Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB047351. David Cohn, Judge.
Nancy Olsen, 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, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
The court found defendant Reginald Eugene Evans in violation of two conditions of probation and imposed a previously suspended term of four years of imprisonment. On appeal, defendant contends the court erroneously admitted evidence consisting of the hearsay testimony of a probation officer regarding the terms of his probation he was found to have violated. Hence, because he concludes the court’s determination was based solely upon inadmissible testimony, he maintains the court abused its discretion in revoking his probation. We agree that the probation officer’s testimony that defendant failed to keep the probation department apprised of his current address was erroneously admitted. Nevertheless, we hold that the court properly admitted the evidence concerning defendant’s other alleged violation. Additionally, we hold that any error in relying on defendant’s violation of both conditions of probation as the basis for revoking his probation was harmless beyond a reasonable doubt. The judgment is, therefore, affirmed in all respects.
FACTUAL AND PROCEDURAL HISTORY
On May 3, 2005, defendant pled no contest to corporal injury to a cohabitant (count 1—Pen. Code, § 273.5, subd. (a)). In accordance with his plea agreement, the court sentenced defendant to four years in state prison, but suspended execution of that sentence on the condition that he complete three years of probation.
All further statutory references are to the Penal Code unless otherwise indicated.
On May 31, 2007, the probation department filed a petition to revoke defendant’s probation. Defendant was alleged to have violated the conditions of his probation requiring that he report to his probation officer every 14 days (term 3) and keep his probation officer apprised of his current place of residence (term 7).
During defendant’s Vickers hearing, Probation Officer Rebecca Suarez testified that defendant had not successfully completed the terms of his probation. Officer Suarez testified that the substance of all her testimony came from a review of defendant’s probation records and a single telephone conversation she had with him. According to the file, defendant was required to complete Kiosk reporting, “a form of hand scan reporting.” Over defendant’s “lack of personal knowledge” and multiple hearsay objections, the court permitted Officer Suarez’s testimony that a computer printout was generated and placed in the probation file which contained references to defendant’s failure to report and have his hand scanned. The records reflected that on April 19, 2007, defendant was directed to get his hand re-scanned when he informed an officer that the Kiosk machine was not working. Defendant failed to do so. When asked if defendant had his hand scanned anytime thereafter, Officer Suarez responded, “[t]hat looks like a no.”
People v. Vickers (1972) 8 Cal.3d 451.
Officer Suarez testified that a condition of defendant’s probation required him to keep the department informed of his current address and that he had failed to do so. On May 24, 2007, a home visit was conducted at defendant’s last known residence. “It was found that [defendant] was no longer living at that residence and had not reported within the timeframe he was suppose[d] to.”
Defense counsel objected to the entirety of Officer Suarez’s testimony on the grounds of lack of foundation and hearsay. The court overruled the objection noting that “I think the People have adequately laid the foundation for [the] public record exception.”
Defendant testified that he had never reported to Officer Suarez. As of April 2007, he was reporting to the officer assigned to him, Officer Gomez, by telephone every 90 days. At some point after April 19, 2007, defendant spoke with a new probation officer, Officer Moore. She called him, told him to come into the office, he did so, and she scanned his hand in the Kiosk. Defendant later testified that he was ordered to report by hand scan prior to April 19, 2007.
Defendant testified he was reporting by hand scan every 90 days. At some point, he called and asked for Officer Moore. He was informed that Officer Moore no longer worked in the unit and that Officer Gomez was still his probation officer. He later testified that he was told Officer Gomez no longer worked there. The person with whom he spoke informed defendant that the matter would be referred to Mr. Jeremiah, the supervisor. Defendant went to report at the Kiosk; however, he had injured his hand and the machine would not scan it. Defendant was told to come back when his hand healed. He came back the next day, but the machine still could not scan his hand due to his wound. Someone also told him to continue to call every 90 days. Defendant continued to report by phone and in person every day. Defendant later conceded that he reported in person “periodically—[¶]... [¶]... [n]ot every day.”
Defendant testified that he had resided at the same location for three and one-half years. When initially asked if defendant had a disagreement with the landlord or manager regarding the residence, defendant replied that he had not. Later, defendant testified that he had a dispute with the people who “are living there now. The people[,] the owners of the house” Defendant alleged that someone had forged his name on a grant deed to the house he owned and the dispute related to the forgery. Nevertheless, defendant testified that he still resided there. However, he now testified that it was an apartment, not a house. The court found defendant in violation of both terms 3 and 7 of his probation.
DISCUSSION
A. Standard of Review
Trial courts are afforded broad discretion in deciding whether to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) Under 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....” An appellate court will not disturb the trial court’s decision absent an abuse of discretion. (People v. Self (1991) 233 Cal.App.3d 414, 417.) To determine whether a probationer has violated the terms and conditions of probation, trial courts apply a preponderance of the evidence standard of proof. (Rodriguez, at p. 447.)
B. Term 3: The Reporting Condition
Defendant contends the court erroneously admitted Officer Suarez’s testimony regarding defendant’s failure to fulfill his probationary requirement that he report every 14 days or as directed. This is because “[t]he only evidence presented at the revocation hearing relative to this alleged violation was the hearsay testimony of [Officer] Suarez, who had no first-hand knowledge of the alleged violation, but testified only from information contained in computer-generated files maintained by the Probation Department.” He further notes that “[n]either the computer records nor the contents of [defendant’s] probation file were clearly identified for the record nor were they made part of the record.” We hold that Officer Suarez’s testimony regarding defendant’s failure to comply with term 3 contained sufficient indicia of reliability to permit its admissibility. Therefore, the court’s finding that defendant violated term 3 was within its discretion.
“In reviewing the trial court’s decision to admit... hearsay, or perhaps even double hearsay, testimony, we begin with the well-established principle that parole and probation revocation is not part of a criminal prosecution, and thus ‘the full panoply of rights due a defendant in [a criminal] proceeding does not apply....’ [Citations.]” (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1198.) Nonetheless, probationers have fundamental, due process rights to ensure their liberty is not unjustifiably taken away. (Id. at p. 1198.) “To safeguard these fundamental interests, due process requires that a defendant at a probation revocation hearing be afforded, at a minimum, certain rights, including ‘“the right to confront and cross-examine adverse witnesses....”’ [Citation.]” (Id. at pp. 1198-1199.) “A probationer’s right of confrontation, however, is not absolute, and where ‘“appropriate,”’ witnesses may give evidence by ‘“affidavits, deposition, and documentary evidence....”’ [Citations.]” (Id. at p. 1199.)
“[W]here 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,’” it may be admitted so long as there is sufficient indicia of its reliability. (People v. Abrams (2007) 158 Cal.App.4th 396, 405, fn. omitted.) “Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. [Citation.]’ [Citation.]” (People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066.) In Abrams, the court affirmed the revocation of the defendant’s probation solely on the basis of the testimony of a probation officer who relied on probation records to conclude that the defendant had failed to report to probation and failed to make his monetary payments. (Abrams, at pp. 398-399.) The testifying officer was not the defendant’s probation officer and had no personal knowledge regarding defendant’s violations other than what he had read in defendant’s probation file. (Id. at pp. 398-399, 401-404.) The record did not reveal whether the documents relied upon by the testifying officer were received in evidence: “We see no difference, in this setting, between receiving the reports in evidence and allowing [the officer] to testify to their contents.” (Id. at p. 404, fn. 4.)
The hearsay testimony of Officer Suarez regarding defendant’s failure to report is precisely the type of documentary evidence that is admissible at a hearing to revoke probation so long as there is sufficient indicia of its reliability. Reporting to probation is a routine matter that a probation officer is not likely to personally recall. This is particularly true where the reporting condition requires phone contact, which may be made to any officer at any time or by scanning one’s hand at a Kiosk, which would not involve a probation officer’s interaction with the probationer at all.
Moreover, Officer Suarez laid sufficient foundation for the court to find her testimony was reliable. Officer Suarez testified that her duties and responsibilities included monitoring probationers to ensure their compliance with the terms and conditions of probation. She testified that she was familiar with how such records were kept. Those methods included generating paper files and maintaining a computerized database. The entries in the computer generated records are made at or near the time of an event by a probation officer. Both the information contained in the paper records and the computerized database are routinely relied upon by probation officers. In her unit, multiple probation officers work on each individual probationer’s files. Defendant himself testified that he frequently dealt with “[t]he officer of the day,” i.e., whomever answered the phone when he reported telephonically. The record establishes the electronic nature of Kiosk reporting; thus, it is reasonably inferable that the Kiosk generates a computerized report. Officer Suarez testified that a computer printout for defendant was generated and placed in his probation file. This foundation established the reliability of the records Officer Suarez utilized in her testimony. Thus, the court did not err in permitting Officer Suarez’s testimony. Indeed, it is difficult to imagine how one would otherwise establish by testimonial evidence that defendant failed to report without running afoul of the negative proof fallacy.
Finally, Officer Suarez’s testimony was sufficient for the court to have determined, in proper exercise of its discretion, that defendant was in violation of his reporting condition. Officer Suarez testified that defendant’s probation records reflected that he was ordered to report by Kiosk hand scanning. On April 19, 2007, defendant was directed to get his hand re-scanned when he informed an officer that the Kiosk machine was not working. Defendant failed to do so. In fact, he never reported again. Defendant’s testimony to the contrary, the court acted well within its powers in determining that defendant was simply not credible: “‘[I]t is the exclusive province of the trial judge... to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.) Defendant’s testimony was internally inconsistent and contradictory. The court expressly noted that it did not find defendant credible. Thus, the court’s determination that defendant had failed to comply with his reporting condition was not an abuse of discretion.
C. Term 7: Failure to Report Address Change
Defendant contends that the court erred in admitting Officer Suarez’s testimony that “according to her records” defendant was not living at the address he had provided to the probation department on the date a home visit was conducted. In particular, he objects to Officer Suarez’s testimony that the unidentified individual who conducted the home visit found that defendant was no longer living there. The People respond that Officer Suarez’s testimony was properly admitted as documentary evidence with sufficient indicia of reliability. We agree with defendant that Officer Suarez’s testimony regarding the home visit was testimonial, rather than documentary. Thus, it was subject to the requirement that the proponent show good cause for failing to provide the percipient witness’s testimony. Since the People failed to show good cause, the court erred in permitting Officer Suarez’s testimony on the subject. Nevertheless, because the court properly found defendant in violation of his reporting condition, any error was harmless.
“There is an evident distinction between... live testimony and the type of traditional ‘documentary’ evidence... that does not have, as its source, live testimony. [Citation.] [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.]” (People v. Arreola (1994) 7 Cal.4th 1144, 1157.) “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 [testimonial] side of the line. [Citations.]” (People v. Abrams, supra, 158 Cal.App.4th at p. 405.)
Where testimonial hearsay evidence is concerned, whether in the form of a declarant’s out of court statements or prior testimony, good cause must be shown. (People v. Shepherd, supra,151 Cal.App.4th at pp. at 1201-1202.) Good cause is determined on a case-by-case basis and exists where “(1)... the declarant is ‘unavailable’ under the traditional hearsay standard [Citation], (2)... the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3)... the declarant’s presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant. [Citation.]” (People v. Arreola, supra, 7 Cal.4that p. 1160.)
Here, the hearsay evidence testified to by Officer Suarez regarding defendant’s failure to report his address change was testimonial, rather than documentary, because it relied primarily on the observations of and statements made to the individual who conducted the home visit. Although excluded from evidence, that individual, presumably another probation officer, determined that defendant no longer lived there because residents at the home reported that they had purchased the home in June 2006, and that defendant no longer resided there. This is precisely the type of evidence of which the probation officer would likely have a personal recollection. Similarly, the statements made by the current residents were also testimonial. Here, cross-examination could have proved particularly fruitful in determining how those individuals knew defendant no longer lived there. Likewise, defendant’s testimony explored at least the possibility that those individuals had a dispute with him. Thus, cross-examination could have been significantly important. The People failed to make any showing for not producing the testimony of the individual who conducted the home visit or the individuals who informed that person that defendant was no longer living there. Thus, the court erred in permitting Officer Suarez’s testimony regarding how the department determined that defendant was no longer living at the residence.
Nevertheless, we find any error harmless beyond a reasonable doubt. (People v. Arreola, supra, 7 Cal.4th at p. 1161.) First, defendant’s testimony provided a rational inference that he no longer lived at the residence. Defendant testified that he had a dispute with the people who “are living there now. The people[,] the owners of the house.” He alleged that someone had forged his name on a grant deed to the home. Thus, despite defendant’s testimony to the contrary, the court could reasonably have determined that he had been ousted sometime before and failed to apprise the probation department of the situation. Second, as noted above, the court’s conclusion that defendant had violated his condition requiring that he report to the probation office in itself sufficed to form the basis for revoking his probation.
The court indicated that it was “not inclined to reinstate probation.” The court found defendant “a very poor prospect [for] complying [with] probation.” It found his failure to report “ongoing.” It found defendant’s testimony that he still resided in the home not credible. It noted that the probation department initially opposed a grant of probation to defendant. It observed that defendant had failed to complete a condition of his probation requiring that he finish domestic violence classes despite numerous extensions. It noted that defendant had failed to pay his court ordered fines. Thus, to the extent the court validly had before it only defendant’s violation of his duty to report, we hold harmless any error in basing its revocation of his probation on that violation alone.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, Acting P. J., GAUT, J.