Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA 273943. George G. Lomeli, Judge.
ORIGINAL PROCEEDING for writ of habeas corpus. George G. Lomeli, Judge. Writ denied.
David Jackson, in pro. per., for Defendant, Appellant and Petitioner.
A. William Bartz, 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, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
We review this case for the second time. This appeal and habeas corpus petition follow the judgment entered after the trial court found David Jackson had violated the terms of his probation and sentenced him to prison.
On April 20, 2005, pursuant to a plea bargain, Jackson pleaded no contest to possessing cocaine base with a maximum potential sentence of three years. (Health & Saf. Code, § 11350, subd. (a).) The court suspended imposition of sentence and placed Jackson on probation for three years on condition, among others, that he “obey all laws, orders, rules, and regulations of this court and the probation department.” The court ordered Jackson to serve 252 days in custody, credited him with 252 days, and released him after the hearing. The court further ordered Jackson “to report to the probation department within 48 hours of” his release from custody, and explained: “As long as you report to . . . probation within two days, here in this building on the third floor[, i]f you live in a place that is more convenient for you, they’ll farm you out to a probation office closer to your house.” Jackson agreed to accept all terms and conditions of probation.
The Information also alleged Jackson had 1987 and 1991 robbery convictions pursuant to the “Three Strikes” law. (Pen. Code, §§ 211; 1170.12, 667, subds. (b)-(i).) Pursuant to the plea bargain, the court effectively dismissed those allegations, exposing Jackson to a maximum three-year upper term. (Health & Saf. Code, § 11350, subd. (a); Pen. Code, § 18.) Jackson’s probation report disclosed that, in addition to the two alleged robbery convictions, he had felony convictions for arson in 1978, grand theft from the person in 1985, and possessing drugs in 1986 and 1990, a misdemeanor criminal threat conviction in 2004, parole violations in 1989, 1990, and 1991, and in November 1991 received a 10-year prison sentence for his second robbery conviction. The report also disclosed his 1986 and 1987 convictions occurred while he was on probation for earlier crimes.
Jackson changed his representation several times between his arrest and his plea, represented himself for a few months, and litigated several pretrial motions, explaining the lapse between his arrest and plea.
Sometime thereafter Jackson was charged with violating probation. As discussed in our earlier opinion, on October 26, 2005, after a contested hearing, the court found Jackson had not violated the terms of his probation, which the court reinstated on the same terms and conditions, and released him. (People v. Jackson (Jan. 3, 2007) B187064 [non-pub. opn.].) During that hearing, the court considered a probation report which stated that Jackson had reported to probation on May 10, 2005 but failed to do so thereafter despite being ordered to appear by certified letter sent on August 12, 2005. As part of its ruling, the court told Jackson, who was present: “You’ll remain on probation. Just comply with the terms and conditions of probation, keep reporting, and stay out of trouble.” (Italics added.) Jackson was in custody for approximately 95 days before being released.
The probation violation allegations were that Jackson (1) vandalized a police car after being detained for loitering and (2) failed to report to his probation officer after initially registering with the probation department. Although the court found Jackson had not violated the terms of his probation, his first appeal involved review of his constitutional challenge, rejected by the trial court, to the Los Angeles Municipal Code section under which he had been detained. Our earlier opinion dismissed that appeal as moot.
On November 30, 2005, police arrested Jackson after he had told them he lived at an apartment where they were serving a search warrant for drugs. He was again charged with violating probation. On December 8, 2005, the court found Jackson did not violate probation based on that incident. The court reinstated Jackson on probation on the same terms and conditions and released him.
On February 9, 2006, the court issued a bench warrant based on a report that Jackson violated the terms of his probation by failing to (1) report to his probation officer after May 10, 2005 despite two certified letters ordering him to do so having been sent (most recently on January 20, 2006) to his last reported address, (2) make any payments towards his fines, and (3) register as a drug offender. On February 14, 2006, Jackson appeared in custody and the court appointed counsel to represent him.
At a March 3, 2006 hearing to set a date for a contested probation violation trial, the court noted that Jackson had been disruptive during earlier hearings and warned him he would be removed should he repeat such conduct. Jackson moved to relieve appointed counsel. At an ex parte hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, Jackson complained that counsel had not visited him and he was being held in custody too long before his contested hearings. Counsel stated he had tried to confer with Jackson at the earlier hearing, but Jackson shouted obscenities at him, preventing him from doing so. Counsel agreed that he had been unable to visit Jackson since then because of a recent jail lockdown during which the sheriff prohibited attorney visits, but would confer with Jackson in court after this hearing. The court denied the motion, denied Jackson’s subsequent motion to represent himself (Faretta v. California (1975) 422 U.S. 806) based only on his desire to have an earlier hearing date, and set the contested hearing for March 28, the earliest date available for the court, defense counsel, and prosecution witnesses. The court ordered the prosecutor to have the probation officer present at the next hearing.
Although Jackson does not contend otherwise, under these circumstances, the court properly denied his Marsden motion. (People v. Barnett (1998) 17 Cal.4th 1044, 1085; People v. Memro (1995) 11 Cal.4th 786, 857.) Likewise, given that Jackson’s only reason for seeking self-representation was to obtain an earlier hearing date, which was impossible, the court properly denied his Faretta motion. (See People v. Poplawski (1994) 25 Cal.App.4th 881, 888-896; People v. Superior Court (George) (1994) 24 Cal.App.4th 350.)
At the March 28, 2006 contested hearing, Jackson made an untimely motion, pursuant to Code of Civil Procedure section 170.6, to disqualify the judge. The court denied the motion. The court also rejected Jackson’s claim that he was being subjected to discriminatory prosecution based on the court’s alleged bias. Supervising Probation Officer Don Hunnicutt testified for the prosecution. Although Hunnicutt was not Jackson’s probation officer and had no personal knowledge whether Jackson had reported or letters had been sent, he testified that he was a custodian of records for the probation department and that the report submitted at the February 14, 2006 hearing which chronicled Jackson’s failures to comply with various conditions of his probation was an official record. In defense, Jackson’s wife, who lived with him at the address he gave to the probation department, testified she never received a certified letter ordering him to report. Jackson chose not to testify. The court found Jackson had violated his probation on the grounds stated in the probation report, explaining: “Whether the probation department sent and he received a certified letter or not is irrelevant. Mr. Jackson was present in court at the time of sentencing, was apprised by this court of his obligation of (sic) the terms and conditions of probation.” The court imposed the three-year upper term, citing Jackson’s extensive history of prior felony convictions and unsatisfactory prior performance on probation. The court credited Jackson with 496 days in custody, including all his previous custody time on this case and applicable credits. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)
Although Jackson does not contend otherwise, this ruling was proper. (Smith v. Municipal Court (1977) 71 Cal.App.3d 151, 153-154; cf. Depper v. Superior Court (1999) 74 Cal.App.4th 15, 17-21; 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 5, p. 46.)
Because Jackson agreed that the court could impose the upper term as part of a plea bargain, and because the court did so exclusively because of Jackson’s numerous prior convictions and poor previous probation performance, the court properly imposed the upper term. (Blakely v. Washington (2004) 542 U.S. 296, 310; People v. Black (2007) 41 Cal.4th 799, 813, 819-820.) Jackson does not contend otherwise.
Jackson timely appealed from the judgment entered following his being found in violation of probation. We appointed counsel to represent him on this appeal. After reviewing the record, counsel filed a brief raising no issues and asking us independently to review the record under People v. Wende (1979) 25 Cal.3d 436. Counsel forwarded a copy of the brief and the record to Jackson and informed him he could submit a supplemental brief and request that counsel be relieved. On January 9, 2007, we advised Jackson he had 30 days within which to submit any issues he wished us to consider. On January 27, 2007, we denied Jackson’s request to relieve appointed appellate counsel but granted him a continuance to file a supplemental brief.
On March 15, 2007, Jackson filed an “OPPOSITION TO WENDE BRIEF” and a habeas corpus petition. In his petition Jackson alleged that he expected to be released from custody on March 28, 2007. We ordered that the petition and appeal be considered concurrently and requested an informal response from the Attorney General, which, after several continuances, he filed on August 3, 2007.
In his “opposition” and petition, Jackson raises identical issues. As we understand them, Jackson contends: (I) insufficient evidence was presented to show that the probation department sent him a letter ordering him to report; (II) the prosecutor committed misconduct and error under Brady v. Maryland (1963) 373 U.S. 83 by failing to disclose potentially exculpatory material, apparently the “facts” that no letter ordering Jackson to report to probation was sent, Hunnicutt and the prosecutor knew that fact, Hunnicutt lied, and the prosecutor knew and failed to correct it, when he testified to the contrary, and failing to produce Jackson’s probation officer despite the court’s order to do so; (III) his trial counsel was inadequate for failing to object to the prosecutor’s misconduct and the hearsay evidence introduced against him; (IV) the trial court was biased against him and subjected him to discriminatory prosecution, apparently by keeping him in custody too long before hearing the various charged probation violations; (V) appellate counsel was inadequate for failing to raise these issues on appeal, for which we should relieve him or compel him to brief the issues; and (VI) our failure to appoint new appellate counsel excused any failure to exhaust administrative remedies. These contentions lack merit.
(I). The prosecution must prove a probation violation only by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 439, 440-447.) We review the trial court’s finding that a probationer violated probation for an abuse of discretion. (Id. at p. 445.) The court may consider documentary, non-testimonial reports which are business or official records and do not contain multiple levels of hearsay at probation violation hearings. (People v. Maki (1985) 39 Cal.3d 707, 709-717; cf. People v. Arreola (1994) 7 Cal.4th 1144, 1147-1148, 1152-1161.) Hunnicutt properly authenticated the probation report as an official record, which disclosed that Jackson failed to report to the department after May 10, 2005, despite (1) two certified letters ordering him to do so being sent to him and (2) the court’s order, reiterated at the October 26, 2005 hearing, requiring him to report to the probation department. That evidence sufficiently supports the court’s finding. Indeed, as the trial court found, Jackson’s failure to report after the court expressly ordered him to do so on October 26 alone sufficiently supports its finding that Jackson violated the terms of his probation even if the department sent no letters ordering him to report. In any event, Jackson’s wife’s testimony that she received no letters proved neither that no letters were sent nor that Jackson did not receive them.
Although not raised by Jackson, these holdings survive Crawford v. Washington (2004) 541 U.S. 36, which prohibited introduction of testimonial hearsay where the declarant does not testify. By its own terms, Crawford does not apply to non-testimonial hearsay such as business records (id. at p. 56), and Crawford does not alter the holdings of Maki and Arreola. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1410-1413.)
(II), (III), (V), and (VI). Jackson provides no evidence supporting his conclusion that had his probation officer testified, the officer would have contradicted his own reports which recorded Jackson’s failure to report after May 10, 2005, and the sending of the two letters. Thus neither the prosecutor nor Hunnicutt committed misconduct or failed to disclose any potentially exculpatory evidence under Brady by their actions, testimony, or failure to produce Jackson’s probation officer. That being the case, raising these issues would have been futile because they had no merit. Because counsel is not required to raise futile objections or issues, neither Jackson’s trial nor appellate counsel was inadequate for failing to do so below or on appeal. (People v. Smithey (1999) 20 Cal.4th 936, 992; see Strickland v. Washington (1984) 466 U.S. 668; In re Cudjo (1999) 20 Cal.4th 673, 687.) Because of these conclusions, we reject Jackson’s renewed request that we appoint new appellate counsel or require current counsel to brief these issues. Moreover, because we reject Jackson’s contentions on their merits, we need not address whether he was required to or did exhaust any administrative remedies.
(IV). We also reject Jackson’s unsupported conclusion that the trial court was biased against him. The court twice previously found Jackson did not violate probation, demonstrating a lack of any predisposition to find against him. Moreover, the only evidence of alleged bias is the court’s alleged failure speedily to calendar his contested probation violation hearings. Delays of 95, 9, and 45 days, however, were reasonable here: the first period was necessary to research and brief the complicated issue (rendered moot by the court’s finding that Jackson did not violate the terms of his probation) of the constitutionality of the challenged Los Angeles ordinance; the second period was reasonable to further investigate the probation violation allegation; and the third period was reasonable given trial counsel’s need to consult with Jackson and the time required to subpoena witnesses and accommodate counsel’s and the court’s schedules.
We have examined the entire record and are satisfied that Jackson’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed in case number B190510. The petition is denied in case number B197371.
We concur: MALLANO, Acting P. J., VOGEL, J.