Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. MA037653, Thomas R. White, Judge.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Defendant Fabian D. Evans appeals from the order revoking his probation for failing to report. He contends he was denied the right to confront the witness against him – his assigned probation officer – at the probation revocation hearing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 8, 2007, defendant was driving a stolen vehicle when he was stopped by police. In a negotiated plea, he pled no contest to the charge of unlawful driving of a vehicle and admitted suffering a prior conviction. He was sentenced to eight years in prison comprised of the four-year high term, doubled pursuant to the “Three Strikes” law; execution of that sentence was suspended and defendant was placed on three years formal probation.
Defendant was charged by information with unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and receiving stolen property (Pen. Code, § 496, subd. (a)); prior conviction enhancements were alleged pursuant to the Three Strikes law and Penal Code section 666.5, subdivision (b). The receiving stolen property charge was dismissed pursuant to the plea bargain.
On September 12, 2007, defendant’s probation was revoked because he had failed to report. At the beginning of the probation violation hearing, which took place on June 25 and 30, 2008, the prosecutor called Probation Officer Anthony Wright. The following colloquy ensued: “THE COURT: I don’t need testimony necessarily if it is the probation officer who has information from the case file and has specifics based on entries in the due course of business and probation officers are not technically even subject to cross-examination with regard to information unless it is something that would be of a controversial nature. [¶] So, [defense counsel], at this time is there any reason that you might have to believe that there would be a need for questioning? [¶] [DEFENSE COUNSEL]: Well, Your Honor, I would suggest to the court that we need the probation officer that is assigned to my client to be here to testify so that I can cross-examine him as to whether or not my client reported to probation or not. That is the allegation, he did not report to probation. [¶] THE COURT: Well, as I stated, I am not sure that there is a strict right of cross-examination, but what I am going to do, since we have so many years at stake here, I will try to afford as much benefit as possible.” But after the prosecutor indicated that he intended to elicit Wright’s testimony that the probation department records indicate that defendant had not reported to probation, and it would be difficult to find the probation officer that had been assigned to defendant, the trial court stated: “That is what I was going to do.”
Accordingly, Probation Officer Wright testified that he was not the probation officer assigned to defendant. He was, however, reasonably familiar with defendant’s case, “having read the file.” After the trial court overruled defense counsel’s hearsay objection to Wright testifying as to the content of defendant’s file, Wright explained that the department maintains a “master file” on each probationer in the normal course of business. As a probation officer, Wright was familiar with the manner in which the various reports contained in the master file are prepared. From defendant’s master file, Wright reviewed the “report-in records” also sometimes referred to as “report-in reports,” “chrono records,” and “financial records.” Wright explained that “report-in reports” are generated monthly by the probation officer and indicate whether the probationer reported in that month. In the usual course, the probationer comes to the front desk of the probation office, signs a log, and “they are given a report and slip which the person then signs and returns.” The probationer gives the report slip to his assigned probation officer, who puts the slip in the probationer’s file. “Chrono records” are the probation officer’s notes including any violations and a general statement of how well the probationer is doing.
The probation department keeps records of which probation officer is assigned to each probationer. It is not uncommon for probationers to have multiple probation officers. The last supervising probation officer assigned to defendant was Michael Rayfield, who was defendant’s probation officer in 2007. Once defendant was deemed in desertion of probation, he was reassigned to a probation officer in “specialized investigation,” who generated defendant’s most recent probation report dated January 30, 2008.
According to the probation records Wright reviewed, defendant reported on May 4 and May 17, 2007. The file indicates defendant was in jail on May 23, 2007, released from custody on June 13, 2007, but back in custody on a parole hold on July 18, 2007. The probation officer’s notes indicate defendant did not report on August 2, 2007. A letter to defendant dated August 2, 2007, directs him to report on August 20, 2007. The absence of any evidence in defendant’s file that he reported on that date indicates that he did not report. The report indicates defendant was a “no show” on September 1, 2007. Based on these records, Wright concluded that defendant last reported on May 17, 2007. Wright did not know if defendant had an agreement with Rayfield to report by telephone.
Wright testified that defendant’s probation file ended in September 2007, although Wright updated it the week before the hearing. Wright did not know whether defendant had reported during the time for which there is no record of defendant having done so, but there was no evidence that he had reported. Wright did not know whether every report was in the file but, he testified, “[I]t has always been the policy, at least practice of probation, that if there is no evidence of a report in the person’s file, then for all intents and purposes, the person did not report.”
Based on this evidence, the trial court concluded that the People had met their burden of proving by a preponderance of the evidence that defendant had violated his probation. Accordingly, it terminated defendant’s probation and, after denying defendant’s motion to reconsider the previously imposed sentence, it imposed that eight-year sentence.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends he was denied due process because he did not have the opportunity to confront and cross-examine Rayfield, and that the trial court erred in relying exclusively on Wright’s hearsay evidence as to the contents of defendant’s probation file. He argues that there was no showing of good cause for the prosecutor’s failure to produce Rayfield. We find no error.
The Sixth Amendment right to confrontation does not apply to probation revocation hearings. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411-1412 (Johnson).) Although due process affords the accused a limited right to confront and cross-examine adverse witnesses, this does not mean that all hearsay is inadmissible at a probation revocation hearing. (See generally People v. Winson (1981) 29 Cal.3d 711, 719.) Whether hearsay evidence is admissible at a probation revocation hearing turns in part on the nature of the hearsay. Courts distinguish between “ ‘a transcript of former live testimony and the type of traditional “documentary” evidence... that does not have, as its source, live testimony. [Citation.]’ [Citation.]” (People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066 (O’Connell).) This is because, as we shall explain, different tests apply to the admissibility of these two types of hearsay.
Prior live testimony cannot be admitted unless the hearing officer specifically finds good cause for not allowing confrontation. (People v. Arreola (1994) 7 Cal.4th 1144, 1148 (Arreola).) For example, in Arreola, our Supreme Court held the prosecution may not introduce the transcript of a witness’s preliminary hearing testimony in lieu of the witness’s live testimony “ ‘in the absence of the declarant’s unavailability or other good cause.’ ” (Ibid.) Good cause can be established by a showing that the nonhearsay witness is unavailable (Evid. Code, § 240), or that the witness’s testimony cannot be obtained without “great difficulty or expense.” (Arreola,at p. 1160.)
In People v. Shepherd (2007) 151 Cal.App.4th 1193, 1196 (Shepherd), the defendant was alleged to have violated the no alcohol condition of his probation. At the revocation hearing, the trial court allowed a probation officer to testify, over the defendant’s hearsay objection, “that it was his habit and custom to receive information from treatment providers regarding his probationers’ misconduct, and that it was his obligation to relay that information to the court. [A] caseworker, notified [the probation officer] that [the defendant] had been ordered to leave the [residential treatment program]. Later [the probation officer] called... a program administrator for [the facility], who confirmed [the defendant] had smelled of, and tested positive for, alcohol consumption. She further confirmed [the defendant] was asked to leave the program after refusing to go to [a detox center].” (Id. at p. 1197.) Based on this evidence, the trial court found the defendant in violation of probation. The appellate court reversed, reasoning that the probation officer’s account of what the program administrator told him was more similar to the prior testimony at issue in Arreola, than to the documentary evidence at issue in People v. Maki (1985) 39 Cal.3d 707 (Maki). (Shepherd, at pp. 1201-1202.) And there was no evidence that the program administrator was unavailable or that her testimony could be obtained only at great inconvenience. (Id. at p. 1202.)
By contrast, a more lenient standard applies to documentary hearsay, which is admissible if it bears sufficient indicia of reliability. (Shepherd, supra, 151 Cal.App.4th at p. 1202.) For example, in Maki, supra, 39 Cal.3d 707, our Supreme Court held that a car rental invoice and hotel receipt that did not otherwise fall into any exception to the hearsay rule, nevertheless bore sufficient indicia of reliability to be admissible to prove the defendant violated the condition of probation that he not leave town without permission. (Id. at pp. 716, 717, fn. 4.)
In O’Connell, supra, 107 Cal.App.4th 1062, a condition of the defendant’s probation was that he participate in deferred entry of judgment program, which required him to participate in a drug treatment program. At the probation revocation hearing, the trial court overruled the defendant’s objection to a report prepared by the manager of the drug treatment program, which stated the defendant had completed 0 of 20 sessions and was terminated because of too many absences. (Id. at p. 1066.) The appellate court affirmed, reasoning that the report was “akin to the documentary evidence that traditionally has been admissible at probation revocation proceedings.... [The] 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.” (Id. at p. 1067.)
Recently, in People v. Abrams (2007) 158 Cal.App.4th 396 (Abrams), we held that, under Maki, Johnson, and O’Connell, it was not error to allow a probation officer to testify that probation department records showed that the defendant had failed to contact the probation department. (Abrams, at p. 404.) We reasoned that the probation department records “ ‘were prepared contemporaneously to, and specifically for, the hearing where [defendant’s] lack of compliance was at issue.’ [Citation.]” (Ibid.) For this reason, the records had sufficient indicia of reliability. (Ibid.)
The trial court’s determination of the admissibility of hearsay evidence at a probation revocation hearing is reviewed for abuse of discretion. (Abrams, supra, 158 Cal.App.4th at p. 400.)
Here, Wright testified as to the content of the master file maintained on defendant and every other probationer by the probation department, including the report-in reports. This was documentary evidence, akin to the car rental invoice and hotel receipt at issue in Maki and the report of the manager of the drug treatment program at issue in O’Connell; it was not prior testimony like the preliminary hearing transcript at issue in Arreola or the probation officer’s account in Shepherd of what someone else had told him. Accordingly, the content of the file was admissible if it contained sufficient indicia of reliability. Wright’s description of the manner in which the relevant reports contained in the master file are generated was sufficient to establish the reliability of those reports. (See Abrams, supra, 158 Cal.App.4th at p. 405.) Defense counsel’s speculation that defendant may have had an agreement with his assigned probation officer allowing him to report by phone was not sufficient to undermine the reliability of the reports. (See O’Connell, supra, 107 Cal.App.4th at p. 1067 [defense counsel’s “ruminations” as to unreliability of report, without more, do not undermine the trial court’s determination of admissibility].)
Defendant’s reliance on People v. Calais (1974) 37 Cal.App.3d 898, is not persuasive. In that case, the trial court denied the defendant’s request to examine the probation officer who wrote the report which formed the basis of the allegation that the defendant violated his probation. The appellate court reversed, reasoning that the trial court abused its discretion in denying the defendant the opportunity to attack the probation report and its preparation. (Id. at p. 903.) As did the court in People v. Cain (2000) 82 Cal.App.4th 81, 87, footnote 3, we question whether Calais is still viable, especially after the Supreme Court’s decision in Maki. In any event, we respectfully decline to follow Calais.
DISPOSITION
The order revoking defendant’s probation is affirmed.
WE CONCUR: FLIER, J., BIGELOW, J.