P. v. Denman

Filed 10/14/09 P. v. Denman CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, John T. Doyle, Judge. Affirmed as modified.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

Eugene V. Denman appeals from the judgment entered following an order revoking probation. Previously, he pled guilty to causing corporal injury to a spouse/cohabitant (Pen. Code, 273.5), imposition of his sentence was suspended, and he was placed on probation upon various terms and conditions, including that he report to the probation officer within 72 hours of release, cooperate with a probation officer in a plan for a 52-week domestic violence counseling program, and show proof of enrollment and completion as directed by the probation officer.^[1] He contends the finding that he violated probation must be reversed because it is based on objected to, inadmissible hearsay evidence. He also contends only a single restitution fine may be imposed. For reasons stated in the opinion, we modify the restitution and parole revocation fines and in all other respects affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On May 6, 2008, appellant failed to appear in court for a progress report, probation was revoked, and a bench warrant was issued.

On May 13, appellant appeared in court in pro. per. for a bench warrant hearing. He was remanded and probation remained revoked.

On May 27, the court conducted a probation revocation hearing. It was alleged he had violated his probation on at least three or four occasions. The court noted the reason for the violation was that appellant had never completed his ordered domestic violence counseling. The court summarized the status of the case, stating that appellants plea had been taken on February 7, 2006. Thats two years and almost four months ago. He was back in court on January 16th of 07, for failure to enroll or complete the [domestic violence] program. He was allowed until February 21st. He came back on February 21st, his probation was revoked, on February 26, reinstated. He got 30 days again. On March 19th of last year, [it] was revoked. On April 18th of last year it was reinstated, and [he] again re-enrolled in the [domestic violence] program. On May 8th of this year it was revoked again. On November 14th it was continued until January 9. Then it [was] continued again until February 8th. Finally on May 13th, the court hearing the case, Judge Hunter revoked his O.R. bail status, remanded him and sent it here to have it set for formal hearing. Thats what were here for today. [Appellant] has had two years and three months to do the mandatory program. He has not done that. He didnt enrol[l] until February 6th of 08, which was two years after he was ordered to do that, and even then, out of ten sessions he missed eight out of the ten, and thats why were here.

Willa Bryant testified she is a deputy probation officer for the County of Los Angeles, currently assigned to the South Central area office. She was familiar with how the probation department keeps its records on people referred to her department. She was familiar with appellants case but could not personally identify him because another person, Danielle Hines, was appellants probation officer. Bryant had an opportunity to review appellants information and file. Over appellants objection that Bryant was not his probation officer, Bryant testified she was familiar with his conditions of probation and that a domestic violence counseling program was one of the conditions. Bryant knew appellant enrolled in a program on February 6, 2008, and that he was terminated from the program for poor attendance. According to Hiness probation report and investigations, seven sessions were missed and four sessions were attended. On January 9, 2008, appellant was supplied with a fee waiver for the domestic violence program. Prior to that date, appellant was in violation of probation for not paying his financial obligations. Appellant had also previously been violated for not enrolling in a domestic violence program but Bryant did not have the dates or the number of times. Appellants objection that, Thats not true was overruled as it was not a proper objection, and the court advised appellant he would have an opportunity to testify. To the best of Bryants knowledge, appellant had not re-enrolled in a domestic violence program. There was no evidence in the record that appointments were made with a financial evaluator to discuss appellants financial situation.

Appellant responded that he was in compliance with attendance. He asserted the attendance record was wrong, that he had the individual sheets that they have, and that there were two additional classes that were not reported. Appellant claimed if the court would search the records it would substantiate that on two of the dates, he was in court and had excused absences from the court. Also, he was at the doctors office on another date, so he had excusable absences. Regarding the financial officer, appellant was instructed that since he did not have an income he was not to report to the officer until he had a verifiable income so that he could start making payments. Presently appellant was indigent. Appellant claimed he enrolled in classes and when he learned they were not on the court ordered list, he got the list and the waiver of fees and enrolled like [he] was told to. Appellant claimed he was terminated because he had no known address. Appellant acknowledged he was placed on probation in February 2006, that as a condition of probation he was to enroll in an approved domestic violence program, and that he did not enroll in an approved program until January 2008. He also acknowledged he did not attend all of the classes, but claimed some absences were excused. He was required to attend one class per week but there were make-up classes. He claimed he was denied the chance to make up the classes.

Thereafter, the court found appellant in violation of probation. In reaching that conclusion, the court observed that appellant had been selling this same act to a series of judges in this building for the last two years. The act Im referring to is that you come in and you appear to be, at alternate times, very much in control of the situation. Other times youre totally mystified as to why youre even here, because you have been doing everything right. And thats resulted in you being found in violation by the various judges here for at least three, I believe four times, all of them, every one of them had to do with you never enrolling or completing an approved domestic violence program. You have spent far more time trying to manipulate the system to avoid going to domestic violence [classes] than you would have spent had you gone to the classes ordered by the court that are mandated by law for the offense that you have entered a plea of guilty to, or no contest. You have been given two years to enroll in and complete 52 classes.

DISCUSSION

I

Pursuant to Penal Code section 1203.2, subdivision (a) a court may revoke and terminate probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation. . . . Revocation of probation is not part of a criminal prosecution, and therefore the full panoply of rights due in a criminal trial does not apply to probation revocations. [Citation.] (People v. Stanphill (2009) 170 Cal.App.4th 61, 72.) [P]roof of facts supporting the revocation of probation pursuant to [Penal Code] section 1203.2, subdivision (a) may be made by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447, fn. omitted.) Revocation of probation lies within the broad discretion of the trial court. [Citation.] Absent abuse of that discretion, an appellate court will not disturb the trial courts findings. [Citation.] (People v. Self (1991) 233 Cal.App.3d 414, 417.)

Appellant contends the finding he violated probation must be reversed because it was based on objected to, inadmissible hearsay evidence. Appellant asserts that his objection, I object. Shes not my probation officer was sufficient to preserve this issue for review. Appellant made no objection on the grounds of hearsay or due process and waived any claim on these issues by failing to timely object on these grounds. (People v.Waidla (2000) 22 Cal.4th 690, 717; Evid. Code, 353, subd. (a).) Moreover, appellants claim is without merit.

Reliable hearsay is admissible in probation revocation proceedings. In appropriate circumstances, witnesses may give evidence by document, affidavit, or deposition. (People v. Arreola (1994) 7 Cal.4th 1144, 1156; People v. Maki (1985) 39 Cal.3d 707, 710.) As long as hearsay testimony bears a substantial degree of trustworthiness it may legitimately be used at a probation revocation proceeding. [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. [Citation.] [Citation.] (People v. OConnell (2003) 107 Cal.App.4th 1062, 1066.)

In People v. Abrams (2007) 158 Cal.App.4th 396, 403-406, the defendant contended the trial court erred in allowing a probation officer to testify about what a colleague wrote in the defendants probation report and in allowing the probation officer to testify that department records showed that the defendant had failed to contact the probation office. The appellate court concluded that, assuming this evidence was hearsay, the trial court could properly admit it in a probation violation hearing, as the evidence had sufficient indicia of reliability akin to documentary evidence that traditionally had been admissible in probation revocation proceedings. Similarly, in People v.OConnell, supra, 107 Cal.App.4th at pp. 1066-1067, the appellate court affirmed the admission of a report from a drug treatment program that the defendant had been terminated for too many absences, and had completed 0 of 20 sessions.

Here probation officer Bryant testified she was familiar with how probation records were kept, had reviewed appellants file, and was familiar with the case. According to the departments records, appellant had been ordered to attend domestic violence counseling and, at the time of the hearing in May 2008, had attended only four sessions and had missed seven. The evidence from the probation report had sufficient indicia of reliability similar to the probation report in Abrams and the report from the drug treatment program in OConnell and was properly received.^[2]

Moreover, even if it was error, it was harmless. Appellant admitted that he had been placed on probation in February 2006, that as a condition of probation he was to enroll in an approved domestic violence program, that he did not enroll in an approved program until January 2008, and that he had not attended all of his classes. While appellant disputed his attendance relative to several classes, he admitted he failed to complete the required 52-week program. (See People v.Abrams, supra, 158 Cal.App.4th at pp. 403-405.)

Appellant also contends Bryants testimony regarding the case file prepared by Probation Officer Hines violated his Sixth Amendment right to confront witnesses in violation of Crawford v. Washington (2004) 541 U.S. 36. Under Crawford, out-of-court testimonial statements in criminal prosecutions are barred under the Sixth Amendment confrontation clause unless the declarant is unavailable as a witness and the defendant has had an opportunity to cross-examine the declarant. (Id. at p. 59.) Revocation of probation, however, is not part of a criminal prosecution and Crawford does not apply. (See People v. Abrams, supra, 158 Cal.App.4th at p. 400; People v. Rodriguez, supra, 51 Cal.3d at p. 441; People v. Johnson (2004) 121 Cal.App.4th 1409, 1411.)

II

When probation was originally granted, appellant was ordered to pay a $200 restitution fine.^[3] ~(CT 44-46, RT A-9) Thereafter, when probation was revoked he was ordered to pay a $400 restitution fine and a $400 parole revocation fine. Appellant asserts the restitution and parole revocation fines of $400 each must be stricken.

There is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation. Accordingly, since the trial court was without statutory authority to impose the second restitution fine, it must be stricken. [Citation.] (People v. Chambers (1998) 65 Cal.App.4th 819, 823.) Since the parole revocation fine is to be in the same amount as the restitution fine, the parole revocation fine of $400 must be reduced to $200. (See Pen. Code, 1202.45.)

DISPOSITION

The restitution fine of $200 remains in force. The $400 restitution fine is stricken and the parole revocation fine of $400 is reduced to $200. In all other respects the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

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^[1] Thereafter, the court modified appellants terms of probation to allow him to go outside the jurisdiction of the State of California and to any of the 50 states and drive as long as it is within the scope of his employment.

^[2] We agree with the court in Abrams that it makes no difference whether the probation reports were received into evidence or whether the probation officer was allowed to testify as to the contents of the reports. (People v. Abrams, supra, 158 Cal.App.4th at p. 404, fn. 4.)

^[3] While both parties claim the court also imposed a $200 parole revocation fine, the record shows no such fine.