Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS032151A
ELIA, J.On November 7, 2006, appellant James Clemons was ordered to serve a previously imposed, but suspended, four year state prison term, after the trial court found that he had violated his probation. On appeal, appellant contends that his due process rights were violated because he was not able to cross-examine an adverse witness, Chantel Llamas, at his probation revocation hearing. For reasons that follow, we find that the hearsay testimony of Chantel Llamas was erroneously admitted. However, we find the error nonprejudicial. Accordingly, we affirm the judgment.
Background
By way of an information filed on August 8, 2003, the Monterey County District Attorney charged appellant with two counts of assault with great bodily injury (Pen. Code, § 245, sub d. (a)(1)); two counts of false imprisonment by violence (§ 236); and residential burglary (§ 459). The information alleged that appellant had served two prior prison terms (§ 667.5, sub d. (b)).
Unless noted, all statutory references are to the Penal Code.
Subsequently, the information was amended to add one count of willful infliction of corporal injury on a spouse/cohabitant. (§ 273.5, sub d. (a).) Appellant pleaded no contest to this charge and the remaining charges were dismissed. The trial court placed appellant on felony probation for three years, but imposed and stayed a four-year prison term. The court imposed various terms and conditions of probation including that appellant obey all laws. Appellant's probation was due to end on October 22, 2006.
On June 18, 2006, Sergeant Jim Procida of the California State University of Monterey Bay Police Department responded to a report of a heated domestic dispute. As he drove up, he saw a vehicle leaving with three women in it. The women flagged him down. According to the officer, they were "pretty excited, pretty frantic." The officer talked to Dominique Rivers. Rivers told him that appellant had punched her twice in the head and kicked her in the stomach. One of the other women, Chantel Llamas, said she had seen appellant hit Rivers twice in the head and saw him kick Rivers in the stomach.
At the time, Rivers was eight months pregnant with appellant's child.
Subsequently, on June 30, 2006, the People filed a Notice of Violation of Probation accusing appellant of inflicting corporal injury on a spouse/cohabitant. (§ 273.5, sub d. (a).) Appellant's probation was preliminarily revoked on July 20, 2006, and a bench warrant was issued for his arrest.
Appellant was arraigned on the probation violation on August 21, 2006. Thereafter, a formal probation violation hearing was held on September 21, 2006. At the hearing, Rivers testified that appellant never hit her or threatened her. Rivers said that she and appellant had had a "tug of war" over appellant's phone because she had seen a suggestive text message from someone named Nicole. Friends intervened because they were shouting "pretty loud."
Rivers admitted that she told the police that appellant hit and kicked her, but she lied to the police because she was angry with appellant for being unfaithful and because he had reported her to the police several months earlier after she shattered the windows of his car with a baseball bat. Rivers disclosed that she visited appellant in jail and talked to him on the telephone. Furthermore, Rivers stated that she wanted appellant to "be there" for her baby.
Sergeant Procida testified that Llamas said she witnessed the incident and saw appellant strike Rivers in the head and kick her. Then Llamas intervened by taking hold of Rivers while two men grabbed appellant. Defense counsel objected to this testimony regarding what Llamas had told Sergeant Procida on the basis that it was hearsay and defendant had a right to cross-examine witnesses against him at the hearing.
After Sergeant Procida and Rivers testified, the prosecution argued that the underlying case was a domestic violence charge with a different victim and that the new offense be viewed as a felony.
Thereafter, the trial court ruled that appellant had violated his probation. The court revoked appellant's probation and found reasonable cause to believe that appellant had violated section 245, subdivision (a)(1).
Discussion
Appellant contends that his due process rights were violated because he was not able to cross-examine Llamas.
A probation revocation hearing "is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to [probation] revocations. [Citation.]" (Morrissey v. Brewer (1972) 408 U.S. 471, 480 [92 S.Ct. 2593].) "Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole [or probation] restrictions." (Ibid.)
Even though Morrissey was a parole revocation case, the rule employed in that case applies to probation revocation equally. In Gagnon v. Scarpelli (1973) 411 U.S. 778 (93 S.Ct. 1756), the probation of a defendant had been revoked without a hearing. (Id. at p. 780.) The United States Supreme Court concluded that probationers are also entitled to a probation revocation hearing and held that the same minimum requirements of due process applicable to parole revocations are applicable to probation revocations. (Id. at pp. 782, 791.)
In Morrissey the United States Supreme Court pointed out that a revocation hearing should be "flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." (Morrissey v. Brewer, supra, 408 U.S. at p. 489.)
The California Supreme Court has recognized that "[p]arole and probation revocation hearings are equivalent in terms of the requirements of due process. [Citations.]" (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) " 'What is needed is an informal hearing structured to assure that the finding of a . . . violation will be based on verified facts and that the exercise of discretion will be informed by accurate knowledge of the [probationer's] behavior.' [Citation.] The only rubrics prescribed for such a hearing in Morrissey were that it provide the alleged violator written notice of the claimed violations, disclosure of the evidence against him, opportunity to be heard in person and to present witnesses and documents, confrontation of adverse witnesses (unless the hearing officer specifically finds good cause for denial of confrontation), a neutral fact finder, and a written statement of the evidence relied upon and reasons for revocation. [Citation.]" (People v. Perez (1994) 30 Cal. App.4th 900, 904.)
"Probation revocation proceedings are not 'criminal prosecutions' to which the Sixth Amendment applies. [Citations.] Probationers' limited right to confront witnesses at revocation hearings stems from the due process clause of the Fourteenth Amendment, not from the Sixth Amendment. [Citation.]" (People v. Johnson (2004) 121 Cal. App.4th 1409, 1411.) Accordingly, we apply due process standards to our analysis.
Crawford v. Washington (2004) 541 U.S. 36 (124 S.Ct. 1354), holding that the confrontation clause bars testimonial out-of-court statements unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, does not apply to probation revocation proceedings because they are not "criminal prosecutions" for purposes of the Sixth Amendment. (People v. Johnson, supra, 121 Cal. App.4th at p. 1411.)
Hearsay evidence may be used at probation revocation hearings if it bears a substantial degree of trustworthiness. (Morrissey, supra, 408 U.S. at p. 489; People v. Maki (1985) 39 Cal.3d 707, 715-717 (Maki).) Under this rationale, in Maki, supra, 39 Cal.3d 707, the court permitted the use of hotel and car rental receipts to establish that the defendant had left the state in violation of his parole. Maki reasoned that the evidence had sufficient indicia of reliability because the documents indisputably contained defendant's signature, dispelling the dangers of hearsay evidence. (Id. at p. 715; see also People v. O'Connell (2003) 107 Cal. App.4th 1062, 1067 [documentary evidence from a court-ordered counseling service that defendant had failed to attend required sessions bore sufficient indicia of reliability because the counseling center's report had been prepared contemporaneously with and specifically for the hearing].)
In Maki, our Supreme Court stated that the right of confrontation at probation revocation hearings is "not absolute and where ' "appropriate," witnesses may give evidence by document, affidavit or deposition [citations].' [Citation.]" (Maki, supra, 39 Cal.3d at p. 710.) The issue in Maki was whether a defendant, whose probation had been revoked, had impermissibly left the geographical area to which he had been restricted. In addition to the probation officer's testimony that he had not given Maki permission to go to Chicago, the evidence offered by the prosecution consisted of a car rental receipt, bearing "the uncontroverted presence of defendant's signatures on the invoice," showing that he had rented a vehicle at O'Hare Field, Chicago, Illinois on January 27, 1983, and a customer receipt from the O'Hare Hyatt Regency showing that a certain sum was received from the defendant on January 28, 1983. (Id. at pp. 716-717.) There was also a factual finding that the signature on the car rental agreement was that of the defendant, who had signed two probation reports, which were admitted into evidence. (Id. at pp. 709, 716-717.) Although the Supreme Court found this case to be "a close one," the identification of defendant's signature on the printed invoice and the fact that it is "an invoice of the type relied upon by parties for billing and payment of money" was enough for the court to deem it reliable and affirm the probation revocation. (Id. at p. 717.)
With respect to hearsay evidence to replace the live testimony of a witness, such evidence is inadmissible absent a showing of the witness's unavailability or other good cause. (People v. Arreola (1994) 7 Cal.4th 1144, 1159 (Arreola); People v. Winson (1981) 29 Cal.3d 711, 713-714.) In the case of live testimony, "the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness's demeanor." (Arreola, supra, at p. 1157.) Therefore, Arreola upheld the limitation on the use of hearsay testimony unless good cause was shown or the witness was unavailable. (Id. at p. 1159.)
Arreola confirms that at a probation hearing a defendant's right to confront and cross-examine testimonial evidence "may not be dispensed with lightly" based on some amorphous conclusion that the hearsay testimony is reliable. (Arreola, supra, 7 Cal.4th at p. 1158.)
Arreola set forth the requirements for a showing of good cause: the declarant is unavailable under the traditional hearsay standard of Evidence Code section 240; the declarant, although not legally unavailable, can only be brought to the hearing through great difficulty or expense, or the declarant's presence would pose a risk of harm to the declarant. (Arreola, supra, 7 Cal.4th at p. 1160.) The Arreola court noted that a finding of good cause must also be considered together with "other circumstances relevant to the issue, including the purpose for which the evidence is offered (e.g., as substantive evidence of an alleged probation violation, rather than, for example, simply a reference to the defendant's character); the significance of the particular evidence to a factual determination relevant to a finding of violation of probation; and whether other admissible evidence, including, for example, any admissions made by the probationer, corroborates the former testimony, or whether, instead, the former testimony constitutes the sole evidence establishing a violation of probation." (Arreola, supra, 7 Cal.4th at p. 1160.)
Here, Sergeant Procida's testimony regarding the hearsay statements of Chantel Llamas, given pursuant to the rules that permit such testimony at preliminary hearings, is the functional equivalent of a preliminary hearing transcript. As a result, it was inadmissible absent a showing of good cause. However, the trial court did not undertake a "good cause" determination to determine whether Llamas was unavailable to testify at the probation revocation hearing, or otherwise analyze the circumstances of the case in accordance with Arreola.
The trial court's admission of the hearsay statements of Chantel Llamas at appellant's probation revocation hearing, without any showing of good cause, violated defendant's federal constitutional right to due process of law as defined by the United States Supreme Court's decision in Morrissey and by the California Supreme Court's application of Morrissey in People v. Winson, supra, 29 Cal.3d 711.
Nevertheless, the question remains whether the erroneous admission of the hearsay statements of Chantel Llamas prejudiced appellant. Since such error is of federal constitutional dimension, we must assess prejudice under the "harmless-beyond-a-reasonable-doubt" standard. (Arreola, supra, 7 Cal.4th at p. 1160.)
The People argue that even without considering Llamas's testimony, the trial court believed Rivers's pretrial statement and rejected the defense's contention that the confrontation had only been a verbal argument. Accordingly, any error in admitting Llamas's statement was harmless beyond a reasonable doubt. We agree.
The facts supporting a probation violation need be established only by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441, 447.) Substantial evidence was received from Rivers admitting that she had told the police that appellant hit and kicked her. Rivers's testimony during the probation revocation hearing was inherently unreliable. She had just given birth to appellant's daughter and wanted him to "be there for her." Further, she had visited appellant while he was in jail and spoken to him on the telephone indicating that she still had a relationship with appellant. Rivers had a strong motive to lie in appellant's favor at the probation revocation hearing. Accordingly, there is ample support for a finding that Rivers's pretrial statement was reliable while her testimony at the probation revocation hearing was not. As a result, we conclude that any error in admitting Llamas's hearsay testimony was harmless beyond a reasonable doubt.
Similarly, under the federal Constitution "The standard of proof required is that evidence and facts be such as reasonably to satisfy the judge that the probationer's conduct has not been as required by the conditions of probation. [Citations.]" (U.S. v. Guadarrama (9th Cir. 1984) 742 F.2d 487, 489.)
Disposition
The judgment is affirmed.
WE CONCUR:, RUSHING, P. J., PREMO, J.