Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB41233. Jon Ferguson, Judge.
Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P.J.
Defendant and appellant Angela Lynn Brock was placed on probation after pleading guilty to unlawfully taking or driving a motor vehicle (Veh. Code, § 10851, subd. (a)) and possession of methamphetamine. (Health & Saf. Code, § 11377.) After a Vickers hearing, the court found that she violated her probation and sentenced her to two years in state prison. On appeal, defendant contends that: 1) the court erred in summarily denying her motion to dismiss the probation revocation petition; and 2) the trial court improperly admitted hearsay evidence of her probation violations, and, absent that evidence, there was no evidence that she violated probation. We affirm.
People v. Vickers (1972) 8 Cal.3d 451 (Vickers).
FACTUAL AND PROCEDURAL BACKGROUND
On September 25, 2003, a police officer noticed a car with a headlight burned out. He followed the car and ran its license plate number through the police computer system. He discovered that the car had been reported stolen the previous night; thus, he stopped the car. Defendant was a passenger. When the officer conducted a search of defendant, he found a baggie of methamphetamine in defendant’s pants pocket.
Pursuant to a plea agreement, defendant pled guilty to charges of unlawfully taking or driving a motor vehicle (Veh. Code, § 10851, subd. (a)) and possession of methamphetamine. (Health & Saf. Code, § 11377.) On February 9, 2004, the court placed defendant on probation for three years on various conditions, including serving 210 days in county jail, to be served on weekends.
On December 7, 2005, the San Bernardino County Probation Department (the department) filed a petition for revocation of probation, alleging that defendant violated her probation terms requiring her to serve her county jail sentence, report to the department regularly every three months, and keep the department informed of her place of residence. On December 22, 2005, the court revoked probation and issued a bench warrant for her arrest, so that defendant could be brought before the court to show cause why the pronouncement of judgment previously withheld should not be pronounced.
On January 29, 2006, Riverside County police arrested defendant on the bench warrant, as well as on a new felony charge of Penal Code section 273a, subdivision (a) (willful harm/injury to a child). On March 9, 2006, defendant was convicted on the charge in Riverside County. On December 4, 2006, she was sentenced to two years in state prison. Execution of the sentence was suspended, and defendant was placed on probation for four years and was ordered to serve 365 days in county jail.
On December 8, 2006, defendant appeared before the San Bernardino Superior Court, in custody, and denied the allegations in the probation revocation petition. The court set a hearing on the petition for January 10, 2007. On January 10, 2007, defendant requested a Vickers hearing, which was set for February 2, 2007, but continued to February 6, 2007. At the outset of the Vickers hearing, defense counsel requested the case to be dismissed due to a violation of defendant’s due process rights. Defense counsel argued that defendant had a right to be sentenced in a timely fashion, that she had been in custody in Riverside County for over one year, and that the instant case “could have been dealt with a year ago, if [defendant] was merely picked up on the warrant.” The court asked defense counsel if there was “ever a demand of any type made.” Defense counsel said “no” and the court denied the request to dismiss.
The court then heard testimonies from the probation officer and three defense witnesses. In her closing argument, defense counsel asserted that the hearing was not about whether or not defendant violated probation, but about whether there were mitigating factors. She argued that defendant had a lot of mental health and drug issues, and that she was negatively influenced by her boyfriend and father. The court noted that defendant stopped reporting to the department in August 2004 and that she was convicted in another case in Riverside County in January 2006. It concluded that she had completely ignored her probation obligations in the instant case for 16 months, and thus, had violated her probation. It then formally revoked probation and sentenced her to two years in state prison. The court gave her credit for 603 days of time served (403 actual days served and 200 conduct credits) and ran her sentence concurrent to any other time she was obligated to serve.
ANALYSIS
I. The Court Properly Denied Defendant’s Request to Dismiss the Case
Defendant argues that the trial court erred in summarily denying her motion to dismiss the probation revocation petition, that the denial should be reversed, and that she should now have a hearing on that motion. We disagree.
The federal Constitution guarantees criminal defendants the right to a speedy trial. (U.S. Const., 6th Amend.) The right to a speedy trial has been held to apply to probation revocation hearings. (See People v. Young (1991) 228 Cal.App.3d 171, 179-181 and In re La Croix (1974) 12 Cal.3d 146, 156 (La Croix).) Defendant’s motion to dismiss was based on a violation of her right to a speedy probation revocation hearing.
At the outset, we note that defendant failed to assert her right to a speedy hearing in a timely manner. (See La Croix, supra, 12 Cal.3d at p. 153.) After the department filed the probation revocation petition, the court revoked her probation and issued a bench warrant for her arrest on December 22, 2005. Defendant claims that the record fails to show she was notified that the San Bernardino court revoked her probation and issued a warrant for her arrest. However, the record shows that, on January 29, 2006, the Riverside County police arrested defendant on a new felony charge and the bench warrant. We assume that defendant was given notice of the probation revocation petition at the time of the arrest. However, the record does not explain why defendant did not appear before the court regarding the probation revocation petition until December 8, 2006, since she apparently was not sentenced in the Riverside County case until December 4, 2006. Regardless, defendant waited until the day of the Vickers hearing, on February 6, 2007, to assert her right to a speedy revocation hearing. Thus, even though defendant presumably had notice of the probation violation allegations on January 29, 2006, she inexplicably failed to assert her right to a speedy hearing for over one year. At the Vickers hearing, the court inquired as to whether she had previously asserted her right. When defense counsel admitted that she had not done so, the court properly denied the request to dismiss the petition and proceeded with the revocation hearing.
Furthermore, defendant cannot establish that she was prejudiced by the denial of a hearing on her motion to dismiss. When determining whether a defendant has been deprived of her right to a speedy trial, some of the factors the court must balance include the length of the delay, the reason for the delay, the defendant’s assertion of the right, and the prejudice to the defendant. (Serna v. Superior Court (1985) 40 Cal.3d 239, 252.) Here, the alleged delay was over one year, but the reason for the delay is not evident from the record. Defendant failed to assert the right in a timely manner, as discussed above, and ultimately, she cannot establish prejudice. Specifically, there is very little support for defendant’s claim that her right to a speedy hearing was violated, considering the purposes of the Sixth Amendment’s speedy trial provision. The purposes are to “‘to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.’ [Citations.]” (United States v. Marion (1971) 404 U.S. 307, 320.) Defendant has not alleged that she suffered undue restraints on her liberty, or that she was the subject of public accusation, or that the passage of time impaired memories, caused evidence to be lost, deprived her of witnesses, or otherwise interfered with her ability to defend herself. (Ibid.) She merely claims that, had she been sentenced in the instant case and the Riverside County case at the same time, she “might have been able to secure a more favorable sentence.” This tenuous contention barely warrants a response, except to note that at sentencing in the instant case, the court gave her credit for 603 days of time served (403 actual days served and 200 conduct credits) and ran her sentence concurrent to any other time she was obligated to serve.
We conclude that the court properly denied defendant’s motion to dismiss. Furthermore any possible error in the court’s denial was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see also, La Croix, supra, 12 Cal.3d at pp. 154-155.)
II. There Was Sufficient Evidence That Defendant Violated Her Probation
Defendant argues there was insufficient evidence that she violated her probation, since the probation officer’s testimony was inadmissible hearsay. Her argument implies that the sole evidence before the court which resulted in the revocation was hearsay testimony. We reject defendant’s contention.
A. Background
Probation Officer Isaac Zaragoza, who reviewed defendant’s case and recommended that her probation be revoked, testified at the revocation hearing. The court took judicial notice of the probation terms. Officer Zaragoza testified that one of defendant’s conditions required her to complete weekend custody time, and that she failed to complete it. She completed only one day of her weekend program and was terminated from the program on June 6, 2004. Defense counsel asserted a foundation objection. In response, Officer Zaragoza explained that he received his information regarding defendant’s weekender program from the Jail Information Management System, which gives the booking and release information for a defendant.
Officer Zaragoza testified that defendant was also required to report to a probation officer every three months by a written report. The last time she reported was on August 6, 2004, by telephone.
Another probation term required defendant to notify the department of any changes in her address. Officer Zaragoza testified that, on November 4, 2005, he attempted to contact defendant at her last reported address. When he went there, he was told that she did not live there.
The court further allowed Officer Zaragoza to testify that one of defendant’s conditions prohibited her from violating the law. Although the probation revocation petition did not allege that defendant violated the law, the court allowed the testimony solely for the purpose of potentially explaining why defendant did not report to the department or keep it informed of her place of residence. Officer Zaragoza said that when defendant was arrested on the warrant in the instant case, she was also arrested on a child endangerment charge in Riverside County. Zaragoza spoke to defendant after the arrest, and she told him that she was arrested because “somebody reported that she let her child run down the street.” She also told him that she did not complete the weekend custody program because “[i]t was too hot to report.”
Defense counsel cross-examined Officer Zaragoza and asked him whether the person he talked to at defendant’s last known address was on parole. After Zaragoza said that the person was on parole, defense counsel asked him whether parolees sometimes lie. Zaragoza said, “Sure.”
Defense counsel also asked Officer Zaragoza to confirm that although defendant stopped reporting to the department in August 2004, she did comply with some probation terms from February 2004 to August 2004.
Defense counsel then presented three witnesses on defendant’s behalf, including Janet Blum, a friend of defendant’s mother, and Michelle Cartwright, defendant’s mother. Blum testified that defendant had depression issues in high school. She also testified that once the father of defendant’s child “moved her away,” all of defendant’s participation in her probation “just dropped.”
Defendant’s mother, Cartwright, testified that defendant had various problems when she was in school, including Attention Deficit Disorder and psychological problems. Cartwright also said that defendant was prescribed Paxil and took it for six or seven months. Defense counsel asked Cartwright why defendant stopped complying with her probation terms in August 2004. Cartwright said that defendant’s father came to visit her and told her she did not need to comply.
Defense counsel concluded by arguing that the “gist” of the hearing was not whether or not defendant violated probation, but whether there were mitigating factors. She asserted that defendant “started out of the gate doing okay and had fallen off.” She argued that defendant had a lot of mental health and drug issues, and that she “fell in with” her boyfriend and her father.
The court found that defendant basically stopped reporting to the department in August 2004, and was not convicted in another case until January 2006. Thus, there were 16 months when she completely ignored her obligations in the instant case. The court concluded that defendant was not a good candidate for reinstatement of probation. It then stated it was convinced by a preponderance of evidence that defendant violated the terms of her probation. The court revoked her probation and sentenced her to two years in state prison, and gave her 603 days of credits.
B. There Was Sufficient Evidence That Defendant Violated Probation
Penal Code section 1203.2, subdivision (a) provides, in relevant part, that “the court may revoke and terminate such probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation.” (Italics added.) A probation revocation hearing is not a criminal prosecution and thus does not invoke the full panoply of constitutional rights ordinarily due a defendant in a criminal prosecution. (Morrisey v. Brewer (1972) 408 U.S. 471, 480; Vickers, supra, 8 Cal.3d at p. 458.) The minimum due process requirements at a formal probation revocation hearing include written notice of the claimed violations, disclosure of evidence against the probationer, an opportunity for the defendant to be heard and to present evidence, and 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, 1152-1153 (Arreola).)
Section 1203.2 expressly authorizes the use of hearsay testimony in a revocation proceeding. (People v. Burden (1980) 105 Cal.App.3d 917, 921.) “The rub arises where the use of the affidavits or other hearsay impinges on defendant's right to confront and cross-examine witnesses.” (Ibid.) Otherwise, “[a]s long as hearsay testimony bears a substantial degree of trust-worthiness it may legitimately be used at a probation revocation proceeding. [Citations.] 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.]” (People v. Brown (1989) 215 Cal.App.3d 452, 454-455 (Brown).)
Here, the trial court did not abuse its discretion in implicitly determining that Officer Zaragoza’s testimony regarding the findings of his investigation and the contents of the probation report he wrote bore a substantial degree of trustworthiness. A probation report is “inherently reliable as a document prepared by a government employee in furtherance of his or her official duties. [Citation.]” (People v. Cain (2000) 82 Cal.App.4th 81, 87-88.) Defendant was ordered, under the terms of her probation, to: 1) serve 210 days in the San Bernardino County jail, with credit for time served (27 days), plus conduct credit; the balance was to be served on the weekends, starting on June 4, 2004, (term No. 1); 2) report to her probation officer in person immediately after her release from custody and thereafter once every 14 days or as directed (term No. 3); and 3) keep her probation officer informed of her place of residence and give written notice to the probation officer 24 hours prior to moving (term No. 7). Officer Zaragoza testified that defendant completed only one day of her weekend custody program and was terminated from it on June 6, 2004. Officer Zaragoza explained that he received this information from the Jail Information Management System, which contains booking and release information. We have no reason to believe that this information was anything but trustworthy and reliable, as it is presumably the “regular business” of the Jail Information Management System to keep track of the custody information of defendants. (See Brown, supra, 215 Cal.App.3d at pp. 455.) In addition, Officer Zaragoza testified that defendant admitted that she did not complete her weekender program because “[i]t was too hot to report.” Defendant did not introduce any evidence to contradict this part of the officer’s testimony.
Officer Zaragoza also testified that despite defendant’s requirement to report to a probation officer every three months by written report, the last time she reported was on August 6, 2004, by telephone. Officer Zaragoza further testified that when he attempted to contact defendant at her last reported address on November 4, 2005, he was told that she did not live there. This information is the sort that Officer Zaragoza discovered in furtherance of his official duties as a probation officer, and we have no reason to believe that it was not trustworthy or reliable.
Furthermore, the defense evidence did not contradict any of Officer Zaragoza’s testimony. To the contrary, the defense witnesses tended to corroborate it. Defense counsel presented Janet Blum, who testified that once the father of defendant’s child “moved her away,” all of defendant’s participation in her probation “just dropped.” Defendant’s mother essentially testified that defendant stopped complying with her probation terms in August 2004 because her father came to visit her and told her she did not need to comply. Moreover, upon the close of evidence, defendant did not even contest that she violated her probation. Instead, defense counsel argued that there were mitigating factors, including that defendant had mental health and drug issues, and that she was negatively influenced by her boyfriend and father.
Defendant makes that blanket claim that hearsay is not admissible at a probation revocation hearing. She relies upon Arreola in support of this claim; however, Arreola is inapposite. In Arreola, the defendant objected on several grounds to the use of a preliminary hearing transcript at a probation revocation hearing. The defendant asserted hearsay and lack of foundation in that there had been no showing of declarant unavailability or other good cause. (Arreola, supra, 7 Cal.4th at p. 1150.) The trial court admitted the transcript without finding good cause. (Id. at p. 1151.) Reaffirming its holding in People v. Winson (1981) 29 Cal.3d 711, our Supreme Court concluded that the transcript of the arresting officer’s testimony at a preliminary hearing, which formed the basis for revocation of probation, was inadmissible at the probation revocation hearing absent a showing of good cause or witness unavailability. (Arreola, supra, 7 Cal.4th at pp. 1159-1161.) Specifically, Arreola stated that a showing of good cause was required “before a defendant’s right of confrontation at a probation revocation hearing can be dispensed with by the admission of a preliminary hearing transcript in lieu of live testimony.” (Id. at p. 1159.)
Here, by contrast, the prosecutor presented a live witness—Officer Zaragoza—who testified to his perceptions and the information he learned regarding defendant’s probation violations. Moreover, there was no hearsay or confrontation issue here, as he was cross-examined by defense counsel.
We conclude, therefore, that the admission of Officer Zaragoza’s testimony regarding defendant’s probation record was properly admitted and did not impermissibly infringe on her constitutional rights to confrontation, cross-examination, or due process. As such, there was sufficient evidence that defendant violated her probation.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., MILLER J.