In re Ulices V.

Filed 10/5/06 In re Ulices V. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

I. Introduction

Ulices V. (the minor) appeals from the juvenile court’s order revoking his probation under Welfare and Institutions Code section 777.[1] The minor contends that he was denied his constitutional rights to confront and cross-examine adverse witnesses because the court’s findings were based upon inadmissible hearsay. The minor further argues that absent the inadmissible hearsay there was insufficient evidence that he violated his probation. We shall affirm.

II. Facts

In February 2001, a petition pursuant to section 602 alleged that the minor had committed forcible rape (Pen. Code, §§ 261, subd. (a)(2), 262, subd. (a)(3), count 1), lewd and lascivious act on a child under 14 years old (id., § 288, subd. (a), count 2), and sexual battery (id., §§ 242, 243.4, subd. (a), count 3). The minor admitted count 2 and the remaining counts were dismissed. On June 4, 2001, the juvenile court adjudged the minor a ward of the court, removed him from the custody of his parents, and ordered placement at the Santa Clara County Juvenile Rehabilitation Facilities (the ranch). The order of probation included the conditions that the minor attend school regularly and obey all rules and regulations of school officials.

Over the following three years the juvenile court sustained six additional petitions under section 602. Those petitions alleged violations that included escape from a juvenile facility (§ 871, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), petty theft (Pen. Code, § 484), and auto theft (Veh. Code, § 10851, subd. (a)), among others. After the court sustained the first four subsequent petitions, the court returned the minor to the ranch. But on December 12, 2003, after sustaining the fifth subsequent petition, the court ordered the minor placed at the Boys Republic facility.

On May 14, 2004, the probation officer filed a report for the six-month review of the minor’s placement at Boys Republic. The report indicates that the minor “found himself close to failing the program on at least three occasions. His recent incidents involve a report to Child Protective Services, methamphetamine use, and leaving the supervision of staff without authorization.” Then, on May 27, 2004, the probation department filed a notice pursuant to section 777 alleging that the minor had violated probation by absconding from the placement. Soon thereafter the sixth subsequent petition under section 602 was filed alleging that the minor had been under the influence of methamphetamine. (Health & Saf. Code, § 11550, subd. (a).) The minor admitted the probation violation and the new offense and the court committed him to the Rite of Passage program in Nevada.

On April 19, 2005, the probation department filed another section 777 notice alleging probation violations, which, as amended at trial, read as follows: “On August 2, 2004, [the minor] was placed at Rite of Passage (ROP) to participate in a behavior modification program. On April 18, 2005, [the minor] was (1) failed from the Rite of Passage program, (2) minor absconded and (3) minor threatened to do harm to the Probation Officer.”

At the contested hearing the prosecution offered the testimony of Nathaniel Landa, the minor’s case manager at Rite of Passage for the last three months of the minor’s participation in that program, and the testimony of the minor’s probation officer, Burga Santiago.

Landa authored the Rite of Passage exit report, which he directed to the attention of Probation Officer Santiago. The report details the behavior that caused the minor to be failed from the program. Landa stated that in drafting the report he relied upon the incident reports and notes prepared by the counselors who were directly involved with the minor’s behavior and the documentation generated following disciplinary hearings. Landa testified that it would be expensive to have all the involved counselors travel from Nevada to the court in Santa Clara County and that to relieve them of their duties for a period of time “would be a big expense because there’s not enough staff to deal with the students at all times.” If persons on the “off shift” were called to testify (rather than calling someone from his or her duties at the program) the person called would be entitled to overtime pay for working the additional day.

Landa’s exit report stated that the minor “is a manipulator and is heavily gang affiliated. His posture and his presentation of self has displayed that he is unwilling to change.” The report lists five incidents that occurred while the minor was enrolled in the program. Among other things a marijuana pipe was found among the minor’s belongings; he was discovered under the stairwell in the gymnasium with his girlfriend in “states of undress”; he absconded and was found in Silver Springs, Nevada; the minor and a companion were found hiding in the trunk of a car belonging to one of the instructors; and the minor stated to one of the supervisors that the next time his probation officer visited he was “going to reach over the table and slap her.”

Landa drafted the exit report on April 18, 2005, in the ordinary course of business at or near the time the minor was terminated from the Rite of Passage program. The incidents that formed the basis for the minor’s termination occurred over a period of six months preceding the date of the exit report. The juvenile court admitted the exit report over the minor’s objection. The court found that the report was prepared by a case manager “for the purpose of reporting to the court and probation, specifically probation, for a report to the court on the minor’s failure of a court order of placement.”

At this point the prosecutor submitted the case and the minor’s counsel immediately argued: “[A]ll the prosecutor has shown at this time is that the minor failed the program.” Counsel argued that since the prosecutor had not proved either of the remaining allegations (absconding and threatening), that the court should deny the petition. The prosecutor responded that each of the allegations were to be considered separately and that proof that he had failed the Rite of Passage program was sufficient to support a finding that the minor had violated his probation. The court noted, “Well, he has, in fact, he has failed it. And that’s a violation of probation.”

At the continued hearing the court allowed the prosecution to present the testimony of Probation Officer Santiago. Santiago testified that she is regularly informed of incidents by Rite of Passage staff and was informed on one occasion that the minor had absconded from the program. She also received a police report indicating that the minor had absconded. Santiago learned through her review of an incident report from Rite of Passage that the minor had once made a threat against her. The minor’s counsel objected to this testimony as hearsay but the juvenile court admitted it after noting that the officer’s information was gleaned from a Rite of Passage incident report.

Finally, in closing argument the minor’s counsel conceded that the minor had failed the program. “We will concede that he failed the, program . . . .”

The juvenile court found “beyond a reasonable doubt” the allegations of the minor’s probation violations to be true. On January 25, 2006, the juvenile court committed the minor to juvenile hall, to be housed in county jail, for 540 days with credit for 335 days. On February 3, 2006, the court ordered the minor to serve the remainder of his term in the Faith and Courage program.

III. Issue

The minor argues that both the exit report and Santiago’s testimony were inadmissible hearsay and, therefore, he was denied his right to confront and cross-examine the witnesses against him. He also argues that the evidence that he threatened to “slap” Santiago was insufficient evidence of a probation violation. We conclude that the juvenile court properly admitted the exit report, which amply supports the findings that the minor failed the Rite of Passage program and that he absconded. We do not consider the minor’s arguments pertaining to the evidence of his threat against Santiago because, in light of the whole record, we are convinced that the juvenile court would have revoked probation even in the absence of that evidence.

IV. Discussion

The Sixth Amendment right to confront and cross-examine witnesses does not apply to probation revocation proceedings. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411.) A probationer’s limited right to confront witnesses at a revocation hearing is based instead upon due process. (Ibid.) Section 777, subdivision (c) provides that a “court may admit and consider reliable hearsay evidence at the hearing to the same extent that such evidence would be admissible in an adult probation revocation hearing, pursuant to the decision in People v. Brown, 215 Cal.App.3d [452] (1989) and any other relevant provision of law.” Thus, as a general matter, a hearsay statement may be admitted in a probation revocation proceeding if it bears a substantial degree of trustworthiness, as where there are sufficient indicia of the statement’s reliability. (People v. Brown, supra, 215 Cal.App.3d at p. 454.) The determination of trustworthiness rests within the discretion of the trial court. (Id. at pp. 454-455.)

Traditional documentary evidence such as receipts and invoices may contain sufficient indicia of reliability to be admissible. (People v. Maki (1985) 39 Cal.3d 707, 709, 715 [car rental invoice and hotel receipt was admissible].) In People v. O‘Connell (2003) 107 Cal.App.4th 1062, the appellate court found that a written report prepared by the program manager of a counseling agency stating that the defendant had been terminated from the program due to “ ‘Too Many Absences’ “ was admissible. (Id. at p. 1066.) The court opined that the report was “akin to the documentary evidence that traditionally has been admissible at probation revocation proceedings” because it was “prepared contemporaneously to, and specifically for, the hearing where appellant’s lack of compliance with the deferred entry of judgment program was at issue.” (Id. at pp. 1066-1067.)

There exists a greater need for confrontation with respect to an out-of-court statement that is testimonial in nature because the declarant’s demeanor has significance in evaluating the proffered evidence. Thus, a preliminary hearing transcript is inadmissible without a showing of good cause. (People v. Arreola (1994) 7 Cal.4th 1144, 1158, 1160-1161 (Arreola).) Likewise, the hearsay allegation of a petition to revoke probation is not admissible to prove a probation violation without good cause for dispensing with the right to confront the probation officer making the allegation. (In re Kentron D. (2002) 101 Cal.App.4th 1381, 1384-1387.)

The exit report in this case is more like the documentary evidence that traditionally has been admissible at probation revocation proceedings than it is like the former testimony rejected by the court in Arreola, supra, 7 Cal.4th 1144. We recognize that the report contains information gleaned from other hearsay statements (the counselors’ incident reports) but its reliability is derived from the fact that the report was generated in the ordinary course at Rite of Passage, contemporaneously with the minor’s termination from the program, for the purpose of reporting the minor’s failure of the court-ordered placement to the minor’s probation officer. (See People v. O‘Connell, supra, 107 Cal.App.4th at pp. 1066-1067.) Landa appeared personally to authenticate the document and explain the source of the information contained therein. Receipt of such evidence is committed to the discretion of the juvenile court. We find no abuse of discretion in the court’s receiving this report into evidence.

The minor cites Taylor v. United States Parole Com‘n (6th Cir. 1984) 734 F.2d 1152, in support of his inadmissibility argument. But Taylor does not stand for the point asserted. Taylor involved a parole commission’s finding of new criminal conduct. The issue was whether the commission had abused its discretion by ruling that a single piece of hearsay evidence (a probation officer’s summary of the incidents) established by a preponderance of the evidence that the petitioner had engaged in new criminal conduct. (Id. at p. 1155.) The appellate court agreed that the letter was admissible; the court’s concern was with “the paucity of reliable evidence of petitioner’s criminal conduct and not with the hearsay nature of the evidence which was presented.“ (Ibid.) Thus, Taylor does not support the argument that the report is inadmissible.

The minor does not argue that the evidence was insufficient to support a finding that he was failed from the Rite of Passage program. Indeed, the minor concedes that he was failed from the program. He does argue, however, that the evidence of the failure, without more, was insufficient to support a probation violation. Relying upon People v. Zaring (1992) 8 Cal.App.4th 362, the minor argues that the evidence was insufficient because there was no evidence that he had willfully failed the program. Zaring held that it was an abuse of discretion to revoke probation when the defendant was late for court. (Id. at p. 375.) The defendant had tried to explain that she was late because she had to get her children to school and the prosecution had presented no evidence to the contrary. (Id. at p. 376.) Under those circumstances, the appellate court decided that the trial court had abused its discretion in revoking the defendant’s probation because there was no evidence that her tardiness was willful.

This case is different than Taylor. There is no suggestion that the minor was terminated from the Rite of Passage program against his will or as the result of circumstances beyond his control. This is not like the failure to pay a fine. Rite of Passage is a behavior modification program. The minor was placed in the program pursuant to a court order. The minor offers no suggestion as to how his termination from the program could have happened as a result of circumstances beyond his control. In any event, the exit report shows that the minor was terminated because he broke the rules and tried to run away. And this same evidence supports a finding that the minor had absconded from the program, the second alleged violation of probation.

In light of the foregoing we need not consider the minor’s challenge to the evidence of his threatening to slap Santiago. The exit report combined with defendant’s own concession amply supports a finding by the preponderance of the evidence (§ 777, subd. (c)) that the minor had violated his probation by willfully failing the Rite of Passage program and absconding from the court-ordered placement. We are convinced that it is reasonably likely that the juvenile court would have revoked the minor’s probation even in the absence of evidence relating to Santiago. (People v. Watson (1956) 46 Cal.2d 818, 836.) At the disposition hearing the juvenile court recited the minor’s criminal history, his attempts to abscond, and his repeated violations of probation. Indeed, as the court announced at trial, failing the program was a violation of probation. We are convinced that, absent proof that the minor had threatened to “slap” Santiago, the court would have revoked probation.

V. Disposition

The order of the juvenile court is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Further section references are to the Welfare and Institutions Code unless otherwise specified.