Opinion
B228300
10-17-2011
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY RASHA, Defendant and Appellant.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Eric E. Reynolds and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. Nos. BA355471, BA349299)
APPEAL from a judgment of the Superior Court of Los Angeles County, Drew E. Edwards, Judge. Reversed with directions.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Eric E. Reynolds and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Mark Anthony Rasha, appeals from the October 6, 2010 orders revoking and reinstating his probation in two cases on the condition that he serve 365 days in the county jail. Defendant waived his entitlement to custody credits. The trial court summarily revoked defendant's probation after he was charged with assaulting an acquaintance. The victim, Michael Aldano, the only other witness to the incident, twice failed to appear to testify for the prosecution at defendant's probation revocation hearing. Over defense counsel's due process objection, the trial court allowed a police officer to testify concerning Mr. Aldano's unsworn verbal statements. On appeal, defendant contends admitting the hearsay testimony violated his due process right. We agree and find the error was not harmless beyond a reasonable doubt. Accordingly, we reverse the October 6, 2010 probation revocation orders. We modify and reinstate the June 1, 2009 probation orders.
II. THE PROBATION VIOLATION HEARING
On June 1, 2009, defendant pled no contest to transporting a controlled substance in violation of Health and Safety Code section 11379, subdivision (a) in case No. BA349299. He also pled no contest to on April 16, 2009, possessing a controlled substance in violation of Health and Safety Code section 11377, subdivision (a) in case No. BA355471. The imposition of sentence was suspended and defendant was placed on probation for a three-year period.
On August 11, 2010, defendant's probation was summarily revoked following an assault arrest. It was alleged defendant had assaulted Mr. Aldano. The prosecution opted to proceed by means of a probation violation in lieu of filing a new complaint. A formal probation revocation hearing was set for September 3, 2010.
Mr. Aldano was not present at the September 3, 2010 hearing. The following transpired: "[Deputy District Attorney Vivian] Davidson: Your Honor, I . . . have one witness here, but he's an officer and I would like to try to - I can do it with a 911 tape and an officer, but I'd rather bring in the witness if I can. I spoke to the witness Michael Aldano yesterday and I told him that he has to come in. So if the court will hold a body attachment on the next date, I will put it on either through him or through the officers through hearsay. [¶] The Court: Let me actually see counsel at the sidebar on this. [¶] . . . The Court: All right. . . . We've had a sidebar conference. The People have indicated the victim in this case - - for the record the People are proceeding by means of a probation violation in lieu of the open case, and you simply want me to issue and hold a body attachment for a witness in this case. [¶] . . . [¶] The Court: . . . In the matter of Mark Rasha, I'll note for the record that defense counsel is objecting to a continuance of this matter; however, in light of the fact that the People do not have a witness here who has been properly subpoenaed, I'm going to issue and hold a body attachment for the witness [Michael] Aldano [for the next court date]." The probation revocation hearing was continued to September 14, 2010.
Mr. Aldano then failed to appear in court on September 14, 2010. Ms. Davidson asked that a body attachment issue, stating: "I spoke to [Mr. Aldano] a few days before the last hearing and he had informed me that a defense investigator had come to speak to him about the case and that he was afraid and did not want to come to court. I told him at that time he was under subpoena, that the court could issue a body attachment for him. He didn't show up the last time and then he left a message that he was willing to come to court. So then I've left him a message to come to court and he's not here. I'd like the court at this time to issue a body attachment." The court issued the body attachment for the next court date. (Code Civ. Proc., § 1993.) The probation revocation hearing was continued to October 1, 2010.
Mr. Aldano again failed to appear on October 1, 2010. Ms. Davidson stated: "The court knows that I have multiple times attempted to compel the attendance of Mr. Aldano in this case, and [Mr. Aldano] called me the first time it was set and told me that he had been interviewed by the public defender's investigator, and that he was very afraid of coming to court, and he did not want to come to court. And the court knows that. The court has issued a body attachment for that witness." Deputy Public Defender Teri Tan Yin objected that there was no evidence what efforts, if any, had been made to secure Mr. Aldano's appearance. Ms. Yin asserted reliance on the police officer's hearsay testimony would violate defendant's constitutional due process rights. The trial court ruled: "[T]he People have complied with the requirement necessary for the introduction of hearsay evidence of the police officers who . . . dealt with the alleged victim in this case. So I am going to allow them to testify in this case as to hearsay."
During the altercation, the victim's sister, Annabella Aldano, telephoned an emergency operator. Ms. Aldano said there were men in the back alley beating up her brother and he was screaming. Mr. Aldano could then be heard speaking in the background. He told his sister it was Mark Rasha and he broke in. Ms. Aldano repeated the information to the emergency operator, "His name's Mark Rasha." Ms. Aldano told the emergency operator that defendant broke in through a big door.
Officer Robert Garcia testified he answered a disturbance call on July 20, 2010. Officer Garcia spoke to Mr. Aldano for about 15 minutes. Mr. Aldano said he had been attacked with a wooden fence plank and struck on the arm and the side of his body. Officer Garcia observed scrapes on Mr. Aldano's body. Officer Garcia had Mr. Aldano repeat his account of the events. Mr. Aldano's story was consistent both times. Mr. Aldano accused defendant of committing the assault. Officer Garcia refreshed his recollection by reading his written police report.
Defendant testified in his own behalf to the following. Defendant had known Mr. Aldano for 20 years. Defendant went to Mr. Aldano's house to return a cellular telephone. Defendant knocked on Mr. Aldano's door. He then leaned against a fence, which caused a pallet to fall and make a loud bang. Mr. Aldano, who was drunk, flung open the door to his residence, causing it to come off the hinges. Mr. Aldano had a baseball bat in his right hand. He was "cussing" and swinging the bat. Mr. Aldano hit a fence plank with the bat. The plank fell towards defendant and he caught it. Mr. Aldano swung the bat a second time, hitting the fence. Mr. Aldano swung the bat a third time. Defendant threw the plank over the fence in Mr. Aldano's direction and left. Defendant never tried to jab Mr. Aldano with the board.
On October 6, 2010, defendant was found in violation of his probation in his two cases. Probation was revoked and then reinstated on the condition that defendant serve one year in the county jail. Defendant waived his entitlement to custody credits.
III. DISCUSSION
A. The Constitutional Right To Confront Witnesses At A Probation Revocation Hearing
1. Applicable law
A probation violation must be established by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441, 447; People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066; see In re Eddie M. (2003) 31 Cal.4th 480, 501.) The Sixth Amendment's confrontation clause does not apply here because probation revocation hearings are not criminal prosecutions. (People v. Stanphill (2009) 170 Cal.App.4th 61, 78; People v. Shepherd (2007) 151 Cal.App.4th 1193, 1199, fn. 2; see United States v. Hall (9th Cir. 2005) 419 F.3d 980, 985-986.) Minimum due process requirements do, however, apply in probation revocation hearings under the Fourteenth Amendment. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782; Morrissey v. Brewer (1972) 408 U.S. 471, 489; People v. Arreola (1994) 7 Cal.4th 1144, 1147-1148 (Arreola); People v. Winson (1981) 29 Cal.3d 711, 713-714 (Winson).) The applicable due process rights include the prosecutorial right to confront and cross-examine adverse witnesses absent good cause for not allowing confrontation. (Arreola, supra, 7 Cal.4th at pp. 1157-1158; Winson, supra, 29 Cal.3d at pp. 713-714.) As our Supreme Court observed in Winson, supra, 29 Cal.3d at page 717, "[The United States Supreme Court] has indicated that both interests—cross-examination and the opportunity to observe the demeanor of the witness—are not lightly to be disposed of in the criminal, fact-finding process. [Citations.]" (Accord, Arreola, supra, 7 Cal.4th at p. 1158.)
Courts have established a balancing test for determining when hearsay evidence is admissible, including as a substitute for live testimony, in a probation revocation proceeding. In Arreola, supra, 7 Cal.4th at page 1160, our Supreme Court held: "[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 issues, including the purpose for which the evidence is offered . . . ; the significance of the particular evidence to a factual determination relevant to a finding of violation of probation, and whether other admissible evidence . . . corroborates the former testimony, or whether, instead, the former testimony constitutes the sole evidence establishing a violation of probation." (See U.S. v. Martin (9th Cir. 1993) 984 F.2d 308, 311.) Our Supreme Court further held, "'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." (Arreola, supra, 7 Cal.4th at pp. 1159-1160; accord, In re Kentron D. (2002) 101 Cal.App.4th 1381, 1392.)
In Winson and Arreola, our Supreme Court considered whether hearsay testimony was properly admitted in parole or probation revocation settings. In Winson, the victim testified at a preliminary hearing on new charges against the probationer. A transcript of that preliminary hearing testimony was subsequently introduced to prove a probation violation. Our Supreme Court held the preliminary hearing transcript was improperly admitted. The victim was the sole percipient witness to the events that constituted the parole violation, there was no evidence she was legally unavailable and the lower court made no finding of good cause. (Id. at p. 719.) Similarly, in Arreola, the prosecution relied on the transcript of the defendant's preliminary hearing on new charges to prove he had violated his probation. The defendant had been given written notice evidence at his preliminary hearing could be used to prove a probation violation. Our Supreme Court held the notice did not override the defendant's due process rights. Moreover, there was no evidence the sole witness at the preliminary hearing was unavailable or that there was other good cause to dispense with his live testimony at the probation revocation proceeding. (Id. at pp. 1159-1161.)
In re Miller (2006) 145 Cal.App.4th 1228, 1231-1232, is similar to the present case. Two law enforcement officers testified at a parole revocation hearing recounting the victim's unsworn statements to them. The victim was not subpoenaed and did not testify. No explanation was given for her absence or to justify the use of the hearsay testimony. (Id. at p. 1235.) The Court of Appeal for the First Appellate District held the fact the victim made her statements to law enforcement officers did not establish their reliability. (Id. at p. 1239.) The need for confrontation was particularly important because the evidence was testimonial. (Ibid.) Moreover, the defendant's version of the events was directly contrary to that of the victim. The Court of Appeal held it was error to admit the hearsay evidence and the error could not be considered harmless. (Id. at p. 1241.) Now Retired Associate Justice Joanne C. Parrilli, explained: "This is a classic case which pits the victim's version of events against the petitioner's. The victim was not called as a witness, but based on her hearsay statements brought in through police officers, the Commissioner credited the victim's description over petitioner's. By allowing the victim's rendition to be told by police officers, that rendition was both shielded from intense scrutiny and possibly imbued with added credibility. While it is possible that after hearing the victim testify and listening to her cross-examination, the hearing officer would have reached the same decision, eliminating that process deprived petitioner of an essential opportunity to confront his accuser and demonstrate why she should not be believed. Contrary to the Attorney General's suggestion, the hearing officer's failure to weigh the State's need for hearsay versus petitioner's right of confrontation cannot be considered harmless error since allowing the petitioner to cross-examine the victim might well have affected the outcome of this case."
People v. Shepherd, supra, 151 Cal.App.4th at page 1198, involving a probation revocation hearing, is also similar to the present case. Timothy Giddings was the defendant's probation officer. Mr. Giddings testified concerning several conversations he had with other persons who did not testify. The defendant's counsel objected to Mr. Giddings's hearsay testimony. Lorena Gomez was the defendant's drug program case worker. Ms. Gomez told Mr. Giddings that defendant was ordered to leave a court ordered treatment program. Mr. Giddings spoke to Renee Roncelli, an administrator at the defendant's drug treatment program, who confirmed defendant had smelled of, and tested positive for, alcohol consumption. Ms. Roncelli confirmed defendant was asked to leave the program after refusing to go to a detoxification program. Mr. Giddings testified as to his conversations with Ms. Gomez and Ms. Roncelli. Mr. Giddings testified it was his custom to relay information from treatment providers regarding his probationers' misconduct to the court. No justification was offered. The Court of Appeal for the First Appellate District had "no difficulty" in concluding it was error to allow Mr. Giddings to testify concerning his conversations with Ms. Gomez and Ms. Roncelli. (Ibid.)
2. Application to the present case
The questions before us are whether defendant's due process rights were violated and, if so, whether the error was harmless beyond a reasonable doubt. (Arreola, supra, 7 Cal.4th at p. 1161; In re Kentron D., supra, 101 Cal.App.4th at p. 1394; In re Miller, supra, 145 Cal.App.4th at p. 1241.) Our review of the trial court's good cause determination is de novo. (People v. Stanphill, supra, 170 Cal.App.4th at p.78, citing People v. Cromer (2001) 24 Cal.4th 889, 894-904 [appellate court independently reviews trial court determination whether due diligence used to locate unavailable witness]; People v. Friend (2009) 47 Cal.4th 1, 68 [same]; People v. Wilson (2005) 36 Cal.4th 309, 341 [same]; but see People v. Abrams (2007) 158 Cal.App.4th 396, 400 ["We review rulings on whether hearsay was improperly admitted at a [probation] violation hearing for abuse of discretion"]; People v. Shepherd, supra, 151 Cal.App.4th at pp. 1197-1198 [same]; In re Miller, supra, 145 Cal.App.4th at p. 1235 [same]; People v. Brown (1989) 215 Cal.App.3d 452, 454-455 [same].) In People v. Cromer, supra, 24 Cal.4th at pages 900-902, our Supreme Court held, "[A]ppellate courts should independently review a trial court's determination that the prosecution's failed efforts to locate an absent witness are sufficient to justify an exception to the defendant's constitutionally guaranteed right of confrontation at trial." (Fn. omitted.) Our Supreme Court further held, "Our conclusion that a trial court's due diligence determination is subject to independent review comports with this court's usual practice for review of mixed question[s] [of law and fact] affecting constitutional rights. [Citations.]" (Id. at pp. 901-902.)
Defendant was denied his constitutional due process right. There were only two eye witnesses to the altercation—defendant and Mr. Aldano. Mr. Aldano's claims as related by Officer Garcia and defendant's version of the events were in direct conflict. This raised credibility questions. The trier of fact had no opportunity to observe Mr. Aldano's demeanor. Defendant had no opportunity to cross-examine Mr. Aldano. That Mr. Aldano's hearsay statements were made to a law enforcement officer did not establish their reliability. (In re Miller, supra, 145 Cal.App.4th at p. 1239.) Nor do we attach any controlling significance to the fact that, according to Officer Garcia, Mr. Aldano related the circumstances of the altercation twice with consistency. Apart from Ms. Aldano's telephone conversation with the emergency operator, there was no corroborating evidence in terms of who was the aggressor. Ms. Aldano did not observe the altercation. Mr. Aldano's injuries were consistent with either version of the altercation. Defendant's probation was revoked on the strength of Mr. Aldano's allegations alone. Thus, defendant's ability to confront and cross-examine Mr. Aldano was crucial. (In re Miller, supra, 145 Cal.App.4th at p. 1239.)
Moreover, there was an insufficient showing of good cause for failing to call Mr. Aldano as a witness. No effort was made by Ms. Davidson to call a witness to offer under oath testimony on the good cause issue. There was no showing Mr. Aldano was legally unavailable or that he could be brought to the hearing only with great difficulty or expense. Ms. Davidson had spoken to Mr. Aldano by telephone only once, on the day preceding the initial probation revocation hearing date. She had left one further telephone message for him, after he first failed to appear. Mr. Aldano reportedly told Ms. Davidson he was afraid to come to court. There was no evidence why Mr. Aldano was afraid or whether that fear was justified. (See People v. Rojas (1975) 15 Cal.3d 540, 549-552 [witness who testified he had been subjected to threats and violence was unavailable on grounds of fear for his safety and that of his family]; People v. Quaintance (1978) 86 Cal.App.3d 594, 600 [witness who testified he feared for his life was properly declared unavailable]; compare, People v. Sul (1981) 122 Cal.App.3d 355, 363 [no evidence of threats or violence to support a finding of witness fear sufficient to render him unavailable].) And in any event, Mr. Aldano told Ms. Davidson he would testify despite any fear. Although Ms. Davidson did subpoena Mr. Aldano, there was no evidence what attempts were made, if any, to enforce the subpoena or the body attachment subsequently issued by the trial court. (See People v. Cleveland (2004) 32 Cal.4th 704, 748 ["Parties in judicial proceedings routinely coerce witnesses into testifying through the subpoena power and court process"].) In some circumstances, a prosecutor who has subpoenaed a witness has exercised due diligence and is not required to employ further process. (See People v. Perez (1989) 207 Cal.App.3d 431, 435-437; Gaines v. Municipal Court (1980) 101 Cal.App.3d 556, 560-561.) But whether a prosecutor has exercised due diligence to secure the attendance of a subpoenaed but non-complying witness depends on the facts and circumstances of the particular case. (People v. Perez, supra, 207 Cal.App.3d at p. 435.) And the importance of a witness's testimony is a relevant consideration in determining due diligence. (People v. Valencia (2008) 43 Cal.4th 268, 292; People v. Cromer, supra, 24 Cal.4th at p. 904; People v. Louis (1986) 42 Cal.3d 969, 991.) Given that Mr. Aldano's credibility was crucial to a probation violation finding, Ms. Davidson took the further step of asking the trial court to issue a body attachment. But she offered no evidence of any attempt to enforce it. Defendant's due process rights were violated.
Moreover, the error was not harmless beyond a reasonable doubt. But for the hearsay testimony, defendant would not have been found in violation of his probation. (See In re Miller, supra, 145 Cal.App.4th at p. 1241; In re Kentron D., supra, 101 Cal.App.4th at p. 1394.) He was not prosecuted for the new assault offense, hence there is no conviction validating the alleged probation violation. (Compare, Arreola, supra, 7 Cal.4th at pp. 1161-1162.)
B. Fees and Fines
On June 1, 2009, when defendant was initially placed on probation, the trial court ordered him to pay: a $200 restitution fine (Pen. Code, § 1202.4); if placed on parole, a $200 parole revocation restitution fine (Pen. Code, § 1202.45); a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)); a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)); and a $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) in each of his two pending cases, Nos. BA349299 and BA355471. Rather than impose a parole revocation restitution fine (see People v. Tye (2000) 83 Cal.App.4th 1398, 1401; People v. Hannah (1999) 73 Cal.App.4th 270, 274-275), the trial court should have imposed a probation revocation restitution fine under Penal Code section 1204.44. The June 1, 2009 orders must be modified to delete the parole revocation restitution fine and to impose, instead, a $200 probation revocation restitution fine. (See People v. Guiffre (2008) 167 Cal.App.4th 430, 434-435.)
The $50 criminal laboratory analysis fee was subject to penalties and a surcharge, which the trial court failed to impose, specifically: $50 state penalty (§ 1464, subd. (a)(1)); $35 county penalty (Gov. Code, § 76000, subd. (a)(1)); $10 state surcharge (Pen. Code, § 1465.7, subd. (a)); $15 state court construction penalty (Gov. Code § 70372, subd. (a)(1)); $10 emergency medical services penalty (Gov. Code, § 76000.5, subd. (a)(1)); $5 deoxyribonucleic acid penalty (Gov. Code, § 76104.6, subd. (a)(1)); and $5 state-only deoxyribonucleic acid penalty (Gov. Code, § 76104.7, subd. (a)). The June 1, 2009 orders must be modified to reflect the penalties and surcharge.
IV. DISPOSITION
The October 6, 2010 probation revocation and reinstatement orders are reversed. The June 1, 2009 orders are modified to impose a $200 probation revocation restitution fine (Pen. Code, § 1202.44) rather than a $200 parole revocation restitution fine (Pen. Code, § 1202.45) and to include penalties and surcharge on the $50 criminal laboratory analysis fees (Health & Saf. Code, § 11372.5, subd. (a)) as set forth in part III (B) of this opinion. As modified, the June 1, 2009 orders are reinstated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
ARMSTRONG, J.
KRIEGLER, J.