Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles Super. Ct. No. BA232671-01, Frederick Wapner, Judge
Barbara A. Smith for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Dana M. Ali, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
John David Olivas appeals an order revoking his probation and sentencing him to two years' imprisonment following his guilty plea to two counts of selling marijuana. (Health & Saf. Code, § 11360, subd. (a).) We affirm.
FACTS AND PROCEDURAL HISTORY
Police officers arrested Olivas following his sales of marijuana to an undercover narcotics officer at Lincoln High School. The prosecutor charged Olivas with four counts of selling marijuana. On August 22, 2002, he pleaded guilty to two counts of selling marijuana. The trial court suspended imposition of sentence and granted Olivas three years' probation with terms and conditions. One condition of probation required Olivas to complete 90 days of community service with the California Department of Transportation (CALTRANS).
During the four year period following his guilty plea, Olivas violated probation three times. Except for the final violation of probation, the trial court revoked, then reinstated probation with additional terms and conditions, including 160 hours of community service with CALTRANS.
Olivas had violated the terms of his probation by not fulfilling the initial CALTRANS community service requirement, not reporting to his probation officer, not testing for drug use at times, and testing positive for drug use.
At the third probation violation hearing held on September 18, 2006, Probation Officer Davon Matthews testified that he believed that Olivas had not completed the second CALTRANS community service requirement (160 hours) because the former probation officer had not placed a completion letter in the file. He stated: "[I]t would be safe to say from my recollection with [the former probation officer] and knowing how he does his job, that if he had [a certificate of completion], that it would be [in the file]." Matthews also testified that Olivas had failed to report, had tested positive for drug use, and frequently missed drug tests in 2006.
Olivas testified that he enrolled in a drug abuse clinic in July 2006 because he relapsed into drug use when his brother died. He admitted that he did not report to his probation officer from February through August 2006. Olivas also stated that he completed the 160 hours CALTRANS community service requirement and gave written proof of completion to his former probation officer.
The trial court terminated the grant of probation and sentenced Olivas to a low-term sentence of two years for each count, to be served concurrently. In ruling, the trial judge stated: "It's clear . . . probation doesn't work and hasn't worked. . . . This is now the third violation of probation. . . . He didn't do the community service the first time . . . and he had another violation. And we extended his probation and gave him 20 days in jail and 160 hours of CALTRANS which he didn't do it. And it's also clear that he violated his probation because he relapsed."
Olivas appeals and contends that he did not receive the effective assistance of counsel during the September 2006, probation revocation hearing.
DISCUSSION
Olivas argues that he did not receive the effective assistance of counsel because his attorney did not object to the probation officer's testimony concerning the lack of a CALTRANS compliance certificate, which he asserts is "akin to hearsay testimony." (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1198-1202 [defendant denied due process of law where probation officer related hearsay statements that defendant violated terms of probation by consuming alcohol]; People v. Valencia (2006) 146 Cal.App.4th 92, 103-104 [defendant received ineffective assistance of counsel where his attorney did not object to witness's hearsay testimony].) He points out that probation violation findings must rest upon reliable documentary evidence. (People v. Maki (1985) 39 Cal.3d 707, 715 [documentary hearsay evidence admissible in probation revocation hearings if reliable].) Olivas claims the error is prejudicial because the trial court relied upon the uncompleted community service as a basis for revoking probation.
For several reasons, we reject Olivas's arguments.
First, the probation officer's statement was not a hearsay statement within Evidence Code section 1200, subdivision (a), because it did not concern "a statement that was made other than by a witness while testifying at the hearing . . . that is offered to prove the truth of the matter stated." Probation Officer Matthews did not testify regarding any statements made to him by Olivas's former probation officer. He testified that "knowing how [the former probation officer] does his job," the certificate would have been filed if it existed.
Second, Olivas has not established that he received the ineffective assistance of counsel. To demonstrate the ineffective assistance of counsel, defendant must show that counsel's performance was deficient because his representation fell below an objective standard of reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Weaver (2001) 26 Cal.4th 876, 925.) Defendant must also establish prejudice arising from his counsel's performance. (Strickland v. Washington, supra, 466 U.S. 668, 691-692.) Prejudice exists when there is a reasonable probability that but for counsel's errors, the result of the proceedings would be different. (Id., at p. 694.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid.) A court need not determine whether counsel's performance was deficient, however, before examining defendant's claims of prejudice. (Id., at p. 697.)
Olivas has not established that he suffered prejudice from the asserted ineffective assistance of counsel. The trial court revoked Olivas's probation because of repeated probation violations, including his admitted relapse into drug use, failure to test, and failure to report to his probation officer. The trial court would have revoked Olivas's probation even if he had completed the CALTRANS community service, given its comments and Olivas's repeated serious violations. Olivas has not established that the trial court would not have revoked his probation had Probation Officer Matthew's testimony concerning the compliance certificate been excluded. (Pen. Code, § 1203.2, subd. (a) [court may revoke probation if it finds that defendant "has violated any of the conditions" of probation].)
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.