PEOPLE v. KEITH

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Kevin Michael KEITH, Defendant and Appellant.

No. B107564.

Decided: October 15, 1997

James L. Crowder, under appointment by the Court of Appeal, Santa Barbara, for Defendant and Appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Senior Asst. Atty. Gen., Lance E. Winters and Susan C. Diamond, Deputy Attys. Gen., for Plaintiff and Respondent.

Defendant Kevin M. Keith appeals his judgment of conviction after the trial court revoked his probation and sentenced him to state prison.

Keith contends the trial court erred by relying on inadmissible hearsay evidence to find him in violation of probation.   We disagree and affirm the judgment.

FACTS

Following his conviction for a violation of Penal Code section 273d [corporal injury to a child] in 1993, the trial court placed Keith on probation for five years.   Included in the terms of probation were that Keith was to obey all laws and not drink or possess alcohol.

At Keith's probation violation hearing his probation officer, Karl Swanson, testified that he visited Keith's house on February 15, 1996.   Keith appeared “to either be ill or intoxicated, under the influence of alcohol.”   Swanson characterized Keith's speech as “semi slurred.”

On the couch was a 12-pack of Pearl Light beer and in the kitchen were several empty 12-pack beer containers.   Keith admitted to Swanson that he had been drinking.   Swanson had Keith blow into his field Alco Sensor which registered that Keith's blood alcohol was .04 percent.

Officer John Brockus testified that in May of 1996 he went to Keith's house on a domestic disturbance call but found no evidence of a domestic disturbance.   Two days later Brockus spoke with Keith's eight-year-old son Carlton at school.   Carlton told him that he had gotten into a fight with his younger brother.   His father came into the bedroom, slapped him in the face, pinned him to the floor, and punched him in the stomach three times with a closed fist.

Brockus then spoke with Mrs. Keith about the incident.   Brockus testified that Mrs. Keith said that when she heard Carlton yelling she went into the bedroom and saw that Mr. Keith had pinned Carlton to the floor, and Carlton was crying.   Shortly thereafter she noticed a red mark on Carlton's cheek and saw him holding his stomach.

Mrs. Keith testified that she purchased the beer that probation officer Swanson saw in the house in February.   She had not seen Mr. Keith drinking alcohol, but he had consumed an entire four-ounce bottle of Nyquil.   He had been suffering from a cold and his sinuses and allergies were bothering him.   She and Keith denied that Keith had told Swanson that he had consumed alcohol.

DISCUSSION

 Relying on People v. Brown (1989) 215 Cal.App.3d 452, 263 Cal.Rptr. 391, Keith contends that the admission of Brockus' testimony was error.   Keith concedes that hearsay evidence may be admissible in a probation revocation hearing, but only if it “bears a substantial degree of trust-worthiness.”   (Id., at pp. 454-455, 263 Cal.Rptr. 391.)

He argues that the trial court's reliance on Brown and People v. Maki (1985) 39 Cal.3d 707, 217 Cal.Rptr. 676, 704 P.2d 743 was misplaced.   Those cases involved the introduction of documentary hearsay evidence which had a high degree of trustworthiness which is missing here.

In Brown the hearsay testimony was that of a police officer testifying to a police department chemist's test of cocaine seized from defendant's house.   In Maki a car rental invoice and a hotel receipt both with defendant's signature were admitted into evidence.

Keith argues that documentary evidence kept in the normal course of business has a sufficient indicia of reliability to be admitted.   Here, however, the admission of oral hearsay statements from a crucial witness, who has not been shown to be unavailable, denies Keith the right to confront and cross-examine a crucial witness at his hearing.  (See Gagnon v. Scarpelli (1973) 411 U.S. 778, 783, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656;  Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.)

 We agree with the People that Brown and Maki are not as circumscribed as Keith suggests.   It matters not whether the hearsay involves documentary evidence, but whether it bears a substantial degree of trustworthiness.  (See People v. Brown, supra, 215 Cal.App.3d at pp. 454-455, 263 Cal.Rptr. 391.)   Hearsay evidence that is not clothed with the indicia of trustworthiness, be it oral or documentary, is not admissible.

Here, the trial court could reasonably conclude that hearsay evidence of Brockus was reliable and trustworthy.

Statements made by Mrs. Keith to Brockus tend to corroborate the account of the incident as related by Carlton to Brockus.   She told Brockus of the fight between Carlton and his brother;  that Mr. Keith was on top of Carlton;  that Carlton had a red mark on his face, and that he was crying and holding his stomach.   That Mrs. Keith's corroborative statements were also hearsay does not lessen their trustworthiness.   As the People point out, when testifying she did not deny making the statements.

Quite apart from the hearsay testimony pertaining to child abuse, there was evidence of other probation violations.   Keith had been drinking alcohol, and there was ample evidence he was in possession of alcohol notwithstanding Mrs. Keith's testimony.

The first notice of probation violation alleged the alcohol violations.   The probation officer recommended 60 days in county jail.   The second notice of violation added the child abuse allegation.   Keith persuasively argues that absent the child abuse incident, Keith would not have been sentenced to state prison.   Our decision, however, rests on the trustworthy nature of the hearsay testimony, not on the sentence Keith received.

 For the same reason our decision does not violate Keith's confrontation and due process rights.   As the Maki court observed, both Morrissey and Gagnon recognized that a parole revocation hearing is something far different than a criminal prosecution.   A probation hearing should be approached with the goal of achieving flexibility and accommodation.   Substitutes for live testimony are appropriate in probation revocation hearings under appropriate circumstances.  “The use of hearsay as substantive evidence at a revocation hearing is not per se unconstitutional.”  (People v. Maki, supra, 39 Cal.3d at pp. 714-715, 217 Cal.Rptr. 676, 704 P.2d 743, citing Egerstaffer v. Israel (7th Cir.1984) 726 F.2d 1231, 1234.)

The judgment of conviction is affirmed.

GILBERT, Associate Justice.

STEVEN J. STONE, P.J., and COFFEE, J., concur.