Opinion
E080573
09-06-2024
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ISIDRO, Defendant and Appellant.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley, Britton B. Lacy, and Emily M. Reeves, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF1800640. William S. Lebov, Judge. (Retired judge of the Yolo Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley, Britton B. Lacy, and Emily M. Reeves, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MCKINSTER ACTING P. J.
Defendant and appellant Christopher Isidro challenges the trial court's decision revoking his probation after he committed a new offense. Defendant contends the court's reliance on his "rap sheet," a probation report, and a probation officer's testimony about the report for proof of the new offense violated his right to due process. As we explain in our de novo review of the due process claim, the certified rap sheet was admissible under a hearsay exception. (Evid. Code, § 1280; People v. Dunlap (1993) 18 Cal.App.4th 1468 (Dunlap).) As such, it was sufficiently reliable documentary evidence to support the court's revocation decision, independent of the probation officer's testimony or the underlying probation report. We therefore affirm the revocation decision.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2019, an amended felony complaint alleged that defendant committed two counts of robbery in June 2017, during which he used a semiautomatic handgun. (Pen. Code, §§ 211, 12022, subd. (a)(1).) On January 27, 2020, defendant pled guilty to one of the robbery counts with the firearm enhancement, and the remaining count was dismissed. The trial court selected a midterm three-year state prison sentence, suspended execution of the sentence, and instead placed defendant on five years' probation, with credit for 140 days of time served plus an ensuing 40 days on work release. The court conditioned suspending the sentence on defendant obeying "all laws, ordinances, and court orders."
All further statutory references are to the Penal Code, unless noted otherwise.
In December 2021, the Riverside County Probation Department filed a petition alleging that defendant violated his obey-all-laws probation condition and, in late January 2022, the court revoked probation pending a contested revocation hearing.
At the hearing, the prosecutor submitted defendant's rap sheet as reflected in a California Law Enforcement Telecommunications Systems (CLETS) printout to show defendant's conviction in 2021 for, in the prosecutor's words, "a 148, which would violate his probation." (See § 148, subd. (a)(1) [misdemeanor offense for resisting, delaying, or obstructing a peace officer].) The rap sheet identified the Vista branch of the San Diego County Superior Court as the court of conviction. Defense counsel initially objected to the trial court considering the rap sheet ("I don't believe [it] was certified"), but upon confirming the certification stamp, counsel withdrew the objection, stating, "No objection as far as the record of conviction goes."
The court then turned briefly to a probation report the prosecutor also submitted to show commission of the 2021 obstruction/resisting offense, but at defense counsel's request, returned to the rap sheet because counsel objected to its reliability. Defense counsel asserted as "a significant error" the fact that "it says my client got eight years of probation," whereas "on a 148 at the time [defendant] could have only gotten one year." Counsel also faulted the entry on the rap sheet for the 2021 obstruction/resisting conviction for "not hav[ing] a date of offense on it." Counsel argued the alleged omission prevented the People from "prov[ing] by a preponderance of the evidence that my client actually committed the alleged instant offense while on probation."
The prosecutor responded regarding the eight-year probation term that "what matters is conviction, not the sentencing" and that "possibly one error out of four [rap sheet] pages [was] not a glaring error" compromising the reliability of the conviction. For an offense date, the prosecutor pointed out on the rap sheet that, "[i]f you look above the conviction date [for] the 148, if you look right above it, the arrest date was December 6, 2021."
The court, noting the rap sheet's order of entries, asked defense counsel, "What about the fact that [the] 148 appears on the rap sheet after the 211 [for which] he has a suspended term?" Prefacing his response with, "I understand my experience is not evidence," counsel answered that it was possible that convictions appearing on a rap sheet "may be out of [chronological] order." In any event, given what counsel termed "this real glaring error" regarding the eight-year probation term, counsel asked the court to exclude the rap sheet or, in the alternative, in light of "at least one error [on it], . . . give it little to no weight."
Before ruling on the rap sheet, the court turned back to the probation report and defense counsel's objection that "it lacks foundation" and "is unreliable hearsay." Noting that it had reviewed the probation report in chambers, the court addressed the probation officer called by the People, asking her, "[A]re you familiar with the probation report that has been prepared?" The officer answered, "Just what I read." The court queried further: "In the normal course, do you know how the circumstances would be put into this report, including the date of the offense . . . referenced?" The probation officer replied, "Yeah.
In this circumstance, probation received a call from San Diego County, and that's how they were aware of it. And then they would have gotten the report, the police report, and put the information in."
The prosecutor sought admission of the probation report as a business record. In addition to objecting to the report on hearsay and reliability grounds, defense counsel objected to "anything Probation Officer Santiago just stated, testified to . . . as multiple levels of hearsay" and on foundation grounds.
The court expressly overruled defense counsel's objections to the probation report. The court also implicitly overruled defense counsel's challenges to the rap sheet when it revoked defendant's probation. The court stated its ruling as follows: "The Court does find by a preponderance of the evidence that the defendant has committed a violation of probation. As far as the rap sheet is concerned, the Court believes it's reliable. Obviously, the eight-year probation is an error. It occurred-the entry occurred after his 211 in this court. [¶] In addition, the probation report, as testified to by Ms. Santiago, indicates that the offense did occur December 6th, 2021, which was after he was granted probation. [¶] There is also an indication in the rap sheet, as pointed out by [the prosecutor], that the offense did occur on December 6, 2021."
In sum, the court concluded that it "believes both the rap shee[t] and the probation report are reliable and, therefore, they are considered by the Court and he is in violation of probation." In executing defendant's three-year suspended sentence, the court noted that, in addition to the conviction for obstructing or resisting a peace officer in San Diego in 2021, "the rap sheet indicates [defendant similarly] had a prior 148 in 2019."
DISCUSSION
Defendant contends the evidence the trial court relied on to conclude he committed a probation violation was inadmissible, not admitted, unsworn, and/or unreliable. Defendant argues that one or more of these alleged defects-whether viewed alone or in combination-was such that he was denied his due process right to a fair hearing.
According to respondent, defendant forfeited his due process argument by not raising it below. Instead, defendant objected to the rap sheet as unreliable and to the probation report and the probation officer's testimony on hearsay grounds and for lack of foundation or reliability. Defendant also suggests on appeal that the probation report was never admitted into evidence and that the probation officer's testimony was not under oath.
The basis on which we consider defendant's appellate challenge determines our standard of review. We independently review mixed questions of law and fact affecting constitutional rights. (People v. Cromer (2001) 24 Cal.4th 889, 901-902.) This de novo review extends to due process challenges in probation revocation proceedings. (People v. Liggins (2020) 53 Cal.App.5th 55, 64 (Liggins).) In contrast, evidentiary rulings that are not of constitutional magnitude fall under the abuse of discretion standard. (People v. Harris (2005) 37 Cal.4th 310, 337.) That standard generally governs probation revocation proceedings (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198 (Shepherd)), but there can be exceptions. (E.g., Liggins, at p. 64; People v. Gomez (2010) 181 Cal.App.4th 1028, 1033 (Gomez).)
In asserting forfeiture of defendant's due process claim, respondent relies on the principle that "[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida).) As Gomez explained, this principle is not absolute.
There, the appellate court considered a due process challenge to the admissibility of a probation report in probation revocation proceedings though the defendant did not expressly raise due process below. Instead, the defendant had objected to the report on grounds it was "inadmissible, multiple-level hearsay . . . and the court failed to find good cause to admit it in lieu of live testimony." (Gomez, supra, 181 Cal.App.4th at p. 1033.) Because the due process question was "inextricably entwined" with the evidentiary challenges the defendant preserved, Gomez found "[n]o unfairness to the parties or the court results from considering this claim on appeal." (Ibid.) Similarly, we conclude here that defendant may make a "very narrow due process argument on appeal," namely that the evidentiary error or errors he alleged below "had the additional legal consequence of violating due process." (Partida, supra, 37 Cal.4th at p. 435 [considering due process challenge where objection had been under Evidence Code section 352].)
The trial court at a revocation hearing does "not . . . determine whether the probationer is guilty or innocent of a crime, but whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain his conditional liberty." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 348; see § 1203.2 [providing for modification, revocation, or termination of probation supervision].) The standard of proof for the court to find the defendant violated a probation condition is a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441 (Rodriguez).)
Because a hearing to revoke a convicted defendant's conditional release on probation is not a criminal prosecution, a probationer is not entitled to the "'full panoply of rights due a defendant in such a proceeding.'" (Rodriguez, supra, 51 Cal.3d at p. 441, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 480 (Morrissey).) For instance, given that the Sixth Amendment right to confront adverse witnesses is limited by its terms to "'"criminal prosecutions,"'" it does not apply in a probation revocation hearing. (Shepherd, supra, 151 Cal.App.4th at p. 1199, fn. 2.)
Nevertheless, "both the People and the probationer or parolee have a continued post-conviction interest in accurate fact-finding and the informed use of discretion by the trial court." (People v. Winson (1981) 29 Cal.3d 711, 715 (Winson).) Specifically, the central "concern" of an individual facing revocation "is 'to insure that his liberty is not unjustifiably taken away and the State['s] [is] to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community.' [Citations.]" (Ibid.) To secure these overlapping interests in truth-seeking and fundamental fairness, the high court has set out minimum standards that apply in parole and probation revocation proceedings. (Morrissey, supra, 408 U.S. at p. 489 [parole]; Gagnon v. Scarpelli (1973) 411 U.S. 778, 781-782 (Gagnon) [probation].) This includes a "right of confrontation at the formal revocation hearing [that] does not arise from the confrontation clause, but from due process." (Gomez, supra, 181 Cal.App.4th at p. 1034.)
Defendant argues he was denied due process because he had no opportunity to confront and cross-examine "the custodian of the rap sheet." Specifically, he argues the prosecutor "did not establish good cause to excuse live testimony from the custodian of the rap sheet."
The due process confrontation right on which defendant relies, however, is "not absolute." (Winson, supra, 29 Cal.3d at p. 719.) The high court has emphasized that the threshold for due process in revocation proceedings "should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." (Morrissey, supra, 408 U.S. at p. 489.) Similarly, the court clarified in Gagnon: "While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence." (Gagnon, supra, 411 U.S. at p. 782, fn. 5, italics added.)
Under "the relaxed rules of evidence governing probation revocation proceedings," hearsay evidence that "bears a substantial degree of trustworthiness . . . may legitimately be used at [such] a . . . proceeding." (People v. Brown (1989) 215 Cal.App.3d 452, 454, citing, e.g., Morrissey, supra, 408 U.S. at p. 489.) Indeed, consideration of even "otherwise inadmissible" documentary hearsay evidence does not violate due process where the evidence bears "reasonable indicia of reliability." (People v. Maki (1985) 39 Cal.3d 707, 715, 717 (Maki) [out-of-state hotel and car rental receipts for which no business records foundation was laid were admissible to show probation violation where signed by the defendant].)
Defendant's insistence, as a requirement of due process, on live testimony from an authorized custodian of the rap sheet-or good cause to excuse such testimony-is without merit. Certified rap sheets obtained from CLETS are admissible as official records without foundational testimony. (Dunlap, supra, 18 Cal.App.4th at pp. 14771481; see Evid. Code, § 1280 [official records hearsay exception].)
CLETS is a computer database in which the California Department of Justice (DOJ) "maintain[s] a master record of information 'pertaining to the identification and criminal history of any person,' including information commonly found in rap sheets." (Dunlap, supra, 18 Cal.App.4th at pp. 1477-1478; Gov. Code, § 15100; see People v. Martinez (2000) 22 Cal.4th 106, 113, 120-128 (Martinez) [describing history and operation of CLETS].)
As Dunlap explained, pursuant to the statutory scheme establishing CLETS, "local criminal justice agencies are required to report to the [DOJ] information concerning arrests and dispositions in certain criminal cases (§§ 13150-13151.1)." (Dunlap, supra, 18 Cal.App.4th at p. 1478.) This includes reporting of pertinent conviction information by superior courts. (Id. at p. 1479; see §§ 13125, 13150 &13151 [identifying requisite arrest and conviction or disposition data].) Under these statutes, "the public employees involved in the recording or reporting of criminal offender record information in the CLETS system have a duty to employ methods ensuring a reasonable level of accuracy and reliability." (Dunlap, at p. 1480.)
The trial court is required to take judicial notice of these reporting statutes (Dunlap, supra, 18 Cal.App.4th at p. 1478) and, "[i]n addition to taking judicial notice, . . . may rely on the rebuttable presumption that official duty has been regularly performed (Evid. Code, § 664) ...." (Dunlap, at p. 1477.) Accordingly, even without "direct evidence as to [its] method and time of preparation," a certified CLETS rap sheet generally may be deemed "sufficiently trustworthy" for admissibility as an official record. (Dunlap, at pp. 1479-1481 [certification]; see Martinez, supra, 22 Cal.4th at p. 129 [holding an uncertified CLETS printout may also be admissible "'without necessarily requiring a witness to testify as to its identity and mode of preparation,'" based on judicial notice of trustworthy manner of preparation].) The CLETS rap sheet was certified here, and defendant's due process challenge based on lack of live foundational testimony therefore fails.
Defendant relies on People v. Garcia (2020) 46 Cal.App.5th 123 (Garcia) for the proposition that live testimony was required to prove the date of his alleged probation violation. Garcia is inapposite. There, the court recognized the prosecution may use official court records "to show the fact of the prior conviction," but found that a complaint in those court records cannot serve as evidence proving the date the underlying offense was committed. (Id. at p. 171.) Garcia thus restates the rule that a court may not accept the truth of allegations drafted by a party in a complaint or other pleading simply because they are part of a court file. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) In contrast, "[n]one of the information" in a CLETS printout "reflects the opinions or conclusions of the reporting employees." (Dunlap, supra, 18 Cal.App.4th at p. 1479.) Because that data is not generated by the prosecutor, but recorded by judicial and executive branch employees within the requirements of the official records hearsay exception, the trial court may, but is not required to, find it reliable and admissible. (Id. at pp. 1479-1480; see id. at p. 1477 [presumption of trustworthiness is rebuttable].)
Finally, defendant contends a host of problems in the CLETS printout made it untrustworthy. He argues: "The gross error in the rap sheet about the [eight-year length] of [his] probation term [for resisting arrest], the lack of a conviction date for resisting arrest, and the disorder of the entries showed that the document could not be considered reliable." He asserts these alleged failings made the rap sheet "inadequate to prove the date of the alleged probation violation." These faults together, according to defendant, put the rap sheet outside the bounds of permissible, reliable documentary evidence, making its admission a due process violation. We are not persuaded.
A court is not permitted in probation revocation proceedings "'to admit unsubstantiated or unreliable evidence as substantive evidence'" of a probation violation. (Maki, supra, 39 Cal.3d at p. 715.) We conclude defendant's inaccurate and ancillary complaints regarding the rap sheet did not prevent the trial court from relying on it to find he violated probation. We disagree that there is any "disorder" in the rap sheet; to the contrary, it groups together his December 2021 obstruction/resisting arrest with his obstruction/resisting conviction that same month. True, the rap sheet indicates defendant was arrested for violating section 69, a potential felony for obstructing or resisting an executive officer in the performance of his or her duties, while defendant's conviction as shown on the rap sheet was for violating section 148, a misdemeanor offense for resisting, delaying, or obstructing a public or peace officer in discharging those duties. But the latter offense is a lesser included of the former. (People v. Smith (2013) 57 Cal.4th 232, 236.) The trial court therefore could infer that the brief interim between defendant's arrest (December 6, 2021) and his conviction (December 9, 2021) indicates that he pled guilty to the lesser offense.
Similarly, while no date of offense is expressly stated in the rap sheet entry for defendant's arrest or for his conviction, the nature of his offense-resisting an officer in the performance of his or her duties-supports a logical and reasonable inference that the offense date was the date he was arrested, December 6, 2021. (See Evid. Code, § 600, subd. (b) [logical and reasonable inferences permitted].) This date postdated defendant's 2020 grant of probation for his armed robbery offense, amply supporting the court's conclusion he violated his obey-all-laws probation condition.
No more was required. The trial court could properly regard as ancillary and not fatally undermining the rap sheet's trustworthiness the fact that it included a clearly erroneous eight-year probation term for his resisting/obstructing conviction. As the prosecutor explained, the conviction was what mattered to show a probation violation, not the sentencing. The fact that the arrest and conviction dates were both in 2021 mutually reinforced the trial court's probation violation finding. Moreover, defendant presented no contrary evidence of a different arrest or conviction date, as he could have done to challenge the rap sheet. Whether there is sufficient indicia of reliability is generally for the trial court to determine (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066), and that is the case here where we find no due process violation in the trial court's admission or consideration of the rap sheet.
Because the rap sheet furnished sufficient evidence for the trial court to find defendant violated probation, as a matter of judicial economy we need not and do not delve into defendant's challenges to the probation report or the probation officer's testimony. We do not suggest any error in either, but in light of our disposition, defendant's alternate challenges are moot.
DISPOSITION
The trial court's decision revoking defendant's probation is affirmed.
We concur: MILLER J. MENETREZ J.