Opinion
F040710.
10-10-2003
THE PEOPLE, Plaintiff and Respondent, v. STANLEY JOEY MONTANO, Defendant and Appellant.
Larry M. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Charles Fennessey, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Appellant, Stanley Joey Montano, pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377) and three counts of misdemeanor driving while his driving privilege was suspended (Veh. Code, § 14601.1, subd. (a)). On January 4, 2000, the court sentenced Montano to a two-year prison term, suspended execution of sentence, and placed Montano on felony probation for three years on condition that he serve 405 days local time. On November 28, 2001, the court revoked Montanos probation. On May 15, 2002, the court lifted the stay of execution on the two-year prison term it had previously imposed. On appeal, Montano contends: 1) the court prejudicially erred by admitting certain hearsay evidence at his probation revocation hearing; 2) he was denied the effective assistance of counsel; and 3) the court shifted the burden of proof to him to show that he did not violate his probation. We will affirm.
FACTS
On November 11, 2001, at approximately 11:45 a.m., Tulare Police Detective Greg Lopez and another officer stopped the car Montano was driving. During the stop, the detective found six South African Krugerrands in the car. Additionally, Lopez arrested Montanos passenger, Tara Dunn, for being in possession of a controlled substance.
On November 28, 2001, the court held a combined probation revocation hearing and a preliminary hearing. At this hearing, Detective Lopez testified that on the date he stopped Montano, he found the six Krugerrands and a pearl necklace in a black pouch located between the drivers seat and the front passengers seat. Four of the Krugerrands were in plastic coin cases. Montano initially told Lopez that the Krugerrands had been in his family for a long time and that he was on his way to his mothers house to take the coins to her. However, after he was handcuffed Montano told Lopez that the pouch was not his and had been given to him by his passenger.
Lopez also testified, over defense counsels hearsay objection, that he contacted his supervisor, a Sergeant Morales, to see if there had been any recent theft or burglary reports involving South African coins and was advised that there had been a recent burglary in Tulare in which some of these coins had been taken. The court responded to the hearsay objection by stating that the information was not admitted for the truth of the matter asserted but to show probable cause and what the officer did in response to the information.
Lopez then testified, again over a defense hearsay objection, that after they took Montano out of the car Sergeant Morales called back and confirmed that some gold coins were taken in a burglary in Tulare. The court responded to defense counsels hearsay objection by stating that the evidence was only being received to explain the detectives conduct.
Subsequently Officer Lopez testified, without objection, that the Krugerrands found in Montanos car were shown to a Mr. Morrisson and he identified them as being part of eleven Krugerrands that were stolen from him during a recent burglary.
During booking, Lopez found a note on Montano containing the name, address, and telephone numbers of three stores who bought and sold coins and directions to each of them.
During cross-examination, defense counsel elicited from Lopez that the victims identification of the Krugerrands was based solely on the plastic cases that four of the coins were in, not on any distinctive markings, and that the plastic cases were a common way to store any type of coin.
At the conclusion of the hearing the court offered to defer ruling on whether Montano violated his probation in order to allow the defense to present evidence that the coins belonged to Montanos mother and were not stolen. However, after defense counsel insisted on a three-month delay, the court decided to rule on the violation of probation and to reconsider its decision if the defense presented evidence that Montano lawfully possessed the Krugerrands. The court then found by a preponderance of the evidence that there was probable cause to believe Montano violated his probation by driving with a suspended drivers license and possessing stolen property.
After several continuances and a change of defense counsel, on March 27, 2002, the court heard additional evidence on the probation violation and reaffirmed its prior finding that Montano violated his probation by possessing stolen property. It also took judicial notice that Montano had been convicted in another case of misdemeanor evading a police officer. Additionally, during several of the hearings that were continued, in reiterating its conclusion that the Krugerrands had been stolen, the court noted that Sergeant Morales advised Detective Lopez that the Krugerrands had been stolen during a recent burglary in Tulare.
DISCUSSION
Introduction of Hearsay Evidence
Montano contends the court erred in admitting the hearsay statements of Lopezs supervisor that a burglary involving Krugerrands had recently occurred in Tulare and victim Morrissons statement that the Krugerrands found in Montanos possession belonged to Morrison. We will find that any error in admitting or considering these statements was harmless.
Penal Code section 1203.2, subdivision (a), authorizes a trial court to revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . ."
In Morrissey v. Brewer (1972) 408 U.S. 471 , the Supreme Court held that before a defendants parole can be revoked due process requires the following minimum constitutional safeguards: "(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a `neutral and detached hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole." (Id. at p. 489, emphasis added.)
In People v. Vickers (1972) 8 Cal.3d 451 our Supreme Court held that Morrisseys minimum due process requirements were applicable to state probation revocation proceedings. Moreover, in People v. Arreola (1994) 7 Cal.4th 1144 the court held that testimonial hearsay may not be admitted in a revocation hearing in the absence of "good cause." (Id. at p. 1154.) The Arreola court also found that " `good cause is met (1) when the declarant is `unavailable under the traditional hearsay standard [citation], (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarants presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant. [Citation.]" (Id. at pp. 1159-1160.)
Defense counsel did not object to the admission of victim Morrissons statements to Lopez. Consequently, Montano waived any error in the courts admission or consideration of these statements. (People v. Szeto (1981) 29 Cal.App.3d 20, 32.)
However, Montanos challenge to Sergeant Moraless statements to Detective Lopez is cognizable on appeal because defense counsel interposed a timely hearsay objection to their admission. These statements involved at least two levels of hearsay, the statements from Morales to Lopez and the statements from the source of this information to Morales. Additionally, during several of the hearings that were continued, the court referred to Moraless statements in concluding that the Krugerrands at issue were stolen. Thus, even though the court responded to the defenses hearsay objection by stating that it was only considering these statements for a non-hearsay purpose, it is clear the court considered them for their truth in concluding that the Krugerrands Montano possessed were stolen. Further, since the prosecutor did not establish good cause for admitting this hearsay evidence, we find, in accord with Arreola, that the court erred in admitting these statements over defense counsels hearsay objections.
Moreover, because the error in admitting Sergeant Moraless statements for their truth is of "federal constitutional dimension, we must assess prejudice under the `harmless-beyond-a-reasonable-doubt standard. [Citation.]" (People v. Arreola, supra, 7 Cal.4th at p. 1161.) This standard was met here.
The facts in a probation revocation hearing must be proven by a preponderance of the evidence. (People v. Rodriguez (1990) 512 Cal.3d 437, 441.) Here, Montano initially claimed that the Krugerrands were family heirlooms and that he possessed them because he was en route to take them to his mother. However, Montano later claimed that the black pouch was not his and had been given to him by his passenger.[] Further, during booking Detective Lopez found a note with the name, addresses, telephone numbers, and directions to three coin shops where Montano could sell the coins. The court could reasonably find that these circumstances alone established by a preponderance of the evidence that the Krugerrands in Montanos possession were stolen and that Montano was actually en route to sell them. Further, since these facts were undisputed, we find that that any error in admitting Moraless hearsay statements was harmless beyond a reasonable doubt. It follows that the court did not abuse its discretion when it revoked Montanos probation and sentenced him to prison.
Detective Lopez testified that when he placed the handcuffs on Montano, "he then changed his story and said, this black pouch is not mine, that it was given to him by Tara Dunn." Montano contends this did not establish that he denied ownership of the Krugerrands because he only stated that the pouch was not his. We disagree. The court could reasonably find from the context of Montanos statements that Montano was disclaiming an ownership interest in the contents of the pouch as well.
The Ineffective Assistance of Counsel Claim
Montano contends he was denied the effective assistance of counsel by his defense counsels failure to object to the admission of Morrisons hearsay statements or to ask the court to limit its consideration of these statements. We disagree.
"Defendant has the burden of proving ineffective assistance of counsel. [Citation.] To prevail on a claim of ineffective assistance of counsel, a defendant `"must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice." [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 389, emphasis added.)
Here, even assuming defense counsels performance was deficient because defense counsel failed to object to the admission of Morrisons statements, Montano cannot show he was prejudiced by defense counsels failure to do so because the record contains other uncontradicted evidence which, as discussed above, independently supports the courts finding by a preponderance of the evidence that he possessed stolen property. Accordingly, we reject Montanos ineffective assistance of counsel claim.
Montanos Claim the Court Shifted the Burden of Proof
Montano contends the court did not have any reliable evidence that he was in possession of stolen property. Therefore, according to Montano, by offering to let him introduce additional evidence showing that he did not possess stolen property, the court shifted the burden of proof to Montano to show he was not in violation of probation. Montano is wrong.
Since we have already determined that the court could reasonably find from the evidence that Montano possessed stolen property, it follows that the court did not shift the burden to Montano to prove that he did not violate probation when it gave him the opportunity to present additional evidence.
DISPOSITION
The judgment is affirmed.[]