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People v. Addison

California Court of Appeals, Sixth District
Jul 9, 2008
No. H032111 (Cal. Ct. App. Jul. 9, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MARQUIE DANTIE ADDISON, Defendant and Appellant. H032111 California Court of Appeal, Sixth District July 9, 2008

NOT TO BE PUBLISHED

Monterey County Super. Ct. No. SS042193

McAdams, J.

Defendant appeals from the state prison sentence imposed following the revocation of his probation. Defendant contends that the trial court violated his due process rights by revoking his probation on the basis of hearsay evidence that was admitted without a showing of good cause. He also contends that trial counsel was ineffective for failing to object at sentencing. We affirm.

PROCEDURAL HISTORY

On August 17, 2004, defendant pleaded guilty to a violation of a domestic relations court order, with a qualifying prior conviction for the same conduct, and involving a credible threat of violence. (Pen. Code § 273.6) On September 23, 2004, defendant was placed on three years’ formal probation on the conditions, among others, that he obey all laws and that he not “use or possess any narcotics, drugs or other controlled substances without the prescription of a physician.” At that time, the court warned defendant: “If you were to violate any of the terms of probation, you could then be sentenced to serve up to three years in prison.”

Unless otherwise indicated, all statutory references are to the Penal Code.

On May 11, 2007, a petition to revoke defendant’s petition was filed based on six new offenses: (1) inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)); (2) making a terrorist threat (§ 422); (3) possession of cocaine base (Health & Saf. Code § 11350); (4) possession for sale of cocaine base (Health & Saf. Code § 11351.5; (5) possession of cannabis; and (6) possession of marijuana for sale (Health & Saf. Code § 11359).

On August 3, 2007, over defendant’s objection, the probation violation was heard concurrently with the preliminary hearing on the new charges. At the conclusion of the joint hearing, defendant was held to answer on all counts. He was also found in violation of his probation. The court stated: “And with regard to the probation violation, the court finds there is sufficient evidence to find a violation of his probationary status as a result of the findings on the preliminary examination.”

Defense counsel told the court “We’d make the objection if it is only a 115 prelim.” The court noted the objection for the record and overruled it.

On September 20, 2007, the court heard argument and sentenced defendant to state prison for the upper term of three years.

STATEMENT OF FACTS

2004 Offenses

The following summary is drawn from the probation report filed September 13, 2004.

On August 7, 2004, defendant “arrived unexpectedly” at the victim’s home, in violation of a court stay-away order. The victim insisted that he leave, and the couple argued. Defendant then “placed his hand over [the victim’s] mouth and squeezed her face very tightly,” leaving visible marks on her face and lips. Defendant released her face and told her to stay quiet, which she did. The phone rang and defendant answered it. The caller recognized defendant’s voice and subsequently called the police to report the violation of the stay-away order. Police records showed that the victim had reported two prior violations of the stay-away order, but defendant had left the scene before the police arrived.

2007 Offenses

The following summary is drawn from the preliminary hearing transcript.

On May 10, 2007, Officer Justin Pascone went to an apartment in the city of Seaside where he met Officers Enriquez and Carlin. They contacted Judia Charfauross, who said she was living with defendant and had a child with him. Ms. Charfauross’s face was red, swollen and bruised under the eyes; she also had bruises on her legs and thighs. She said defendant slapped her in the face and punched her on the thighs multiple times after accusing her of sleeping with another man. Ms. Charfauross ran into the living room, where defendant slapped her a couple more times. Defendant told her he was going to kill her. Ms. Charfauross said she feared for her safety and her life. She called the police after defendant left the apartment. Ms. Charfauross was crying, seemed scared and had trouble looking the officer in the eyes when he spoke with her.

Officer Eduardo Enriquez contacted defendant at the front door to the apartment. He noticed that defendant smelled of raw marijuana. At the police station, after defendant’s arrest, a baggie of marijuana fell out of defendant’s right pant leg. The baggie contained seven buds of marijuana, six of which were individually wrapped. Officer Enriquez weighed the marijuana and photographed it. The overall weight of the marijuana taken together was 7.6 grams.

Officer Enriquez strip-searched defendant because he believed that defendant might be hiding more contraband. He found a baggie of cocaine in defendant’s rectum. The cocaine was separated into two amounts. One amount was an individually wrapped rock. It weighed 6.2 grams. The other amount consisted of several chunks. All of the chunks together weighed 8.7grams. Officer Enriquez did not weigh each chunk individually. Defendant also had $94 in cash on his person. No drug paraphernalia associated with personal use was found on defendant, nor did defendant’s hands show burn marks such as those commonly found on the fingers of drug users.

The parties stipulated for the purposes of the hearing that the contents found on defendant were in fact marijuana and cocaine base.

Officer Bruno Dias testified, based on his training and experience, that in his opinion defendant possessed the cocaine base for sale. He also opined that defendant possessed the marijuana for sale.

DISCUSSION

1. Hearsay

Defendant contends that the trial court violated his due process rights by relying on hearsay evidence (Ms. Charfauross’s statements to Officer Pascone about defendant’s violence and threats) to violate his probation, without specifically finding good cause. Defendant acknowledges that it is permissible to combine a preliminary hearing on new charges with a probation revocation hearing. He also acknowledges that the court may rely on hearsay evidence to revoke probation if the hearing officer specifically finds good cause for not permitting confrontation. Finally, he acknowledges that the court was entitled to rely on the evidence showing defendant’s possession of cocaine and marijuana to revoke his probation. However, his argument is that since the court never found good cause to excuse Ms. Charfauross from testifying, it could not violate his probation based on hearsay statements by her, yet the court’s stated basis for revoking probation – “the findings on the preliminary examination” – shows that the court did revoke his probation, at least in part, on the basis of Ms. Charfouross’s hearsay statements.

As a preliminary matter, we reject the Attorney General’s contention that defendant has forfeited appellate review of his due process claim. This court has the discretion to review defendant’s due process claim and we elect to do so. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) Furthermore, in our view, defense counsel’s initial objection to a combined “115 prelim” and probation revocation hearing, in conjunction with his objection at the conclusion of the hearing to the evidence on the domestic violence and terrorist threat counts as “purely hearsay,” and his request that defendant not be found in violation of his probation on “on the 115 testimony regarding Count 1 and Count 2,” fairly informed the court that defendant objected to a revocation based on Ms. Charfauross’s hearsay statements to the police. Thus, defendant’s objection comes within the rule of People v. Partida (2005) 37 Cal.4th 428, permitting a defendant to argue on appeal “that [an] asserted error in overruling [a] trial objection had the legal consequence of violating due process.” (Id. at p. 431.)

“Hearsay statements have been admissible at preliminary hearings since the 1990 adoption of Proposition 115, which amended the Penal Code ‘to provide that a probable cause determination at a preliminary examination may be based on out-of-court declarants’ hearsay statements related by a police officer with certain qualifications and experience.’ ” (People v. Herrera (2006) 136 Cal.App.4th 1191, 1203; Cal. Const. Art. 1, § 30; Pen. Code § 872, subd. (b).)

However, we cannot agree with defendant on the merits of his claim. He argues that the court’s responses to defendant’s objections rebutted the presumption that “the court knows and applies the correct statutory and case law . . . and is able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decisionmaking process.” (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.) It has long been recognized that the court may hear a probation matter at the same time as the preliminary hearing. (People v. Santellanes (1989) 216 Cal.App.3d 998, 1004; People v. Arreola (1994) 7 Cal.4th 1144, 1159.) Thus, the fact that the court denied defendant’s request for separate hearings does not support an inference that the court was ignorant of the law.

Similarly, it has long been the rule that hearsay is inadmissible at a probation revocation hearing in the absence of a showing of good cause to dispense with witness confrontation. (People v. Arreola, supra, 7 Cal.4th at p. 1160.) Here, no such showing was made. However, nothing in the record suggests that court was not aware of the Arreola rule. We are not convinced by defendant’s argument that the court’s statement about the “findings on the preliminary hearing” demonstrates that the court relied on inadmissible hearsay to revoke his probation. At the hearing more than ample nonhearsay evidence was presented to show that defendant was in possession of significant quantities of cocaine and marijuana for the purposes of sale. Defendant’s probation required him to “obey all laws” and specifically prohibited him from “us[ing] or possess[ing] any narcotics, drugs or other controlled substances without the prescription of a physician.” Having found that defendant possessed both cocaine and marijuana for sale on the basis of the evidence presented at the preliminary hearing, the court was also entitled to rely on its findings based on that evidence to revoke defendant’s probation. Where, as here, “a judge’s statements as a whole disclose a correct concept of the law and its application, no secondary remarks should be deemed to have impeached his determination.” (People v. Cartier (1960) 54 Cal.2d 300, 312.) Thus, we presume the court did not consider the hearsay evidence on the question whether defendant was in violation of his probationary terms. Inasmuch as we see no reason to infer that the trial court revoked defendant’s probation on the basis of the hearsay evidence presented on the domestic violence and terrorist threat counts, we need not and do not address defendant’s assertion that the court made no specific finding of good cause to excuse Ms. Charfauross from testifying.

2. Ineffective Assistance of Counsel

Defendant asserts that trial counsel rendered ineffective assistance of counsel because she did not object that the court’s “imposition of the upper term sentence [was] based on findings supported only by hearsay, based on conduct that post-dated the offense for which [defendant] was on probation and based on an erroneous view of the relevant record.”

“A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Price (1991) 1 Cal.4th 324, 440, superseded by statute on another point as stated in People v. Allen (1999) 21 Cal.4th 846, 856.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (People v. Anderson (2001)25 Cal.4th 543, 569, internal quotation marks omitted.) Finally, “trial counsel’s tactical decisions are accorded substantial deference[.] ... A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.” (People v. Riel (2000) 22 Cal.4th 1153, 1185, internal quotation marks omitted.)

Defendant’s claim is based on the court’s statement of reasons for selecting an upper term state prison sentence instead of reinstating defendant’s probation. We view the court’s comments in the context of the parties’ preceding arguments to the court.

The prosecutor reviewed defendant’s criminal history which, in addition to the offenses for which defendant was currently on probation, included battery, resisting arrest and gun possession in 1993, felony probation for drug sales in 1999 which eventually resulted in a prison sentence, and earlier convictions for violation of a court order in 2003. The prosecutor noted that defendant had had numerous chances on probation and that the violation before the court involved “not one substance, but 2 on his person with the purposes of sales of both.” The prosecutor concluded by saying that defendant’s “criminal history allows the Court to reach the upper term in sentencing, and I am asking for 3 years state prison.”

Defense counsel responded that defendant’s first felony conviction “was back in 1997” and that even though he was sent to prison and suffered “a couple of [parole] violations … [h]e did well on parole” after his discharge in 2000: he “didn’t have any significant crimes until the 2004 incident in which he plead to a restraining order violation.” She noted that but for the current violation, defendant would have been off probation in three more days. As for “the violation of probation which was found by the court … based on evidence at the preliminary hearing that Mr. Addison was … possessing, I believe, cocaine and marijuana” for the purposes of sale, defendant denied that he possessed the drugs for sale and “the violation was based on just the testimony of the officer.”

Defense counsel noted that defendant had successfully complied with all of the conditions of his probation for two and a half years; he admitted that he had a drug problem and was willing to “do any sort of drug treatment that the Court would impose upon him;” and that the other case discussed in the probation report was “still unresolved.” She concluded by arguing that given all the positives, “a prison sentence on this case at this time is unwarranted, unjust. We would ask the Court to reinstate his grant of probation. If it does not appear the Court would do that, he would give up his custody credits over 365. … He still has the other case to be resolved and he should be allowed to resolve that case. He does deserve a continued grant of probation.”

From the supplemental probation report dated August 31, 2007, it appears that the other case to be resolved was the action (SS071677) on which defendant was held to answer after the preliminary hearing which also served as the probation revocation hearing.

Defendant then addressed the court. He admitted he was wrong to possess the drugs he “got caught with,” wondered why he had come so close to success only to throw it all away, concluded that “my addiction took over and got me off track,” and asked for leniency.

At the conclusion of defendant’s statement, the court said: “Well, first of all, I appreciate your comments for the record. The Court has taken a careful look at this case and this is really a close case as far as the court is concerned. Your record goes back to 1993. You have been to prison back in 1997 for an 11352 with numerous violations of probation prior to that. At some point, you were discharged from parole and the record continues in to 2003 with that … 273.6. Numerous violations of probation on that. At some point probation terminated. February 1st, 2004 there was a 148. Unfortunately we have this case before us today, SS042193, where the defendant is on a formal probation felony. The Judge found you in violation of probation at the preliminary hearing for sales of a controlled substance, and according to the probation report, there was a significant amount of controlled substances that was ceased [sic] on your body. There was cash. [¶] In light of what the Court has reviewed, the Court has reviewed your letter, state prison does seem appropriate. So with that in mind, probation in this particular case would be denied and the defendant would be sentenced to the Department of Corrections and Rehabilitation for a period of 3 years, the upper term, based on the promise the Court made earlier. The upper term does seem appropriate.”

For the reasons already discussed in connection with defendant’s argument regarding hearsay, we also reject his claim that the court declined to reinstate probation, or selected the upper term, on the basis of Ms. Charfauross’s hearsay statements. In addition, we note that the prosecutor, the defense attorney, the defendant and the judge never mentioned the domestic violence incident or indicated in any way that defendant’s probation was revoked for any reason other than drug possession. Furthermore, the supplemental probation report, which the court indicated it had read and considered, clearly stated on its cover sheet that “[t]he defendant was found in violation of his probation through a formal hearing for violation of Sections 11359 H&S, 11351.5 H&S, and 11357 H&S.” The probation report did not summarize Ms. Charfauross’s statements or in any way suggest that defendant’s probation was revoked on the basis of her statements. The report stated only, as background information, that “[o]n May 10, 2007, at about 1003 hours, Seaside Police Officer Enriquez was assisting Officer Pascone with a Domestic Violence incident…. Officer Pascone had arrested a male, later identified as Marquie Addison.” There is no basis whatsoever to infer that the court refused to reinstated probation, or selected the upper term “based on findings made at the preliminary hearing … which … were predicated on incompetent hearsay.” We conclude that counsel was not ineffective for failing to object to the court’s stated reasons on this ground.

We also do not find any basis to infer that the court misunderstood that defendant was found in violation of his probation for possessing drugs for sale, as opposed to selling drugs, just because it stated “[t]he Judge found you in violation of probation at the preliminary hearing for sales of a controlled substance.” The supplemental probation report before the court clearly indicated that defendant was charged with violating Health and Safety Code sections 11359, 11351.5, and 11357, but not section 11352. The probation report accurately summarized the evidence adduced at the preliminary hearing, and did not include any facts indicative of a drug sale transaction. Nevertheless, apparently based in part on other indications that defendant had been “conceal[ing] his true livelihood from this Court and this officer for several years” – the report stated that defendant “never worked, except reportedly as an on call valet, yet [he] would report to this officer in new clothes (shoes included) once a month” – the probation report concluded that defendant “was found in violation for drug sales.” Defense counsel alluded to the probation officer’s conclusion when she argued to the court that the probation officer never mentioned defendant’s successes on probation “because Mr. Addison showed up with a new pair of shoes. Maybe he was pulling the wool over [the probation officer’s] eyes.” It appears that in responding to defense counsel’s argument the court adopted this short-hand phrase from the probation report to describe defendant’s general involvement in drug trafficking as a possessor of drugs for sale. We see no basis for concluding that the court actually believed defendant had been caught selling drugs. Counsel was not derelict in failing to object to the court’s characterization of defendant’s probation violations.

Nor is there any basis to infer that the court violated the rule that “[t]he length of the sentence [imposed after probation revocation] shall be based on circumstances existing at the time probation was granted and subsequent events may not be considered in selecting the base term.” (People v. Colley (1980) 113 Cal.App.3d 870, 872-873.) Viewing the court’s statement of reasons in light of the parties’ arguments, we think the court’s reference to the amount of the drugs found on defendant’s person related to the court’s decision to impose a state prison sentence rather than to reinstate probation, and did not relate to the selection of the upper term. Fairly read, the court’s statement of reasons indicates that the court chose to impose the upper term because of defendant’s criminal history. Defense counsel did not render ineffective assistance of counsel by failing to object to the court’s statement of reasons on this basis.

Finally we reject defendant’s suggestion that the court imposed the upper term because of an unknown “promise the Court made earlier” rather than on the basis of defendant’s criminal history. The judge who sentenced defendant on September 20, 2007, was not the same judge who presided at the probation violation hearing on August 3, 2007, or the same judge who granted defendant probation on September 23, 2004. Defendant is correct that the record does not reflect any such promise. It may well be that the court was ironically referring to the original judge’s warning to defendant: “If you were to violate any of the terms of probation, you could then be sentenced to serve up to three years in prison.” It may be that the court misspoke. In any event, defendant has not demonstrated that defense counsel was clueless about the court’s allusion, or lacked a tactical reason for not objecting. Moreover, we see no reasonable probability that the court would have selected something other than the upper term, given defendant’s criminal history. Ineffective assistance of counsel has not been demonstrated.

CONCLUSION

The trial court did not violate defendant’s probation on the basis of incompetent hearsay. Defense counsel did not render ineffective assistance of counsel by failing to object to the court’s statement of reasons for selecting the upper term.

DISPOSITION

The judgment is affirmed.

WE CONCUR: Rushing, P.J., Duffy, J.


Summaries of

People v. Addison

California Court of Appeals, Sixth District
Jul 9, 2008
No. H032111 (Cal. Ct. App. Jul. 9, 2008)
Case details for

People v. Addison

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARQUIE DANTIE ADDISON, Defendant…

Court:California Court of Appeals, Sixth District

Date published: Jul 9, 2008

Citations

No. H032111 (Cal. Ct. App. Jul. 9, 2008)