P. v. Meskan

Filed 7/30/07 P. v. Meskan CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Justin Meskan appeals from judgment revoking his probation and sentencing him to two years in prison. He contends that the trial court violated his constitutional rights at the contested revocation hearing by admitting hearsay evidence regarding an alleged assault. We conclude that any error in this regard was harmless beyond a reasonable doubt because the judgment is independently supported by evidence that defendant violated his probation by failing to report to his probation officer. Accordingly, we affirm.

Factual and Procedural History

On February 15, 2005, defendant was placed on three years probation after pleading guilty to one count of receiving stolen property (Pen. Code,  496, subd. (a).) On May 4, 2006, a motion to revoke defendants probation was filed and defendants probation was summarily revoked. A contested probation revocation hearing was commenced on May 16, 2006.

At the revocation hearing, defendants probation officer, Clinton Gee, testified that he was first assigned to supervise defendant in October 2003 following a separate felony conviction. This initial grant of probation was terminated unsuccessfully and reinstated in February 2005 following his conviction for receiving stolen property. At that time, Gee sent letters to defendant both at his address of record and also at the county jail advising him to report to the probation department, but defendant did not respond. None of the letters was returned as undeliverable. Defendant finally contacted Gee in April in response to a letter notifying him of the probation revocation hearing.

Officer Timothy OConnor testified at the hearing about a domestic violence incident allegedly involving defendant and his ex-girlfriend. Defendants attorney objected to the hearsay testimony but the court overruled the objections and allowed OConnor to testify that the victim had identified defendant as the man who had beaten her.

Defendant testified that he did not assault his ex-girlfriend and that he was home most of the night in question with his new girlfriend. He also testified that he had tried to maintain contact with Gee and the probation department. He explained, In the last two or three years, I have left a ton of [telephone messages]. When he was in jail on his first conviction, he claimed that he left a message for Gee every single day for six months before I got a hold of him. None of his messages was returned, however, and when he finally made contact with Gee, Gee did not know who he was. After being granted probation the second time, he called the office a couple of times and [he] got his message machine. Defendant claimed that Gee was not answering his phone calls and that when he finally made contact with Gee after receiving notification of the revocation hearing, Gee again did not know who he was.

At the conclusion of defendants testimony, the trial court asked defendant a number of questions concerning his understanding of his obligation to report to his probation officer and his attempts to comply with that requirement. The court asked defendant whether he understood that he had to report to probation and defendant answered, I believe[d] from the previous time being on probation with him . . . that it was do not get arrested again, do not convicted of any more charges . . . . I believed my name being sent to his office and me showing up in his office would have been a bad thing. [] . . . [] Him seeing my name would have meant I was doing something wrong. Defendant claimed that he was never advised that he had to report to his probation officer.

The trial court found by a preponderance of the evidence that defendant had violated probation. The court finds that defendant has absconded from probation and has deliberately and flagrantly violated the terms and conditions of probation in absenting himself from the probation department, in not providing information about his whereabouts, phone number or any other information. Relying on defendants statement in the current presentence report that he was willing to cooperate with the probation department in carrying out the orders of the court, the judge concluded that defendant was aware he failed to comply with the conditions of probation previously, and implicit in that is knowledge that he must comply with the conditions of probation which do include reporting to the probation officer. The court briefly mentioned the evidence of the alleged assault, and then explained, Given the evidence that the court has before it, the court did admit the statement made to Officer OConnor. However, I would also note that were the grounds for [revoking] probation solely that, the calculus might have tipped slightly in the other direction. However, the combination of the assault, the same of which the court gives some weight to but it is certainly not the linchpin, and the failure of the defendant to comply with the reporting requirements, the failure of him to provide any information to probation about his address at any time, his phone number at anytime, even while admitting that he has established his residence on Jackson Street, to me is an absolute clear violation of probation and a flagrant, flagrant violation of probation.

On June 19, defendant moved to reopen the hearing to allow the production of newly discovered evidence from the alleged victim of the assault and defendants new girlfriend. Defendants motion was supported by the declaration of his attorney in which he states that he had interviewed the alleged assault victim and [s]he has informed me that the incident she reported to the police . . . did not occur and that Justin Meskan did not assault her . . . . The trial court granted the motion and the hearing was reopened on August 7. However, the alleged victim did not appear despite having been admonished by the court to appear and the issuance of a body attachment. Defendants new girlfriend testified that she had been with defendant at his apartment at the time of the alleged assault.

At the conclusion of the hearing, the trial court reiterated its ruling that defendant was in violation of probation. The court explained, [W]ith regard to the courts earlier statements of reason for finding a violation, . . . the landscape has changed to some extent. What has not changed, however, which is a shorter matter, is that one of the grounds for the violation of probation is desertion. . . . [] . . . [] . . . At no time did Mr. Meskan notify probation of his whereabouts, provide a valid address or phone number. He failed to report to Mr. Gee until the last letter to the Jackson Street address.

Thereafter, the trial court revoked defendants probation and sentenced him to the midterm of two years upon his conviction for receiving stolen property. Prior to revoking probation, the court explained that defendant has basically as far as the testimony and evidence shown been totally unamenable to probation supervision since 2003. And although he may be someone with a great deal of potential, if hes not going to obey the supervision and be willing to be supervised by probation, which he hasnt been, then this court has no basis basically to find him to be amenable. Certainly its not an easy decision for the court to make because Mr. Meskan is youthful, but hes had two shots already. At simply reporting, calling in, he has failed to do any of that. Defendant filed a timely notice of appeal.

Discussion

The sole argument raised by defendant on appeal is that the court violated his constitutional rights in admitting his ex-girlfriends hearsay statement about the alleged assault. We need not reach this contention, however, in light of the unchallenged evidence in support of the courts alternative and independent ground for revoking defendants probationdefendants failure to report to his probation officer. (See People v. Arreola (1994) 7 Cal.4th 1144, 1161 [a reviewing court will not disturb a judgment due to constitutional error if the error was harmless beyond a reasonable doubt].) In this case, there is no doubt that defendants failure to report to his probation officer provided a sufficient basis on which to revoke defendants probation. As quoted above, the trial judge made clear at the conclusion of both contested hearings that defendants flagrant failure to report to his probation officer was the primary basis for her decision and that this ground independently justified revoking his probation.

Disposition

The order revoking defendants probation is affirmed.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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