Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge. Super.Ct.No. FSB047968
Stephen M. Hinkle, 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, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant and appellant Leobardo Palma appeals his prison commitment after revocation of his probation. He argues that the court hearing the revocation of probation proceedings violated due process in the conduct of the hearing. He also contends that there were errors in the imposition of sentence. We affirm.
FACTS AND PROCEDURAL HISTORY
Defendant was charged in January 2005 with one count of vehicle theft. Defendant soon pleaded guilty, and was granted probation for three years. Among other terms of probation, defendant was required to: violate no law (condition No. 2); report to the probation officer as directed (condition No. 3); cooperate in a plan of rehabilitation (condition No. 4); keep the probation officer informed of his place of residence (condition No. 7); not drive or possess keys to any motor vehicle he did not own (condition No. 19); observe a 10:00 p.m. to 5:00 a.m. curfew (condition No. 25); and register with the police gang detail in whichever jurisdiction defendant resided (condition No. 26).
Approximately one year later, in March 2006, the San Bernardino County Probation Department filed a petition to revoke defendant’s probation. The basis for the revocation was that, “According to Probation Department records, the defendant attended a probation orientation appointment on 8/11/05, at which time his terms and conditions of probation were reviewed and he was directed to mail report in one month and every three months thereafter. He was also directed to report to his local police agency gang detail with a copy of his terms and conditions and to show proof by 8/25/05. He mail reported in September of 2005, but did not show proof of reporting to gang detail and has not contacted probation since, thereby violating terms #3, #4, and #26.
“According to Pomona Police Department [report No. given], the defendant was arrested at 3:40 a.m. on 10/25/05 for the charge of VC10851 [taking and driving an automobile]. The defendant admitted to stealing the vehicle, stating that he . . . [was] ‘stranded’ in Fontana and did not have any money to get back to Pomona. . . . According to Probation records, the defendant’s last reported address is in Colton. He is thereby in violation of terms #2, #7, #19, and #25.”
The court revoked defendant’s probation and issued a bench warrant for his arrest. After defendant’s arrest and arraignment on the petition, the court set a probation revocation hearing.
At the time set for the hearing, defense counsel complained that the prosecutor had “surprised me with some discovery that I’ve never seen before in my life, ” i.e., the Pomona police report and some papers from the probation department. Counsel objected that the failure to provide these documents earlier failed to comply with due process requirements of notice of the evidence against defendant. The court denied counsel’s request for a continuance to review the documents.
A probation officer (not the officer directly supervising defendant) testified that she knew of defendant through his records at the probation department. The court denied defense counsel’s motion to voir dire the probation officer concerning her personal knowledge of defendant and of the circumstances to which she would be testifying. Counsel objected that the probation officer’s testimony would consist of inadmissible hearsay. This objection was overruled.
The probation officer testified over a hearsay objection that the probation records indicated that defendant was supposed to report every three months, but that he had reported only twice: once for an orientation, and one other time. She testified that defendant had been ordered to report to a police agency and register as a gang offender, but the records did not indicate that he had ever done so.
The probation officer also testified, again over objections of multiple layers of hearsay, that she had reviewed the police report from the Pomona Police Department, which indicated that defendant was arrested for stealing a car, that defendant had admitted stealing the car, and that defendant had told the Pomona police officer that he stole the car to “get back home” to Pomona. According to probation department records, however, defendant’s last reported address was in Colton.
On cross-examination, the probation officer acknowledged that she did not know who wrote the Pomona police report, and she never spoke with that officer. Defense counsel also established that the testifying probation officer was relying on probation department records made by other probation officers to establish defendant’s failure to report as required.
The court found that defendant had violated the terms of his probation, and then sentenced him to the aggravated term of three years on the underlying offense.
Defendant now appeals.
ANALYSIS
I. The Revocation Hearing Substantially Complied With the Requirements of Due Process
Defendant argues that the court deprived him of his constitutional due process rights with respect to the probation revocation hearing (1) because the evidence against him was not disclosed until the hearing was actually beginning, and (2) because he was deprived of the right to confront and cross-examine the witnesses against him, i.e., the probation officers who had actually written the notations in departmental records and the Pomona police officer who had written the report of the new stolen car offense.
As a matter of due process, a defendant facing a formal traditional probation revocation hearing is entitled to written notice of the claimed violations, disclosure of the evidence against him, the opportunity to be heard and to present evidence, the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing confrontation), a neutral and detached fact finder and a written statement of the evidence relied on and the reasons for revoking probation. (Morrissey v. Brewer (1972) 408 U.S. 471, 489; People v. Vickers (1972) 8 Cal.3d 451, 457-459.)
Defendant complains here that the “record indicates that the documentary evidence used against [him] was not disclosed . . . until right when the revocation hearing began . . . . When defense counsel asked for a few minutes to review the documents the court cut him off and told the prosecutor to call its first witness, even though defense counsel indicated that he was still reading the documents.”
The questions we are required to review involve two components: what factually happened in connection with the hearing, and then, whether those factual circumstances comport with the requirements of due process. Here, the facts are undisputed. On undisputed facts, we are faced solely with the legal question whether the requirements of due process were satisfied. That is a question we review independently. (See In re Zepeda (2006) 141 Cal.App.4th 1493, 1497.)
The record indicates that defendant and his counsel had received a probation officer’s report, stating the basis for the proposed revocation: The report set forth a summary of “probation department records” concerning defendant’s reporting to his probation officer and the instruction that he report to his local law enforcement gang unit. The records showed that defendant had reported for an orientation meeting, and he had mail-reported as directed one time thereafter. Defendant had been directed to show proof of registration with his local law enforcement agency gang unit by a certain date, and no proof had come in.
The probation report further identified a police report of the Pomona Police Department (giving the date and the police report number) which indicated that defendant had been arrested after 3:00 a.m. on a certain date, for a new vehicle theft offense. The police report indicated that defendant had admitted stealing the vehicle, describing how he and a friend were “stranded” and needed to get home to Pomona. The probation department’s official records showed Colton as defendant’s last reported address.
Finally, the probation report detailed a conversation between the declarant probation officer and defendant, while defendant was in custody upon his Pomona arrest. Defendant excused his failure to report to probation, saying that he had started to report, but “ended up getting arrested and never reported again.” He also told the probation officer that he was “having problems with his wife at that time and didn’t think about it. He also did not have a place to stay.”
This probation report gave defendant notice of the basis for the alleged violations of probation. It also specifically referenced the documents relied upon: internal probation department records concerning defendant’s performance on probation, and the Pomona Police Department’s police report of defendant’s latest arrest. The gist of defendant’s due process claim here is that he was not given copies of the actual documents until the time of the hearing, at which time defense counsel received six pages and eight pages pertaining to the two categories of documents: the police report and probation department notes.
This is not a case in which the records were simply not produced: they were. The question is thus whether that production substantially complied with the requirements of due process notice, and possibly the further question whether defendant was prejudiced by the manner of or lack of compliance. (Chapman v. California (1967) 386 U.S. 18, 24.)
As to the police report, the supplemental probation report identified the police report by agency, date and report number. Defendant, the arrestee, could easily have obtained the document himself. By analogy to trial discovery rules, “[I]nformation subject to disclosure by the prosecution [on discovery] [is] that ‘readily available’ to the prosecution and not accessible to the defense.” (In re Littlefield (1993) 5 Cal.4th 122, 135.) Further, the probation report indicated all of the information taken from the police report which would be relied upon to establish a violation of probation. Nothing was withheld from defendant that he did not actually know and could not have obtained for himself.
As to the probation department records, defendant was entitled to timely disclosure of his relevant, nonconfidential records. (County of Placer v. Superior Court (2005) 130 Cal.App.4th 807, 812-813.) Nevertheless, counsel did receive the relevant papers at the commencement of the hearing. The supplemental probation report had identified in advance all of the areas of probation department records which were relevant to establish a violation of probation.
Defendant, as well as anyone, knew whether he had complied with the cited terms of his probation. Indeed, defendant’s failure to report to his probation officer was corroborated by the probation officer’s postarrest interview with defendant, in which defendant proffered several excuses for his failure to report. Defendant also orally confirmed that he was no longer living at his reported address. Although production of the records was delayed, there is no reasonable possibility that defendant was prejudiced thereby.
Given the actual disclosure of the relevant documents, the detailed advance identification of all pertinent information from those documents, defendant’s equal access to the police report, the relatively small number of pages (14), defendant’s oral corroboration of some of the alleged violations, and counsel’s evident ability to cross-examine the testifying probation officer, we conclude, beyond any reasonable doubt, that the failure to deliver the documents sooner did not contribute to the finding of violation. (See In re Kentron D. (2002) 101 Cal.App.4th 1381, 1394.)
The second prong of defendant’s due process challenge is that he was deprived of the right to confront and cross-examine the witnesses against him, in that the prosecution failed to produce for testimony either the probation officers who were responsible for the individual entries into defendant’s probation records, or the Pomona police officer who prepared the report concerning defendant’s latest arrest.
A defendant at a probation revocation hearing does not have all the same procedural rights as at a criminal trial. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 344; Jones v. Superior Court (2004) 115 Cal.App.4th 48, 60.)
The court may consider otherwise inadmissible hearsay evidence so long as it is sufficiently reliable. (People v. Maki (1985) 39 Cal.3d 707, 715-716.) In Maki, the court “admitted documents (otherwise inadmissible as hearsay) which were seized from Maki’s home because there were sufficient indicia of reliability. Specifically, the court relied on the fact that the defendant’s signature appeared on the car rental invoice and hotel receipt introduced at the hearing [i.e., to show the defendant’s presence outside the state, in violation of probation restrictions]. The court determined the presence of these signatures provided sufficient evidence of the documents’ reliability and that they were thus properly admitted at the hearing. ([People v. Maki, supra, ] at pp. 716-717.)” (People v. Brown (1989) 215 Cal.App.3d 452, 455.)
In a federal case, Egerstaffer v. Israel (7th Cir. 1984) 726 F.2d 1231, 1235, “the court admitted an unsworn recorded interview of the victim because the interview was corroborated by witnesses, and the defendant had admitted many of the facts.” (People v. Brown, supra, 215 Cal.App.3d 452, 455.)
“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, supra, 215 Cal.App.3d 452, 454-455.)
As to the probation department records concerning defendant’s obligations to report and to register with law enforcement, these records are prepared in the normal course of operation of the probation department, for the purpose of supervising a probationer’s compliance with the terms of probation. In People v. O’Connell (2003) 107 Cal.App.4th 1062, the Court of Appeal held that a report from a program manager of a counseling service, to the effect that the appellant had been terminated from a program for excess absences, was “akin to the documentary evidence that traditionally has been admissible at probation revocation proceedings.” (Id. at p. 1066.) The probation department’s notations concerning whether a probationer has properly complied with reporting, registration and notification requirements, are made for a similar supervisory purpose, and do not have live oral testimony as their source. (See People v. Arreola (1994) 7 Cal.4th 1144, 1156-1157.)
As to the Pomona police report, it is a document, although the source is attributable both to direct observations and to oral testimonial statements. (See In re Miller (2006) 145 Cal.App.4th 1228, 1238-1239 [hospital records are documentary evidence, but based in part on the examiner’s direct observations, and in part on abbreviated summaries of the patient’s statements].) In In re Miller, the court disallowed use of hospital records in the petitioner’s parole revocation hearing. The hospital records of a medical professional’s direct observations resulting from an examination, “may normally have sufficient indicia of reliability to establish those facts as true in a parole revocation hearing.” (Id. at p. 1240.) The notations of the patient-witness’s statements, however, conflicted with what the same witness had told police, and consisted purely of “the type of hearsay [United States v.] Comito [(9th Cir. 1999) 177 F.3d 1166, 1171] dubs the ‘least reliable’ sort.” (Id. at pp. 1240-1241.) The witness’s statements were a significant part of the evidence admitted to revoke the petitioner’s probation, but the hospital records were inadmissible for that purpose.
Here, by contrast, the most significant portions of the police report consisted of objective observations of the investigating officers (e.g., the car stopped had been reported stolen) and the recordation of statements defendant himself made at the time. The statements defendant made were against his penal interest (admitting car theft) and thus contained powerful internal indicia of reliability, which were wholly absent in In re Miller. Defendant himself also confirmed in part some of the alleged probation violations in his oral interview with the testifying probation officer.
We do not find that the trial court abused its discretion in deeming the hearsay evidence bore sufficient indicia of reliability to be admissible at the probation revocation hearing.
Defendant urges that he was entitled to confront and cross-examine adverse witnesses, unless the hearing officer finds good cause for not allowing confrontation. (Morrissey v. Brewer, supra, 408 U.S. 471, 489.) He argues that the hearing officer here made no such finding of “good cause.” This is simply the flip side of the coin whether the evidence adduced was properly admitted hearsay evidence. Had the prosecution proffered a transcript in lieu of live testimony, it would have had to show good cause, such as the unavailability of the witness, to admit the transcript. (People v. Arreola, supra, 7 Cal.4th 1144, 1160-1161.) Had the prosecution proffered a document based principally on the oral hearsay statements of nontestifying third party witnesses, it would have had to show good cause for failing to produce the witness. (In re Miller, supra, 145 Cal.App.4th 1228, 1241.) Here, the evidence proffered consisted of documentary, not testimonial, evidence, and, to the extent it consisted of testimonial evidence, defendant himself was the “witness” whose testimony was proffered. His hearsay statements had sufficient indicia of reliability to be admissible. There was no “good cause” required as to the evidence based on the probation department records, and “good cause” as to the police report was implicit, inasmuch as defendant himself was the “testimonial” source of the statements in that report.
The trial court properly admitted the evidence adduced at the probation revocation hearing. Defendant’s hearing comported with due process. Defendant’s probation was properly revoked.
II. Defendant’s Sentence Is Proper
Defendant next contends that the trial court improperly imposed the aggravated sentence, in violation of his Sixth Amendment right to a jury trial, as explained in Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
The Attorney General responds first that defendant is precluded from raising this claim because he failed to secure a certificate of probable cause. We agree with defendant that the claim is not waived; no certificate of probable cause was required, because defendant did not admit the violation of his probation which resulted in the sentence. Defendant’s case is governed by Penal Code section 1237, not 1237.5.
At the time defendant was sentenced, the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 had held that the aggravated term under California’s determinate sentencing law was analogous to the federal sentencing guidelines in United States v. Booker (2005) 543 U.S. 220, describing a range within which a court could exercise judicial discretion in imposing sentence. The United States Supreme Court, in Cunningham, supra, 127 S.Ct. 856, later clarified that the middle term, and not the aggravated term, is generally the “statutory maximum” term which may be imposed without additional findings. Where additional factual findings are required to impose the aggravated term, the facts underlying those findings must be found by a jury. (Id. at pp. 875-876.)
Still more recently, the California Supreme Court has further refined matters in People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 Cal. Lexis 7604]: “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term.” (Id. at p. *21, citing People v. Osband (1996) 13 Cal.4th 622, 728.)
Here, the factors affecting defendant’s sentence were his prior convictions -- the crime for which he is currently sentenced was his fourth adjudication -- whether those convictions were numerous or of increasing seriousness, that the currently-sentenced offense was committed while he was on probation, and that defendant’s prior performance on probation was poor. All of these matters were noted in the original probation report. All of these matters were specific variations on the general theme of recidivist conduct; recidivist conduct does not relate to the elements of the current offense, but rather constitutes “as typical a sentencing factor as one might imagine.” (Almendarez-Torres v. United States (1998) 523 U.S. 224, 230.) Such “typical” sentencing factors have historically been entrusted to the sentencing judge and are not matters which must be found by a jury.
Indeed, having suffered a prior conviction is, in itself, sufficient justification for imposing the maximum sentence in a range. (Jones v. United States (1999) 526 U.S. 227, 244, 249; People v. Steele (2000) 83 Cal.App.4th 212, 226.) Defendant here had suffered at least three convictions prior to the offense for which he is currently sentenced; these prior convictions alone supported his aggravated sentence. “[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (People v. Black, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7604, pp. *21-*22], fn. omitted.) The factors relating to defendant’s recidivism, including his prior convictions, were at least “one aggravating circumstance” which had been “established in accordance with the constitutional requirements set forth in Blakely.” (Ibid.) Defendant was properly subject to the aggravated term as the statutory maximum in his case.
Defendant’s sentence was constitutionally proper.
III. Imposition of the Restitution Fine Was Proper
Defendant argues that the trial court, having already imposed a $200 restitution fine as a condition of probation, might have erroneously imposed a second restitution fine in the same amount. Defendant’s fears should be allayed on that ground. The restitution fine was not imposed twice. The probation report recommended that “the restitution fine previously ordered as a term of probation in the amount of $200.00 now be imposed.” The court’s minutes reflect the same notation, with reference to Penal Code section 1202.4, and the abstract of judgment reflects only one $200 restitution fine pursuant to that section. No duplicate fine was imposed. No error appears.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., RICHLI, J.