Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR160955
ORDER MODIFYING OPINION AND DENYING REHEARING, OPINION NOT CERTIFIED FOR PUBLICATION
SIMONS, ACTING P. J.
It is ordered that the opinion filed herein on March 7, 2008, be modified as follows:
1. On page 10, the first two paragraphs are replaced and modified as follows:
“We find Abrams’s analysis persuasive. The computer notes were admissible, either directly or by way of the testimony of a witness reading from the notes, as hearsay evidence documenting the objective fact of when Davenport had contacts with the probation department. The evidence did not offer a subjective description of the circumstances of Davenport’s failure to appear on a particular date and time. Rather, it was evidence of a negative: Davenport’s failure to report to probation or produce evidence of enrollment in a domestic violence training program at any time after April 2004. For this reason, it is analogous to the evidence admitted in Abrams and distinguishable from the evidence excluded in another recently decided case, People v. Shepherd (2007) 151 Cal.App.4th 1193, 1202 [holding inadmissible out-of-court statement by treatment program provider describing probationer’s conduct in the program].
“In any event, any error in the court’s reliance on computer notes during the March 10, 2006 hearing was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) The court’s findings at that hearing were not the only findings of probation violations that were at issue at the August 2006 sentencing hearing. Davenport had admitted in court an additional charged violation, his failure to appear at an April 13, 2006 court hearing, and this violation was cited in the presentencing report as the basis for the August 2006 sentencing hearing. Therefore, even assuming the computer notes evidence should have been excluded as unreliable hearsay evidence and that the findings of probation violations made at the March 10, 2006 hearing were thus unsupported by substantial evidence, the court had a basis to revoke Davenport’s probation and send him to prison. In light of all of the other evidence in the record (discussed further below) and in light of evidence presented at the March 10, 2006 hearing about additional probation violations by Davenport (his failure to appear at the April 16, 2004 court hearing and his failure to report to probation while Thomas was his probation officer), we conclude beyond a reasonable doubt that the court would not have reinstated Davenport on probation even if it were presented with only one proven probation violation (his failure to appear at the April 13, 2006 hearing) at the August 2006 sentencing hearing.”
There is no change in the judgment.
Respondent’s petition for rehearing is denied.