Opinion
F084887
08-17-2023
THE PEOPLE, Plaintiff and Respondent, v. EDDIE SERNA-CORDERO, Defendant and Appellant.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench, and Kelly E. Lebel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County. No. F149033762C Kristi Culver Kapetan, Judge.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench, and Kelly E. Lebel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Eddie Serna-Cordero challenges the trial court's reliance on testimony contained in a transcript of a preliminary hearing when revoking his postrelease community supervision (PRCS). We affirm the trial court's order revoking defendant's PRCS.
PROCEDURAL SUMMARY
On September 16, 2020, defendant was convicted of possessing a firearm as a felon (Pen. Code, § 29800, subd. (a)(1)), and possessing ammunition (§ 30305, subd. (a)(1)). Both convictions were felonies. Defendant was then sentenced to three years in prison. On August 2, 2021, appellant was released from prison and placed on PRCS in Fresno County. Defendant's PRCS status was due to expire on August 1, 2024.
Further statutory references are to the Penal Code, unless otherwise indicated.
On July 13, 2022, a petition to revoke defendant's PRCS status was filed. The petition alleged defendant failed to obey all laws, specifically, that he used force and violence on someone not in self-defense, committed assault with a deadly weapon (§ 245, subd. (a)(1), a felony), made criminal threats (§ 422, a felony), unlawfully possessed dangerous weapons including concealed firearms and ammunition in violation of various provisions (§§ 25400, subd. (a)(3), 29800, subd. (a)(1), 29900, 30305, subd. (a)(1), 30605, and 33215, all felonies), and committed various other crimes (resisting arrest, § 148, subd. (a)(1), a misdemeanor; vehicle theft, Veh. Code, § 10851, subd. (a), a felony; intentionally violating a prior court order, § 273.6, subd. (b), a felony; and receiving stolen property, § 496, subd. (d), a felony).
A contested hearing on the petition was held on August 12, 2022. The prosecution submitted the matter exclusively on the transcript of the preliminary hearing from July 28, 2022, concerning the new case involving the charges listed above. The trial court concluded as follows:
"I've been presented with a certified copy of the transcript of the preliminary hearing in case ending in 4991. I'm going to take judicial notice of rejection from [the d]efense to the preliminary hearing transcript. As a result of the preliminary hearing transcript wherein it was found that there was probable cause to believe that violence was committed, I am going to find you in violation in case ending [in] 3376. So with that, PRCS is revoked."
The exact meaning of this comment is unclear as a reading of the entire transcript does not specifically reveal why the defendant or his attorney were "rejecting" the transcript. Immediately after the judge made this comment, defense counsel asked for sentencing to proceed, which then resulted in a discussion on whether an immediate sentencing of defendant would result in his losing the use of credits for the other case that was pending. While defendant wanted to challenge the facts resulting in his PRCS being revoked, he also insisted that he should be sentenced immediately.
At the end of the hearing PRCS was reinstated and defendant was sentenced to serve 180 days in custody. The court awarded defendant 34 actual credits and 34 good time credits for a total of 68 days. This appeal followed.
On February 22, 2023, while this appeal was already pending, defendant entered a plea of guilty in the United States District Court, Eastern District, case No. 1:22-CR-00246-ADA, to being a felon in possession of ammunition (18 U.S.C. § 922, subd. (g)(1)). The facts underlying the guilty plea are the same as those relied upon in this case to revoke defendant's PRCS.
The People have asked this court to take judicial notice of two sets of documents related to this case. Exhibits A and B contain the district court docket and the plea agreement entered by defendant in the federal district court. We grant the request for judicial notice. The additional documents will be discussed later in this opinion.
FACTUAL SUMMARY
The factual summary is based on testimony provided during a preliminary hearing held on July 28, 2022. On July 6, 2022, Clovis Police officer Richard Cressall responded to a 911 call placed by defendant's daughter, A.S. When he arrived at the location specified in the 911 call, Cressall came into contact with not only A.S., but also defendant and his girlfriend, N.R. A.S. told Cressall that her father restrained her after she argued with him about the way he was treating N.R. A.S told Cressall when she was being restrained by defendant, it felt as if she was being choked. Defendant admitted to Cressall that he restrained A.S.
Next to testify was Clovis Police officer Samantha Rodriguez. Rodriguez testified that on July 9, 2022, she responded to a "threats call" placed by defendant's now ex-girlfriend, N.R. N.R. told Rodriguez that she was frightened because of a domestic violence episode that had occurred on July 6 involving defendant, which resulted in her getting a bloody nose and lip, and a welt on her forehead. According to Rodriguez, defendant threatened to kill N.R. if she called the police and repeated similar threats after the July 6 episode in phone calls and texts. Rodriguez eventually convinced N.R. to pursue an emergency protective order against defendant.
N.R. had previously denied any abuse by defendant when she was first interviewed by Cressall on July 6.
On July 10, Rodriguez returned to N.R.'s apartment when N.R. reported receiving threatening texts from defendant. When Rodriguez arrived at N.R.'s apartment, she did not see defendant. However, at this time N.R. provided additional information about what happened on July 6, when the initial episode occurred. N.R. described how defendant forced her to get into his car before driving her to another location. At this new location, defendant threated N.R. with a black handgun by pointing it at her belly and threatening to kill her and her baby. N.R. also informed Rodriguez that she saw defendant with an AR-15 style weapon when he came to shower and change at her apartment on July 8. Defendant apparently did not threaten N.R. with this weapon at that time.
Clovis Police officer Kory Vitato, who was also a member of a SWAT team was the next to testify at the preliminary hearing. On July 12, Vitato was sent out with his team to take defendant into custody for committing an act of domestic violence, violating a restraining order, assault with a deadly weapon, and violating his probation conditions. Vitato first located defendant parked in front of his mother's house, then followed him to a nearby convenience store. When they observed defendant park next to a gas pump, Vitato and another officer used their vehicles to prevent defendant from leaving by blocking his vehicle. When defendant attempted to ram into the police vehicle that was in front of him, the officers drew their service pistols and told defendant to get out of his vehicle. Vitato testified he then observed defendant looking and reaching toward the front passenger seat. After defendant was apprehended, Vitato located a bag near the front passenger seat which contained a loaded AR-15 style weapon.
Clovis Police detective Anthony Puente testified he was investigating the incidents documented by Cressall and Rodriguez, and was at the convenience store when defendant was apprehended. Puente testified he was there because a warrant had been issued for a "not-in-custody probable cause ... arrest." When attempting to block defendant from leaving, Puente observed defendant move a police vehicle with his own and also witnessed the damage done to the police vehicle. Puente also testified that the vehicle defendant was using was stolen, and that he was able to contact the true owner who had reported the vehicle stolen. Puente noted the damage done to the vehicle was not only to the exterior, but also to the ignition, allowing a user to start the engine without a key. Puente referred to this as a "punched ignition." The owner of the vehicle reported to Puente that this damage did not exist before the vehicle was stolen.
Once defendant was apprehended, Puente stated he searched the vehicle and found:
"[An] un-serialized AR style rifle with approximately a ten-inch barrel with a magazine inserted into the magazine well with 30 rounds of live ammunition, 223 caliber, and one live round of the same caliber inside the chamber of the firearm."
At the close of the preliminary hearing, the court found there was reasonable and probable cause to believe defendant committed the charged offenses and that he should be held to answer.
DISCUSSION
I. The Applicable Standard of Review
PRCS, though not identical, is similar to parole, the main difference being that PRCS is conducted by a county agency rather than by the Department of Corrections and Rehabilitation. (People v. Lewis (2016) 4 Cal.App.5th 1085, 1089, fn. 2.) It is therefore likely that performance on PRCS would be considered by a court while referencing the relevant factors under California Rules of Court, rules 4.414(b)(2) or 4.421(b)(5).(Lewis, at p. 1089, fn. 2.)
In fact, the language cited in these rules specifically references PRCS alongside probation.
The standard of review applicable when probation is revoked is abuse of discretion, while factual findings made by a trial court when revoking probation are reviewed for substantial evidence. (People v. Urke (2011) 197 Cal.App.4th 766, 773.) The same standards apply to an order revoking PRCS. (People v. Gonzalez (2017) 7 Cal.App.5th 370, 381, disapproved on other grounds by People v. DeLeon (2017) 3 Cal.5th 640.) A court may revoke probation when it has reason to believe a defendant has violated a condition of probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 440441.) While the violation must be shown through clear and convincing evidence, the allegations made in a probation revocation hearing need only be provable by a preponderance of the evidence. (Ibid.)
A. The Exclusive Use of the Preliminary Hearing Transcript
Hearsay evidence may be used at probation revocation hearings if it bears a substantial degree of trustworthiness. The determination of trustworthiness rests within the discretion of the trial court. (People v. Brown (1989) 215 Cal.App.3d 452, 454-455.) "A trial court's decision to admit or exclude evidence in a probation revocation hearing will not be disturbed on appeal absent an abuse of discretion." (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198.)
With respect to hearsay evidence replacing live testimony of a witness, such evidence is not admissible absent a showing of good cause. (People v. Arreola (1994) 7 Cal.4th 1144, 1159 (Arreola); People v. Winson (1981) 29 Cal.3d 711, 713-714.) Good cause is shown where: (1) the declarant is unavailable under the traditional hearsay standard of Evidence Code section 240; (2) the declarant, although not legally unavailable, can only be brought to the hearing through great difficulty or expense; or (3) the declarant's presence would pose a risk of harm to the declarant. (Arreola, at p. 1160.) However, where the statements at issue either fall under an exception to the hearsay rule or are admitted for a nonhearsay purpose, showing good cause is not required. (See People v. Cage (2007) 40 Cal.4th 965, 977-978 [discussing the historical distinctions drawn in Crawford v. Washington (2004) 541 U.S. 36, 61].)
B. Was An Objection Properly Preserved?
In their responsive brief, the People contend defendant forfeited the ability to challenge the trial court's use of the preliminary hearing transcript by not objecting to its use during the hearing held on August 12, 2022. Our review of the record on appeal reveals that on August 10, 2022, the trial court was originally set to hear the contested hearing on defendant's violation of his PRCS. When the court asked if the prosecution was ready to proceed, they indicated they were not as there had been confusion due to the fact the contested hearing had been trailed to accommodate the preliminary hearing on the new charges. As a result, witnesses had not been subpoenaed. The court then continued the matter for two days and instructed the prosecution to secure the attendance of their witnesses, as defendant was entitled to a hearing within a reasonable amount of time.
At the beginning of the August 12, 2022 hearing, defendant entered a plea of not guilty to the charges in the new information prepared after the preliminary hearing. The court then turned its attention to the contested hearing. The court acknowledged receiving a certified copy of the preliminary hearing transcript from the prosecution, then stated:
"As a result of the preliminary hearing transcript wherein it was found that there was probable cause to believe that violence was committed, I am going to find you in violation in case ending 3376. So with that, PRCS is revoked."
While a review of the August 12 hearing reveals no clearly stated objection to the use of the preliminary hearing transcript, we acknowledge a statement made by the trial court that it would "take judicial notice of rejection from [the d]efense to the preliminary hearing transcript." The exact meaning of this statement is unclear in that following the court's finding defendant had violated his PRCS, counsel for defendant focused his presentation on the impact immediate sentencing would have on defendant's ability to use his credits in the new pending case. Defense counsel made no effort to insist that good cause be established on the record to justify the use of the preliminary hearing transcript instead of relying on live testimony from any of the witnesses. (See Arreola, supra, 7 Cal.4th at p. 1160.)
" 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented." '" (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) If the record is silent when an objection is made, it is generally held we must presume the trial court was both aware of and complied with the applicable law. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 398.)
Here, the court appeared to be aware that defendant objected to the use of the preliminary hearing transcript. Following that acknowledgement, no effort was made by defense counsel to insist on a finding of good cause from the court and no finding was entered into the record. Based on this silent record, we must assume the court understood the standard set out in Arreola and subsequent cases and proceeded with the use of the preliminary hearing transcript believing there was good cause to do so.
C. Does the Use of the Preliminary Hearing Transcript Require Reversal?
Other than the transcript of the preliminary hearing for the new charges being brought against defendant, no other evidence was placed before the court. The transcript revealed that four law enforcement witnesses were called by the prosecution. Each witness either witnessed the various events resulting in the new charges brought against defendant, or interviewed the victims involved in those incidents. Each witness testified, was cross-examined by defendant's attorney, then asked for additional testimony in redirect.
"[T]he [Confrontation] Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." (Crawford v. Washington (2004) 541 U.S. 36, 61.)
For instance, Vitato was a direct witness to defendant's actions that resulted in some of the new charges brought against him and tested in the preliminary hearing. Vitato specifically watched as defendant attempted to evade capture by ramming his vehicle into a police vehicle. While trying to take defendant into custody, Vitato observed defendant looking toward and trying to reach a bag later determined to contain an AR-15 style weapon that was loaded. These observations supported the charges addressed at the preliminary hearing for possession of an assault rifle by a person who was prohibited from possessing such a weapon, as well as possession of ammunition and resisting or obstructing an officer. Vitato was then cross-examined by the same attorney representing defendant at both the preliminary hearing and the hearing considering his status on PRCS.
Based on the lack of an effective objection by defendant to the use of the preliminary hearing transcript, and because the use of that transcript contained evidence that had been subject to cross-examination, we cannot conclude there was reversable error in the use of that transcript to conclude defendant failed to comply with the requirements of his PRCS. The trial court did not abuse its discretion and substantial evidence supports the findings made by the court revoking defendant's PRCS. (See People v. Urke, supra, 197 Cal.App.4th, at p. 773.) The clear and convincing evidence presented in the transcript of the preliminary hearing easily met the preponderance of the evidence standard. (See People v. Rodriguez, supra, 51 Cal.3d, at pp. 440-441.)
III. The Claim of Ineffective Assistance of Counsel
The standard governing an ineffective assistance of counsel claim is well established. First, a defendant is required to show trial counsel's performance fell below an objective standard of reasonableness set by prevailing professional norms. (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053; Strickland v. Washington (1984) 466 U.S. 668, 687.) Second, a defendant is required to show there was a reasonable probability that, absent the trial counsel's error, the outcome of the proceeding would have been more favorable for the defendant. (Hernandez, at p. 1053.) This latter requirement does not require a defendant to show the deficient representation more likely than not altered the outcome; only that there was a "reasonable probability" that "the result of the proceeding would have been different." (Strickland v. Washington, at p. 694.) A reasonable probability is "a probability sufficient to undermine confidence in the outcome." (Ibid.)
It should be noted, claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. (People v. Mai (2013) 57 Cal.4th 986, 1009.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (Ibid.) However," '[a] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . that course should be followed.'" (People v. Jacobs (2013) 220 Cal.App.4th 67, 75-76.)
We cannot conclude defendant was sufficiently prejudiced. (See People v. Jacobs, supra, 220 Cal.App.4th at pp. 75-76.) Four witnesses were called by the prosecution. Each witness provided testimony connected to the incidents that led to the new charges being brought against defendant. Each witnesses provided direct testimony, and each was cross-examined by defendant's attorney. Defendant's only challenge to this evidence was his denial of the charges and that this would constitute his first violation while on PRCS. We note, defendant's denial of the charges was later contradicted by his plea of guilty in the United States District Court for the Eastern District, on July 12, 2022, to possessing ammunition in violation of 18 United States Code section 922, subdivision (g)(1). This charge was based on the same events testified to by Vitato and Puente that occurred on July 12 when defendant was arrested while in possession of a loaded assault rifle. Similar to the situation presented in Arreola, where the defendant was later found guilty of the charges testified to in a preliminary hearing and used during a hearing to revoke probation, here, defendant pled guilty to a similar charge that was supported by the testimony provided by Vitato and Puente at his preliminary hearing. Any potential error was harmless beyond a reasonable doubt. (Arreola, supra, 7 Cal.4th, at p. 1161.)
IV. The People's Claim That This Appeal is Moot
The People contend we are not required to resolve this appeal because the issues presented are now moot. Specifically, in their request for judicial notice, the People provided various documents showing defendant has already completed his jail term for the PRCS violation. The People specifically note that any reversal would be without practical effect. (See People v. DeLong (2002) 101 Cal.App.4th 482, 486.)
While we acknowledge that some courts have chosen to address similar claims of mootness saying a defendant should be afforded the" 'opportunity to erase the "stigma of criminality," '" as we have concluded above, we believe the order revoking defendant's PRCS should be affirmed. (People v. Buell (2017) 16 Cal.App.5th 682, 688, citing People v. Nolan (2002) 95 Cal.App.4th 1210, 1213.) For this reason, we have chosen not to address the claim defendant's appeal is moot.
DISPOSITION
The order revoking defendant's PRCS status is affirmed.
[*] Before Poochigian, Acting P. J., Meehan, J. and DeSantos, J.