Opinion
A130088
11-18-2011
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE HEATH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. VCR-194245)
In this appeal defendant complains that the trial court erroneously considered unreliable hearsay evidence to revoke his probation and impose a previously suspended state prison sentence. We conclude that the trial court did not abuse its discretion by admitting evidence that offered an adequate indicia of reliability, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On April 1, 2008, defendant entered a plea of no contest to attempted first degree burglary (Pen. Code, §§ 459, 460, subd. (b), 664) and second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)), and admitted six prior prison term enhancement allegations (Pen. Code, § 667.5, subd. (b)). The trial court imposed a state prison term of nine years eight months, but suspended execution of sentence and placed defendant on formal probation for three years on the condition, among others, that he "commit himself" to the Genesis House residential treatment facility and remain there until released by the program director.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was subsequently dismissed from the Genesis House program without "his fault," due to his prescription for medication that violated program policies. His probation was reinstated as modified to replace the Genesis House condition with a requirement that he "enter and successfully complete a Category One or Two residential treatment program."
Defendant entered the House of Acts residential drug treatment facility, but "relapsed" and was discharged without completing the program. He was found in violation of probation for "failure to complete a Category Two program." His probation was revoked, but again reinstated with a waiver of sentence credits and on the condition that he "enter and successfully complete the Category Two residential treatment program." Defendant entered the Project 90 residential drug treatment facility on June 15, 2010.
A notice of probation violation was filed on September 7, 2010. The request for revocation of probation and issuance of a bench warrant alleged that defendant violated probation by failing to complete the specified residential treatment program and failing to contact the probation department within 48 hours of a change of address.
A contested hearing on the request for probation revocation was held on October 5 and 13, 2010. Over a defense hearsay objection, defendant's probation officer Andrea Rodgers testified that she spoke with Leonardo Valladares, a rehabilitation counselor at the Project 90 program on August 10, 2010, and received "progress notes" from him "as to the performance of defendant" in the program. Valladares informed Rodgers that defendant had been discharged from the Project 90 program the day before. According to Valladares, defendant "submitted a positive Vicodin test." Defendant became "agitated" and "refused to talk about the test" when the program expressed "willing[ness] to work with him," and he "was therefore discharged."
The discharge summary received by defendant's probation officer from Valladares indicated that defendant was discharged for infractions that included an admission of Vicodin use after a positive test, an offer of drugs to another resident in the program and false denial of the offer, lack of willingness and failure to follow his treatment plan, poor and aggressive attitude, and refusal to "become honest" and admit his transgressions. Rodgers also testified that defendant failed to contact her after his discharge from the Project 90 program, as he had been advised to do.
At the conclusion of the hearing the trial court found that defendant violated his probation by failing to complete a Category Two program and failing to maintain proper contact with the probation department. The court revoked defendant's probation and imposed the state prison sentence of nine years eight months.
DISCUSSION
Defendant argues that the trial court's admission of the hearsay testimony of probation officer Andrea Rodgers at the probation revocation hearing, in which she recounted her conversation with Project 90 program counselor Leonardo Valladares, violated his "constitutional right to due process." He claims that the prosecution failed to either produce Valladares as a witness or make a "showing of good cause" for his unavailability. Defendant adds that neither Rodgers' testimony nor the "program notes" she obtained from Valladares fell within "any recognized exception to the hearsay rule," and were not established as reliable. He also points out that the finding of a probation violation was "based primarily" on statements given by Valladares to Rodgers, so his "interest in confronting Valladares was great." Therefore, defendant maintains that the trial court's failure to provide him with "an opportunity to confront Valladares" constituted a violation of his rights to confrontation and due process.
"Revocation of probation is not part of a criminal prosecution, and therefore the full panoply of rights due in a criminal trial does not apply to probation revocations. [Citation.] 'In placing a criminal on probation, an act of clemency and grace [citation], the state takes a risk that the probationer may commit additional antisocial acts,' and 'the state has a great interest in being able to imprison the probationer [for probation violations] without the burden of a new adversary criminal trial. [Citation.]' [Citation.] The standard of proof in probation revocation proceedings is proof by a preponderance of the evidence." (People v. Stanphill (2009) 170 Cal.App.4th 61, 72.)
"Specifically the Sixth Amendment's right of confrontation does not apply to probation violation hearings." (People v. Abrams (2007) 158 Cal.App.4th 396, 400.) "The defendant's right of confrontation at the formal revocation hearing does not arise from the confrontation clause, but from due process [citation]; it is 'not absolute. Confrontation may be denied if the trier-of-fact finds and expresses good cause for doing so.' [Citation.]" (People v. Gomez (2010) 181 Cal.App.4th 1028, 1034.) A "showing of good cause for the admission of hearsay at a probation revocation hearing is 'compelled by the due process requirements imposed by the United States Supreme Court.' [Citation.]" (Id at p. 1035.)
"Thus, the minimum due process requirements for a probation revocation hearing include the general right ' "to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) . . . ." [Citation.]' [Citations.]" (People v. Stanphill, supra, 170 Cal.App.4th 61, 78.) "Confrontation is an element of due process," but "the type of confrontation defendant seeks, with exclusion of hearsay, strict adherence to rules of evidence, and cross-examination, is not compelled in a probation extension proceeding." (People v. Minor (2010) 189 Cal.App.4th 1, 20.) "[T]he final determination whether former testimony is admissible must be made on a case-by-case basis. [Citation.] The broad standard of ' "good cause" is met (1) when the declarant is "unavailable" under the traditional hearsay standard (see Evid. Code, § 240), (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." (People v. Arreola (1994) 7 Cal.4th 1144, 1159-1160 (Arreola).) "[I]n determining the admissibility of the evidence on a case-by-case basis, the showing of good cause that has been made must be considered together with other circumstances relevant to the issue, including the purpose for which the evidence is offered (e.g., as substantive evidence of an alleged probation violation, rather than, for example, simply a reference to the defendant's character); the significance of the particular evidence to a factual determination relevant to a finding of violation of probation; and whether other admissible evidence, including, for example, any admissions made by the probationer, corroborates the former testimony, or whether, instead, the former testimony constitutes the sole evidence establishing a violation of probation." (Id. at p. 1160.) "We review rulings on whether hearsay was improperly admitted at a violation hearing for abuse of discretion." (People v. Abrams, supra, 158 Cal.App.4th 396, 400.)
We find no abuse of the trial court's discretion in this instance. The hearsay testimony of defendant's probation officer Andrea Rodgers consisted of the statements made to her by defendant's rehabilitation counselor at the Project 90 program, Leonardo Valladares, who reported defendant's misconduct during the course of the program and the reasons for his ultimate discharge. The prosecution did not establish the unavailability of Valladares, but an inference easily drawn from the record is that his personal presence at the hearing was not feasible without great inconvenience. The statements received from Valladares were substantiated by the discharge summary, which offered essentially the same information in greater detail: defendant's positive drug test and refusal to admit or discuss it with staff; his offer of drugs to another program resident; and his uncooperative, belligerent attitude.
Thus, the statements that were offered to prove the probation violation not only carried an indicia of reliability, received as they were from a person in position to have personal knowledge of defendant's conduct and who was charged with compiling information related to defendant's performance on probation, but were also corroborated by the discharge summary. Further, the presence of Valladares at the hearing would not have appreciably furthered the ascertainment of the truth or the evaluation of the foundational evidence of the report prepared contemporaneously to the hearing. (See Arreola, supra, 7 Cal.4th 1144, 1157.) The witness would have done little more than authenticate the information he conveyed to Rodgers, which was additionally contained in the discharge summary prepared in the course of business of the Project 90 treatment program. (People v. Abrams, supra, 158 Cal.App.4th 396, 404.) Further, the defense offered no basis to dispute the facts related in the report and Rodgers' testimony, contradict the evidence of his probation violations, or to suggest how cross-examination of Valladares may have demonstrated the lack of credibility of the declarant. (People v. Gomez, supra, 181 Cal.App.4th 1028, 1039.)
In People v. O'Connell (2003) 107 Cal.App.4th 1062, 1064, the probation officer's report asserted that the defendant had violated the terms of a deferred entry of judgment program by failing to attend a drug counseling program. Attached to the probation report was a written report by the manager of the drug counseling program stating that 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 as an official record. (Id. at pp. 1064-1065.) On appeal, the court found that 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 declared: " '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.' " (Id. at p. 1066, quoting from People v. Brown (1989) 215 Cal.App.3d 452, 454-455.)
We similarly conclude that the statements from defendant's drug rehabilitation counselor, which were reiterated in the discharge summary, bore the requisite indicia of reliability to qualify for admission at the probation revocation hearing without violation of defendant's due process rights. (People v. Gomez, supra, 181 Cal.App.4th 1028, 1039.) The evidence in total overwhelmingly proved defendant's violation of probation conditions related to his failure to complete the Project 90 program and failure to report a change of status to the probation department.
Accordingly, the judgment is affirmed.
Dondero, J. We concur: Margulies, Acting P. J. Banke, J.