P. v. Sievers

Filed 4/14/06 P. v. Sievers CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Linda McFadden, Judge.

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On April 16, 2003, appellant Daniel David Sievers, pled guilty to one count of possession of methamphetamine (Health & Saf. Code, § 11377). Sievers was granted probation pursuant to Proposition 36 on May 28, 2003. On February 25, 2004, and August 25, 2004, Sievers admitted he violated the terms of his probation. After a contested hearing on April 28, 2005, the trial court found Sievers violated the terms of his probation and terminated his Proposition 36 probation. The court reinstated probation, with the exception of Proposition 36 treatment, on the condition Sievers serve 180 days in jail.

On appeal, Sievers contends the trial court erred in relying on a treatment provider report which Sievers contends was based on inadmissible hearsay under the holding of Crawford v. Washington (2004) 541 U.S. 36.

PROBATION REVOCATION HEARING

Probation Officer Tyrone Thompson testified on behalf of the People. When Thompson was asked questions concerning the contents of Sievers's probation file, defense counsel lodged a Crawford objection to the admissibility of a report from a treatment provider.

The treatment provider report stated that Sievers missed six group sessions and had one positive test for amphetamine. On March 16, 2005, Sievers left without testing even though he was advised he had to take the test or it would be treated as a discharge. The report stated Sievers had a poor attitude, poor participation in group, and had difficulty staying awake during group sessions. Sievers had failed to attend any support groups while in treatment.

The treatment provider was required to submit progress reports to the probation department regarding Sievers's compliance with the program. Treatment reports are prepared to confirm a participant is enrolled in treatment and for court appearances. The probation department keeps the reports in each participant's file. The court overruled objections to the admissibility of the report and received it into evidence.

The treatment report was signed by Elaine Parkay. Officer Thompson did not speak with Parkay and did not interview Sievers about the violation. Thompson did not test Sievers for amphetamines. Defense counsel moved to dismiss the alleged probation violation for lack of evidence. The court implicitly denied the motion and found Sievers in violation of probation for being absent from the treatment program and failing to take advantage of it.

DISCUSSION

Appellant contends the holding of the Crawford case makes the admission of the treatment report inadmissible because it was inadmissible hearsay. We disagree and will affirm the trial court's judgment.

In People v. Johnson (2004) 121 Cal.App.4th 1409, 1410, a defendant in a probation revocation hearing challenged the admission of a laboratory report analyzing rock cocaine that an officer had witnessed the defendant selling. The defendant raised hearsay and foundation objections to the report. In rejecting these objections, the Johnson court reasoned that Crawford is based on the Sixth Amendment right to confront witnesses. In Morrissey v. Brewer (1972) 408 U.S. 471, 480, however, the United States Supreme Court found that probation revocation hearings are not criminal prosecutions subject to the Sixth Amendment. (People v. Johnson, supra, 121 Cal.App.4th at p. 1411.) The right of probationers to confront witnesses at revocation hearings stems from the due process clause of the Fourteenth Amendment. (Black v. Romano (1985) 471 U.S. 606, 612; People v. Johnson, supra, 121 Cal.App.4th at p. 1411.) The application of the Sixth Amendment and Crawford's interpretation of it does not govern probation revocation proceedings. (People v. Johnson, supra, 121 Cal.App.4th at p. 1411.)

The Johnson court concluded that the report in question was not a substitute for live testimony but routine documentary evidence. (People v. Johnson, supra, 121 Cal.App.4th at pp. 1412-1413.) A report from a community counseling program noting that the defendant had not attended any of 20 sessions was found â€