People v. Abrams

• Decision Date: 21 December 2007
• Docket Number: No. B194835.,B194835.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lonell Allan ABRAMS, Defendant and Appellant.

69 Cal.Rptr.3d 742

158 Cal.App.4th 396

The PEOPLE, Plaintiff and Respondent, v. Lonell Allan ABRAMS, Defendant and Appellant.

No. B194835.

Court of Appeal, Second District, Division 8.

December 21, 2007.

California Appellate Project, Jonathan B. Steiner, Executive Director, and Ronnie

Duberstein, Staff Attorney, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

RUBIN, J.

Defendant Lonell Abrams appeals his state prison sentence following revocation of probation on a charge of petty theft with prior convictions. Defendant contends the trial court erred in allowing hearsay evidence to prove his failure to comply with probation obligations. We hold 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. Because the trial court properly considered this evidence here, we affirm the order revoking probation.

PROCEDURAL BACKGROUND

As defendant's only claim arises from the trial court's revocation of probation, we need not detail the circumstances of the underlying crime. Suffice it to say, defendant pled guilty to one count of petty theft with prior convictions in violation of Penal Code section 666. He also admitted two prior prison terms.

Defendant was initially sentenced on September 29, 2005. He received five years total for the underlying crime and prior prison terms, with credit for time already served in custody. The sentence was suspended and he was placed on probation, which included the following terms relevant to this appeal: report to the probation officer within 48 hours; cooperate with the probation office in a substance abuse program and anti-narcotic testing; maintain training, schooling or employment approved by the probation officer; and, obey all probation officer rules. He was to pay $220 in fines and fees.

On February 7, 2006, defendant's probation was preliminarily revoked. The probation report for that day reflected that defendant had not made an appointment with the probation officer and had never reported. A certified letter mailed to him had been returned unclaimed, and no payments had been made to the probation department.

On May 3, 2006, defendant appeared before the trial court and admitted the violation; the court reinstated probation. Both the prosecutor and defense counsel warned defendant of the consequences of a further violation. Defendant stated expressly that he understood, and he also agreed to waive any custody credits in exchange for a renewed grant. The court then said:

"You are to report to the probation officer within 48 hours[. B]ased on my short experience here, this is unusually good acceptance by the People, and it won't happen again[;] one time and that's it.

"You[`ve] got to comply with everything the probation officer [sic] to the minor detail and don't get into any kinds of trouble. Five years is a long time in state prison." Defendant said he understood. Probation was then reinstated on all the original terms and conditions.

Defendant's probation was preliminarily revoked again on August 9, 2006. On October 11, 2006, a second probation violation hearing was held. Deputy Probation Officer (DPO) Jeffrey Dangerfield testified that defendant had failed to report to the probation department and had failed to make any payments. Defendant also testified. He acknowledged he had not made any in-person visits to the probation department, expressed uncertainty about where he was to report, and described several phone conversations with an unnamed probation department employee. The court found defendant in violation. After argument by counsel and with the court's permission, defendant spoke again to the court. He stated that he had complied with parole in another matter, he had financial and family obligations, and, impliedly, he had been given the runaround by the probation department on where he was to report. He asked the court for another chance. The court declined and imposed the five year sentence.

DISCUSSION

1. Applicable General Principles

Defendant contends the trial court erred in admitting hearsay statements to prove noncompliance with his probation terms and conditions. Before addressing the specifics of his argument, we briefly set out some of the general principles applicable to probation violation hearings and to our review of revocation orders.

Although probation violation hearings involve the criminal justice system, they are not governed by all the procedural safeguards of a criminal trial. (People v. Winson (1981) 29 Cal.3d 711, 716, 175 Cal.Rptr. 621, 631 P.2d 55 (Winson), citing Gagnon v. Scarpelli (1973) 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 and Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; see also People v. Shepherd (2007) 151 Cal. App.4th 1193, 1198, 60 Cal.Rptr.3d 616 (Shepherd).) Specifically the Sixth Amendment's right of confrontation does not apply to probation violation hearings. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, 18 Cal.Rptr.3d 230 (Johnson ).) A defendant's right to cross-examine and confront witnesses at a violation hearing stems, rather, from the due process clause of the Fourteenth Amendment. (Johnson, supra, at p. 1411, 18 Cal.Rptr.3d 230, citing Black v. Romano (1985) 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636.)¹ Those confrontation rights, however, are not absolute, and where appropriate, witnesses may give evidence by "`affidavits, depositions, and documentary evidence.'" (Winson, supra, at p. 716, 175 Cal.Rptr. 621, 631 P.2d 55; see also Morrissey v. Brewer, supra, at p. 489, 92 S.Ct. 2593, [the parole revocation "process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial"].)

The burden of proof at a probation violation hearing is by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447, 272 Cal. Rptr. 613, 795 P.2d 783; People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066, 132 Cal.Rptr.2d 665 (O'Connell).) We review rulings on whether hearsay was improperly admitted at a violation hearing for abuse of discretion. (Id. at p. 1067, 132 Cal. Rptr.2d 665; People v. Brown (1989) 215 Cal.App.3d 452, 454-455, 263 Cal.Rptr. 391; cf. People v. Martinez (2000) 22 Cal.4th 106, 120, 91 Cal.Rptr.2d 687, 990 P.2d 563 [trial court's determination that document qualified as an official record subject to abuse of discretion].)

2. The Evidence Here Was Properly Admitted

Defendant contends that the trial court erred in allowing DPO Dangerfield to testify on two subjects that defendant claims were inadmissible hearsay: First, Dangerfield testified about what his colleague, DPO Willie Smith, wrote in Smith's probation report concerning defendant. Second, Dangerfield testified that probation department records showed that defendant had failed to contact the probation office. We conclude that, assuming this evidence was hearsay, the trial court could properly admit it in a probation violation hearing.

The admissibility of hearsay at a probation violation hearing has been the subject of discussion in a series of California cases which for the most part trace their history to Winson, supra, 29 Cal.3d 711, 175 Cal. Rptr. 621, 631 P.2d 55. In Winson, at a probation violation hearing the trial court admitted a transcript from the defendant's related criminal case that had triggered the alleged violation. For the most part, the transcript consisted of testimony by the victim of a robbery committed by defendant and another man. There was no showing that the victim was unavailable to attend the violation hearing or that other good cause existed for the use of the transcript. Relying primarily on Morrissey and Gagnon, our Supreme Court held that a "preliminary hearing transcript of a witness' testimony in a defendant's related criminal case is not a proper substitute for the live testimony of the witness at defendant's probation violation hearing in the absence of the declarant's unavailability or other good cause." (Winson, at pp. 713-714,175 Cal.Rptr. 621, 631 P.2d 55.)²

Although the Supreme Court in Winson reversed the probation violation finding, the court concluded its analysis by emphasizing that in probation violation hearings the right of confrontation "is not absolute." (Winson, supra, 29 Cal.3d at p. 719, 175 Cal.Rptr. 621, 631 P.2d 55.) As an example, "where `appropriate,' witnesses may give evidence by document, affidavit or deposition." (Ibid.)

Four years later the Court revisited the subject in People v. Maki (1985) 39 Cal.3d 707, 217 Cal.Rptr. 676, 704 P.2d 743 (Maki). In a case more factually analogous to ours, the Supreme Court held that the trial court properly admitted two pieces of documentary evidence: a car rental invoice and a hotel receipt, both in the defendant's name. The documents were offered to prove that the defendant had been out of state without his probation officer's permission. The Supreme Court first concluded that the prosecution had failed to establish that the documents qualified as business records or otherwise fell within any other hearsay exception. (Id. at pp. 710-714, 217 Cal.Rptr. 676, 704 P.2d 743.) The court nevertheless affirmed their admissibility. The court narrowed Winson as applying only to transcripts of prior testimony offered at a subsequent violation hearing. The court then fashioned a broader test at least for the receipt of documentary hearsay testimony in violation hearings: such evidence is admissible "if there [is] sufficient indicia of reliability." (Maki supra, at p. 709, 217 Cal.Rptr. 676, 704 P.2d 743; see Arreola, sup...