Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. YJ30950 Wayne Denton, Commissioner.
Mary Bernstein, 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, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
In October 2007, Carlos A., a minor, admitted to making misdemeanor criminal threats. (Pen. Code, § 422.) The juvenile court declared him a ward of the court and placed him home on probation and set the maximum confinement time at one year. After three separate violations of the terms of his probation, the trial court ordered him placed in a camp drug treatment program for six months. He contends there was insufficient evidence that he violated his probation, and the juvenile court’s probation conditions were unconstitutionally overbroad and vague. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. Conviction and Sentencing
On October 6, 2007, 15-year-old Carlos A. threatened his former girlfriend with a gun, and told her he would kill her and her family. Police received a report Carlos was brandishing a weapon in front of his residence. When they arrived, he had fled on foot. Carlos later turned himself in and police recovered a BB gun from him. On October 11, 2007, he was charged with making a criminal threat under Penal Code section 422.
On October 26, 2007, Carlos admitted the allegations of the petition as amended to a charge of misdemeanor criminal threats, and the juvenile court found him to be a ward of the court under Welfare & Institutions Code section 602. His maximum confinement was set at one year. Carlos was released to the custody of his mother, and placed on probation with the condition that he “[r]eport to the Probation Officers as directed, ” perform 50 hours of service under the direction of his probation officer, attend a school program as approved by the probation officer, observe a curfew between 8:00 p.m. and 6:00 a.m., and participate in anger management. He was also ordered to stay away from the victim and her family.
All statutory references herein are to the Welfare & Institutions Code unless otherwise noted.
2. First Probation Violation, April 15, 2008
On April 15, 2008, the probation officer filed a section 777 probation violation petition. Carlos admitted the petition, and the court found him in violation of his probation. The court released him to his mother, and ordered mental health services, proof of enrollment in counseling, and required that Carlos stay away from his girlfriend.
3. Second Probation Violation, August 19, 2008
On August 19, 2008, another section 777 probation violation petition was filed. Carlos had failed to attend a school program approved by his probation officer, and had not maintained satisfactory grades or attendance. Carlos had failed all classes since ninth grade and had not enrolled in summer school. Further, Carlos had not reported to his probation officer as required and had not performed 50 hours of community service as ordered. Carlos had made “a mockery of the system and [was] not taking his education seriously.” His probation officer recommended placement at the Dorothy Kirby Center and that his home placement be terminated.
Carlos admitted the petition. The court ordered the probation department to contact Carlos’s school and to prepare a report regarding his attendance. The court admonished Carlos that any disrespect towards a teacher would result in custody. At a December 10, 2008 hearing, the court noted Carlos had started his community service and had been taking his medication. He was participating in “wraparound” and had started taking the program seriously. His mother reported he was behaving better. However, the report prepared for the hearing indicated he had not been reporting to his probation officer, had been absent from school and had not been completing his school assignments. The court placed him on home probation and ordered he return in 90 days.
This terminology is not defined in the record, but apparently “wraparound’ was a counseling program designed to help youths like Carlos.
4. Third Probation Violation, February 10, 2009
On February 10, 2009, the probation officer filed a section 777 petition alleging that Carlos had dropped out of school and had last attended on December 10, 2008. Attached to the petition were school records indicating Carlos’s lack of attendance, and the probation officer stated he had been told by Carlos’s school that he had been “cleared” from school due to lack of attendance in January 2009. His mother gave the probation officer a letter, attached to the petition, in which she advised him Carlos refused to honor his curfew, was not taking his medication or attending counseling. The probation officer requested camp community placement.
This terminology is not defined in the record, but the import is that Carlos was no longer registered at school.
Carlos did not attend the February 10, 2009 hearing and the court issued a warrant for his arrest. On February 13, 2009, Carlos turned himself in to court.
At the March 17, 2009 contested hearing on the section 777 petition, Maxzell Williams, Carlos’s probation officer, testified that he had gone over the terms and conditions of his probation with Carlos. Over a running objection on the basis of hearsay, Williams testified that one of the terms was regular school attendance and that Carlos remain in contact with his probation officer. Carlos had not attended school, Williams had not spoken to Carlos since December 2008, and his mother had told him that Carlos was not observing his curfew. Carlos’s mother had given Williams a letter describing Carlos’s problems with curfew. Defense counsel objected to the letter, which was attached to the section 777 petition, on hearsay and best evidence grounds, but declined to examine Williams.
The court sustained the allegations of the petition. Defense counsel informed the court that Carlos had a serious substance abuse problem and belonged in an inpatient drug program. The court observed, “Didn’t we go through this back in November when everybody said the same thing? And I said okay, you know, I’ll let him stay out. Let him participate in wraparound, and hopefully he’ll get a handle on his drug problem. But I told him that if he didn’t participate in wraparound, if he failed to obey his parents, and obey his curfew and everything, that I was going to take him out of the home and put him in camp.” Defense counsel advised that “wraparound” was insufficient for Carlos’s drug problem.
The court next considered disposition. Eric Cid–Lopez, Carlos’s child family specialist, testified that during the time he was able to work closely with Carlos, he had made some progress with him. Carlos had attended school, and his grades improved. However, Carlos relapsed into heavy drug use, and to Cid-Lopez’s knowledge, had not been in school since December 2008. Wraparound did not provide drug treatment, and only made referrals to outpatient treatment. Carlos’s mother testified that Carlos had an anger management problem and he was cutting his wrists. She wanted him to get help.
The court found Carlos needed a more restrictive environment than home placement, and that wraparound had not helped him. The court ordered him to a drug camp, and ordered drug counseling, mental health counseling, and anger management. The court found Carlos in violation of his probation, ordered him to a six–month camp program, found his maximum confinement to be one year, and gave him 35 days credit.
DISCUSSION
I. SUFFICIENCY OF EVIDENCE SUPPORTING PROBATION CONDITION VIOLATIONS
Carlos contends the juvenile court abused its discretion and violated his due process rights by admitting hearsay testimony rather than requiring the live testimony of the percipient witnesses to his alleged probation violations. He contends without the hearsay evidence, insufficient evidence supports the finding that he violated three probation conditions, and therefore the error was prejudicial. We conclude that the court did not abuse its discretion in admitting the evidence, and that substantial evidence supported a finding Carlos violated his probation.
A. Hearsay Testimony at Probation Revocation Hearings
The minimum due process protections at a formal probation revocation hearing include written notice of the claimed violations, disclosure of evidence in support, an opportunity for the defendant to be heard and present witnesses, and the right to confront witnesses, unless the hearing officer specifically finds good cause for not allowing confrontation. (Morrissey v. Brewer (1972) 408 U.S. 471, 489 [92 S.Ct. 2593, 33 L.Ed.2d 484]; People v. Arreola (1994) 7 Cal.4th 1144, 1152–1153.) The confrontation right arises from due process, not from the confrontation clause. (People v. Gomez (2010) 181 Cal.App.4th 1028, 1034 (Gomez).) Thus, it is not absolute and confrontation may be denied where the trier of fact finds express good cause for doing so. In such case, due process does not prohibit the use of documentary evidence, affidavits, and depositions and other conventional substitutes for live testimony. However, only the summary revocation of probation to preserve jurisdiction may be solely based on the probation officer’s report. (Ibid.)
We have held that although a probation report would constitute testimonial hearsay under the expansive definition of recent confrontation clauses cases, including Melendez–Diaz v. Massachusetts (2009) ___ U.S. ___ [129 S.Ct. 2527, 174 L.Ed.2d 314], the confrontation clause is inapplicable to the probation revocation context. (Gomez, supra, 181 Cal.App.4th at p. 1039; People v. Johnson (2004) 121 Cal.App.4th 1409, 1411.)
Section 777, subdivision (c) provides, “The facts alleged in the notice shall be established by a preponderance of the evidence at a hearing to change, modify, or set aside a previous order. The court may admit and consider reliable hearsay evidence at the hearing to the same extent that such evidence would be admissible in an adult probation revocation hearing, pursuant to the decision in People v. Brown, 215 Cal.App.3d (1989) and any other relevant provision of law.” (§ 777, subd. (c); see also People v. Brown (1989) 215 Cal.App.3d 452, 454; In re Kentron D. (2002) 101 Cal.App.4th 1381, 1388–1390; People v. Arreola, supra, 7 Cal.4th at pp. 1159–1160.) Hearsay evidence therefore may be admissible at a probation violation hearing if such evidence bears a substantial degree of trustworthiness. (Brown, at pp. 454–455.) “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.]” (Ibid.)
California Rules of Court, rule 5.580, subdivision (e) “Evidence considered[.] The court must consider the report prepared by the probation officer and other relevant and material evidence offered by the parties to the proceeding. [¶] (1) The court may admit and consider reliable hearsay evidence as defined by section 777(c).”
In Gomez, we evaluated different types of hearsay evidence presented at parole revocation hearings and the parameters of admissibility for hearsay in probation revocation hearings. (Gomez, supra, 181 Cal.App.4th 1028.) In People v. Arreola, supra, 7 Cal.4th at p. 1159, our Supreme Court held that hearsay in the form of prior testimony was inadmissible to prove driving under the influence; in In re Kentron D., supra, 101 Cal.App.4th at p. 1394, hearsay in the form of witnesses statements recounted in a probation report was inadmissible; in People v. Maki (1985) 39 Cal.3d 707, 716–717, hearsay in the form of unauthenticated rental car and hotel invoices was admissible to prove unauthorized departure from the state; in People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066, hearsay in the form of a counseling manager’s report was admissible to prove discharge from program based upon failure to attend; in People v. Brown, supra, 215 Cal.App.3d at p. 456, hearsay by the police officer regarding chemist’s analysis of seized substance was admissible, and in People v. Abrams (2007) 158 Cal.App.4th 396, 404–405, hearsay testimony by probation officer regarding contents of probation department’s computer records and another probation officer’s written report was admissible.
As these cases illustrate, where the evidence is testimonial, the need for confrontation is critical because of the opportunity to observe the witness’s demeanor. However, demeanor is not a significant factor in evaluating foundation relating to the admission of laboratory reports, invoices, and receipts. (In re Kentron, supra, 101 Cal.App.4th at p. 1391.) Further, where the hearsay consisted of more routine matters such as the making and keeping of probation appointments, restitution and other payments, and similar events of which the probation officer is not likely to have independent recollection, evaluation of the witness’s demeanor is not helpful in determining the truth of the matters set forth in the records, such as the defendant’s failure to report to his or her probation officer or satisfy other conditions of probation. (Gomez, supra, at pp. 1038–1039.) Based upon this reasoning, in Gomez, the court upheld probation revocation supported by the admission of the defendant’s probation report showing that he had failed to report to his probation officer, pay restitution, submit verification of his employment, or attend counseling. Due to the absence of contradictory evidence of these violations, the court concluded “we fail to see why it would be necessary to bring in live witnesses to prove what the records showed.” (Id. at p. 1039; see also People v. Maki, supra, 39 Cal.3d at p. 717.)
B. Analysis
1. Condition 3. Contact with Probation Officer
Condition 3 required Carlos to report to his probation officer as “directed, ” or when “ordered.” Probation officer Williams testified at the hearing that Carlos had failed to “stay in contact” with him.
Carlos complains that the prosecution presented no evidence regarding what Williams had directed or ordered him to do and thus there was no evidence that Carlos failed to comply with any order or directive. We disagree. Williams’s testimony was not hearsay, but based upon his own personal knowledge that he had not spoken to defendant since December 2008. Further, evidence of Carlos’s failure to stay in contact with Williams necessarily encompassed his failure to obey any orders or directions from Williams.
2. Condition 9. School Attendance
Condition 9 required Carlos to attend school; the written order stated that Carlos was to “[a]ttend a school program approved by the Probation Officer. Maintain satisfactory grades and attendance, and citizenship. Promptly... notify the Probation Officer of every absence.”
Carlos complains that at the hearing, Williams did not clarify with whom he spoke at the school regarding Carlos’s attendance and performance or how he obtained the school records, and thereby failed to provide an adequate foundation for the records or that they had a reliable basis. Without this hearsay evidence, he argues there was nothing in the record to support his violation of the condition. We disagree. Williams testified that he knew that defendant was not attending school. Furthermore, requiring the school officials to testify to the accuracy of the records attached to the probation report would add nothing to factfinding process because Carlos presented no evidence to the contrary to show that he had been attending school or maintaining his grades.
3. Condition 13. Curfew
The juvenile court ordered Carlos to observe a curfew of 8:00 p.m. to 6:00 a.m. unless he had his mother’s permission given in advance. At the hearing, Williams testified that Carlos’s mother had told him that Carlos was not following her instructions. In her letter, she had told Williams that Carlos stayed out all day and there were times when he did not come home.
Carlos contends this hearsay evidence is insufficient to show that he violated his curfew because neither Williams’s testimony or his mother’s letter specifically addressed the curfew. We disagree. Requiring his mother to testify to the accuracy of her letter attached to the probation report would add nothing to factfinding process because Carlos presented no evidence to the contrary.
II. OVERBREADTH OF PROBATION CONDITIONS
Carlos argues that the condition he “not remain in the presence of any unlawfully armed person” was unconstitutionally overbroad and did not give him notice of the probation condition because it omitted a knowledge requirement. He further contends the issue was not forfeited by his failure to raise the issue below, and asks that we modify his probation condition to insert the knowledge requirement.
A. Factual Background
At the hearing placing Carlos on probation on October 26, 2007, the court stated that as a probation condition, “You’re not to hang around anyone who is unlawfully armed.” The unsigned minute order of the same date states as condition 16 of probation that Carlos should not “remain in the presence of anyone known to minor to be unlawfully armed.” (Italics added.)
B. Analysis
The juvenile court has broad discretion to impose conditions of probation. (§ 730; In re Christopher M. (2005) 127 Cal.App.4th 684, 692.) Section 730, subdivision (b) authorizes courts in juvenile cases to “impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” A condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) Nevertheless, to avoid unconstitutional overbreadth, “[a] probation condition that imposes limitations on a [minor’s] constitutional rights must closely tailor those limitations to the purpose of the condition.” (Id. at p. 890.) The probation condition “‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.’” (Ibid.) The probationer may raise objection to the constitutionality of the probation on appeal where the issue presents a pure question of law. (Id.at p. 889.)
In Sheena K., the California Supreme Court considered a probation condition that prohibited a minor from associating with anyone disapproved by her probation officer. (Sheena K., supra, 40 Cal.4th at p. 880.) Because the probation condition, “[b]oth as orally pronounced by the juvenile court, and as set forth in the minute order, ... did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer, ” the Supreme Court held that it was unconstitutionally vague. (Id. at pp. 891–892.) The Court made clear, however, that such a probation condition could be rendered constitutional on judicial review if modified to include a knowledge requirement that “explicitly direct[ed] the probationer not to associate with anyone ‘known to be disapproved of’ by a probation officer or other person having authority over the minor.” (Id. at p. 892.)
In In re Byron B. (2004) 119 Cal.App.4th 1013, 1018 (Byron B.), the court rejected a minor’s constitutional challenge to a probation condition prohibiting contact with any person disapproved of by a parent, guardian, or probation officer because “unlike the juvenile court’s oral ruling, its minute order did include the crucial words, ‘known to be.’” Recognizing that “[t]he clerk’s minutes and the reporter’s transcript are to be harmonized, if possible, ” the court concluded that the clerk’s transcript “simply clarifie[d] a point that the reporter’s transcript left ambiguous.” (Ibid.) As “the minute order correctly recite[d] the juvenile court’s ruling, ” the court held that the probation condition was “not unreasonable, overbroad, or void for vagueness.” (Ibid.)
Here, although Carlos concedes such an order that otherwise would be deemed vague may be constitutional where the juvenile court offered additional written or oral comments which insert the knowledge requirement, because the record does not establish that Carlos either signed or saw the clerk’s order containing the written conditions, he requests that we must nonetheless find it unconstitutionally vague.
Generally, the court’s oral pronouncement of judgment controls over the clerk’s minute order and that any discrepancy between the two is presumed to be a clerical error in the minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471). However, as Byron B. noted, the two should be harmonized where possible. (Byron B., supra, 119 Cal.App.4th at p. 1018; see also People v. Harrison (2005) 35 Cal.4th 208, 226 [“As a general rule, a record that is in conflict will be harmonized if possible”].) “‘[W]hether the recitals in the clerk’s minutes should prevail as against contrary statements in the reporter’s transcript, must depend upon the circumstances of each particular case.’ [Citations.]” (People v. Smith (1983) 33 Cal.3d 596, 599.)
We find Carlos did not forfeit the overbreadth issue because on this record, we can decide the issue as a matter of law. Here, as in Byron B., the juvenile court’s minute order simply clarified its oral pronouncement of the probation condition at issue by including the knowledge requirement. Indeed, Carlos concedes that the court’s minute order contains the express knowledge element that he claims is necessary to comply with due process. As such, the probation condition is neither unconstitutionally vague nor overbroad.
Carlos accordingly does not challenge the constitutionality of the probation condition as set forth in the written order. Rather, he had no notice of the properly worded condition, and argues that there is nothing in the record to establish that he ever saw the minute order and read the restriction on association with persons armed. However, Carlos was not charged with violating this condition of his probation, and therefore suffered no harm as a result of any overbreadth in the condition as orally pronounced. Prospectively, because the written order is constitutionally sound, he is on notice of the condition.
DISPOSITION
The order of the superior court is affirmed.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.