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People v. Gomez

February 4, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
IRVIN DANIEL GOMEZ, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur H. Jean, Jr., Judge. Affirmed. (Los Angeles County Super. Ct. No. NA072835).

The opinion of the court was delivered by: Mallano, P. J.

CERTIFIED FOR PUBLICATION

Defendant Irvin Daniel Gomez appeals from a judgment revoking his probation and sentencing him to prison. Defendant contends the trial court abused its discretion and violated his due process rights by admitting in evidence a probation report which showed that defendant failed to report to his probation officer, pay restitution, or submit verification of his employment and attendance at counseling sessions. We disagree and affirm because the evidence admitted was in the nature of documentary material that is admissible in a probation revocation hearing.

BACKGROUND

On April 26, 2007, defendant pleaded no contest to three counts of felony vandalism and three counts of misdemeanor vandalism. The trial court suspended the imposition of sentence and placed defendant on probation for five years on conditions that included reporting to a probation officer, cooperating with his probation officer in a plan for counseling and any other program required by probation, obeying all of the probation department's rules and regulations, seeking and maintaining employment, keeping the probation officer advised of his residence and employment at all times, and paying restitution to Caltrans and property owner victims.

On November 8, 2007, in defendant's absence, the trial court summarily revoked defendant's probation after reviewing a probation report by Deputy Probation Officer Tim Kendrick that stated the following: "Records indicate the defendant reported to his assigned probation officer (DPO Lolita Walker) at the Long Beach Area Office on 07/03/2007. Ms. Walker instructed him to report again (LBAO) 08/21/2007. He failed to show for that scheduled appointment. Due to the defendant's known affiliation with the `Compton Tiny Gangsters' street gang, his case was transferred to the gang supervision unit (07/05/2007). The probation officer sent the defendant two letters with instructions to report to Long Beach Area Office (07/16/2007 and 09/11/2007). He failed to respond and did not report as instructed. Records indicate no contact with the defendant since 07/03/2007 (probation instructions require the defendant to report monthly to the probation officer as directed; it appears he failed to follow those instructions)." (Emphasis omitted.) The court issued a bench warrant for defendant.

Defendant was arrested in September of 2008. A supplemental probation report prepared by Deputy Probation Officer P. Lindsay on October 20, 2008 (filed December 3, 2008) set forth the following: "The last probation officer who supervised the defendant, DPO Kendrick, can testify, if needed, on the defendant's compliance and conduct while on probation. This officer has not met the defendant and has prepared this report based solely on electronic probation records. DPO Kendrick indicated the defendant failed to report as instructed. The probation officer sent two appointment instruction letters to the defendant's residence (7/16/2007 and 9/11/2007) with no response. When the defendant failed to contact probation to provide verification of Caltrans work, counseling and employment, and failed to submit any restitution payments, a violation report was submitted. Failure to appear in court resulted in the bench warrant. On 6/25/2008, probation and Long Beach Police officers attempted bench warrant pick up at the defendant's address of record. According to the defendant's parents, the defendant's whereabouts were unknown." (We note that defendant's probation conditions did not expressly include working for Caltrans, but this may have been a means of satisfying his restitution obligation to Caltrans.)

The trial court opened defendant's probation revocation hearing on December 3, 2008, by stating that it was marking Lindsay's probation report as People's exhibit 1 and admitting it in evidence. Through counsel, defendant objected that the report was hearsay and the statements in the report were not based upon personal knowledge. The court overruled the objection. In response to defense counsel's inquiry, the court stated it was looking at the December 3, 2008 probation report. Defense counsel pointed out the report was written by Officer Lindsay based on electronic records and records prepared by Kendrick. The prosecution introduced no other evidence, and the defense rested without introducing any evidence. The court found defendant in violation of his probation for failing to report to the probation department. It sentenced defendant to two years in prison.

DISCUSSION

Defendant contends that the trial court erred by admitting the probation report because it was inadmissible, multiple-level hearsay, and the court failed to find good cause to admit it in lieu of live testimony, in violation of defendant's due process right of confrontation. We disagree and affirm because the evidence admitted was in the nature of documentary material that is admissible in a probation revocation hearing.

The Attorney General contends defendant forfeited his due process and confrontation claims because he failed to object on that ground in the trial court. We disagree. Defendant's claim is essentially that the effect of the court's error admitting the multi-level hearsay report resulted in a violation of his due process right to confront and cross-examine adverse witnesses. Defendant does not claim any violation of the confrontation clause, which does not apply to probation revocation hearings. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411 (Johnson).) The due process issue is inextricably entwined with the evidentiary problems presented by the report in this context. No unfairness to the parties or the court results from considering this claim on appeal. (People v. Partida (2005) 37 Cal.4th 428, 436.)

The minimum due process requirements at a formal probation revocation hearing include written notice of the claimed violations, disclosure of evidence against the defendant, an opportunity for the defendant to be heard and to present evidence, and "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." (Morrissey v. Brewer (1972) 408 U.S. 471, 489 [92 S.Ct. 2593]; Gagnon v. Scarpelli (1973) 411 U.S. 778, 782 [93 S.Ct. 1756]; People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153 (Arreola).) The defendant's right of confrontation at the formal revocation hearing does not arise from the confrontation clause, but from due process (Johnson, supra, 121 Cal.App.4th at pp. 1411-1412); it is "not absolute. Confrontation may be denied if the trier-of-fact finds and expresses good cause for doing so." (People v. Winson (1981) 29 Cal.3d 711, 719 (Winson).) For example, the former testimony of a legally unavailable witness is generally admissible. (Ibid.) Due process does not prohibit the "use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence." (Gagnon, at p. 782, fn. 5.) Documentary evidence must be accompanied by reasonable indicia of reliability to be admissible. (People v. Maki (1985) 39 Cal.3d 707, 715, 716-717 (Maki).) But "[o]nly a summary revocation of probation to preserve jurisdiction may be based upon a parole or probation officer's report." (Winson, at p. 718 [neither testimony from preliminary hearing nor summary of such testimony in probation report admissible to prove probationer violated probation by committing an attempted robbery and assault with a deadly weapon].)

In Maki, supra, 39 Cal.3d 707, the California Supreme Court held that a Hertz rental car invoice signed by Maki and a Hyatt hotel receipt, both of which were found in his possession, were admissible without authentication by representatives of Hertz and Hyatt, given "the uncontroverted presence of defendant's signatures on the invoice" and "`the absence of any evidence tending to contradict' the information contained in the invoice and the accuracy of the inference that defendant was of necessity in Chicago signing the invoice . . . ." (Id. at pp. 716-717.) The receipts indicated Maki had rented a car and stayed in a hotel in Chicago, in violation of the probation condition that he obtain written permission to leave San Diego County. (Id. at pp. 709, 717.)

In Arreola, supra, 7 Cal.4th 1144, the California Supreme Court reemphasized the importance of confrontation in revocation hearings and distinguished "the type of traditional `documentary' evidence involved in Maki that does not have, as its source, live testimony." (Id. at p. 1157.) The court held inadmissible the transcript of a preliminary hearing showing the defendant drove a vehicle while under the influence of alcohol. The court stated, "As we observed in Winson, the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness's demeanor. [Citation.] Generally, the witness's demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts, where often the purpose of this testimony simply is to authenticate the documentary material, and where the author, signator, or custodian of the document ordinarily would be unable to recall from actual memory information relating to the specific contents of the writing and would rely instead upon the record of his or her own action." (Ibid.) The court emphasized that a showing of good cause for the admission of hearsay at a probation revocation hearing is "compelled by the due process requirements imposed by the United States Supreme Court." (Id. at pp. 1157-1158.) It quoted and emphasized the following statement ...


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