Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF097961A
BLEASE, Acting P. J.
Defendant Nicolas Alfredo Banuelos appeals from a judgment terminating his probation and sentencing him to two years in state prison. He contends the trial court abused its discretion and violated his right of confrontation under the due process clauses of the federal and state Constitutions by allowing a probation officer to testify as to another probation officer’s notes at his probation revocation hearing. We find any error was harmless and shall affirm.
The facts of the underlying offenses are not relevant to the issue raised in this appeal.
In September 2006, following his conviction for assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and battery on a peace officer (Pen. Code, § 243, subd. (b)), a misdemeanor, defendant was placed on five years formal probation on conditions that included serving 360 days in county jail, reporting to probation “as often as they want you to,” and “obey[ing] all the reasonable orders of the probation officer.”
In February 2007, defendant admitted violating the conditions of his probation by failing to report to probation as directed and failing to provide probation with his “correct living arrangements.” His probation was revoked and reinstated with the modification that he serve 60 days in jail.
In March 2007, defendant’s probation officer Maria Garcia filed a petition alleging defendant violated the conditions of his probation by failing to report to probation on March 22, 2007, after being directed to do so. Defendant denied the allegations, and a contested hearing was held.
More particularly, the petition alleged: “The defendant most recently reported to probation on 3-15-07. The defendant claims that he is homeless. Resources were offered to this defendant; however, [he] became very argumentative and resistant. It was finally decided that [he] would report to probation on 3-22-07 at 9:30 a.m. and advise this officer of his living situation and progress in regard to applying for general relief. The defendant failed to report or make any contact whatsoever since that time. The defendant’s whereabouts are unknown at this time.”
At the hearing, senior deputy probation officer George Flores testified on direct examination that defendant was required to report to probation in person on a monthly basis, and the last time he reported was on March 15, 2007. The prosecutor asked Flores, “When [defendant] met with the probation officer on that occasion, what was he told?” Defendant’s trial counsel objected to the question as calling for hearsay. The People submitted “that this is the probation officer’s file [Flores] is testifying from, and that is reliable hearsay under the terms of [defendant’s] grant of probation.” The trial court overruled the objection, stating: “He can review the file and tell us what is in the file. This is what probation’s obligation is. It is coming out of documents that have been generated from this individual’s report and his file.” Flores testified defendant met with Garcia on March 15, 2007, and he summarized Garcia’s notes of that meeting as follows: “Defendant was very agitated. He claimed that he was still homeless and sleeps here and there. [Garcia] felt that [defendant] might have some mental health issues. [Defendant] addressed to [Garcia] that he had been sent to a 90-day diagnostic, and he was considered to be competent. [Garcia] then directed [defendant] to come in on March 22nd, 2007, at 9:30 a.m.” Defendant failed to report on March 22, 2007, and there had not been any contact with defendant since then.
Defendant testified he went to the probation office on March 15, 2007, and met with a female probation officer. He was not sure if the probation officer he met with was Garcia because she did not give him her card. The probation officer asked him what he was doing there, and he said he came to see if he could get help “as far as a house.” The probation officer told him to go to general relief. She never told him to return on March 22, 2007.
At the conclusion of the hearing, the court found defendant had violated the conditions of his probation by failing to report to probation on March 22, 2007. Although Garcia recommended probation be reinstated with the modification that defendant serve 90 days in jail, the court stated that it did not “see any purpose in continuing [defendant] on probation. He has 607 days in. I am prepared to sentence him to low term on this, which is a two years’ [sic] term.” Accordingly, the court terminated defendant’s probation for the assault and imposed a two-year state prison sentence, with credit for 609 days (406 actual and 203 conduct).
Defendant’s probation on the misdemeanor conviction was modified from formal to informal.
DISCUSSION
Defendant contends the trial court erred in allowing Flores to testify about Garcia’s notes, which he contends “were testimonial, not otherwise corroborated, and directly disputed.” We are not persuaded.
We review a trial court’s decision to admit or exclude evidence in a probation revocation hearing for abuse of discretion. (People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066.)
Because probation revocation proceedings are not part of a criminal prosecution, “the full panoply of rights due a defendant in [a criminal] proceeding does not apply . . . .” (Morrissey v. Brewer (1972) 408 U.S. 471, 480 [33 L.Ed.2d 484, 494]; see People v. Winson (1981) 29 Cal.3d 711, 716 (Winson).) Nevertheless, one facing revocation of probation typically has the right to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation. (People v. Arreola (1994) 7 Cal.4th 1144, 1154, 1159 (Arreola); accord Winson, supra, 29 Cal.3d at pp. 718-719.) That right is not absolute, however, and in appropriate circumstances, witnesses may give evidence by documents, affidavits, or depositions. (Arreola, supra, 7 Cal.4th at p. 1156.)
Our Supreme Court has recognized a distinction between the admission of “testimonial” evidence and the admission of traditional documentary evidence that does not have, as its source, live testimony. (See Arreola, supra, 7 Cal.4th at pp. 1156-1157.) Testimonial evidence is admissible only on a showing of unavailability or other good cause, whereas documentary evidence is admissible (even if it would not be admissible under traditional rules of evidence) if it bears sufficient indicia of reliability. (Ibid.) While the court has not expressly defined the terms testimonial and documentary evidence, it has discussed testimonial evidence in the context of a preliminary hearing transcript (Winson, 29 Cal.3d at pp. 713-714 [preliminary hearing transcript inadmissible at probation revocation hearing absent witness’ unavailability or other good cause]; Arreola, 7 Cal.4th at pp. 1160-1161 [same]) and documentary evidence in the context of business records (People v. Maki (1985) 39 Cal.3d 707, 709, 716-717 [copies of a hotel receipt bearing the defendant’s name and a car rental invoice bearing his signature admissible at probation revocation hearing to establish the defendant had traveled out of state in violation of the terms of his probation].)
Moreover, in Arreola, the court explained why testimonial and documentary evidence merit different levels of scrutiny. “[T]he need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness's demeanor. [Citation.] Generally, the witness’s demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts, where often the purpose of this testimony simply is to authenticate the documentary material, and where the author, signator, or custodian of the document ordinarily would be unable to recall from actual memory information relating to the specific contents of the writing and would rely instead upon the record of his or her own action.” (7 Cal.4th at p. 1157, fn. omitted.)
More recently, in People v. Abrams (2007) 158 Cal.App.4th 396, 398 (Abrams), the Second District held “that whether or not a defendant has reported to his probation officer or made monetary payments to the officer are essentially nontestimonial; thus, even if hearsay, they are admissible at a probation violation hearing.” There, deputy probation officer Jeffrey Dangerfield testified on direct examination that the defendant had failed to report to probation or make monetary payments. (Id. at p. 404.) During cross-examination, Dangerfield referred to a report prepared by deputy probation officer Willie Smith, stating: “‘[I]t indicates that [the defendant] was ordered to report on June 13th, 2006, but never showed up and has--did not contact the probation officer at that time or since then.’” (Ibid.) In concluding “that the evidence from the probation reports had sufficient ‘indicia of reliability,’” the court explained that “[t]he presence of . . . Smith likely would not have added anything to the truth-furthering process, because he would be testifying to a negative: that defendant did not make any appointments and that Smith had not spoken to defendant.” (Ibid.) The court clarified that its decision should not be interpreted as meaning that “everything in a probation report is necessarily admissible at a violation hearing” and reiterated that “[e]vidence that is properly viewed as a substitute for live testimony, such as statements to a probation officer by victims or witnesses, likely falls on the Winson-Arreola side of the line. [Citations.]” (Ibid.) However, the court noted “the rule is otherwise where the evidence involves more routine matters such as the making and keeping of probation appointments, restitution and other payments, and similar records of events of which the probation officer is not likely to have personal recollection and as to which the officer ‘would rely instead upon the record of his or her own action.’ [Citation.]” (Ibid., italics added, fn. omitted.)
The pertinent facts here are indistinguishable from those in Abrams. Like Dangerfield, Flores testified about another probation officer’s report to establish that defendant had been ordered to report to probation on a certain date and time and failed to do so. Garcia likely would not have added anything to the truth furthering process. She simply would have confirmed that she directed defendant to report to probation on March 22, 2007, at 9:30 a.m., and he failed to do so. Thus, her demeanor on the stand would not have constituted a significant factor in evaluating the truthfulness of those statements.
Defendant’s assertion that Garcia’s notes were testimonial, and thus, the trial court was required to find Garcia was unavailable or other good cause before permitting Flores to testify concerning Garcia’s notes, is without merit. The petition alleged and the trial court found defendant violated the conditions of his probation by failing to report on March 22, 2007. The portion of Garcia’s notes relevant to the trial court’s determination -- that she directed defendant to report to probation on March 22, 2007, at 9:30 a.m. and he failed to do so -- was not testimonial, that is, it did not have live testimony as its source. That Garcia verbally directed defendant to report does not make that portion of her notes testimonial, as defendant appears to suggest. The additional information contained in Garcia’s notes concerning defendant’s demeanor and statements he made about being homeless and his competency was irrelevant to the court’s determination. Thus, any error in admitting it was harmless.
Defendant also asserts that “Abrams’ allowance for the introduction of hearsay regarding the routine making and keeping of appointments should not apply to situations where a defendant disputes what was said regarding the nature of the reporting requirement, or should be limited to showing the absence of an occurrence, i.e., that a person did not appear, as opposed to showing that a person was told to appear and then failed to do so.” Defendant fails to cite any authority for his assertion. We perceive at least two problems with defendant’s argument. First, a defendant does not violate a condition of his or her probation by failing to appear absent an obligation to do so. The Abrams courtrecognized this fact when it explained that “more routine matters such as the making and keeping of probation appointments” do not fall within “the Winson-Arreola side of the line.” (Abrams, supra, 158 Cal.App.4th at p. 404, italics added.) Second, there is no indication in the record in this case that the trial court was aware defendant disputed “what was said regarding the nature of the reporting requirement” at the time it ruled that Flores could testify as to Garcia’s notes. Defendant’s subsequent testimony disputing the contents of Garcia’s notes did not render the trial court’s earlier ruling erroneous.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J. ROBIE, J.