Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. Nos. SS061776 & SS062580
McAdams, J.
The trial court found that defendant Francisco Torres violated his probation and ordered him to serve a previously imposed, but suspended, three-year prison sentence. On appeal, defendant contends that his due process rights were violated because he was not able to cross-examine an adverse witness (his brother Rafael Torres) at his probation revocation hearing. As explained below, we find that the hearsay statements of Rafael Torres were admitted in error and that the error was prejudicial.
Factual and Procedural History
Case Number SS061776A (Possession of Marijuana in Jail)
In a complaint filed in May 2006 (case no. SS061776A), the prosecution charged defendant with one count of possessing a controlled substance (marijuana) in jail on May 27, 2006 (Pen. Code, § 4573.6). At the time of the offense, defendant was incarcerated in the Monterey County Jail as a condition of his probation in case number SS051721, in which he had been convicted of misdemeanor possession of stolen property (a car; Pen. Code, § 496, subd. (a)).
Defendant pleaded guilty in SS061776A, on the condition he be given probation. The court suspended imposition of sentence and placed defendant on three years probation. The court imposed various conditions of his probation including requirements that defendant: (1) serve one day in jail; (2) “not possess, wear, use or display any item prohibited by the Probation Officer including … any insignia, emblem, …, cap, hat, … or any article of clothing, … or paraphernalia associated with membership or affiliation in a gang”; (3) “[t]otally abstain from the use of alcoholic beverages, not purchase or possess alcoholic beverages, …”; (4) “[n]ot use or possess alcohol, narcotics, drugs or other controlled substances without the prescription of a physician…”; (5) obey all laws; and (6) permit the search of his person, car, personal effects, or residence by a police officer or probation officer without the necessity of a warrant.
Case Number SS062580A (Possession of a Controlled Substance) and First Violation of Probation
On August 31, 2006, the People filed a Notice of Violation of Probation for failure to obey all laws based on the allegations of SS062580A, a new case that charged defendant with possession of a controlled substance (hydrocodone, which is generic for Vicodin) on or about August 30, 2006 (Health & Saf. Code, § 11350).
On September 25, 2006, defendant pleaded guilty to possession of a controlled substance in SS062580A on various conditions, including that he remain on formal probation in SS061776A. Defendant also admitted the probation violation in SS061776A.
On October 25, 2006, the court sentenced defendant in both cases. In SS061776A, the court imposed the middle term of three years, suspended execution of the sentence, and reinstated defendant’s probation on the same terms and conditions as before. In SS062850A, the court imposed the middle term of two years, suspended execution of the sentence, and granted three years probation on various terms and conditions, including the condition that defendant serve 180 days in jail and the same conditions as SS061776A regarding the possession of gang paraphernalia, gang clothing, and alcohol.
Second Violation of Probation
On February 20, 2007, defendant’s probation officer conducted a search of defendant’s residence, in which he found red clothing and an unopened, red bottle of beer.
On February 21, 2007, the People filed a petition to modify or revoke probation in SS062580A. Defendant failed to appear for the arraignment on the violation of probation on March 7, 2007, and a bench warrant was issued for his arrest. On May 23, 2007, defendant was arraigned on a violation of probation in SS061776A and the bench warrant for failure to appear in SS062580A.
Hearing on Probation Violation
A formal probation violation hearing was held on July 13, 2007. At that time, the petition filed in SS062580A was amended to include SS061776A.
Prosecution Case
The People relied on the testimony of a single witness, defendant’s probation officer, Gregory Smith. Smith testified that he discussed the terms and conditions of defendant’s probation with defendant prior to February 20, 2007.
On February 20, 2007, Smith and three other probation officers searched defendant’s home. Defendant was not at home. His brother Rafael Torres answered the door and let the officers in. Smith had not been to defendant’s home before and asked Rafael where defendant’s room was. Rafael directed the officers to defendant’s room. Defendant’s hearsay objection to this testimony was overruled. Rafael remained in the hall while the officers searched the room. The officers only searched the room that had been identified as defendant’s room.
For the sake of clarity and not out of disrespect, after we initially identify each of the members of the Torres household, we shall refer to them by their first names.
The officers found two red caps, a red San Francisco Forty-Niners (Forty-Niners) blanket on the bed, a red Forty-Niners flag tacked to the wall, eight red shirts, a red jacket, and an unopened bottle of a special edition Budweiser beer. The bottle was a “solid red color with gold writing on it.” The clothes appeared to be consistent with defendant’s size and weight.
Smith testified that while the officers searched, Rafael said “the items were his younger brother’s but he said sometimes his little brother sleeps in there as well.” According to the probation report, around the time of the search, Rafael was 26 years old, defendant was 22 years old, and their brother Rigo Torres was 13 years old.
Smith did not discuss what he found with defendant. He could not recall whether Rigo was home at the time of the search.
Defense Case
Rigo was 14 years old at the time of the hearing. He testified that he was at home, in the living room, at the time of the search. He heard Rafael tell the officers where defendant’s bedroom was. Rigo testified that the officers searched his (Rigo’s) room. He said he told the officers it was his room and they said nothing in response. Rigo testified that the red items the officers found belonged to him. On cross-examination, Rigo agreed that Rafael “probably” knew which room defendant lived in. Rafael had been living in the house for about a month before the search took place. Rigo testified that he was not a member of a gang and that he owned so many red items because he loved the Forty-Niners.
Trial Court Ruling and Sentencing
The court concluded that there was sufficient evidence to find a violation of probation. The court revoked and terminated probation in SS061776A and SS062580A. The court sentenced defendant to three years in prison in SS061776A (possession of marijuana in jail) and two years concurrent in SS062580A (possession of hydrocodone). Defendant appeals.
Discussion
Defendant contends the trial court erred prejudicially when it admitted hearsay evidence of Rafael’s words or gestures, which identified the room that was searched as defendant’s room, over defendant’s objection. He also contends that the admission of this evidence violated his constitutional right of confrontation. Finally, he asserts that, if the confrontation issue has been forfeited by his counsel’s failure to object on this ground, then his counsel was ineffective.
A probation revocation hearing “is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to [probation] revocations.” (Morrissey v. Brewer (1972) 408 U.S. 471, 480.) The facts supporting a probation violation may be proven by a preponderance of evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 439, 447.)
Our state Supreme Court discussed the procedural guidelines governing probation revocation hearings in People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153 (Arreola). The court stated: “The pertinent California statute—Penal Code section 1203.2—prescribes few procedural guidelines governing probation revocation proceedings. The two seminal United States Supreme Court decisions, however,—Morrissey v. Brewer, supra, 408 U.S. 471, and Gagnon v. Scarpelli [(1973)] 411 U.S. 778—set forth the procedural safeguards required by the federal Constitution for revocation proceedings. In 1972, in Morrissey, the high court defined the minimal due process requirements for parole revocation, recognizing that parolees enjoy a ‘conditional liberty’ requiring constitutional protection (408 U.S. at p. 484), and that both the parolee and society have a stake ‘in not having parole revoked because of erroneous information or because of an erroneous evaluation of the need to revoke parole....’ ” (Arreola, at p. 1152.) Morrissey set forth a two-step procedure that is required to afford parolees due process of law: (1) “an initial preliminary hearing to determine whether probable cause exists to believe that a parole violation has occurred” and (2) “a more formal, final revocation hearing requiring factual determinations and a disposition based upon those determinations.” (Ibid.)
“In discussing the minimum constitutional requirements applicable to the final revocation proceeding, Morrissey held that due process requires ‘(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body …; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.’ [Citation.] At the same time, Morrissey emphasized that ‘the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial’ [citation], and further explained that ‘[o]bviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime.’ ” (Arreola, supra, 7 Cal.4th at pp. 1152-1153.)
“The following year, in Gagnon v. Scarpelli, supra, 411 U.S. 778, the high court, extending the Morrissey protections to probationers, held a probationer is entitled to preliminary and final revocation hearings under the conditions specified in Morrissey. (411 U.S. at p. 782) The court commented upon the rights of probationers to present witnesses and to confront and cross-examine adverse witnesses, stating: ‘[The attorney general’s] greatest concern is with the difficulty and expense of procuring witnesses from perhaps thousands of miles away. While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.’ ” (Arreola, supra, 7 Cal.4th at p. 1153.) The California Supreme Court has recognized that “[p]arole and probation revocation hearings are equivalent in terms of the requirements of due process.” (People v. Rodriguez (1990) 51 Cal.3d 437, 441.)
“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.” (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411.) Accordingly, we apply due process standards to our analysis.
Hearsay evidence may be used at probation revocation hearings if it bears a substantial degree of trustworthiness. (Morrissey, supra, 408 U.S. at p. 489; People v. Maki (1985) 39 Cal.3d 707, 715-717 (Maki).) The determination of trustworthiness rests within the discretion of the trial court. (People v. Brown (1989) 215 Cal.App.3d 452, 454-455.) “A trial court’s decision to admit or exclude evidence in a probation revocation hearing will not be disturbed on appeal absent an abuse of discretion.” (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198 (Shepherd).)
In evaluating the trustworthiness of hearsay evidence and its admissibility in revocation proceedings, California cases have distinguished between documentary evidence and testimonial evidence. (Arreola, supra, 7 Cal.4th at pp. 1155-1158; Shepherd, supra,151 Cal.App.4th at pp. 1199-1202.) The court in Maki permitted the use of documentary evidence consisting of hotel and car rental receipts to establish that the defendant had violated his probation by leaving the state. The court observed that the right of confrontation at probation revocation hearings is “not absolute and where ‘ “appropriate,” witnesses may give evidence by document, affidavit or deposition [citations].’ ” (Maki, supra, 39 Cal.3d at p. 710.) The court reasoned that the car rental receipt had sufficient indicia of reliability because it indisputably contained defendant’s signature, dispelling the dangers of hearsay evidence. The hotel receipt, although not signed, corroborated the car rental receipt. (Id. at p. 715.)
In People v. O’Connell (2003) 107 Cal.App.4th 1062, the appellate court found that a written report prepared by the program manager of a counseling agency stating that the defendant had been terminated from the program due to “ ‘Too Many Absences’ ” was admissible. (Id. at p. 1066.) The court opined that the report was “akin to the documentary evidence that traditionally has been admissible at probation revocation proceedings” because it was “prepared contemporaneously to, and specifically for, the hearing where appellant’s lack of compliance with the deferred entry of judgment program was at issue.” (Id. at pp. 1066-1067.)
Our courts have applied a different standard where the hearsay evidence is based on testimonial evidence or the oral statements of a hearsay declarant. With respect to hearsay evidence to replace the live testimony of a witness, such evidence is inadmissible absent a showing of the witness’s unavailability or other good cause. (Arreola, supra, 7 Cal.4th at p. 1159; People v. Winson (1981) 29 Cal.3d 711, 713-714.) In the case of live testimony, “the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness’s demeanor.” (Arreola, at p. 1157.) The Arreloa court observed that the United States Supreme Court “has reaffirmed the principle that the opportunity of the accused to observe an adverse witness, while that witness testifies, is a significant aspect of the right of confrontation that may not be dispensed with lightly.” (Id. at p. 1158.)
The defendant in Arreola objected on hearsay grounds to the use of a transcript at a probation revocation hearing of the arresting officer’s testimony at a preliminary hearing on new charges that formed the basis for the alleged probation violation. The trial court had admitted the transcript without finding good cause for dispensing with the requirement of live testimony by the arresting officer. (Arreola, supra, 7 Cal.4th at p. 1151.) The Supreme Court held that the transcript was inadmissible at the probation revocation hearing absent a showing of good cause or witness unavailability. (Id. at pp. 1159-1161.) The court stated: “There is an evident distinction between a transcript of former live testimony and the type of traditional ‘documentary’ evidence involved in Maki that does not have, as its source, live testimony.” (Id. at p. 1157; see also Shepherd, supra, 151 Cal.App.4th 1193 [error to admit testimony of probation officer regarding out-of-court statements by treatment program administrator that defendant violated his probation by consuming alcohol].)
Arreola set forth the requirements for a showing of good cause: (1) the declarant is unavailable under the traditional hearsay standard of Evidence Code section 240; (2) the declarant, although not legally unavailable, can only be brought to the hearing through great difficulty or expense, or (3) the declarant’s presence would pose a risk of harm to the declarant. (Arreola, supra, 7 Cal.4th at p. 1160.) The Arreola court noted that a finding of good cause must also 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.” (Ibid.)
Here, it is undisputed that Probation Officer Smith’s testimony that Rafael “directed” the officers to defendant’s room was hearsay. It was offered to prove that the room the officers searched belonged to defendant and to support the inference that the contents of the room belonged to defendant. Smith had never been to defendant’s home before and did not know which room belonged to defendant. As a result, the testimony regarding Rafael’s statements was inadmissible absent a showing of Rafael’s unavailability or other good cause. (Arreola, supra, 7 Cal.4th at p. 1159.)
It is also undisputed that the trial court did not undertake a “good cause” evaluation to determine whether Rafael was unavailable to testify at the probation revocation hearing or otherwise analyze whether Rafael, although not legally unavailable, could only be brought to the hearing through great difficulty or expense, or whether Rafael’s presence would pose a risk of harm to Rafael. (Arreola, supra, 7 Cal.4th at p. 1160.) The Attorney General argues that Rafael was defendant’s “brother and housemate, a person he could have readily brought to court, as he did with another brother (Rigo), also his housemate.” However, as the proponent of the hearsay evidence, it was incumbent on the prosecution, not defendant, to make the requisite showing of good cause.
Moreover, there was no evidence the court considered the “other circumstances relevant to the issue”: the purpose for which the evidence was offered, the significance of the evidence relevant to the factual determination upon which the alleged probation violation was based, and whether other evidence corroborates the hearsay evidence. (Arreola, supra, 7 Cal.4th at p. 1160.) The court permitted Smith to testify regarding alleged out-of-court statements by Rafael that the items Smith found were in defendant’s room and belonged to defendant, which permitted the conclusion that defendant had violated his probation by possessing gang paraphernalia. Since Smith testified instead of Rafael, defendant had no opportunity to cross-examine Rafael and the court had no opportunity to observe Rafael’s demeanor. We conclude the trial court’s admission of Rafael’s hearsay statements at the probation revocation hearing, without any showing of good cause, violated defendant’s federal constitutional right to due process of law as defined by the United States Supreme Court in Morrissey and by the California Supreme Court’s application of Morrissey in People v. Winson, supra, 29 Cal.3d 711.
Nevertheless, the question remains whether the erroneous admission of Rafael’s hearsay statements prejudiced defendant. Since such error is of federal constitutional dimension, we must assess prejudice under the “harmless-beyond-a-reasonable-doubt” standard. (Arreola, supra, 7 Cal.4th at p. 1160.)
Defendant contends that Rafael’s hearsay statement was the only evidence that linked the red clothing and bottle of beer to defendant and that its admission cannot be found harmless beyond a reasonable doubt.
On cross-examination, Rigo testified that he heard Rafael tell the officers where defendant’s bedroom was. But it is not clear this testimony was offered for the truth of the matter, since Rigo testified that the officers searched his (Rigo’s) room and that he told the officers it was his room. Other than Rafael’s statements, there was no evidence that linked defendant to the room. There were no photographs of defendant or papers or documents with defendant’s name on them in the room. There was nothing that indicated that defendant used the room exclusively. To the contrary, Rafael told the officers that sometimes Rigo slept in that room. Probation Officer Smith testified that Rafael “did indicate that the items were his younger brother’s but he said sometimes his little brother sleeps in there as well.” The Attorney General argues that the term “younger” brother in the foregoing testimony refers to defendant and the phrase “little brother” refers to Rigo. However, the prosecution made no effort to clarify which of Rafael’s two younger brothers the hearsay evidence referred to.
The only other testimony that linked defendant to the gang items that the officers found was Smith’s testimony that the clothes “seemed consistent with [Mr. Torres’s] size and weight” and that “some of the clothes in the closet” were “consistent with Mr. Torres’s size.” While one might infer from the context that the testimony refers to defendant, that is not entirely clear. There were three Mr. Torreses living in the house: defendant, Rafael Torres, and Rigo Torres. During the hearing, the prosecutor referred to each of them as “Mr. Torres” at different times. The prosecution did not bring the items of clothing to court. At the time of the hearing, defendant was 22 years old and Rigo was 14 years old. No one made a record of the relative differences, if any, in their sizes or of Rigo’s or Rafael’s sizes in relationship to the clothing at issue. Smith only stated that the clothing “was consistent with Mr. Torres’s size.”
In this case, Rafael’s hearsay statements were offered as substantive evidence of the probation violation, linking defendant to the gang items found in his home. The only evidence that corroborated Rafael’s identification of the room at issue was Rigo’s testimony that Rafael had lived in the house for about a month and that he “probably” knew which room belonged to defendant. But that evidence was contradicted by Rigo’s testimony that the officers searched his (Rigo’s) room. Rafael’s hearsay statements that the clothes at issue belonged to defendant were contradicted by Rigo’s testimony that the clothing and other items belonged to him (Rigo). On this record, we cannot say that the admission of the hearsay evidence regarding Rafael’s statements to the probation officer identifying the room and the clothing as belonging to defendant was harmless beyond a reasonable doubt. We therefore conclude the erroneous admission of this evidence was prejudicial.
Since we find prejudicial error in the admission of the hearsay evidence, we shall not reach defendant’s claim that the admission of the evidence violated his constitutional right of confrontation or his claim that his counsel was ineffective for failing to object on this basis.
Disposition
The court’s order finding a violation of probation at the time of the search is reversed.
WE CONCUR: Mihara, Acting P.J., Duffy, J.