Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. Loretta Murphy Begen, Judge, Super. Ct. No. 1216335.
James H. Dippery, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J., and Hill, J.
Procedural and Factual Summaries
After the denial of her motion to suppress, defendant Tamara Sue Young entered a plea of no contest to possession of heroin in violation of Health and Safety Code section 11350. She further admitted the special allegations that she had committed the offense while on bail (Pen. Code, § 12022.1) and that she had been convicted previously of two or more felonies within the meaning of Penal Code section 1203, subdivision (e)(4). The court ordered that Young be placed on probation in accordance with Proposition 36.
Young was arrested after a patrolling law enforcement officer contacted Young, who was sitting in a parked car in a known drug trafficking area. During the encounter, Young provided her driver’s license to the officer, who did a warrant check. Dispatch informed the officer that Young was subject to a probation search condition for stolen property. Young and the vehicle were searched and the officer found a small clear plastic baggie containing what was later determined to be heroin.
Discussion
The sole issue raised on appeal is whether the trial court erred when it overruled Young’s hearsay objection to the officer’s testimony that she learned of Young’s search condition from dispatch. No written or other direct proof of the search condition was offered.
The officer testified that she ran Young’s identification through dispatch for a warrant check. The prosecutor asked, “did anything come back of note?” Defense counsel objected on hearsay grounds. The prosecutor responded that the statement was not hearsay because it provided evidence of the mental state of the officer “for probable cause purposes.” The court overruled the objection. No further objection was raised and no further argument made. On appeal, Young now argues that the evidence violated the Harvey -Madden rule, which requires proof that information relied upon by arresting officers for purposes of establishing probable cause is true and not manufactured. (People v. Collins (1997) 59 Cal.App.4th 988, 993.)
(People v. Harvey (1958) 156 Cal.App.2d 516, 523-524; People v. Madden (1970) 2 Cal.3d 1017, 1021.)
We agree with respondent that the issue has been waived. A Harvey-Madden objection may not be raised for the first time on appeal. (People v. Moore (1970) 13 Cal.App.3d 424, 434.) As one court has noted, “[t]he bar against raising a Harvey/Madden issue for the first time on appeal is but an application of the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citations.]” (People v. Rogers (1978) 21 Cal.3d 542, 547-548.) “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion .…” (Evid. Code, § 353.)
The hearsay objection was correctly overruled. The out-of-court statement was not offered to prove the truth of the matter stated, but instead to prove the actions of the hearer. The statement was not hearsay, but admissible if otherwise relevant. (People v. Scalzi (1981) 126 Cal.App.3d 901, 906-907.) No objection was made on the grounds that the officer’s statement did not comply with the Harvey-Madden rule. Evidence Code section 353 requires that an objection make clear the specific ground on which the objection rests, i.e., what is it that makes the evidence seeking to be admitted objectionable. Appellate courts have repeatedly warned they will not allow a party to raise an issue for the first time on appeal when to do so would be unfair to the trial court and the opposing party, who might have been able to cure the defect had the party been put on notice of the potential problem. (Marshall v. Bankers Life & Casualty Co. (1992) 2 Cal.4th 1045, 1059.) We will not consider this contention on the merits. The issue has been waived.
Disposition
The judgment is affirmed.