Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 04F05612, 06F08456
ROBIE, J.
Based on the out-of-court statements of T. S. (the victim), the trial court sustained allegations that defendant Alberto Vital violated probation. The court revoked defendant’s probation and sentenced him to two years in state prison.
On appeal, defendant contends he was denied his right of confrontation under the state and federal Constitutions when the trial court admitted hearsay statements of the victim identifying defendant as one of several persons responsible for attacking and beating him while in custody. Defendant also contends the court’s finding that he violated probation was error. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, defendant pled no contest in case No. 04F05612 to unlawful sexual intercourse with a minor three years younger. He was placed on five years’ formal probation and ordered to serve one year in the county jail. He was required, as a condition of probation, to comply with all jail rules and regulations and conduct himself in a proper manner in jail.
In September 2006, while serving his jail sentence at the Rio Cosumnes Correctional Center (Rio Cosumnes), defendant was charged in case No. 06F08456 with second degree burglary and petty theft with a prior theft-related offense after he and another inmate broke into a Rio Cosumnes office and stole personal property. Defendant pled no contest to both counts in exchange for a stipulated one-year jail sentence to run consecutively to the sentence in case No. 04F05612.
On January 21, 2007, while serving his sentence in cases Nos. 04F05612 and 06F08456, defendant and five other inmates at Rio Cosumnes, all believed to be members of the Norteño criminal street gang, were arrested for assaulting another inmate, T. S., also a member of the Norteño gang. The People filed a petition alleging defendant violated probation in cases Nos. 04F05612 and 06F08456 by committing battery on T. S. for the benefit of a criminal street gang.
A contested hearing was held on March 20, 2007. Deputy Dick Mah testified that, on the night of the incident, he and Deputy Nicholas Pottorff were working in the Rio Cosumnes control room watching over inmate housing unit No. 600 (called a pod). According to Mah, the 600 pod can accommodate up to 74 inmates at one time. Mah saw a group of inmates gathering in the back of the dimly lit upper tier 600 pod but could not identify any of them. He instructed Pottorff to turn on the lights. When the lights came on, Mah saw several inmates scatter back to their bunks. He also saw T. S., who had a bloody nose, walk down the stairs and push the emergency button. T. S. was instructed to step out of the pod and Mah and another deputy escorted him to the medical office to be treated. Mah looked on as Pottorff showed T. S. pictures of inmates from the locator card book for the 600 pod to see if T. S. could identify his attackers. T. S. was later transported to the hospital.
Mah testified he had recently removed T. S. from another pod after a fight in an attempt to disperse “Northerners” around the facility.
A locator card book contains a card for each inmate in that particular housing location. Each card has a picture of the inmate and personal information, including his address, date of birth, and what he has been charged with.
Deputy Pottorff testified he did not see the inmates gathering, but saw several of them scatter when the lights came on. T. S. walked down the stairs. He had a bloody nose, a large bump in the middle of his forehead, a scrape on the right side of his head and another large bump on the left side of his head, a cut on the tip of his nose and various red marks on the back of his head. T. S. said he had briefly lost consciousness and was feeling dizzy, like he was going to pass out. While a nurse tended to T. S., Pottorff showed him the locator card book, covering all identifying information on each page with his hand to prevent T. S. from seeing it. T. S. looked through the entire book and ultimately identified defendant and several other inmates as his assailants.
T. S. did not appear at the contested probation revocation hearing on March 20, 2007. Deputy District Attorney Jennifer Lorenz told the court she had personally served T. S. with a subpoena to appear on March 6, 2007, and personally spoke with him to let him know he would need to appear on March 7, 2007. T. S. confirmed with his probation officer that he would be there. Lorenz spoke with T. S. again by telephone on March 19, 2007, and told him he would need to appear the following day or a bench warrant would be issued for his arrest. T. S. again confirmed he would be there, but said he would not testify because he was worried about his family. Based on that information, the court found T. S.’s failure to appear to be willful and issued a bench warrant for his arrest.
The hearing continued the next day. Again, T. S. was not present. In describing the efforts undertaken to locate the witness, Lorenz explained that her investigator visited the homes and businesses of T. S.’s family, relatives and girlfriend, but no one knew where T. S. was and it was the general consensus that he had left town. Lorenz also represented to the court that, on the day she met with T. S. in person, he told her he was worried and afraid for the safety of his family. When the investigator contacted T. S. on several subsequent occasions, T. S. did not deny that the incident took place, but said, “‘I’m not going to testify. I’m going to take the Fifth. I’m worried about my family.’”
Lorenz indicated that her investigator was with her. They attempted to record the conversation with T. S., but the recorder malfunctioned.
Based on T. S.’s apparent unavailability, Lorenz requested that she be permitted to offer testimony from Pottorff regarding statements made by T. S. at the time of the incident. The trial court granted the request, specifically finding that Evidence Code section 1240, does not require unavailability of the witness, a spontaneous declaration under that section may include identification of an assailant and the right of confrontation does not apply in the context of a probation revocation hearing. (U.S. v. Hall (9th Cir. 2005) 419 F.3d 980, 985.)
Pottorff testified that, approximately 10 minutes after the lights were turned on, he approached T. S., who was injured and appeared to be disoriented and in pain. Pottorff also noticed T. S. was upset and breathing heavily. Pottorff asked him questions to try to determine what happened. T. S. said he was attacked by Northerners with socks on their hands who lured him over to a corner of the pod, knocked him down and began kicking and punching him. T. S. added that he thought he was beaten because he refused to participate in a fight in another pod the night before.
In response to a defense objection, the court excluded the portion of Pottorff’s testimony regarding why T. S. thought he was attacked.
Pottorff asked T. S. if he could identify his attackers, and T. S. said he could. When Pottorff asked him if he wanted to look through the locator card book or wait until later, T. S. said he wanted to do it then. He spent approximately 10 to 15 seconds looking at each page of the locator card book, stating whether each individual was one of the inmates who attacked him. The entire interaction took approximately 20 minutes, during which time T. S. was breathing heavily and appeared to be upset.
The trial court found T. S.’s identification of defendant reliable, noting it was made while he was “under the influence of that beating, while he is bleeding.” As such, the court found the allegation of probation violation true by a preponderance of the evidence. Probation in cases Nos. 04F05612 and 06F08456 was terminated and defendant was sentenced on count one (Pen. Code, § 459) in case No. 06F08456 to the middle term of two years in state prison.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Admissibility Of T. S.’s Out-Of-Court Identification
Defendant argues the evidence that he participated in the attack on T. S. was inadmissible because it was based on testimonial out-of-court statements made inadmissible by Crawford v. Washington (2004) 541 U.S. 36, 51-59 [158 L.Ed.2d 177, 192-197]. However, as defendant concedes, the Sixth Amendment right of confrontation under Crawford does not extend to probation revocation proceedings. (U.S. v. Hall, supra, 419 F.3d at pp. 985-986; People v. Johnson (2004) 121 Cal.App.4th 1409, 1411.) Therefore, we reject his claim.
Although defendant raises generally the issue of his due process right to confront and cross-examine adverse witnesses (U.S. v. Hall, supra, 419 F.3d at pp. 985-986; Morrissey v. Brewer (1972) 408 U.S. 471, 480 [33 L.Ed.2d 484, 494]) and articulates the standard which an appellate court must apply when reviewing a trial court’s ruling on whether good cause has been shown for not producing a witness, he fails to make a cogent argument on either front. Defendant quotes at length from Hall, but argues only that the facts here differ from those in Hall because here the hearsay evidence “was the only issue” and without it “there would have been no case against [defendant].” He reiterates verbatim the evidence offered by the prosecution regarding her unsuccessful attempts to secure T. S.’s attendance at the hearing and speculates as to what T. S. would have testified to had he actually appeared at the hearing, but makes no attempt to analyze the facts of the case or their application to the law or to explain in a coherent manner how it is the trial court committed error.
Defendant bears the burden of showing both error and prejudice. (See People v. Coley (1997) 52 Cal.App.4th 964, 972.) Because his appellate contentions are unsupported by analysis, we need not discuss them. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [a reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed]; People v. Hardy (1992) 2 Cal.4th 86, 150 [same]; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159 [appellate contentions must be supported by analysis]; People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136 [appellant’s legal analysis must be connected to the evidence in the case].)
II
Evidence To Sustain Probation Violation Allegations
Defendant contends the trial court’s finding that he violated probation was not supported by a preponderance of the evidence. We disagree.
The prosecution was required to prove the probation violation by a preponderance of the evidence. (Pen. Code, § 1203.2, subds. (a), (b); People v. Rodriguez (1990) 51 Cal.3d 437, 443; People v. Kurey (2001) 88 Cal.App.4th 840, 849.)
Here, review on appeal is based on the substantial evidence test. (People v. Kurey, supra, 88 Cal.App.4th at p. 848.) That is, “[the] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)
Defendant argues T. S. was not credible and should not have been believed by the trial court. For example, he cites a joint stipulation that T. S. made prior false statements to law enforcement officers, as well as written statements of T. S. and investigators for both parties, which demonstrate T. S.’s lack of credibility. He also notes defense investigator Lori Brown’s report that two men told her T. S. was “scandalous,” “shady,” and “a liar and a thief.” According to those same two men, T. S. boasted about beating someone up in jail soon after he was released from custody following the incident. Defendant also points to discrepancies between T. S.’s statements at the time of the incident and those made to Brown sometime later, particularly that officers pressured him to press charges and that he was unsure who was actually involved or whether he had accurately identified his attackers.
The joint stipulation and the written statements were admitted into evidence on March 29, 2007, and were considered by the trial court in conjunction with oral argument from counsel.
However, defendant ignores the fact that the court acknowledged T. S. “will tell a lie when it suits him” and “will tell a lie to get out of trouble” and nevertheless found T. S.’s identification of defendant to be reliable based on the fact that he was hurt and bleeding and still suffering from the stress of the attack when he made the statement. The court also found persuasive the fact that if T. S. wanted to be removed from the pod, he did not need to identify anyone to do it. Given his physical and emotional state after the attack, it was likely he was not taking into consideration the potential consequences of identifying other members of his own gang. Only when T. S. had time to consider the potential consequences to both himself and his family did he refuse to testify.
Finally, defendant also argues that, had T. S. appeared at the hearing, he would either have refused to testify by asserting his Fifth Amendment right to remain silent, or testified consistent with the statements he made to Brown, but in either event, the prosecution would not have been able to meet its burden of proof. Such an argument is pure speculation and is of no value.
Sufficient evidence supports the trial court’s finding that defendant violated probation.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., HULL, J.