People v. Maki

• Decision Date: 03 September 1985
• Citation: 217 Cal.Rptr. 676,704 P.2d 743,39 Cal.3d 707
• Court: California Supreme Court
• Parties: , 704 P.2d 743 The PEOPLE, Plaintiff and Respondent, v. Donald L. MAKI, Defendant and Appellant. Crim. 23902.

Page 676

217 Cal.Rptr. 676

39 Cal.3d 707, 704 P.2d 743

The PEOPLE, Plaintiff and Respondent, v. Donald L. MAKI, Defendant and Appellant.

Crim. 23902.

Supreme Court of California In Bank.

Sept. 3, 1985.

[704 P.2d 744] [39 Cal.3d 708] Robert A. Karpuk, Santa Monica, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., A. Wells Petersen, John W. Carney, Keith I. Motley and Frederick R. Millar, Jr., Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Justice.

We granted hearing in this case to clarify the standards for admitting documentary evidence at probation and parole revocation hearings. We will conclude that documentary hearsay evidence which does not fall within an exception to the hearsay rule may be admitted if there are sufficient indicia of reliability regarding the proffered material, and will affirm the trial court judgment revoking probation.

In 1981, following a negotiated plea to two counts of fraudulently issuing checks with insufficient funds (Pen.Code, § 476(a), the court placed defendant Donald L. Maki on probation for three years. Among the terms and conditions of his probation was the standard requirement that defendant obtain written permission from his probation officer before leaving the County of San Diego or the State of California. Two years later, probation revocation proceedings were initiated based on four alleged violations of probation by defendant. The court rejected three of the alleged violations, but found that defendant had violated probation by traveling to Chicago, Illinois without his probation officer's written consent.

During the hearing the court, over defendant's objections, admitted into evidence copies ¹ of a car rental invoice and a hotel receipt which had been seized from defendant's home during his arrest on unrelated charges. The car rental invoice bore defendant's name in three places and indicated rental of a Hertz car at Chicago's O'Hare Airport on January 27, 1983, with return due two days later. The hotel receipt was dated January 28, 1983, and indicated payment for services at the Hyatt Regency O'Hare in Chicago. This latter document was unsigned but had upon it the name "Maki." The court admitted into evidence two probation reports signed by defendant and presented by Pisor. Both Pisor and the judge compared the signatures on the reports and two signatures on the invoice and concluded that they were made by the same person. (See Evid.Code, §§ 1416 and 1417; all subsequent references are to this code unless otherwise indicated.)

Based on the two documents obtained during the arrest, and Pisor's testimony and his statement that he had not granted defendant permission for a trip to Chicago, the court found defendant to have violated the requirement that he obtain consent to leave the area, revoked probation, and sentenced defendant to two years on each count, to be served concurrently. ² Defendant appeals, arguing that the trial court improperly revoked his probation based upon inadmissible and unreliable hearsay.

DISCUSSION

I. Exceptions To The Hearsay Rule

Hearing in this case was granted to consider the application of People v. Winson (1981) 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55, to a case in which the evidence relied upon was documentary. In Winson, we held that a transcript of preliminary hearing testimony is "not a proper substitute for the live testimony of the witness at defendant's probation revocation hearing in the absence of the declarant's unavailability or other good cause." (Id., at pp. 713-714, 175 Cal.Rptr. 621, 631 P.2d 55.) We emphasized, however, that the right of confrontation upon which we rested our holding was not absolute and where " 'appropriate,' witnesses may give evidence by document, affidavit or deposition (Gagnon [v. Scarpelli (1973) 411 U.S. 778,] 782, fn. 5 [93 S.Ct. 1756, 1759, fn. 5, 36 L.Ed.2d 656]; Morrissey [v. Brewer (1972) 408 U.S. 471,] 478 [92 S.Ct. 2593, 2598, 33 L.Ed.2d 484] [the parolee 'may bring letters, documents, or individuals who can give relevant information to the hearing officer']; In re Bye [(1974) 12 Cal.3d 96,] 110, fn. 15 [115 Cal.Rptr. 382, 524 P.2d 854] )." (Id., at p. 719, 175 Cal.Rptr. 621, 631 P.2d 55.)

Before reaching the issue of the application of Winson to this case, we first consider whether the evidence here admitted was in fact properly considered under pertinent exceptions to the hearsay rule. If it was, then there is no need to inquire as to whether and what flexible standards may be applied to the use of otherwise inadmissible documentary evidence in revocation proceedings.

Defense counsel objected to the introduction of the invoice and receipt on the grounds that it had not been shown that they were in fact from Chicago, or that the invoice had been signed by defendant outside of San Diego. Counsel also stressed that it had not been established where the police had actually seized the documents. He disputed the court's conclusion that they had been found on defendant's person or in his possession which the court based on their listing on defendant's property slip when he was arrested. The court overruled the objection and stated it could reasonably draw the conclusion from the documents that a violation had occurred. If the documents were admissible this inference was reasonable and, since revocation of probation requires a finding based on preponderance of the evidence, the court's ruling should be affirmed.

There are, however, significant questions regarding the admissibility of the documents under usual exceptions to the rule against hearsay. The people made no attempt to admit them as business records. Section 1271 provides that a writing is not made inadmissible by the hearsay rule, and may be used to prove an act, condition or event if "(a) The writing was made in the regular course of a business; [p] (b) The writing was made at or near the time of the act, condition, or event; [p] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [p] (d) The sources of information and the method and time of preparation were such as to indicate its trustworthiness." There was no evidence presented to meet the cited criteria and the documents therefore do not qualify as admissible business records.

In urging affirmance of the trial court's ruling, the prosecution contends that the records, particularly the invoice, were properly admitted as "adoptive admissions." Section 1221 states that "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." Here, the court after comparison concluded, as it was entitled to do pursuant to section 1417, that the signature on the invoice was by the defendant. The prosecution asserts that the exception for adoptive admissions therefore applies because the signature on the invoice sufficiently served to authenticate and "adopt" the contents of the document.

The objections raised here put into question whether the documents were what they purported to be. (See Interinsurance Exchange v. Velji (1975) 44 Cal.App.3d 310, 318, 118 Cal.Rptr. 596.) The mere fact of defendant's signature on the invoice did not constitute authentication because there was no testimony regarding the preparation of the document, or its purpose. The signature alone demonstrated nothing about the authenticity of the contents.

It is true that under some circumstances the invoice may have been admissible. In Pacific Gas & E. Co. v. G.W. Thomas Drayage Etc. Co. (1968) 69 Cal.2d 33, 42-43, 69 Cal.Rptr. 561, 442 P.2d 641, we explained that "Since invoices, bills, and receipts for repairs are hearsay, they are inadmissible independently to prove that liability for the repairs was incurred, that payment was made, or that the charges were reasonable. [Citations.] If, however, a party testifies that he incurred or discharged a liability for repairs, any of these documents may be admitted for the limited purpose of corroborating his testimony [citations]...." However, to prove "adoption" of a hearsay statement sufficient to make it admissible under section 1221, not merely as corroboration, it must be shown "that the party to an action against whom a declarant's hearsay statement is offered as an adoptive admission, (1) had knowledge of the contents of declarant's statement, and (2) having such knowledge, has, by words or other conduct, manifested his adoption or his belief in its truth." (1 Jefferson, Cal.Evidence Benchbook (2d ed. 1982) § 1.1, pp. 19-20, italics in original.) Defendant's signature thus would constitute an adoptive admission if it were shown that he had read over the document and signed it after doing so. (People v. Pic'l (1981) 114 Cal.App.3d 824, 859, 171 Cal.Rptr. 106; see Zenith Radio Corp. v. Matsushita Elec. Ind. Co. (E.D.Pa.1980) 505 F.Supp. 1190, 1245.) This prerequisite for introduction of such evidence may be provided by testimony of a person describing the circumstances surrounding the signing of the document. (See, e.g., United States v. Johnson (8th Cir.1976) 529 F.2d 581, 584-585; cf. Pacific Gas & E. Co. v. G.W. Thomas Drayage Etc. Co., supra, 69 Cal.2d at pp. 42-43, 69 Cal.Rptr. 561, 442 P.2d 641.)

In at least one instance, the Court of Appeal has approved admission of a car rental receipt found in a car driven by the defendant without discussing whether it amounted to an adoptive admission. The court held that "The rental receipt may not be deemed hearsay, for it was not offered or admitted to prove the truth of the matter stated thereon. (See Evid.Code, § 1200.) Instead it established that [the defendant] had in his possession a paper indicating that he had rented the automobile a day after the first of the charged...