P. v. Servin

Filed 9/29/06 P. v. Servin CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Francisco B. Servin, a Mexican citizen, pleaded no contest to assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The trial court placed him on probation. About two years later, the trial court revoked probation after finding that defendant violated the probation conditions that he not reenter the United States illegally if deported, and that if he did reenter the country he must immediately report to the probation department. Defendant contends there is insufficient evidence to support the findings of a probation violation. We agree and reverse because the findings are based on unreliable multiple hearsay.

I. FACTS

According to the probation report, the assault conviction is based on defendant’s striking a cab driver on the back of the head with a bottle. Defendant claimed he did not have the money to pay the driver the $200 fare from Santa Rosa to Fort Bragg. When they reached Fort Bragg and the cab began to slow, defendant struck the driver and ran away because he was frightened.

The Immigration and Naturalization Service (INS) had placed a hold on defendant by the time of his arraignment. The probation officer recommended probation, but wrote in her report “I am aware of the immigration hold on the defendant and understand it is likely that he is going to be deported. Still, if he is to somehow remain in this country or return legally at a later date, he is going to be expected to abide by the terms and conditions of probation.”

The trial court placed defendant on probation on February 18, 2003. The court included in the terms and conditions of probation term 44, “You shall not enter the United States illegally,” and term 45, “If deported, [the other terms of probation] are suspended during [the] period of deportation. If probationer re-enters USA, he shall contact the Mendocino County Probation Office immediately.”

On January 21, 2005, the probation department filed a petition alleging that defendant had violated his probation. The petition alleged that defendant had violated terms 44 and 45, as well as term 4 (obey all laws), as follows: “On January 17, 2005, the defendant was arrested by the Buena Park Police in Orange County for an alledged [sic] violation of Section 496(a) of the Penal Code, possession of stolen property. The defendant re-entered the United States illegally and also failed to report to probation.”

The trial court held a revocation hearing on the alleged probation violation on April 26, 2005. The sole witness for the People was deputy probation officer Richard Stenback.

Stenback’s testimony was brief, barely five pages of reporter’s transcript. He began by describing his duties: “I supervise people. I write court reports. I fill in for court officers that can’t be present.” He did not monitor probationers: “Right now I’m assigned to the court unit, so I don’t have a caseload.”

Stenback was familiar with the terms of defendant’s probation. The prosecutor asked Stenback about terms 44 and 45. We quote virtually all of Stenback’s remaining testimony:[1]

“Q. [BY THE PROSECUTOR]: Do you know if the defendant was deported?

“[DEFENSE COUNSEL]: Objection. Calls for hearsay.

“[THE PROSECUTOR]: I asked him if he knew.

“[STENBACK]: According to the reports in the file, the defendant--we were aware of the defendant being deported on March 18, 2003.

“[DEFENSE COUNSEL]: Objection. Hearsay.

“THE COURT: That’s overruled.

“Q. [BY THE PROSECUTOR]: Were there any terms of probation if the defendant returned to the United States?

“A. [STENBACK]: If the defendant returned, he was to contact probation upon entry--his legal entry into the United States.

“Q. [THE PROSECUTOR]: Do you know if the defendant entered the United States?

“[DEFENSE COUNSEL]: Objection. Calls for hearsay.

“THE COURT: Overruled.

“[STENBACK]: We were made aware that he returned to the United States from a police report submitted to us from [the] Buena Park Police Department.

“Q. [BY THE PROSECUTOR]: Did the defendant contact your office to inform you he had returned to the United States?

“A. [STENBACK]: Not that I’m aware of, and there’s no indication in the file.

“Q. [THE PROSECUTOR]: . . . What was the report you received regarding the defendant?

“A. [STENBACK]: We received a report that the defendant had committed a new law violation.

“[DEFENSE COUNSEL]: Objection. Hearsay. Move to strike.

“THE COURT: Objection overruled.

“Q. [BY THE PROSECUTOR]: What was the basis of that violation, if you’re aware of it?

“[DEFENSE COUNSEL]: Objection. Calls for hearsay.

. . .

“THE COURT: Overruled.

“[STENBACK]: The report indicated that the defendant violated Section 496, possession of stolen property.

“Q. [BY THE PROSECUTOR]: When your office received this report, did you have any means of confirming whether the person . . . in the report was the same person we have here in Mendocino County?

“A. [STENBACK]: The defendant--or what--

“What we did was we contacted the . . . police department, and according to their report, the defendant stated that he was on probation out of our county.

“[DEFENSE COUNSEL]: Objection. Move to strike, your Honor. We don’t know who did what. And we know it sounds like probably quadruple hearsay, but it’s hearsay.

. . .

“THE COURT: It’s triple hearsay, not quadruple.

“[DEFENSE COUNSEL]: Well, we--we don’t know how many we’s were down in Buena Park, so I think it could be multiple, multiple hearsay. It’s hearsay, nonetheless. We should move to strike that.

“THE COURT: Okay. Denied.

. . .

“Q. [BY THE PROSECUTOR]: You were able to determine from the police department from Buena Park that it was, in fact, the same defendant that we have here in Mendocino County on probation?

“A. [STENBACK]: Yes.

“[DEFENSE COUNSEL]: Objection. Calls for hearsay.

“THE COURT: The objection is overruled.

. . .

“Q. [BY THE PROSECUTOR]: Are you familiar personally with this defendant?

“A. [STENBACK]: No, I’m not.

“Q. [THE PROSECUTOR]: But you are familiar with his files and . . . with his probation status?

“A. [STENBACK]: Correct.

“Q. [THE PROSECUTOR]: And as of this date, has the defendant ever contacted the probation department?

“A. [STENBACK]: There’s no indication in the file, and I’m not aware of any contact.

“Q. [THE PROSECUTOR]: Would it be [the] practice if the probation department has contact with the defendant that that would be in the file?

“A. [STENBACK]: Yes, it would.”

At this point Stenback concluded his testimony. Defendant did not cross-examine and did not present any evidence. The People did not offer to the court documents from the probation file to which Stenback referred or the Buena Park police report so that it could determine their reliability. Indeed, no documentary evidence was submitted to the court.

Defense counsel argued that there was no admissible evidence that defendant violated his probation. Counsel pointed out that Stenback’s testimony about the contents of the file and of the police report was hearsay, and that statements in the police report were themselves hearsay. Counsel argued there was no admissible evidence that defendant was the person arrested by the Buena Park police.[2] Counsel also argued there was no admissible evidence that defendant had been deported or when he reentered the United States, triggering his obligation to report to probation.

The prosecutor replied that “probation indicated from its own files that the defendant was, in fact, deported and he is now back in the United States. They have nothing in their files to indicate that he entered back legally. They’ve also not had any contact with the defendant since he was deported back in ‘03.” The prosecutor also argued that the Buena Park police report included a statement by defendant “that he came into the country illegally.”

And in an apparent change of position, the prosecutor argued that if defendant had not been deported, “if he has been here the whole time, that clearly violates a term of his probation to stay in touch with probation . . . .” But the general term of reporting to probation, term 1, was not alleged in the probation violation petition.

The prosecutor also argued that “it is the People’s contention that [defendant] was deported and he did enter illegally. Either way, though, if he remained in the United States for the last two years, he has failed to maintain any contact with probation. And even if he did return to the United States, he failed to contact probation as indicated in their file.” The prosecutor argued that defendant’s physical presence in court, coupled with a failure to maintain contact with the probation department, was sufficient to show a probation violation.

The trial court found that defendant had violated his probation: “I find . . . that he failed to report to the probation office when he returned to the country. There is the evidence submitted by the probation officer that’s sufficient to prove that. And [defendant] is, in fact, here today, so. And so we will find him in violation.”

At the sentencing hearing on May 24, 2005, defense counsel moved to set aside the probation violation as based solely on inadmissible hearsay. The court denied the motion. But the court seemed to believe that defendant had not been deported and had simply failed to report for two years, from February 2003 to early 2005. Then the court referred to the supplemental probation report, filed May 25, 2005--after the revocation hearing--which indicated that defendant had been deported and had reentered the country illegally. But the court, having already found a probation violation on April 26, considered the information in the supplemental report solely for the purpose of determining the length of sentence.

The court sentenced defendant to the middle term of three years for the assault with a deadly weapon.

II. DISCUSSION

Defendant contends his due process rights were violated by the use of inadmissible multiple hearsay at the revocation hearing, and that there is insufficient admissible evidence to support the finding of a probation violation. We agree and reverse because the trial court relied on multiple hearsay testimony ultimately based largely on unidentified documents.

We first point out several factual inaccuracies in the Attorney General’s brief.[3] First, the Attorney General claims that several documents were admitted into evidence by the trial court. They were not. The only evidence at the revocation hearing was the testimony of Stenback. The documents to which he referred, including the Buena Park police report and defendant’s probation file, were not admitted into evidence--contrary to the repeated assertions in the respondent’s brief.

Second, the Attorney General also claims the trial court relied on the CLETS rap sheet. But that also was not considered by the court. As we noted above (fn. 2, ante), the trial court did not take judicial notice of the CLETS rap sheet.

Third, the Attorney General cites a passage of Stenback’s testimony for the claim that defendant’s file contains an INS report. Stenback did not mention any INS report in his testimony. Rather, he testified, as quoted above, that “According to the reports in the file, the defendant--we were aware of the defendant being deported on March 18, 2003.” (Italics added.)

Fourth, the Attorney General claims the trial court relied on the May 25, 2005 supplemental probation report, which indicated defendant was deported and reentered the country illegally, at the April 26, 2005 revocation hearing. This is a factual impossibility because the May 25 report did not exist on April 26. It was typed May 5, distributed May 6, signed May 17, and filed with the court May 25.

We now turn to the merits. The minimum requirements of procedural due process at probation and parole revocation hearings are well known. They include written notice of the claimed violations, disclosure of adverse evidence, the opportunity to be heard and to present evidence, the right to confront and cross-examine witnesses unless there is good cause for denying confrontation, a neutral and detached hearing body, and a written statement of reasons for revocation. (Morrissey v. Brewer (1972) 408 U.S. 471, 489 (Morrissey); see Gagnon v. Scarpelli (1973) 411 U.S. 778, 782; People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153 (Arreola); People v. Vickers (1972) 8 Cal.3d 451, 457-458.)

Because revocation hearings are less formal than trials, the use of documentary evidence may be less constrained. At a revocation hearing, “the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” (Morrissey, supra, 408 U.S. at p. 489.)

Indeed, the use of hearsay evidence, including documents, is not per se unconstitutional--otherwise inadmissible hearsay may be considered “when accompanied by reasonable indicia of reliability.” (People v. Maki (1985) 39 Cal.3d 707, 715 (Maki); see In re Kentron D. (2002) 101 Cal.App.4th 1381, 1388 (Kentron D.).) So long as these indicia are present due process is satisfied. (Maki, supra, at pp. 714-717.)

However, there are no such indicia of reliability in this case. Stenback, a supervisor with no personal knowledge of defendant’s case, testified about the contents of documents in the probation file--documents he did not always clearly identify. Some of those documents, such as the police report, contained out-of-court statements. As the trial court itself pointed out, this is at least triple hearsay. The police report was generally mentioned but was never considered for any indicia of reliability.

The essence of the finding of the probation violation was that defendant was deported and reentered the country illegally, and without immediately reporting to probation. But the only evidence at the revocation hearing that defendant had been deported was Stenback’s testimony about unidentified “reports in the file.” Reports authored by whom? An INS agent? Another probation officer? Or was the “report” simply a notation on a chronology or case history? The trial court and this court have no way of knowing.

Likewise, the only testimony at the hearing about a violation of law was Stenback’s testimony about an unseen police report. And the only testimony about defendant’s alleged failure to report upon reentry was essentially the absence of any indication in the probation file that he did report. Defendant’s physical presence at the revocation hearing did establish he had reentered the country, but did not establish he had reentered illegally or had failed to report.

The People below simply failed to sustain its burden of producing evidence to establish the necessary foundation for considering the hearsay evidence. (See Kentron D., supra, 101 Cal.App.4th at p. 1393.)

This might be a different case if the documents in the probation file were offered so they could be examined by the court and by defendant.[4] But these documents do not appear to be mere records; they apparently contain testimonial information from live witnesses. Thus, there is also the broader question of defendant’s right to confront and cross-examine the witnesses against him. The absence in the record of any documents makes these witnesses phantoms. Who can testify from personal knowledge that defendant was deported and reentered the country illegally? Who determined and can testify from personal knowledge that defendant failed to report upon reentry? Who determined that defendant had committed a law violation in Buena Park?

The use of hearsay must be viewed against the backdrop of the right of a defendant facing probation revocation to confront the witnesses against him. (See Arreola, supra, 7 Cal.4th at pp. 1152-1159; Kentron D., supra, 101 Cal.App.4th at pp. 1387-1394.) As in Kentron D., there was no showing of the unavailability of the witnesses against defendant, which might have justified proceeding on documents alone. (Arreola, supra, at pp. 1158-1160; Kentron D., supra, at pp. 1392-1394.)

Stenback’s unreliable multiple hearsay testimony not only violated defendant’s procedural due process rights, but is insufficient evidence that defendant committed the charged violation of probation.

III. DISPOSITION

The order revoking probation and the subsequent state prison sentence are reversed, and this matter is remanded to the trial court for further proceedings.

______________________

Marchiano, P.J.

We concur:

______________________

Swager, J.

______________________

Margulies, J.

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Analysis and review provided by Oceanside Property line Lawyers.

[1] We omit very brief inconsequential passages and indicate their absence by ellipses.

[2] The prosecutor asked the trial court to take judicial notice of defendant’s CLETS rap sheet, which purportedly showed a conviction for receiving stolen property. The court noted the rap sheet “should have been put in evidence,” and did not explicitly take judicial notice of it.

[3] Respondent’s Brief pages 6, 7, and 8.

[4] The record does not indicate that the court considered any documents.