Opinion
C084897
05-10-2018
In re LARRY Z., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LARRY Z., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV134096)
The minor, Larry Z., admitted committing residential burglary. The juvenile court placed the minor on probation pursuant to a deferred entry of judgment (DEJ). (Welf. & Inst. Code, § 790.) Thereafter, the court found the minor violated the terms and conditions of his DEJ probation, sustained the previously deferred residential burglary charge, and reinstated the minor on probation.
Undesignated statutory references are to the Welfare and Institutions Code.
The minor now contends the juvenile court committed prejudicial error when it relied on unreliable hearsay evidence to find he violated DEJ probation. Finding the juvenile court erred in sustaining one of the alleged probation violations but not the other, we will modify the court's order and affirm the order as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On May 31, 2015, the minor (a dependent of the juvenile court) broke into the victim's home and stole her personal property.
The Sacramento County District Attorney filed a juvenile wardship petition (§ 602, subd. (a)) alleging the minor committed residential burglary, a felony (Pen. Code, § 459).
On July 8, 2015, the minor admitted the allegation in the petition and the juvenile court placed him on probation pursuant to a DEJ subject to specified terms and conditions, including that he obey all laws and reasonable directives of his probation officer, keep his probation officer informed at all times of his living and mailing address and telephone number, and provide the probation officer with 24 hours' notice before making any changes to his address and telephone number.
On November 20, 2015, the district attorney filed a second juvenile wardship petition alleging the minor possessed an air-powered pistol on school grounds (Pen. Code, § 626.10, subd. (a)). The petition was thereafter deemed a motion for violation of juvenile probation (§ 777).
On December 29, 2015, the minor admitted the alleged violation of probation. The juvenile court sustained the allegation and continued the minor's DEJ probation subject to the previous terms and conditions, plus an additional condition prohibiting possession of weapons.
On April 12, 2017, the district attorney filed a third juvenile wardship petition alleging the minor failed to comply with the terms of his DEJ probation by failing to keep his probation officer informed of his living and mailing address and telephone number (count I), and failing to make contact with his probation officer as directed in an appointment letter (count II). Attached to the petition was a juvenile supervision adjustment summary that included information regarding attempts by the probation department to make contact with the minor. For example, the summary noted unsuccessful attempts to make contact with the minor by telephone due to the fact that "the [minor's] cell phone has been turned off, no alternate number provided." The summary further noted that contact had been made with Vanessa R. (Vanessa), the "current occupant" of the minor's last known address; however, she stated the minor "no longer resides at the residence and she had not seen him in approximately one week," and the minor left no forwarding address. It was also noted that, on April 11, 2017, the minor's social worker, Sheila Johnson, informed probation she had not had contact with the minor in approximately one week and the minor had been "dropped from the AB 12 program, for non-participation." Finally, the summary noted that an appointment letter had been sent to the minor's last known address on March 24, 2017, directing the minor to contact probation upon receipt of the letter, that Vanessa informed probation she "had personally given the [minor] the letter," and that the minor failed to "call or update his current living situation." The summary concluded the minor's whereabouts were unknown and requested that a warrant be issued for his apprehension.
"AB 12" is an abbreviation for Assembly Bill No. 12 (2009-2010 Reg. Sess.), a commonly used shorthand description of the California Fostering Connections to Success Act, enacted in 2010 (Stats. 2010, ch. 559, § 38; see § 11400 et seq.).
At the June 6, 2017 contested jurisdictional hearing, probation officer Frank Marin testified he oversaw the minor's probation on April 11, 2017. On that date, Marin placed a telephone call to the number that correlated to the minor's last known address on Kathleen Avenue, as entered into the probation information system on January 23, 2017. The person who answered the phone claimed to be Vanessa. Marin asked her if the minor was living at the residence. Vanessa stated the minor "had lived there, but he was no longer living there, and she hadn't seen him in approximately a week." She also informed Marin that the minor left no forwarding address.
Marin testified he previously attempted to make contact with the minor on March 24, 2017, by sending him "an appointment letter" to the Kathleen Avenue address of record. Vanessa informed Marin on April 11, 2017, that she received the appointment letter and personally gave it to the minor. The letter contained Marin's cell phone number along with instructions to the minor to "report to 4100 Branch Center Road and call upon receiving the letter." Marin testified he never received a phone call from the minor acknowledging receipt of the letter.
On cross-examination, Marin testified he first met with the minor in person on January 13, 2017. Marin attempted to contact the minor on the minor's cell phone "[n]o less than four to five" times beginning in February 2017 without success. Marin stated he had not been to the Kathleen Avenue address prior to April 11, 2017, nor had he ever met the person claiming to be Vanessa. He confirmed that some of his probationers were, at times, homeless and that his custom and practice was for those probationers to report to him monthly. He also confirmed that probationers without phones of their own were permitted to call him collect.
On re-direct examination, Marin testified he first attempted to reach the minor by contacting his social worker, Johnson, and asking if she knew where to find the minor or how to contact him. Marin testified that Johnson told him she had not had any contact with the minor for approximately one week since April 11, 2017.
The court found counts I and II of the probation violation allegations true by a preponderance of evidence, sustained the April 12, 2017 petition, found the minor failed DEJ, and sustained the deferred charge as alleged in the original petition filed June 15, 2015. The court reinstated probation subject to the previously imposed terms and conditions and ordered the minor to serve 55 days in county jail, minus 55 days of credit for time served.
The minor filed a timely notice of appeal.
DISCUSSION
The minor contends the juvenile court committed prejudicial error when it admitted and relied on unreliable hearsay evidence—testimony from probation officer Marin regarding his conversations with Vanessa and social worker Johnson—to sustain both allegations of a DEJ probation violation absent good cause. As we explain, the juvenile court erred in sustaining one of the two allegations (count II) which requires us to modify the order by vacating the court's finding as to that count. As for the remaining allegation (count I), we find no error.
California Rules of Court, rule 5.580 governs hearings on violations of juvenile probation. Rule 5.580(d) mandates a probation report absent waiver by the minor's counsel. Rule 5.580(e) requires the juvenile court to consider the probation report as well as "other relevant and material evidence offered by the parties to the proceeding," including reliable hearsay as defined in section 777, subdivision (c).
All rule references are to the California Rules of Court.
As relevant here, section 777, subdivision (c) provides that the court "may admit and consider reliable hearsay evidence at the hearing to the same extent that such evidence would be admissible in an adult probation revocation hearing, pursuant to the decision in People v. Brown [(1989)] 215 Cal.App.3d [452] and any other relevant provision of law." The prosecution must prove the alleged violation by a preponderance of evidence. (Rule 5.580(e)(2).) "We review rulings on whether hearsay was improperly admitted at a violation hearing for abuse of discretion." (People v. Abrams (2007) 158 Cal.App.4th 396, 400 (Abrams); People v. Brown, supra, 215 Cal.App.3d at pp. 454-455 (Brown).)
In Brown, supra, 215 Cal.App.3d 452, the arresting officer confiscated apparent rock and powdered cocaine and drug paraphernalia found at the scene and submitted it for chemical analysis. At the defendant's probation revocation hearing, over the defendant's hearsay objection, the officer testified to the chemist's findings that the substance tested positive for cocaine. (Id. at pp. 454-455.) On appeal, the defendant claimed the trial court abused its discretion by admitting the evidence in violation of his right to cross-examine a witness and "to have only reliable, nonhearsay testimony" adduced against him. (Id. at p. 454.) Noting " 'the full panoply of rights due a defendant' " in criminal proceedings does not apply to parole revocations, the court of appeal stated a court in a probation revocation proceeding is nonetheless "not permitted ' "to admit unsubstantiated or unreliable evidence as substantive evidence . . . ." ' [Citations.] [¶] 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.' [Citation.] Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion." (Id. at pp. 454-455.)
The Brown court concluded the officer's testimony was properly admitted based on the following: The officer testified he routinely passed confiscated substances on to the police chemist who subsequently conducted the test; the court had "no reason to believe the test results were anything but trustworthy and reliable as it is the 'regular business' of the police laboratory to conduct such tests"; the evidence was corroborated by the cocaine paraphernalia seized at the defendant's arrest and the chemist's case evidence disposition sheet; the officer "clearly and definitely stated that the sample tested positive for .84 grams of cocaine"; and the defendant did not introduce any evidence "tending to contradict . . . the dispositive part of the officer's testimony." (Brown, supra, 215 Cal.App.3d at pp. 455-456.)
Here, probation officer Marin testified he oversaw the minor's probation and met with the minor in person on January 13, 2017. Thereafter, Marin called the minor's last known cell phone number no less than four to five times beginning in February 2017 and was never able to reach the minor. Marin accessed the probation information system to obtain the minor's last known address as of January 23, 2017, which was on Kathleen Avenue, and correlated that address to a telephone number. When he called the number, Vanessa answered the phone and informed him the minor lived at the Kathleen Avenue address previously but was no longer living there and had not been seen by her for approximately one week. Marin testified he sent an appointment letter to the minor at the Kathleen Avenue address on March 24, 2017, which Vanessa claimed to have received and provided to the minor. Marin further testified he spoke with the minor's social worker, Johnson, who informed Marin that she had not had contact with the minor for approximately one week.
The minor takes issue with the testimony related to what Vanessa and Johnson told Marin, claiming the court failed to make a finding of good cause to admit such hearsay testimony, as required in People v. Arreola (1994) 7 Cal.4th 1144 (Arreola) and People v. Shepherd (2007) 151 Cal.App.4th 1193 (Shepherd), and therefore erred in sustaining both allegations of probation violation. We are persuaded that there was error as to count II only.
In Arreola, our state Supreme Court first noted that in Morrissey v. Brewer (1972) 408 U.S. 471, 489 [33 L.Ed.2d 484, 499] and Gagnon v. Scarpelli (1973) 411 U.S. 778, 786 [36 L.Ed.2d 656, 664], the United States Supreme Court held that, under the due process clause of the federal Constitution, a defendant at a parole or probation revocation hearing generally has the right " 'to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing the confrontation) . . . .' " (Arreola, supra, 7 Cal.4th at p. 1148.)
The Arreola court distinguished between documentary evidence, which had been held admissible in People v. Maki (1985) 39 Cal.3d 707 (Maki), and testimonial evidence as follows: "There is an evident distinction between a transcript of former live testimony and the type of traditional 'documentary' evidence involved in Maki that does not have, as its source, live testimony. [Citation.] As we observed in [People v.] Winson [(1981) 29 Cal.3d 711], the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness's demeanor. (29 Cal.3d at p. 717.) Generally, the witness's demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts, where often the purpose of this testimony simply is to authenticate the documentary material, and where the author, signator, or custodian of the document ordinarily would be unable to recall from actual memory information relating to the specific contents of the writing and would rely instead upon the record of his or her own action." (Arreola, supra, 7 Cal.4th at p. 1157.)
The Arreola court emphasized the importance of face-to-face confrontation and the right to cross-examine under the confrontation clause. (Arreola, supra, 7 Cal.4th at pp. 1157-1158.) " 'If the declarant is available and the same information can be presented to the trier of fact in the form of live testimony, with full cross-examination and the opportunity to view the demeanor of the declarant, there is little justification for relying on the weaker version. When two versions of the same evidence are available, longstanding principles of the law of hearsay, applicable as well to Confrontation Clause analysis, favor the better evidence.' " (Arreola, at pp. 1158-1159, quoting United States v. Inadi (1986) 475 U.S. 387, 394-395 [89 L.Ed.2d 390, 398], emphasis added by Arreola.)
In Arreola, the Supreme Court concluded the standard under which prior testimony is admissible is to be applied on a case-by-case basis. "The broad standard of " 'good cause' is met (1) when the declarant is 'unavailable' under the traditional hearsay standard (see Evid. Code, § 240), (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant's presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant. [Citation.] . . . [¶] Thus, in determining the admissibility of the evidence on a case-by-case basis, the showing of good cause that has been made must 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 pp. 1159-1160.)
Similarly, the Shepherd court held the good cause standard set forth in Arreola also applied to testimony by a probation officer regarding hearsay statements made by a treatment program administrator that the probationer had been observed smelling of alcohol and thereafter tested positive for alcohol. (Shepherd, supra, 151 Cal.App.4th at pp. 1198, 1202-1203.)
Here, there was no good cause offered for allowing Marin's hearsay testimony in lieu of the appearance and testimony of either Vanessa or Johnson. That is to say, there was no evidence that (1) either Vanessa or Johnson were unavailable, (2) bringing either witness to the hearing would be difficult or expensive, or (3) the presence of either witness would have posed a risk of harm to that witness. (Arreola, supra, 7 Cal.4th at pp. 1159-1160.) In the absence of other corroborating evidence, this would have been fatal to the admissibility of such hearsay testimony under Arreola and Shepherd. However, the primary evidence in support of count I of the alleged probation violations—"fail[ure] to keep the Probation officer informed at all times of [the minor's] living and mailing address and telephone number"—was Marin's own testimony regarding his personal knowledge, as the minor's supervising probation officer, about the minor's failure to maintain contact with him or to provide him information regarding the minor's whereabouts, including that the minor might have become homeless or might no longer have had access to a working phone. For example, as set forth above, Marin testified that, as the minor's probation officer, he was the person with whom the minor should have been keeping in contact pursuant to the probation terms and conditions, and he was the person who attempted, unsuccessfully, to contact the minor at the last known address and telephone number provided by the minor. In fact, according to Marin's testimony, probation had no contact with the minor beginning in February 2017, if not earlier. The juvenile supervision adjustment summary corroborated Marin's testimony. Because Marin's hearsay testimony regarding his conversations with Vanessa and Johnson was unnecessary to further establish the minor's failure to keep the probation officer informed of his whereabouts, admission of that testimony was harmless under any standard. As the juvenile court aptly reminded the minor at the hearing, "[U]ltimately . . . that's your responsibility to make sure that your probation officer can physically supervise you and know where you are at all times." Marin's testimony, together with the summary, was sufficient to sustain count I of the alleged probation violations.
Minor's counsel argued at the hearing that most of the minor's problems were due to his homelessness, as noted in the probation department's memorandum to the court reporting he was "currently homeless." However, that report was not filed until April 20, 2017, well after Marin's various attempts to contact the minor by telephone and via the appointment letter sent to his address. --------
As for the second allegation of probation violation that the minor "failed to make contact with probation as directed in an appointment letter," we reach a different conclusion. Marin testified he sent an appointment letter to the minor at the minor's last known address on March 24, 2017, and that he was never contacted by the minor regarding receipt of the letter. The People argue that, because the probation department routinely sent appointment letters to probationers, Marin's testimony regarding the appointment letter was more similar to documentary evidence than live testimony and thus admissible in a juvenile probation proceeding pursuant to Arreola, supra, 7 Cal.4th at page 1157, Abrams, supra, 158 Cal.App.4th at page 404 and Maki, supra, 39 Cal.3d at pages 715-716. We disagree. The appointment letter was not produced at the hearing, nor was it attached to the juvenile supervision adjustment summary or, as far as we can tell, included in any other part of the record. Instead, Marin testified that Vanessa, someone Marin had never met and whose identity he never confirmed, told him she received the letter and gave it to the minor. Without any corroborating evidence or a showing of good cause as to why Vanessa was not present to testify to those facts, Marin's hearsay testimony in that regard lacked sufficient indicia of reliability and was therefore inadmissible. Therefore, it was error to sustain count II of the alleged probation violations.
In light of our conclusion that the court did not err in sustaining count I of the alleged probation violations, there was sufficient evidence upon which the juvenile court relied to find the minor violated his DEJ probation, sustain the April 12, 2017 petition alleging the probation violation, and sustain the deferred charge of burglary as alleged in the original June 15, 2015 petition.
DISPOSITION
The juvenile court's order sustaining the original juvenile wardship petition filed June 15, 2015, and the subsequent petition filed April 12, 2017, is modified to vacate the true finding as to count II of the alleged probation violations. As modified, the order is affirmed.
BUTZ, Acting P. J. We concur: HOCH, J. RENNER, J.