People v. Arreola

• Decision Date: 14 July 1994
• Docket Number: No. S034323,S034323
• Citation: 7 Cal.4th 1144,31 Cal.Rptr.2d 631,875 P.2d 736
• Court: California Supreme Court
• Parties: , 875 P.2d 736 The PEOPLE, Plaintiff and Respondent, v. Alfonso Sergio ARREOLA, Defendant and Appellant.

Page 631

31 Cal.Rptr.2d 631

7 Cal.4th 1144, 875 P.2d 736

The PEOPLE, Plaintiff and Respondent, v. Alfonso Sergio ARREOLA, Defendant and Appellant.

No. S034323.

Supreme Court of California In Bank.

July 14, 1994.

J. Courtney Shevelson, Carmel, under appointment by the Supreme Court, and Thomas F. Thurlow, San Jose, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Asst. Atty. Gen., Laurence K. Sullivan, Thomas A. Brady and Jeffrey M. Bryant, Deputy Attys. Gen., for plaintiff and respondent.

GEORGE, Justice.

In Morrissey v. Brewer (1972) 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484, and Gagnon v. Scarpelli (1973) 411 U.S. 778, 786, 93 S.Ct. 1756, 1762, 36 L.Ed.2d 656 the United States Supreme Court held that, under the due process clause of the federal Constitution, a defendant at a parole or probation revocation hearing generally has the right "to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)...." Applying Morrissey and Gagnon, this court held in People v. Winson (1981) 29 Cal.3d 711, 713-714, 175 Cal.Rptr. 621, 631 P.2d 55 that, at a probation revocation hearing, the prosecution may not introduce the transcript of a witness's preliminary hearing testimony in lieu of the witness's live testimony "in the absence of the declarant's unavailability or other good cause."

In the present case, the Attorney General maintains that, even when there has been no showing that a declarant is unavailable, "other good cause" within the meaning of Winson is established whenever a defendant is notified explicitly, prior to a preliminary hearing, that testimony at the preliminary hearing may be used against the defendant at a subsequent probation revocation hearing. As we shall explain, we conclude that the Attorney General's contention is inconsistent with the fundamental reasoning of the decision in Winson, supra, 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55. The Attorney General alternately argues that the Winson decision impliedly was overruled by this court's subsequent decision in People v. Maki (1985) 39 Cal.3d 707, 217 Cal.Rptr. 676, 704 P.2d 743, in which we upheld the admissibility at a probation revocation hearing of hearsay evidence of a documentary nature. As we shall explain, the Maki decision does not support such a contention. Accordingly, we conclude the Court of Appeal correctly held that, in view of the absence of any showing of the declarant's unavailability or other good cause, the preliminary hearing transcript in question in the present case was admitted erroneously at defendant Alfonso Sergio Arreola's probation revocation hearing. Because we find this error nonprejudicial, however in light of defendant's post-revocation-hearing conviction based upon the same facts reflected in the preliminary hearing transcript, we reverse the judgment of the Court of Appeal, which reversed the trial court's order revoking probation.

I

On February 5, 1991, following his conviction of the offenses of driving with a blood-alcohol level of .08 percent or greater (Veh.Code, § 23152, subd. (b)), having suffered three prior convictions under Vehicle Code section 23152 within the preceding seven-year period, a felony (Veh.Code, § 23175), and driving with a suspended license (Veh.Code, § 14601.2 subd. (a)), a misdemeanor, defendant was placed on probation for a period of three years on conditions that included his serving one year in county jail, participating in a residential alcohol treatment program, and refraining from driving without a valid license or insurance, in addition to the implicit condition that he not violate the law. (See People v. Breaux (1980) 101 Cal.App.3d 468, 471, 161 Cal.Rptr. 653; People v. Cortez (1962) 199 Cal.App.2d 839, 844, 19 Cal.Rptr. 50; 3 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Punishment for Crime, § 1680, p. 1993.)

At approximately 1:13 a.m. on October 7, 1991, during the period of defendant's probation, Santa Clara County Deputy Sheriff Gary Peterson, while in a patrol car, observed defendant drive erratically and fail to obey a stop sign. After Deputy Peterson activated his lights and siren, defendant accelerated his vehicle, then stopped, jumped out, and fled on foot. When defendant was apprehended at approximately 2:20 a.m., Deputy Peterson detected signs of alcohol intoxication. Defendant was transported to a medical center by another sheriff's deputy, and a test performed on blood drawn from defendant at 3:16 a.m. indicated a blood-alcohol level of .23 percent. ¹

The following day, in the Municipal Court of Santa Clara County Judicial District, defendant was charged by complaint with driving under the influence of alcohol and with a blood-alcohol level of .08 percent or greater (Veh.Code, § 23152, subds. (a) and (b)), having suffered four prior convictions under Vehicle Code section 23152 within the preceding seven-year period, a felony (Veh.Code, § 23175). Defendant also was charged with the misdemeanor offenses of reckless driving while evading an officer (Veh.Code, § 2800.2), operating a vehicle while defendant's license was suspended for driving under the influence of alcohol (Veh.Code, § 14601.2, subd. (a)), and resisting an officer (Pen.Code, § 148).

As notification to defendant that the prosecution would offer, as substantive evidence at defendant's probation revocation proceedings, a transcript of the preliminary hearing on the newly pending charges, the complaint stated: "If the above-named defendant(s) is/are presently on probation in Santa Clara County, any evidence presented at a preliminary hearing in the instant case will be used not only as a basis for a holding in this case but also as a circumstance for a violation of probation and, at any formal hearing on that violation of probation, the People will move the transcript of the preliminary hearing into evidence as a basis for the violation."

On November 1, 1991, prior to the preliminary hearing on the new charges, defendant's probation officer informed him that he was in violation of his probation order (of February 5, 1991) on the basis, among others, of his arrest on the new charges, and that a probation violation hearing was scheduled for December 19, 1991.

On November 7, 1991, a preliminary hearing was held on the newly charged offenses, at which time defendant was represented by the public defender's office. Following the testimony of the sole witness, Deputy Peterson, the magistrate held defendant to answer and bound him over to the superior court on the new charges. ²

On December 19, 1991, defendant, represented by a deputy public defender, was arraigned on a petition to modify or revoke probation, but the probation revocation hearing was set for a later date.

On March 23, 1992, prior to the probation revocation hearing, defendant was tried on the new charges. At the conclusion of the trial, a jury returned a partial verdict, convicting defendant of the misdemeanor offenses of evading an officer and resisting an officer, and acquitting him of driving with a blood-alcohol level of .08 percent or greater. The jury was unable to return a verdict on the remaining charge of driving under the influence of alcohol, and the trial court declared a mistrial as to that charge. Defendant was sentenced to a one-year term in county jail for the offense of evading an officer, and a concurrent six-month term for the offense of resisting an officer.

On May 8, 1992, the probation revocation hearing was held before a judge other than the judge who had presided over the trial of the new charges. At the hearing, the court admitted into evidence a copy of the complaint that had charged commission of the October 7, 1991, offenses (together with the advisement that any evidence presented at the preliminary hearing also could be used as a basis for establishing a violation of probation, and that at a formal hearing on the probation violation, the prosecution would move for admission of a transcript of that hearing into evidence). Upon the prosecution's proffer into evidence of a copy of the transcript of the November 7, 1991, preliminary hearing, defendant's counsel objected, arguing: "We would object on the admission of this transcript. And the basis for our objection would be that it is hearsay. Furthermore that there's a lack[ ] of foundation. The lack of foundation would be that there is no showing of the declarant's unavailability. And there's no showing of any other good cause for the admission of this hearing."

The prosecutor responded "that in this particular preliminary hearing there was no 115 hearsay," ³ and that the only witness at the preliminary hearing (Deputy Peterson) "was cross-examined thoroughly by the Public Defender's office at that time." The prosecutor further argued that People v. Winson, supra, 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55, did not bar admission of the transcript because, unlike the defendant in Winson, defendant in the present case was given notice at the preliminary hearing that the transcript of those proceedings would be offered against him at the revocation hearing; accordingly, the prosecutor maintained that, under In re Law (1973) 10 Cal.3d 21, 109 Cal.Rptr. 573, 513 P.2d 621, the transcript was admissible. Without making any finding of "good cause" for dispensing with the requirement of live testimony, the court admitted the transcript into evidence.

At the conclusion of the hearing, the court determined that defendant had violated the terms of his probation, concluding he had committed a violation of Vehicle Code sections 23152, subdivisions (a) and (b) (driving under the influence of alcohol and with a blood-alcohol level of .08 percent or greater), 2800.2 (reckless driving while evading an officer), and 14601.2, subdivision (a) (...