P. v. Huysman
Filed 6/24/13 P. v. Huysman CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
KENNETH
LYNN HUYSMAN,
Defendant and Appellant.
B240206
(Los Angeles County
Super. Ct. No. MA051461)
APPEAL from a judgment of the Superior
Court for Los
Angeles County, Hayden A. Zacky, Judge.
Affirmed.
Robert Booher, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Kenneth Lynn Huysman appeals
from a judgment of conviction after the trial court found him in violation of
his probation. He contends the trial
court violated his due process and
confrontation rights at his probation violation hearing by allowing a
probation officer to testify regarding a probation officer’s report prepared by
a different probation officer. We affirm
the judgment.
BACKGROUND
In a felony complaint filed in January
2011, defendant was charged with possession
of methamphetamine, a violation of Health and Safety Code section 11377,
subdivision (a); the complaint also alleged that defendant had suffered two
prior convictions within the meaning of Penal Code section 667.5, subdivision
(b). He pled guilty and admitted the
prior conviction in exchange for probation under Proposition 36. Imposition of sentence was suspended, and he
was placed on probation for one year with certain terms and conditions,
including mandatory drug abuse counseling.
A detailed discussion of subsequent
proceedings in which probation was revoked and reinstated with modifications is
not required here. Suffice to say that
defendant did not perform well on probation.
Finally, in September 2011, the trial court revoked defendant’s
Proposition 36 probation, and on October 12, 2011, the court sentenced defendant to
five years in prison. The court
suspended execution of the sentence, however, and placed defendant on probation
for three years on the condition that he serve 180 days in jail, the last 120
days of which he would serve in a live-in rehabilitation center. At the time sentence was imposed, the court
ordered defendant to report to probation within 48 hours of his release from
custody.
A month later, the trial court
modified defendant’s probation. The court
vacated the order that defendant spend 120 days in a live-in drug treatment
program, and instead ordered that defendant spend 365 days in county jail and
do a drug treatment program through the probation department. At the end of the hearing, after determining
defendant’s credits, the court told defendant, “Make sure that you report to
probation within 48 hours of your release from custody, all right?†Defendant then asked a question about the
computation of his credit time. The
court answered his question, then said, “Make sure you report. You’ve got that five years hanging over your
head. Okay?†Defendant replied, “All right.â€
In January 2012, the trial court
received notice that defendant had failed to report to the probation
department. The court preliminarily
revoked probation and issued a bench warrant for defendant.
Defendant appeared before the court on
February 9, 2012 for a probation violation hearing. The court began the hearing by marking, as
Court Exhibit No. 1, the probation officer’s desertion report. The court stated that it would rely upon the
contents of the report, citing People v.
Gomez (2010) 181 Cal.App.4th 1028.
The prosecutor called as a witness
Deputy Probation Officer Robin Garton.
Relying upon the desertion report found in the probation file for
defendant, Officer Garton testified that defendant has never reported to the
probation department. Officer Garton
also testified that a probation letter was mailed to defendant on December 16,
2011, telling him to report on January 5, 2012, that the author of the
desertion report contacted certain recovery centers and determined that
defendant was not in a treatment program, and that defendant had not made any
payments to satisfy his financial obligations.
On cross examination, Officer Garton admitted that the desertion report
was written by a different probation officer, and that he had no personal
knowledge, apart from reading the report, about what was said in the
report. The trial court then questioned
Officer Garton, confirming that the records the officer relied upon were kept
in the normal course of business in the probation department, and the entries
were made at or near the time of the occurrence. The court also took judicial notice of the
court file, particularly the court’s admonition to defendant on October 12,
2011, that he was ordered to report to probation within 48 hours of his release
from custody.
Defendant also testified at the
probation violation hearing. On direct
examination, he testified that he never received a letter from the probation
department, nor did he receive anything telling him where to report or what
amounts he was required to pay. On cross
examination, defendant admitted that he was present in court when he was
sentenced and put on probation, although he did not remember if he agreed to
the terms of probation and did not recall if he was ordered to report to
probation. He admitted that he never
reported to probation and never paid any fine, but he asserted that he had been
reporting to his parole officer once a week.
Based upon the testimony at the
hearing and the desertion report, the trial court found by a preponderance of
the evidence that defendant violated probation by failing to report, and lifted
the stay on the previously imposed five-year sentence. Defendant timely filed a notice of appeal
from the judgment.
Defendant contends the trial court’s
reliance on the probation desertion report and the testimony of a probation
officer who had no personal knowledge about the facts set forth in the report
violated his Sixth Amendment right to
confront the witnesses against him (citing Crawford
v. Washington (2004) 541 U.S. 36, 68; Melendez-Diaz
v. Massachusetts (2009) 557 U.S. 305, 311), as well as his right to due
process (citing U.S. Const., 14th Amend.; People
v. Arreola (1994) 7 Cal.4th 1144, 1152-1153). We disagree.
To the extent defendant asserts the
trial court’s reliance on the probation desertion report violated his rights
under the Sixth Amendment confrontation clause, he is incorrect. “Probation revocation proceedings are not
‘criminal prosecutions’ to which the Sixth Amendment applies.†(People
v. Johnson (2004) 121 Cal.App.4th 1409, 1411, citing U.S. Const., 6th
Amend.; Morrissey v. Brewer (1972)
408 U.S. 471, 480; Gagnon v. Scarpelli
(1973) 411 U.S. 778, 781.)
To the extent defendant asserts his
right to due process was violated by the trial court’s consideration of the
report and the testimony of a probation officer who had no personal knowledge
of the facts stated in the report, variations of this same argument have been
rejected by several appellate courts.
(See, e.g., People v. Gomez,
process violation in admitting a probation report prepared by one probation
officer based upon electronic records and records prepared by another probation
officer, detailing the defendant’s failure to report as instructed to his
probation officer]; People v. Abrams
(2007) 158 Cal.App.4th 396 [trial court properly admitted testimony by one
probation officer regarding another probation officer’s report that defendant
had been directed to report to probation but had failed to do so];
Cal.App.4th 1062 [admission of probation officer’s report attaching report by
manager of drug counseling program stating that defendant failed to attend the
program did not violate due process].)
As the court in People v. Abrams, supra,
158 Cal.App.4th 396, noted, where the probation officer’s report was “‘prepared
contemporaneously to, and specifically for, the hearing where [defendant’s]
lack of compliance’ was at issue . . . the evidence from the
probation reports had sufficient ‘indicia of reliability’†to be admissible as
a general rule. (Id. at p. 404.) The court
explained that, although some portions of a probation officer’s report may not
be admissible (such as reports of statements made by victims or witnesses),
statements in the report involving “routine matters such as the making and
keeping of probation appointments, restitution and other payments, and similar
records of events of which the probation officer is not likely to have personal
recollection and as to which the officer ‘would rely instead on the record of
his or her own action’†are admissible without the testimony of the author of
the report. (Id. at p. 405, quoting People
v. Arreola, supra, 7 Cal.4th at p. 1157.)
In the present case, the report
consisted entirely of the kind of evidence found to be admissible in
find the admission of the report in this case did not violate defendant’s right
to due process. In any event, we
conclude that even if there could have been error in admitting the report
without the author’s testimony, any error was harmless beyond a reasonable
doubt. (People v. Arreola, supra,
7 Cal.4th at p. 1161 [applying harmless beyond a reasonable doubt
standard].) Defendant testified at the
revocation hearing that he had never reported to probation and had never paid
any fine. Although defendant testified
that he did not receive the probation orientation appointment letter, which the
report states was sent to him, the trial court noted that at both the October 12,
2011 and the November 14, 2011 hearings, it ordered defendant to report to
probation within 48 hours of his release from custody. Thus, defendant’s testimony that he never
reported constituted an admission of the probation violation.
The
judgment is affirmed.
WILLHITE,
Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
light of the trial court’s statement, any objection by defendant to the
admission of the report would have been futile.
Therefore, we reject the Attorney General’s assertion that defendant
forfeited any issue regarding the admission of the report by failing to
object. (People v. Sandoval (2001) 87 Cal.App.4th 1425, 1433, fn. 1.)
