum also expressed a concern that the woman with whom appellant had begun a sexual relationship had a nine-year old daughter. An unidentified therapist had informed Narum of the facts supporting appellant’s termination from the program.
On August 17, 2006, Neal filed a petition alleging that appellant had violated the terms of his probation. In the petition, Neal alleged that appellant had been dropped from the Narum Clinical Associates sex offender treatment program after admitting to having sexual relations without permission. It was further alleged appellant had lied to Narum Clinical Associates and that he had contact with a nine-year-old female.
The trial court conducted a contested probation revocation hearing on October 5, 2006. The prosecution called deputy probation officer Neal as its sole witness. Neal proceeded to testify as to what he had been told by Narum. In addition, the prosecutor offered into evidence the faxed memorandum Neal had received from Narum. Defense counsel objected to Neal’s testimony and to the faxed memorandum, arguing they were inadmissible hearsay. The prosecutor explained that she tried to convince Narum to testify but that “Ms. Narum didn’t want to do that, so we’re proceeding in that fashion.”
The trial court stated it “would have preferred to have a live witness because [the] potential consequences of this violation are so significant.” The court also stated it was “not exactly clear what it takes to get kicked out of this program.” Nevertheless, the court overruled appellant’s objection and admitted into evidence the bulk of Narum’s August 15, 2006, memorandum, including the statement that appellant had been terminated from the program, the description of the rules appellant violated, the statement that appellant had agreed to follow all program rules, and the statement that appellant “ha[d] recently admitted that he had begun a sexual relationship” with a woman despite being told by his therapist he could not do so. The court struck the portions of the memorandum stating that appellant had lied in group sessions and that the woman with whom he had a sexual relationship had a nine-year old daughter. The court explained that the fact of appellant’s termination from the Narum Clinical Associates program had “sufficient trustworthiness” to be relied upon at a probation revocation hearing.
Based on the admitted portions of Narum’s memorandum dated August 15, 2006, the court found that appellant had violated two conditions of his probation—that he obey all laws and orders of his probation officer and that he enroll in and successfully complete a program designed to treat sex offenders. The court found no violation of the probation condition restricting contact with minors.
On December 28, 2006, the court ordered appellant to serve the six-year prison term that had previously been suspended while appellant was on probation. The court awarded presentence credit of 367 actual days plus 182 days of conduct credit. Appellant filed a timely notice of appeal.
DISCUSSION
Appellant argues the trial court committed reversible error by relying solely on inadmissible hearsay to establish his probation violation, contending he was denied the right to confront and cross-examine the author of the memorandum used against him. Initially, the People conceded that the trial court erred and that appellant was prejudiced by the error. In its brief conceding error, the People did not cite or distinguish People v. O’Connell (2003) 107 Cal.App.4th 1062 (O’Connell), which appellant had discussed at some length in his opening brief. We requested supplemental briefing from the parties on a number of questions, including whether O’Connell is relevant to our analysis. Upon reconsideration, the People rescinded their prior concession and now urge that we reject appellant’s claim of error. We conclude the trial court did not err by revoking appellant’s probation based upon a hearsay document reporting on appellant’s termination from a treatment program.
We are not bound to accept a party’s improvident concession based on a mistaken understanding of the facts or law. (See People v. Thompson (1990) 221 Cal.App.3d 923, 934; People v. Alvorado (1982) 133 Cal.App.3d 1003, 1021).
Because revocation of probation is not part of a criminal prosecution, the full panoply of rights due a defendant in a criminal proceeding does not apply to a revocation proceeding. (Morrissey v. Brewer (1972) 408 U.S. 471, 480.) Nevertheless, one facing revocation of probation typically has the right to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation. (People v. Arreola (1994) 7 Cal.4th 1144, 1159 (Arreola); accord People v. Winson (1981) 29 Cal.3d 711, 719.)
In Arreola, the defendant objected on several grounds to the use of a preliminary hearing transcript at a probation revocation hearing. (Arreola, supra, 7 Cal.4th at p. 1150.) The defendant asserted hearsay and lack of foundation in that there had been no showing of the declarant’s unavailability or other good cause for excusing the declarant from testifying. (Ibid.) Reaffirming its holding in People v. Winson, supra, 29 Cal.3d 711, the Supreme Court in Arreola concluded that the arresting officer’s testimony at a preliminary hearing on new charges, which formed the basis for revocation of probation, was inadmissible at the probation revocation hearing absent a showing of good cause or witness unavailability. (Arreola, supra, 7 Cal.4th at pp. 1159-1161.)
Generally speaking, good cause exists “(1) when the declarant is ‘unavailable’ under the traditional hearsay standard [citation], (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant’s presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant. [Citation.]” (Arreola, supra, 7 Cal.4th at p. 1160.) Additionally, the showing of good cause 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, including the probationer’s admissions, corroborates the evidence. (Ibid.)
The right of confrontation at a probation revocation hearing is not absolute, however, and in appropriate circumstances witnesses may give evidence in the form of documents, affidavits, or depositions. (Arreola, supra, 7 Cal.4th at p. 1156; People v. Maki (1985) 39 Cal.3d 707, 710.) Documents such as letters that might not be admissible in an adversarial trial of a criminal charge may nonetheless be considered at a probation revocation hearing under certain circumstances. (Arreola, supra, 7 Cal.4th at p. 1153; Morrissey v. Brewer, supra, 408 U.S. at p. 489.) Documents that constitute hearsay evidence may provide an adequate basis on which to revoke probation if the evidence is sufficiently trustworthy to be relied upon by the trial court. (Arreola, supra, 7 Cal.4th at p. 1156; People v. Maki, supra, 39 Cal.3d at p. 717.) “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. [Citation.]” (People v. Brown (1989) 215 Cal.App.3d 452, 454-455.)
Our Supreme Court has recognized a distinction between the admission of a transcript of former testimony and the admission of traditional documentary evidence that does not have, as its source, live testimony. (Arreola, supra, 7 Cal.4th at p. 1157.) “[T]he 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.” (Ibid., fn. omitted.)
In O’Connell, supra, 107 Cal.App.4th 1062, the Third District Court of Appeal addressed a fact situation very similar to the one presented here. There, the defendant’s probation officer alleged that the defendant had violated the terms of a deferred entry of judgment program by failing to attend a treatment program. The sole evidentiary support for the allegation was a hearsay document from the treatment program’s manager reporting that the defendant had been terminated from the program for too many absences. The trial court found that the “authenticity” of the hearsay document from the treatment program was “sufficiently based,” supporting a finding that the defendant had violated the terms of the deferred entry of judgment program. (Id. at pp. 1064-1065.) The Court of Appeal affirmed the trial court, remarking that the program manager’s report “is akin to the documentary evidence that traditionally has been admissible at probation revocation proceedings.” (Id. at p. 1066.) Unlike cases in which the prosecution proposed to use former testimony to establish a probation violation, the program manager’s “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. [¶] The [trial] court noted such reports were routinely received without undertaking the added burden of calling the author to authenticate it because the reports were prepared in response to a referral from the court.” (Id. at pp. 1066-1067.)
The pertinent facts here are indistinguishable from those in O’Connell. The trial court found that the fact of appellant’s termination from the Narum Clinical Associates program had sufficient trustworthiness to be relied upon at a probation revocation hearing. Just as in O’Connell, the memorandum describing appellant’s termination from the treatment program was prepared contemporaneously to, and specifically for, the hearing at which appellant’s failure to complete the program was at issue. Nothing would have been served by requiring the memorandum’s author to testify. She would merely have confirmed an action taken by the program to terminate appellant. Her demeanor on the stand would not have constituted a significant factor in evaluating the truthfulness of that statement.
It is of no consequence that the trial court admitted into evidence portions of the memorandum reflecting the reasons for appellant’s discharge from the treatment program and not just the fact of his discharge. The terms of appellant’s probation required him to successfully complete a program designed to treat sex offenders. Once it was established that appellant had been discharged from the treatment program without first completing it, the basis of his probation revocation was established. Appellant offered no explanation for his discharge that might have led the trial court to offer him another opportunity to attempt such a treatment program. Under the circumstances, the evidence contained in the memorandum about why he was discharged was not relevant to the trial court’s determination that he violated a term of probation.
Initially, the People conceded trial court error based in part upon their analysis of People v. Shepherd (2007) 151 Cal.App.4th 1193 (Shepherd), a recent decision by a panel of this court. Shepherd is inapposite. In that case, the prosecution alleged the defendant had violated the terms of his probation by consuming alcohol. (Id. at p. 1196.) At the revocation hearing, the defendant’s probation officer testified that he had been informed by a treatment program administrator that the defendant had smelled of, and tested positive for, alcohol consumption. The program administrator did not testify and no other evidence supported the administrator’s out-of-court statements that the defendant consumed alcohol in violation of his probation. Further, it was unclear whether the administrator had observed the defendant’s alleged probation violation or whether she had simply reported what she had been told by other, unidentified witnesses. (Id. at p. 1198.) This court held that the good cause standard described in Arreola applied and that the prosecution had failed to show good cause for not securing the live testimony of the sole percipient witness to the alleged probation violation. (Id. at p. 1202.)
As reflected in the statement of facts in Shepherd, the treatment provider not only reported to the probation officer that the defendant had consumed alcohol but also orally confirmed that the defendant had been asked to leave the treatment program after refusing to go to a detox center. (Shepherd, supra, 151 Cal.App.4th at p. 1197.) However, unlike in O’Connell, the prosecution did not seek to revoke the defendant’s probation on the ground he violated a term of his probation requiring successful completion of a treatment program. Rather, the sole ground for revoking probation was that the defendant had consumed alcohol. (Shepherd, supra, 151 Cal.App.4th at p. 1197.) The Shepherd court had no occasion to consider whether it is proper to admit a hearsay document prepared by a treatment provider reporting on a probationer’s discharge from a treatment program.
In Shepherd, the ability to confront and cross-examine the percipient witness could well have played a role in assessing the truthfulness of the statement that the probationer consumed alcohol. As this court observed, it was not even clear whether the hearsay declarant had observed the violation. (Shepherd, supra, 151 Cal.App.4th at p. 1202.) Here, by contrast, the author of the memorandum was simply reporting on appellant’s discharge from a treatment program, a fact sufficient to justify revoking appellant’s probation. No purpose would have been served by requiring the author to appear at the revocation hearing unless there were some legitimate concern about the memorandum’s authenticity. Appellant raised no such concern.
At oral argument, appellant’s counsel urged that the analysis in O’Connell is superficial and does not take account of Crawford v. Washington (2004) 541 U.S. 36, 68-69 (Crawford), in which the United States Supreme Court held that the Sixth Amendment confrontation clause bars testimonial out-of-court statements unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Appellant’s counsel argued that the decision in Shepherd is the better reasoned decision in part because it considered Crawford and the distinction between testimonial and nontestimonial hearsay.
Appellant’s emphasis on Crawford is misplaced. “Crawford’s holding is squarely based on the Sixth Amendment right to confront witnesses. [Citation.] Probation revocation proceedings are not ‘criminal prosecutions’ to which the Sixth Amendment applies. [Citations.] Probationers’ limited right to confront witnesses at revocation hearings stems from the due process clause of the Fourteenth Amendment, not from the Sixth Amendment. [Citation.] Thus, Crawford’s interpretation of the Sixth Amendment does not govern probation revocation proceedings. [Citation.]” (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411.) Nevertheless, Sixth Amendment cases, including Crawford, “may provide helpful examples in determining the scope of the more limited right of confrontation held by probationers under the due process clause [Citation.].” (People v. Johnson, supra, 121 Cal.App.4th at p. 1412.) Indeed, in Shepherd the court cited Crawford for the proposition that a declarant’s out-of-court statement was a form of testimonial hearsay. (Shepherd, supra, 151 Cal.App.4th at pp. 1201-1202.) The court did not suggest, however, that its analysis was governed by Crawford or that it came to a different conclusion than the O’Connell court because of the intervening decision in Crawford. The analysis in O’Connell remains valid after Crawford, which concerned a more expansive right of confrontation than is available to probationers under the due process clause.
Accordingly, we conclude the trial court did not err in admitting the hearsay memorandum from the Narum Clinical Associates in order to establish that appellant had violated the term of his probation requiring successful completion of a sex offender treatment program. The memorandum bore sufficient indicia of reliability to justify its admission without the need for the prosecution to show good cause for the author’s failure to testify and authenticate the document.
Even if the trial court erred, we would nonetheless conclude any error was harmless. As reflected in the record on appeal, appellant “knowingly and willingly admitted” to his probation officer before sentencing that he violated the terms of the Narum Clinical Associates program by engaging in an unauthorized sexual relationship. Thus, appellant admitted he had engaged in the conduct that resulted in his expulsion from the treatment program. Absent evidence that appellant’s statement to his probation officer was involuntary, his admission could be used against him in further proceedings. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 117, cert. denied sub nom. Coffman v. California (2005) 544 U.S. 1063.) Appellant discounts the significance of his admission, arguing that he did not admit a violation of probation but merely admitted that he violated the rules of the treatment program. While it is true the record does not reflect that appellant specifically admitted he was terminated from the program, he effectively acknowledged as much by admitting that he committed the violations of treatment program rules that resulted in his expulsion. Remanding the case for a new probation revocation hearing would serve little purpose in light of appellant’s admission.
Under the circumstances presented here, we assess whether any error is prejudicial under a harmless-beyond-a-reasonable-doubt standard. (Arreola, supra, 7 Cal.4th at p. 1161.)
DISPOSITION
The judgment is affirmed.
We concur: Pollak, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.