P. v. Thompson
Filed 6/13/13 P. v. Thompson CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Siskiyou)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT WAYNE THOMPSON,
Defendant and Appellant.
C069375
(Super. Ct. No.
MCYKCRF10570)
Defendant
Robert Wayne Thompson appeals the judgment entered following the revocation of
his probation and the imposition of a previously suspended seven-year
sentence. Defendant contends the
introduction at the probation revocation hearing of Proposition 115 hearsay
testimony without a finding of good cause violated his
counsel performed ineffectively in failing to object to the evidence. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to
a negotiated disposition, defendant entered pleas of no contest to assault by
means of force likely to produce great bodily
Code, §§ 245, subd. (a)(1), 182, subd. (a)(1)),
and admitted a great bodily injury enhancement (§ 12022.7, subd. (a)).
remaining counts and sentenced defendant to seven years in prison, with
execution suspended. The court placed
defendant on five years’ probation.
Defendant’s probation required him to obey all laws and abstain from
alcohol.
Revocation of Probation
In March
2011 the district attorney filed a petition for revocation of probation. The petition alleged that in February 2011
defendant committed numerous crimes:
infliction of corporal injury on a cohabitant, infliction of great
bodily injury under circumstances involving domestic violence, assault with a
deadly weapon, and battery causing serious bodily injury. (§§ 273.5, subd. (a), 12022.7,
subd. (e), 245, subd. (a)(1), 243, subd. (d).)
The
petition also alleged defendant violated his probation in March 2011 by
violating a criminal protective order and dissuading a witness from making a
report to law enforcement. (§§ 166,
subd. (c)(1), 136.1, subd. (b)(1).)
The charges
that gave rise to the violation of probation also gave rise to new criminal
charges being filed. The court held a
combined preliminary hearing on the new felony charges and violation of
probation hearing. At the hearing, the
court took judicial notice of a criminal
protective order in the new case.
The order prohibited defendant from having any contact with Rebecca
Elliot. The court made no finding that
any witnesses were unavailable.
During the
hearing, the prosecution presented testimony by Officer Travis Cooke, who
stated he was qualified to provide Proposition 115 testimony at preliminary
hearings.
On February 6, 2011, Cooke was dispatched
to a residence following a report of a fight between defendant and Elliot. When he arrived, Cooke found Elliot upset and
crying on the front porch. Cooke saw
blood on Elliot’s face and noticed her nose appeared to be broken. The prosecution entered into evidence
photographs Cooke took of Elliot that morning.
Cooke confirmed the photographs accurately depicted Elliot’s injuries.
Cooke asked
Elliot about the incident. Elliot told
Cooke defendant slapped her in the face with his open hand. She fought back. Defendant began punching Elliot in the face,
“hitting me like a man.†When Elliot
tried to call 911, defendant’s mother, Linda Browning, took the phone away from
her.
Elliot told
Cooke that she and defendant had dated for about a year, and she often spent
the night with him.
Cooke spoke
with Browning. Browning, upset,
described how defendant hit Elliot in the face with closed fists. After Browning saw Elliot with a knife, she
grabbed Elliot’s arms and Elliot dropped the knife.
Cooke also
spoke with defendant at the scene. He
was unable to tell if defendant had been drinking. After defendant was transported to the police
station, he tested positive for alcohol.
Cooke
summoned medical assistance. Elliot was
transported to a local hospital. The
next day, when Cooke contacted hospital personnel, he was told Elliot had
suffered a broken nose. When Elliot
spoke with Cooke the following day, she told him she had a broken nose and a
concussion.
title="">[4] The prosecution introduced into
evidence recordings of calls and visits between Elliot and defendant while
defendant was in jail. Cooke identified
the voices on a March 7, 2011,
visit recording as those of Elliot and defendant and heard defendant tell
Elliot not to talk to the district attorney.
Defendant also told Elliot he would be charged with another crime for
contacting her. He told Elliot to have
the protective order “dropped.†Elliot
asked defendant for money and he told her he could have his daughter Kayla give
her some.
Cooke also
identified three telephone recordings made on March 8, 2011. In
each recording defendant told Elliot not to speak with the district
attorney. The pair also discussed how
defendant would get money to Elliot, and defendant told her he would get into
trouble for contacting her. In a March 9, 2011, telephone call,
defendant again told Elliot he would get her money.
Cooke
testified defendant had one visit and four telephone calls with Elliot. When Cooke spoke to Elliot just prior to the
hearing, she did not deny having contact with defendant after the issuance of
the criminal protective order.
Defendant
presented no evidence at the hearing.
The court found defendant in violation of his probation, sustaining the
violations of probation alleged in the petition and finding that the four
telephone contacts between defendant and Elliot constituted continuing
violations of defendant’s probation.
At
sentencing on the violation of probation, the court imposed the previously
suspended sentence of seven years in prison.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant’s
only argument on appeal concerns the court’s consideration of hearsay testimony
in revoking his probation. In response,
the People contend defendant has forfeited his objections because he failed to
make them during the hearing on his probation revocation. We will assume for purposes of argument that
defendant’s hearsay objection has not been forfeited but conclude, nonetheless,
that the contention fails on the merits.
Hearsay in
Probation Revocation Proceedings Generally
A trial
court may revoke probation in the interests of justice and if the court has
reason to believe that the defendant has violated any of the probation
conditions. (§ 1203.2, subd.
(a).) A probation violation must be
established by a preponderance of the evidence.
(People v. Rodriguez (1990) 51
Cal.3d 437, 441; People v. O’Connell
(2003) 107 Cal.App.4th 1062, 1066.)
The Sixth
Amendment to the United States Constitution does not apply to probation
revocation proceedings, since they are not criminal trials. (People
v. Johnson (2004) 121 Cal.App.4th 1409, 1411.) However, the right to confrontation at
probation revocation proceedings derives from the due process clause of the
Fourteenth Amendment to the federal Constitution. (Ibid.) Due process during a probation revocation
hearing requires that the defendant be given the right to confront and
cross-examine witnesses unless the court finds good cause for not allowing
confrontation. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 786 [36 L.Ed.2d 656].)
The rules
of evidence that pertain in criminal trials are relaxed in probation revocation
proceedings. “Under this approach,
hearsay evidence that is inadmissible to prove guilt in a criminal trial may be
admissible to prove an adult probation violation under certain
circumstances.†(In re Eddie M. (2003) 31 Cal.4th 480, 501.) The admissibility of hearsay evidence supporting
a petition to revoke probation presents a mixed question of law and fact, which
we review de novo. (People v. Cromer (2001) 24 Cal.4th 889, 894-904.)
The
Hearsay Objection
The hearsay
issues in the present case are created by the testimony of Officer Cooke. Cooke testified regarding his arrival at the
scene of a domestic disturbance, his observation of Elliot’s injuries, and her
shaken demeanor.
The
prosecution also introduced phone and jail visit records between defendant and
Elliot. These recordings revealed
defendant violated the court’s criminal protective order prohibiting contact
with Elliot. In the recordings,
defendant instructed Elliot not to cooperate with the district attorney. Defendant does not object to the
consideration of these records.
Defendant’s
hearsay objection is directed at statements made by Elliot, Browning, and
medical personnel, introduced through Cooke’s testimony, regarding the domestic
violence incident. However, Cooke
arrived on the scene shortly after the incident. Responding to a domestic violence call, he
observed Elliot’s demeanor and her injuries.
Regardless of Elliot’s statements as to how her injuries occurred,
Cooke’s testimony, as a percipient witness, of finding a crying, shaken woman
with an apparently broken nose was nonhearsay testimony establishing the
critical facts. Thus, even if the trial
court erred in entertaining the hearsay statements, the testimony derived from
Cooke’s personal knowledge rendered the error harmless beyond a reasonable doubt. (People
v. Arreola (1994) 7 Cal.4th 1144, 1161.)
Moreover,
the prosecution established defendant violated his probation via the jail
telephone and visit recordings, revealing he violated the criminal protective
order. Any conceivable error in admitting
the hearsay evidence was harmless.
Our
conclusion in this regard disposes of the People’s forfeiture claim and
defendant’s related claim of ineffective assistance of counsel, which requires
defendant to establish it is reasonably probable that a more favorable result
would have been reached absent counsel’s deficient performance. (Strickland
v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674].) Because we find the court’s admission of the
hearsay evidence harmless beyond a reasonable doubt, counsel did not perform
ineffectively in failing to object to the evidence.
DISPOSITION
The
judgment is affirmed.
RAYE , P. J.
We concur:
HULL , J.
MURRAY , J.
name="_ftn1" title="">[1]
Further unspecified statutory references are to the Penal Code.
name="_ftn2" title="">[2] Since the issues on appeal do not implicate
the facts underlying defendant’s offenses, we omit a factual summary of the
charges.
