P. v. Rowell
Filed 7/23/07 P. v. Rowell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(San Joaquin)
----
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND ANTHONY ROWELL, Defendant and Appellant. | C054272 (Super. Ct. No. LF007539A) |
At a probation revocation hearing the trial court found that defendant Raymond Anthony Rowell violated the terms of his probation by failing to notify his probation officer of his change of address. As a consequence, the court revoked defendants probation and imposed a two-year prison sentence.
Defendant appeals the revocation of his probation contending, inter alia, that the court should not have considered several hearsay statements contained in the Probation Officers Report Violation Of Probation And/Or Informational (the violation of probation report) because these statements took the place of live testimony. Defendant contends that by replacing live testimony with these hearsay statements, the court violated his Fourteenth Amendment right to due process because he did not have the opportunity to confront and cross-examine adverse witnesses. Because we agree that the trial court erred by allowing several statements in the violation of probation report to take the place of live testimony, we reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2004, defendant was charged with one count of violating Penal Code section 290, subdivision (g)(2), failure to register as a sex offender. Defendant pled guilty to the charge and was placed on five years probation.
On May 4, 2006, the probation department filed a petition for revocation of probation, alleging that defendant violated the terms of his probation by, inter alia, failing to register his current address with his probation officer.[1]
In a probation revocation hearing on September 26, 2006, the only evidence submitted by the People was the violation of probation report. The document enumerated all of defendants alleged violations and then identified its factual basis for the allegations under the heading Explanation, as follows:
On 04/19/06, a residence check was conducted at the defendants listed address, 921.5 Wellswood Avenue, Lodi, CA 95240, as required by Probation. A female at the residence stated the defendant did not live there and believed the defendant was in custody. A CJIS check for the San Joaquin County Jail revealed the defendant was last released from custody on 03/12/06. The defendant did not make an address change in person as required by Probation. The defendant did last report to Probation, via Offenderlink, on 04/12/06, and left a phone message that he had moved to 2340 Sanguinetti Lane. The defendant did not leave a city name. A map check of Lodi revealed no Sanguinetti Lane, although a map check of Stockton did. On this date, 05/02/06, this officer conducted an address check at 2340 Sanguinetti Lane, Stockton, CA 95205, which was the Sahara Mobile Home Park. The manager, Catherine Fiddler, confirmed there was no Raymond Rowell registered there.
The prosecution contended that while the probation document contained hearsay, it is reliable hearsay, and asserted that the court [t]raditionally . . . relies on [such reports] in carrying out its judicial functions.
Defense counsel objected to the documents admissibility on the grounds that: 1) it was based mainly on unreliable hearsay; and 2) by admitting the hearsay statements in place of live testimony, the court denied his client the right to confront and cross-examine the witnesses whose testimony was included in the report.
The court admitted the report into evidence, holding that there was nothing that made it sufficiently unreliable to exclude it. The court also accepted into evidence (at defendants request) a letter dated August 3, 2006, from the San Joaquin County Department of Probation ordering defendant to report to probation.
After reviewing the violation of probation report, the court found defendant had indeed violated the terms of his probation and subsequently revoked his probation.
DISCUSSION
I
The Trial Court Violated Defendants
Right To Confront And Cross-Examine
Adverse Witnesses By Allowing Witness
Statements In The Violation Of Probation
Report To Replace Live Testimony
Defendant contends the trial court violated his right to confront and cross-examine witnesses by allowing unreliable hearsay to replace live testimony at his probation revocation hearing. We conclude defendants arguments are meritorious.
Probation hearings are fundamentally different than other criminal proceedings. At a probation revocation hearing the court will consider hearsay testimony [a]s long as [it] bears a substantial degree of trustworthiness. [Citations.] In general, the court will find hearsay evidence trustworthy when there are sufficient indicia of reliability . . . . [Citation.] Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (People v. Brown (1989) 215 Cal.App.3d 452, 454-455.)
Despite these relaxed evidentiary rules, a defendant at a probation revocation hearing still retains certain fundamental due process rights: specifically, the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). (Morrissey v. Brewer (1972) 408 U.S. 471, 489 [33 L.Ed.2d 484, 499].)
This was the central issue in People v. Arreola (1994) 7 Cal.4th 1144. In Arreola the defendant objected to the use of a transcript of a police officers testimony from the defendants preliminary hearing as a substitute for the officers live testimony at the defendants probation revocation hearing. The defendant asserted hearsay and lack of foundation objections because there had been no showing of the officers unavailability or other good cause. The trial court admitted the transcript without finding good cause. (Id. at p. 1151.) On review, the Supreme Court concluded the arresting officers testimony, which became the basis for revocation of probation, was inadmissible at the probation revocation hearing absent a showing of good cause or witness unavailability. (Id. at pp. 1159-1161.)
The court in Arreola distinguished People v. Maki (1985) 39 Cal.3d 707 based on the nature of the testimony being substituted. (People v. Arreola, supra, 7 Cal.4th at pp. 1155-1157.) In Maki the court asserted that the right of confrontation is not absolute and where appropriate, witnesses may give evidence by document, affidavit or deposition [Citations]. (Maki, at p. 710.) The Maki court concluded that an out-of-state car rental invoice with the defendants signature was sufficiently trustworthy as evidence that the defendant had left the state. (Id. at p. 717.) Distinguishing Maki, the Arreola court held that [t]here is an evident distinction between a transcript of former live testimony and the type of traditional documentary evidence involved in Maki that does not have, as its source, live testimony. (People v. Arreola, supra, 7 Cal.4th at p. 1157, italics added.)
The preliminary hearing testimony submitted in Arreola is similar to the violation of probation report submitted here because, like the preliminary hearing transcript in Arreola, the violation of probation report has, as its source, live testimony. According to the report, during the first residence check of 921.5 Wellswood Avenue on April 19, 2006, a probation officer spoke to a female at the residence who stated that the defendant did not live there and believed [he] was in custody. During the second residence check of 2340 Sanguinetti Lane on May 2, 2006, Probation Officer Richard Benitez allegedly spoke with Catherine Fiddler, the Sahara Mobile Home Park manager, who stated that there was no Raymond Rowell registered [at the mobile home park]. These statements became the entire factual basis for the allegations in the violation of probation report. Consequently, we conclude, and the People ultimately concede, that the violation of probation report had as its source live testimony.
Because the record clearly indicates that the trial court made no finding of good cause or witness unavailability, we conclude the court violated defendants right to confront and cross-examine adverse witnesses by relying on the hearsay statements contained in the violation of probation report.
II
The Courts Decision To Substitute
The Probation Report For Live Testimony
Was Not Harmless Beyond A Reasonable Doubt
The trial courts decision to substitute a document in the place of live testimony was not harmless beyond a reasonable doubt. In Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710], the court held that a constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. Specifically, the burden of proof falls to the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Ibid.)
Here, the People were the beneficiary of the courts error, and thus the burden is on the People to show that the courts error in admitting the hearsay statements in violation of the probation report was not harmful beyond a reasonable doubt. The People have not met their burden.
In their respondents brief, the People assert that the trial courts error in admitting the hearsay statements in place of live testimony was harmless because the [violation of probation report] also contained the last known address of the [defendant]. The People then state that the letter submitted by the defense [from the probation department] itself clearly indicated that the probation department had not been notified by [defendant] of his then current address. We fail to see the reasoning in this argument, especially since defendant received the letter and submitted it as evidence at the hearing.
The critical issue here was whether defendant was living at the address he last provided to the probation department (whatever that address was). The only evidence, however, that defendant was not doing so were the two statements made by the witnesses who spoke to the probation officer. Accordingly, the courts error in admitting those statements was not harmless beyond a reasonable doubt.
DISPOSITION
The judgment is reversed.
ROBIE , J.
We concur:
NICHOLSON , Acting P.J.
BUTZ , J.
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[1] The violation of probation report also alleged that defendant owed fees in the amount of $847.60 and failed to comply with other reasonable orders of his probation officer. The trial court did not rely on these allegations in revoking defendants probation, and we cannot determine whether the court would have done so. Accordingly, we cannot affirm the judgment on that basis, and indeed the People do not ask us to.
