APPEAL from a judgment of the Superior Court of Sacramento County, Patrick Marlette, Judge. Affirmed. (Super. Ct. No. 06F00129).
The opinion of the court was delivered by: Sims, Acting P. J.
CERTIFIED FOR PUBLICATION
Defendant Brenton Clay Stanphill appeals from a judgment following revocation of probation (Pen. Code, § 1203.2) upon the trial court's finding that he participated in a gang-related battery (Pen. Code, §§ 242, 186.22) while incarcerated in jail as a condition of probation. The only evidence tying defendant to the battery was an unsworn hearsay statement of the victim to a law enforcement officer, identifying defendant's photograph as portraying one of the assailants, which the court allowed as a spontaneous statement under Evidence Code section 1240.*fn1
Defendant contends (1) the trial court abused its discretion in concluding the evidence was admissible as a spontaneous statement, and (2) defendant was denied his federal due process right to confront and cross-examine the adverse victim/witness at the probation revocation hearing. We shall conclude (1) the trial court did not abuse its discretion in ruling the victim's statements qualified as spontaneous statements under section 1240; and (2) because the evidence was admissible as spontaneous statements, defendant's due process confrontation right was satisfied, and no further inquiry was required. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2006, defendant was charged with (1) car theft (Veh. Code, § 10851, subd. (a)) with two prior convictions for car theft in 2002 and 2005 (Pen. Code, § 666.5, subd. (a)); (2) receipt of a stolen car (Pen. Code, § 496d, subd. (a)); and (3) possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Defendant pled nolo contendere. The probation report indicated defendant was apprehended driving a stolen car with no front license plate and carrying small amounts of amphetamine and marijuana. In January 2007, the trial court convicted defendant and sentenced him to a three year term (for the vehicle theft with priors) but suspended execution of sentence for five years, during which defendant was to be on formal probation with specified terms and conditions, including 365 days in county jail.
In February 2007, the People filed a petition alleging defendant violated probation on January 21, 2007, while incarcerated at Rio Consumes Correctional Center, by committing gang-related battery (Pen. Code, §§ 186.22, 242).
A joint hearing was held against defendant and another alleged perpetrator (Alberto Vital, who is not party to this appeal), with testimony from law enforcement officers who worked at the jail.*fn2 One deputy testified he observed a suspicious gathering of eight to 10 inmates in a dimly lighted area of the 600 pod*fn3 in the upper tier at the Rio Consumes Correctional Center. When another deputy turned up the lights, the inmates scattered back to their bunks. Inmate T. S. (the victim) slowly walked down the stairs toward the deputies. The victim had a bloody nose and some bumps and scrapes and said he briefly lost consciousness. He was sent to the jail's medical office (where he made the challenged statements to a deputy) and was then transported to the hospital. A deputy described the procedure when fights break out in jail: Persons believed to be involved in the fight are removed from the pod and interviewed; statements are taken from witnesses; and others are told to remain in their bunks.
The victim had recently been moved to the 600 pod following his involvement in a fight in a different pod. An officer with gang expertise testified the victim and defendant are both listed as members of the Norteño gang (though there are 25 "sets" within the gang, and the officer did not say if they were in the same set).
The only evidence tying this defendant to the attack in the 600 pod was the victim's hearsay statement to Deputy Nicholas Pottorff while in the jail's medical office, identifying defendant and others from a book of 64 photographs of the pod inmates (a locator card book).*fn4
The prosecution subpoenaed the victim (who had since been released from jail) to appear as a witness, but the victim failed to appear. The prosecutor told the court, "I had an investigator go to his home. I spoke with some family members, he's not there right at the time." A bench warrant issued.
The following day, the prosecutor told the court the victim was still not present and "[t]hrough our due diligence, we've tried to find him. I've sent--obviously, you know a bench warrant was issued. Sent an investigator to his family's house where he was staying. Basically was told that he's left to go to another state. We went to the address of his current girlfriend who he's been with for about three years. No one is there. We have been to a cousin's gas station and a [sic] another family member's auto shop. They don't know where he is. Everybody, including his family, is under [sic] the opinion that he has left town. So with that said--
"THE COURT: Does anybody have any indication of the circumstances if [h]e went with, or what he took with him or--
"[Prosecutor]: I know that on the day that he came to my office, Your Honor, I had an investigator present with me. I do have that statement. He didn't deny what had happened but did indicate that he was really worried and scared for his family. We tried to get that statement recorded, however, the recorder malfunctioned. We don't have it recorded. I wish we did.
"I've had investigators try to contact him a couple more times, and I had more statements made.'I'm not going to testify. I'm going to take the Fifth. I'm worried about my family.' Again, not denying it didn't happen but just saying he was scared.
"THE COURT: What was [the] last date that you had contact with him?
"[Prosecutor]: When I spoke to him over the phone two days ago to tell him he needed to be here yesterday.
"THE COURT: So today is the 21st. You spoke to him on the 19th to tell him to [be] here on the 20th?
"[Prosecutor]: Correct. He said,'ma'am, I'll be there. I know I have to be there, but I'm not going to testify. I'm worried about my family.'"
The prosecutor asserted her representations went to the issue of availability.
The court asked what was the prosecutor's theory for admissibility of the hearsay statements. She said, spontaneous statements (§ 1240, fn. 1, ante). The court asked if it had to find the witness unavailable in order to admit spontaneous statements. The prosecutor said no. The defense asked for a recess to research the matter. After the recess, defense counsel for co-defendant Alberto Vital (who is not a party to this appeal) argued section 1240 requires due diligence by the prosecutor to produce the witness; the prosecutor had failed to show unavailability; and the victim was available "in the sense that there's been contact with him, the Court has issued a bench warrant for his arrest, that we know where he works, he's on a GPS ankle bracelet." When asked if he wished to be heard, defendant's counsel said, "Not as to that issue."
The trial court said, "I'm going to find that unavailability has no bearing on admissibility under [section] 1240."
The court next discussed Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177], which held out-of-court testimonial statements by a witness are barred under the Sixth Amendment confrontation clause--regardless of their reliability--unless the witness is unavailable and the defendant had prior opportunity to cross-examine the witness. The prosecutor cited a federal case (United States v. Hall (9th Cir. 2005) 419 F.3d 980), holding Crawford does not apply to parole/probation revocation hearings, because the Sixth Amendment confrontation clause applies only to criminal prosecutions, and a hearing to revoke parole/probation is not a criminal prosecution.
Co-defendant Vital's counsel noted Hall, supra, 419 F.3d at page 986, also said that, although the Sixth Amendment did not apply, the defendant nevertheless enjoyed a due process right to confront witnesses against him in the probation revocation hearing, which required the court to weigh the defendant's interest in confrontation against the government's good cause for denying it.
Defense counsel asked if the trial court had found good cause for unavailability of the victim. The court said, "I have found that unavailability is not pertinent to a 1240 inquiry. So to the extent the District Attorney must show good cause, more specifically must show due diligence before the Court can find somebody is ...