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The People v. Myna Manyvong

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


December 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MYNA MANYVONG, DEFENDANT AND APPELLANT.

(Super. Ct. No. SF096869A)

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

P. v. Manyvong

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Myna Manyvong appeals from a judgment of three years eight months in prison for a probation violation resulting from his failure to pay restitution. Defendant contends that the trial court abused its discretion by allowing probation officer Steven Berchtold to testify at his probation revocation hearing based solely on notes and documents prepared by clerical staff. Defendant further contends there was insufficient evidence to establish that he "willfully" failed to pay restitution. Rather, defendant argues that he was indigent and unable to pay his restitution obligations as a result of his inability to work after a heart bypass. He also contends the trial court's decision to impose the three-year eight-month prison sentence violated his equal protection and due process rights. Finding no merit in these arguments, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 21, 2006, defendant was placed on probation for five years after pleading guilty to the unauthorized use of personal identifying information of another person and the unlawful taking of a vehicle. As a condition of probation, the trial court ordered defendant to pay restitution in the amount of $4,206.07 and stayed execution of a three-year eight-month sentence. On the basis of the trial court's order, San Joaquin County's Revenue and Recovery Division set up an account to facilitate the collection of the restitution from defendant.

On July 27, 2010, a California Highway Patrol Officer pulled defendant over in Stockton. Defendant was driving a gold Chrysler Sebring that was registered to him. The officer ran a check of his driver's license and found that defendant was driving with a suspended license. Upon a search of the vehicle, the officer located a first aid box containing a small amount of cash and five small plastic baggies containing a crystal substance, which the officer believed to be methamphetamine. Defendant was subsequently charged with possession of methamphetamine and driving with a suspended license. Consequently, on September 21, 2010, the prosecutor filed a petition seeking an order to show cause why probation should not be revoked as a result of defendant's failure to obey all laws on July 27, 2010. The petition alleged only the possession of a controlled substance charge.

Previously, on August 4, 2010, the probation department filed a violation of probation report, alleging that defendant had violated the terms of his probation by failing to pay the remaining balance of $3,906 of his restitution.

A preliminary hearing on the charges of possessing a controlled substance and driving on a suspended license was held on December 15, 2010. At the same time, the court heard the allegations on the violation of probation. The trial court found there was probable cause to hold defendant to answer on the charges but held there was insufficient evidence to prove a probation violation.

As to defendant's failure to pay restitution, however, the trial court held that defendant willfully failed to pay, and as a result, the court revoked probation and imposed the previously stayed three-year eight-month prison sentence.

To establish defendant's failure to pay restitution, the prosecution offered the testimony of Probation Officer Steven Berchtold. According to Berchtold, his duties included the supervision of adult probation offenders, including defendant, as well as the supervision of the clerical staff who assist the offenders.

Berchtold testified that defendant paid $300 toward the total restitution amount due. Berchtold also testified that a delinquency letter was sent on March 30, 2010, informing defendant that he was in violation of probation for failure to make restitution payments, and that he needed to make a payment by April 20, 2010. Berchtold further stated that defendant made a $50 payment on April 5, 2010, and was thereafter directed to make payments every month, but defendant failed to make any further payments toward the victim restitution after that.

To obtain this information, Berchtold relied solely upon a file of documents collected by him and his clerical staff for the purposes of monitoring defendant while on probation. The file of documents included the August 4, 2010, violation of probation report; an account balance sheet; and notes written by clerical staff.

According to the notes written by clerical staff, defendant came in the office on March 5, 2009, to discuss his restitution payments. During that conversation, defendant informed staff that he did not have the money to pay the $200 requested, but that he would be able to pay $100 per month. Staff told defendant to pay his restitution in regular monthly payments, plus a little extra until he got caught up, and defendant responded that he would do his best. Defense counsel objected to Berchtold's testimony on hearsay grounds. Specifically, defense counsel argued that Berchtold lacked personal knowledge because he did not personally create the documents contained in the file. Additionally, defense counsel argued that the required elements for the business records exception had not been established. The trial court overruled defense counsel's objections and admitted Berchtold's testimony, although the documents themselves were never offered into evidence.

Defendant also testified at the probation revocation hearing. According to defendant, his sole source of income came from money he received for collecting cans. He also received food stamps, but never any cash aid. Starting in 2006, defendant began to feel the "symptoms of [his] bad heart," and on October 30, 2009, he underwent heart bypass surgery after a heart attack. According to defendant, his symptoms prevented him from working, and he never obtained employment the entire time he was on probation. Throughout the years, defendant's daughter supported him by providing food, transportation to his medical appointments, and a place to live rent-free in the home occupied by her and her brother. Additionally, his daughter assisted in making restitution payments, as she was the one who made the payment of $50 in April 2010.

Ultimately, the trial court held that defendant "willfully failed to pay" restitution. In making its decision, the trial court noted that defendant owns a vehicle that is registered to him and that he could have sold it to pay the restitution, "especially since he's not allowed to drive on a suspended license." Based on that observation, the trial court imposed the three-year eight-month sentence that had previously been stayed.

DISCUSSION

I

Officer Berchtold's Testimony

Defendant contends the trial court abused its discretion in allowing Berchtold to testify on the basis of the documents and notes created by his clerical staff. Defining Berchtold's testimony as "testimonial" in nature, defendant argues that the requisite "'good cause'" was not established to render the evidence admissible. We are not persuaded.

We review a trial court's decision to admit or exclude evidence in a probation revocation hearing for abuse of discretion. (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066.)

Because probation revocation proceedings are not part of a criminal prosecution, "the full panoply of rights due a defendant in [a criminal] proceeding does not apply . . . ." (Morrissey v. Brewer (1972) 408 U.S. 471, 480 [33 L.Ed.2d 484, 494]; see People v. Winson (1981) 29 Cal.3d 711, 716.) Nevertheless, one facing revocation of probation typically has the right to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation. (People v. Arreola (1994) 7 Cal.4th 1144, 1154, 1159; accord Winson, at pp. 718-719.) That right is not absolute, however, and in appropriate circumstances, witnesses may give evidence by documents, affidavits, or deposition. (Arreola, at pp. 1156-1159.)

Here, Berchtold testified about the notes and documents created and maintained by clerical staff to establish that defendant had been ordered to pay restitution but failed to do so. It is unlikely that testimony by each clerical staff member involved in the collection of restitution would have added anything to the notes and documents contained in the file. Any testimony by clerical staff simply would have confirmed that an account balance was created on the basis of the order of the trial court, that defendant spoke with staff about his inability to pay restitution on March 5, 2009, and that, in fact, defendant failed to pay restitution. The demeanor of staff would not have constituted a significant factor in evaluating the credibility of those statements, especially in light of the fact that defendant confirmed at the probation revocation hearing that he did not make his restitution payments.

Defendant's assertion that the evidence provided by Berchtold was testimonial, and thus, the trial court was required to find good cause before admitting it, is without merit. The probation officer's report for violation of probation alleged, and the trial court found, that defendant violated the conditions of his probation by failing to pay the remaining balance of his victim restitution. The portion of the notes and documents contained in defendant's probation file relevant to the trial court's determination -- the August 4, 2010, violation report, the account balance sheet, the delinquency letters, the trial court order requiring defendant to pay restitution, and the notes by clerical staff describing defendant's visit to discuss his finances -- were not testimonial, that is, they did not have live testimony as their source. Indeed, the relevant documentation contained in the probation file involves "routine matters such as . . . restitution . . . payments, and similar records of events of which the probation officer is not likely to have personal recollection and as to which the officer 'would rely instead on the record of his or her own action.'" (People v. Abrams (2007) 158 Cal.App.4th at 396, 405.) Thus, the evidence needs only a sufficient indicia of reliability to be admissible. (People v. Maki (1985) 39 Cal.3d 707, 709.)

According to Berchtold, the documents and notes contained in the probation file were kept in the regular course of business and prepared in response to the order of the trial court. Additionally, the clerical staff who created and maintained the file were supervised by Berchtold.

Recently, in People v. Abrams, supra, 158 Cal.App.4th at page 398, the Second District Court of Appeal held "that whether or not a defendant has reported to his probation officer or made monetary payments to the officer are essentially non-testimonial; thus, even if hearsay, they are admissible at a probation violation hearing." There, Deputy Probation Officer Jeffrey Dangerfield testified on direct examination that the defendant had failed to report to probation or make monetary payments. (Id. at p. 404.) During cross-examination, Dangerfield referred to a report prepared by Deputy Probation Officer Smith, stating: "'[I]t indicates that [the defendant] was ordered to report on June 13th, 2006, but never showed up and has--did not contact the probation officer at that time or since then.'" (Ibid.) In concluding "that the evidence from the probation reports had sufficient 'indicia of reliability,'" the court explained that "[t]he presence of . . . Smith likely would not have added anything to the truth-furthering process, because he would be testifying to a negative: that defendant did not make any appointments and that Smith had not spoken to defendant." (Ibid.) This case is directly on point.

Finally, defendant corroborated Berchtold's testimony by admitting that he failed to pay restitution on time and that he spoke to the "cashier" at revenue and recovery about his inability to pay. It is therefore evident that the information contained in the probation file was reliable. In sum, there was no error (or constitutional violation) in admitting the evidence of which defendant complains.

II

Sufficiency Of Evidence To Violate Probation

Defendant contends that the evidence presented at his probation revocation hearing was insufficient to establish that he willfully failed to pay restitution. Defendant further argues that the trial court's decision to impose the three-year eight-month sentence violated his equal protection rights, as the effect of his incarceration for failure to pay restitution is to punish him for being indigent. Once again, we are not persuaded.

"Revocation of probation lies within the broad discretion of the trial court. . . . Absent abuse of that discretion, an appellate court will not disturb the trial court's findings." (People v. Self (1991) 233 Cal.App.3d 414, 417, citing People v. Angus (1980) 114 Cal.App.3d 973, 987-988.) According to Penal Code section 1203.2, subdivision (a), "[p]robation shall not be revoked for failure of a person to make restitution . . . as a condition of probation unless the court determines that the defendant has willfully failed to pay and has the ability to pay. Restitution shall be consistent with a person's ability to pay." Although the trial court need not "recite any talismanic words or outline in detail all relevant factors it has considered in making its determination, the trial court must make apparent on the record, prior to exercising its discretion, that it has considered and weighed relevant factors in making the determinations as required by [Penal Code section 1203.2] . . . ." (Self, at p. 418.)

The trial court did not abuse its discretion here. Defendant testified that he owns a car registered in his name and that his daughter provides him with transportation to his medical appointments. It was therefore reasonable for the trial court to find that defendant had a means of obtaining money to make more payments toward restitution by selling his car. The fact remains that the car was registered in defendant's name, therefore giving him the ability to sell it. Significantly, defendant's license was suspended, rendering it illegal for him to drive the car in the first place. Indeed, the protections afforded to the indigent are not implicated when a defendant is obligated to make restitution payments, has the resources to do so, yet willfully refuses. (Bearden v. Georgia (1983) 461 U.S. 660, 667-668 [76 L.Ed.2d 221, 229-230].) As a result, the trial court did not abuse its discretion.

DISPOSITION

The judgment is affirmed.

We concur: NICHOLSON , Acting P. J. HOCH , J.

20111228

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