Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 05WF1953 M. Marc Kelly, Judge.
William Flenniken, Jr., 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, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
After his probation was revoked in a contested hearing, the court revoked the suspension of a previously imposed sentence, sending defendant Dennis Henry Hudson to state prison for five years. Defendant contends (1) the admission into evidence of a Salvation Army letter at the probation revocation hearing violated his due process right to confrontation, (2) the court erroneously imposed the upper term and two enhancements based on two prior prison terms, and (3) People v. Black (2007) 41 Cal.4th 799 (Black II) was wrongly decided. We affirm the judgment.
FACTS
In December 2005, a jury convicted defendant of receiving stolen property (Pen. Code, § 496, subd. (a)). He admitted serving two prior prison terms. The court sentenced him to a prison term of five years (three for the receiving stolen property conviction and one for each prior prison term), suspended the sentence, and placed defendant on three years of formal probation. Among the probation conditions was a requirement he “‘[e]nter into and complete the Salvation Army Program.’” Defendant appealed from that judgment and we affirmed. (People v. Hudson (June 7, 2007, G036641) [nonpub. opn.].)
All statutory references are to the Penal Code unless otherwise specified.
On August 24, 2007, the Probation Department petitioned for defendant’s arraignment on a probation violation. The department alleged defendant enrolled in the Salvation Army Program on January 10, 2006, and was terminated from the program the following day for pilfering.
At the probation revocation hearing held August 27, 2007, defendant’s probation officer testified she spoke with Berma Jorgensen of the Salvation Army to determine whether “defendant had enrolled in the Salvation Army [Program], as was required on his probation.” Jorgensen faxed the probation officer a letter that “accurately reflected what [Jorgensen told the probation officer about defendant’s] enrollment in the program.” The probation officer (who took over the case from a previous officer) did not know whether defendant “was ever indoctrinated as to the rules of the Salvation Army Program.”
Defense counsel objected to the admission of Jorgensen’s letter into evidence, arguing the letter lacked foundation and was hearsay and its admission would violate defendant’s confrontation right under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Relying on People v. O’Connell (2003) 107 Cal.App.4th 1062 (O’Connell), the court found the letter had “sufficient indicia of trustworthiness and reliability” and admitted it into evidence. The court noted the letter was prepared by “the intake coordinator at the Salvation Army, describing the reasons for [defendant’s] dismissal from the program.” Based on this evidence, the court found defendant violated his probation. The court revoked the suspension of defendant’s December 2005 sentence.
DISCUSSION
The Court Did Not Abuse Its Discretion by Admitting Jorgensen’s Letter into Evidence
Defendant contends “his due process right to confrontation was violated by the admission of [Jorgensen’s letter] because the letter was a testimonial substitute for Jorgensen’s live testimony.”
Before addressing defendant’s contention, we briefly discuss the confrontation rights of a defendant in a probation revocation hearing. “Although probation violation hearings involve the criminal justice system, they are not governed by all the procedural safeguards of a criminal trial.” (People v. Abrams (2007) 158 Cal.App.4th 396, 400 (Abrams).) Specifically, “[p]robation 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.] Thus, Crawford’s interpretation of the Sixth Amendment does not govern probation revocation proceedings.” (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411.) Probationers’ limited confrontation rights “are not absolute, and where appropriate, witnesses may give evidence by ‘“affidavits, depositions, and documentary evidence.”’” (Abrams, at p. 400.) “We review rulings on whether hearsay was improperly admitted at a violation hearing for abuse of discretion.” (Ibid.)
Here, the court relied on O’Connell in ruling Jorgensen’s letter was admissible. In O’Connell, a probation condition required the defendant to participate in a deferred entry of judgment program that included mandatory drug counseling. (O’Connell, supra, 107 Cal.App.4th at p. 1064.) The probation department alleged the defendant had violated the deferred entry of judgment program, relying on an “‘Adult Drug Program Termination Report’” prepared by the manager of the counseling services program. (Ibid.) The report stated the defendant “had been terminated from the program as a result of too many absences,” indicating, “‘This client completed 0 of 20 Sessions.’” (Ibid.) At a hearing on the defendant’s alleged violation of the deferred entry of judgment program, the defendant objected on hearsay grounds to admission of the report into evidence. (Ibid.) The trial court admitted the report into evidence and the appellate court affirmed that ruling, rejecting the defendant’s “claim that his termination was based on inadmissible hearsay.” (Ibid.)
Defendant argues O’Connell, supra, 107 Cal.App.4th 1064 is distinguishable because “the document involved in O’Connell qualified as an official record exception to the hearsay rule.” Not so. Although the trial court in O’Connell cited the “Government Records Exception” in ruling the report admissible, the Court of Appeal made no mention of an established exception to the hearsay rule and instead affirmed the lower court’s ruling because the report “bore the requisite indicia of reliability and trustworthiness so as to be admissible.” (Id. at p. 1067.) “‘As long as hearsay testimony bears a substantial degree of trustworthiness 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.”’” (Id. at p. 1066.) The court explained the report in question was “akin to the documentary evidence that traditionally has been admissible at probation revocation proceedings.” (Ibid.) The “report was prepared contemporaneously to, and specifically for, the hearing where [the defendant’s] lack of compliance with the deferred entry of judgment program was at issue.” (Id. at p. 1067.)
Similarly, our Supreme Court in People v. Maki (1985) 39 Cal.3d 707, 715 reviewed cases showing a “willingness to consider otherwise inadmissible hearsay evidence when accompanied by reasonable indicia of reliability,” and cited, inter alia, United States v. McCallum (1982) 677 F.2d 1024, 1026 (McCallum). In McCallum, the admissible, “reliable” evidence was a “letter from the program coordinator and counselor of the Salvation Army center explaining why [the defendant] lost his job and was expelled from the center.” (Id. at p. 1025.)
Here, Jorgensen’s letter constituted a Salvation Army report similar to the reports in O’Connell, supra, 107 Cal.App.4th 1064 and McCallum, supra, 677 F.2d 1024 with similar indicia of reliability and trustworthiness, and prepared close in time to defendant’s probation revocation hearing. The court did not abuse its discretion by admitting it into evidence.
The Court Properly Sentenced Defendant to the Upper Term Plus Enhancements
Defendant contends the court improperly used “the same admitted facts to impose both sentence enhancements and an upper term sentence.” We address this issue even though defendant failed to raise it at the appropriate time — i.e. on his prior appeal from the judgment sentencing him to a prison term, suspending the sentence, and placing him on probation — as opposed to his current appeal from the probation revocation. Moreover, defendant’s argument relies solely on abbreviated comments made by the court at the probation revocation hearing. But that is not when the five-year sentence was imposed. To determine which matters were actually considered by the court when it imposed sentence, we necessarily review the record of the sentencing hearing on December 9, 2005, not the record of the probation revocation hearing on August 27, 2007.
The legality of the court’s imposition of a five-year sentence was not raised on defendant’s prior appeal from the order placing him on three years of formal probation and suspending execution of the state prison term, although the imposition of the sentence was clearly appealable at that time. (See, e.g., People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 [“when a court imposes sentence but suspends its execution at the time probation is granted, a defendant has the opportunity to challenge the sentence in an appeal from the order granting probation”].) Normally, issues not raised in a prior appeal may not be argued in a subsequent appeal. (See People v. Senior (1995) 33 Cal.App.4th 531, 538 [“where a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay”].) Here, defendant argues the sentence is unauthorized by law, because it “could not lawfully be imposed under any circumstance . . . .” (People v. Scott (1994) 9 Cal.4th 331, 354.) The People have addressed the legality of defendant’s sentence on the merits, and have not asserted any waiver or forfeiture of defendant’s right to our review. Accordingly, we address defendant’s argument on its merits.
We take judicial notice of the record on appeal in People v. Hudson (June 7, 2007, G036641 [nonpub. opn.]) to determine the actual sentencing factors considered by the court when it imposed sentence. Inexplicably, neither defense counsel nor the Attorney General made mention of this record, nor the failure to address the issue in the first appeal.
Contrary to defendant’s argument that the court sentenced defendant to the upper term of three years “based on his prior criminal record, prior conviction,” consisting of only the two prior prison terms charged in the current case, the actual sentencing hearing shows quite a different picture. The court had a probation and sentencing report before it that showed a record of arrests and convictions, both juvenile and adult, going back to 1974. Ignoring the numerous arrests on defendant’s record which resulted either in unknown dispositions or dismissals, the convictions shown on the probation and sentencing report include: (1) A November 1977 California conviction and two years probation with 14 days jail time for possession of forged notes; (2) a January 1980 Illinois conviction and one-year jail time for possession of a stolen vehicle; (3) a September 1981 Illinois conviction and one-year jail time for deceptive practices; (4) a June 1983 Illinois conviction and four-year prison term for possession of stolen credit cards; (5) a January 1983 Florida conviction with four days confinement for carrying a concealed weapon; (6) a February 1983 Florida conviction for vehicle theft (disposition unknown); (7) an August 1985 Illinois conviction and two-year prison term for forgery; (8) a January 1990 federal conviction in Missouri resulting in a seven-year suspended sentence and five years probation; (9) a May 1993 Indiana conviction for forgery and theft with a 56-month concurrent sentence with time imposed in federal court; (10) a December 2001 Washington conviction and 33-month prison sentence for identity theft; (11) a December 2003 California conviction and three-year state prison term for forgery, receiving stolen property, and possession of a controlled substance.
For purposes of determinate sentencing, a court may consider as aggravating circumstances that: “Defendant’s prior convictions . . . are numerous or of increasing seriousness; [¶] (3) The defendant has served a prior prison term; [¶] (4) The defendant was on . . . parole when the crime was committed; and [¶] (5) The defendant’s prior performance on . . . parole was unsatisfactory.” (Cal. Rules of Court, rule 4.421(b)(2)-(5).) Here, at the time of sentencing, the court noted as its reasons for imposing the upper term “that the defendant has a prior significant criminal history, the prior record of arrest and convictions, both juvenile and adult is very lengthy, expanding over 30 years. [Defendant has] served prior prison terms, was on parole regarding this instant offense, and [his] performance on parole was less than satisfactory.” The court’s decision to impose the upper term was amply supported by the record without even considering the two prior prison terms used as enhancements for the current offense. There was no dual use of facts. The sentence was well within the court’s sentencing discretion.
Defendant’s Sixth Amendment Right to a Jury Trial Was Not Violated
Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), defendant contends the court violated his constitutional right to a jury trial under the Sixth and Fourteenth Amendments by sentencing him to the upper term based on “aggravating factors that were not proven to a jury beyond a reasonable doubt.” Here, the court selected the upper term based on defendant’s extensive criminal record.
In Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856], the United States Supreme Court held California’s determinate sentencing law (DSL) violated the Sixth Amendment because it “authorize[d] the judge, not the jury, to find the facts permitting an upper term sentence” (id. at p. 871) and to find those facts by a preponderance of the evidence instead of beyond a reasonable doubt. (Id. at pp. 868, 871.) Thus, “the DSL violate[d the] bright-line rule [articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490]: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Cunningham, at p. 868.)
In Black II, supra, 41 Cal.4th 799, our Supreme Court held “that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) Black II noted the “United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction.” (Id. at p. 818.) Black II held “the ‘prior conviction’ exception” “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.)
We are bound by the decision of the California Supreme Court in Black II, supra, 41 Cal.4th 799. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The court’s imposition of the upper term for receiving stolen property did not violate defendant’s constitutional right to a jury trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., O’LEARY, J.