P. v. Hendrickson
Filed 12/9/09 P. v. Hendrickson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. MARK JOHN HENDRICKSON, Defendant and Appellant. | E048335 (Super.Ct.No. FVI802261) OPINION |
APPEAL from the Superior Court of San Bernardino County. Margaret A. Powers, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Mark John Hendrickson appeals following the revocation of his probation. He contends the trial court erroneously and prejudicially admitted hearsay testimony during his revocation hearing in violation of his constitutional right to confront witnesses.
FACTUAL AND PROCEDURAL BACKGROUND
On October 29, 2008, defendants mother confronted him about being intoxicated. Defendant became angry and began grabbing and scratching his mother. He also told her, Im gonna take you out. When deputies arrived, they observed injuries to the mothers face. Defendant was interviewed while in custody and admitted being verbally abusive to his mother but denied injuring her. He claimed his mother scratched herself and then called deputies to get him to stop drinking. Defendant also admitted to having difficulty in dealing with anger, being bipolar, and having a long-standing drinking problem.
As a result of plea negotiations, defendant pled guilty to one count of causing injury to an elder or dependent adult. (Pen. Code, 368, subd. (b)(1).) In accordance with the plea agreement, he was granted probation for a period of five years, subject to various terms and conditions, including 180 days in jail.
On March 17, 2009, defendants probation officer petitioned to revoke his probation for failing to attend drug/alcohol rehabilitation meetings (condition No. 29), failing to cooperate in a rehabilitation plan (condition No. 4), having negative contact with the victim (condition No. 26), and declining to take psychiatric medications as prescribed (condition No. 27).
On May 6, 2009, the court held a contested hearing on the alleged probation violations and considered testimony by defendant and his probation officer. Based on the testimony, as well as the probation officers original and supplemental reports, the court found defendant violated condition Nos. 4, 26, and 27 of his probation by failing to cooperate in a rehabilitation plan, having negative contact with the victim, and declining to take psychiatric medications as prescribed. The court apparently rejected the allegation that defendant violated condition No. 29 by failing to attend drug/alcohol rehabilitation meetings. Immediately following the contested revocation hearing, the court revoked and terminated defendants probation and sentenced him to two years in state prison.
DISCUSSION
On the issue of whether defendant violated condition No. 26 of his probation by having negative contact with the victim, the court relied on hearsay testimony by the probation officer. The probation officers testimony included statements made to her by the victims social worker and the victim. First, the victims social worker told the probation officer she received a note from the victim stating she was afraid of defendant and no longer wanted him to be her in-home care provider. Second, the victim personally told the probation officer she was afraid of defendant, because he was verbally abusive to her and was trying to coerce her to have him continue as her in-home caretaker.
Based on our Supreme Courts decisions in People v. Winson (1981) 29 Cal.3d 711 and People v. Arreola (1994) 7 Cal.4th 1144 (Arreola), we agree with the parties that the above-described testimony by the probation officer was erroneously considered during defendants probation revocation hearing. According to our Supreme Court in Arreola, supra, 7 Cal.4th at page 1161, the erroneous admission of hearsay testimony in the context of a probation revocation proceeding is of federal constitutional dimension and is therefore subject to the harmless-beyond-a-reasonable-doubt standard of prejudice. In the event of prejudice as a result of the erroneous admission of hearsay testimony, our Supreme Court has indicated remand for a new probation revocation hearing would be an appropriate remedy. (Ibid.) We must therefore consider whether the admission of this testimony was prejudicial.
Defendant contends the error was prejudicial because there is no other evidence to support a finding he had negative contact with the victim, and there was a weak factual basis for the other two violations. However, we disagree with defendants view of the strength of the evidence supporting the violationsfailing to cooperate in a rehabilitation plan (condition No. 4) and declining to take psychiatric medications as prescribed (condition No. 27).
First, there is some other evidence in the record to support the probation officers allegation that defendant had negative contact with the victim. The probation officers report states she visited the victims home on March 17, 2009. At first, defendant was the only one home, but [s]hortly after, the victim appeared at the home and was visibly upset with her sons attitude and demeanor. Although for reasons of confrontation it was error to consider the probation officers hearsay testimony about what she had been told by the victim and the victims social worker, the court was entitled to consider the observations the probation officer made during the home visit.
Second, the probation officers testimony about defendants willingness to cooperate was simple and direct, and her credibility was not challenged to any significant degree. She testified she held an orientation meeting with defendant on March 12, 2009. During this meeting, defendant and the probation officer discussed the probation condition which required defendant to take psychotropic medications as prescribed, and it would therefore be necessary for defendant to contact mental health. However, the probation officer said defendant did not contact mental health and did not otherwise comply with this condition. On the day he was arrested on the alleged probation violations, defendant also told the probation officer he didnt want to take the psychotropic medicine because it made him feel funny. The probation officer further testified defendant refused to go to drug/alcohol rehabilitation meetings because, [h]e felt like he didnt need them.
The probation officers testimony was also supported by a written supplemental report prepared prior to and in anticipation of the revocation hearing. This report includes additional details of the probation officers interview of defendant at the time of his arrest on the alleged probation violations. The court was entitled to consider the other admissions defendant made to the probation officer at this time, as well as the probation officers observations about the attitude defendant displayed toward the victim. For example, defendant told the probation officer he would like the court to know it was the victim who has mental [health] issues and not him. He also admitted he continued to get angry with the victim and had strong negative feelings toward the victims social workers, who he believed should be fired for their invasion into his familys matters. These additional details constitute strong circumstantial evidence defendant continued to have negative contact with the victim and was therefore not a good candidate for reinstatement of his probation.
Defendant did offer some contrary testimony. He said, there [are] many things that are written in the report that arent true. The thing about the psychotropic medication . . . I said I didnt want to have anything to do with Seroquel because it made me too lethargic to do anything except sleep. He also said he didnt have a problem going and taking other things that werent going to have that same side affect. In addition, defendant argued, I just feel that I was not given an adequate time to comply with my probation directives. On defendants behalf, counsel argued these issues could have been worked out but there had not been enough time. However, it is apparent the courts determination as to whether defendant violated the conditions of his probation and whether he was likely to cooperate with his probation conditions in the future were matters of credibility. Obviously, the court decided these matters of credibility against defendant and in favor of the probation officer. Under these circumstances, it would be futile to remand the matter for a new probation revocation hearing. The record strongly supports the courts decision to terminate defendants probation, and there is simply no probability of a different outcome.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RICHLI
J.
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