THE PEOPLE v. LESLIE MARIAN SMITH

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. LESLIE MARIAN SMITH, Defendant and Appellant.

B222443

Decided: February 28, 2011

Alan Mason, 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, Chung L. Mar and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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Leslie Marian Smith was placed on probation after pleading no contest to one count of possession of cocaine base for sale.   After her probation was revoked, the trial court imposed a sentence of a total of five years in state prison.   She appeals from the judgment of conviction asserting several errors.   We modify the judgment and affirm.

FACTS AND PROCEDURAL HISTORY

Appellant was charged with (1) possession for sale of cocaine base, with an allegation that a principal was armed with a firearm (count one);  (2) possession of a controlled substance with a firearm (count two);  (3) possession of a firearm by a felon (count three);  and (4) receiving stolen property (count four).

On September 19, 2003, pursuant to a disposition, appellant pled no contest as to count one.   On October 24, 2003, the trial court suspended imposition of a sentence and placed appellant on formal probation for a period of three years.   The court also ordered appellant to serve 365 days in county jail, with credit for 56 days in custody.   Appellant was further ordered to pay a restitution fine of $200, pursuant to Penal Code section 1202.4, subdivision (b),1 and a court security fee of $20, pursuant to section 1465.8.   Upon sentencing appellant on count one, the court dismissed counts two, three and four.

In March 2004, appellant's probation was revoked for desertion, and a bench warrant was issued.

In October 2009, appellant appeared in court and, after being cautioned by the court, admitted to violating her probation by failing to report to probation as ordered.2  Defense counsel joined in the admission and stipulated there was a factual basis for the admission based on the probation officer's report.   The court revoked appellant's probation and sentenced her to the high term of five years in state prison.   Pursuant to agreement, the court suspended execution of the sentence and reinstated probation for a period of three years under all of the same terms and conditions as imposed previously.   Appellant waived all presentence custody credit.

On December 24, 2009, by written motion, the district attorney requested that the court revoke appellant's probation and issue a warrant for defendant's arrest and remand appellant for further proceedings.   A declaration sworn by the deputy district attorney stated he was informed by way of reports attached to his declaration that appellant was arrested for possession of cocaine on December 22, 2009.   The trial court found good cause to preliminarily revoke probation and to issue a bench warrant.3

Appellant was in custody and appeared for a bench warrant hearing on December 28, 2009, and the matter eventually came up for a probation violation hearing on February 5, 2010.   At the hearing, the People presented one witness, appellant's probation officer, Maribel Bermejo.   Bermejo testified she reviewed appellant's files and records and determined appellant had incurred a new arrest.   Bermejo stated she received a notice of appellant's arrest through the JDIC (Justice Data Interface Controller) automated system.   She indicated she had been a probation officer for 10 years, used the system in her daily work as a probation officer and found the system to be generally reliable.   Bermejo testified when she ran the JDIC system on January 12, 2010, she found that appellant had incurred a new arrest on December 22, 2009.

After the People rested their case, the defense submitted without introducing any evidence.   Appellant's counsel argued to the trial court that there was insufficient evidence to show appellant had violated the terms of her probation.   Counsel asserted the fact appellant suffered an arrest without a showing “what for, why, what happened” was not enough to show a probation violation.

The trial court stated that it had reviewed appellant's entire file, not simply what was presented by testimony.4  The court rejected counsel for appellant's further objections based on hearsay and the right to confront and cross-examine as to the facts presented to the court.   By the preponderance of evidence, the court found a violation for purposes of revoking probation.

The trial court pronounced a sentence on February 5, 2010, immediately following the probation violation hearing.   Pursuant to the sentence imposed and suspended on October 29, 2009, the court sentenced appellant to the upper term of five years in state prison, with no credit for back time served in accordance with appellant's earlier waiver.   Appellant received credit of 90 days for recent time served.   Along with other fines and fees, the trial court imposed a $30 criminal conviction assessment pursuant to Government Code section 70373 and a $30 court security assessment pursuant to Penal Code section 1465.8, subdivision (a)(1).

Appellant timely appealed from the judgment of conviction.

CONTENTIONS

Appellant contends that the trial court violated her Fifth Amendment due process rights in finding her in violation of her probation because she had no opportunity to cross-examine the witnesses mentioned in the reports provided by the district attorney.   She further objects that the $30 assessment imposed under Government Code section 70373 is improper and must be stricken because she was convicted before the statute's effective date of January 1, 2009.   Lastly, appellant contends the $20 court security fee imposed under section 1465.8 when the court granted her probation could not properly be increased to $30 because appellant committed no new offense between the date she was placed on probation and the date she was sentenced to prison.

Respondent asserts the trial court properly considered documentary hearsay evidence at the probation revocation hearing.   However, respondent concedes that the assessment under Government Code section 70373 should be stricken and the court security fee should be reduced to $20.

DISCUSSION

1. Admission of Documentary Hearsay

Appellant contends the trial court violated her Fifth Amendment right of due process in finding her in violation of probation.   She argues the court's admission of documentary hearsay violated her right to confront and cross-examine as to the facts presented to the court.   We disagree and hold the trial court below properly considered documentary hearsay at the probation violation hearing when it revoked appellant's probation.

Pursuant to section 1203.2, subdivision (a), probation may be revoked and terminated “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, ․ or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses.”

The trial court's role and responsibility in a probation revocation proceeding “is not to determine whether the probationer is guilty or innocent of a crime, but whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain his conditional liberty.”  (Lucido v. Superior Court (1990) 51 Cal.3d 335, 348;  see also People v. Ochoa (2011) 191 Cal.App.4th 664, 670.)   In reaching a decision whether to revoke the probation, the trial court has broad discretion.  (See 3 Witkin & Epstein, Cal.Criminal Law (3d ed.   2000) Punishment, § 577, p. 769;  People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066 (O'Connell );  see also People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198.)   In reviewing an order revoking probation, we view the evidence in the light most favorable to the judgment.  (People v. Haddad (2009) 176 Cal.App.4th 270, 272;  see Jackson v. Virginia (1979) 443 U.S. 307, 319;  People v. Elliot (2005) 37 Cal.4th 453, 466.)   We review the entire record to ascertain whether the judgment is supported by evidence that is reasonable, credible and of solid value.  (Elliot, supra, at p. 466.)   We must accept logical inferences that the trial court might have drawn from the evidence, and we may not reverse simply because a contrary inference can be drawn from the circumstances.  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)   Reversal for insufficiency of evidence is unwarranted if substantial evidence exists to support the judgment under any hypothesis.  (People v. Bolin (1998) 18 Cal.4th 297, 331.)

It is well established that probation revocation hearings are not criminal proceedings.   Because the granting of probation is an act of “clemency and grace,” the burden of proof at a probation revocation hearing is preponderance of the evidence.  (People v. Rodriguez (1990) 51 Cal.3d 437, 445-446;  O'Connell, supra, 107 Cal.App.4th at p. 1066.)   A defendant has only a limited right of confrontation that stems from the due process clause of the Fourteenth Amendment rather than the Sixth Amendment.5  (Johnson, supra, 121 Cal.App.4th at p. 1411.)

The minimum due process protections at a formal probation revocation hearing include written notice of the claimed violations, disclosure of evidence in support, an opportunity for the defendant to be heard and to present witnesses and a right to confront witnesses, unless the court specifically finds good cause for allowing hearsay in lieu of live testimony.  (People v. Gomez (2010) 181 Cal.App.4th 1028, 1033-1034 (Gomez ), citing Morrissey v. Brewer (1972) 408 U.S. 471, 489 (Morrissey ).)   When appropriate, a court may consider evidence including depositions, affidavits, letters, documentary evidence and other material in a revocation hearing that would not otherwise be admissible in an adversary criminal trial.  (Morrissey, at p. 489;  Gagnon v. Scarpelli (1973) 411 U.S. 778, 782;  People v. Winson (1981) 29 Cal.3d 711, 716, 719.)

Documentary evidence, however, needs only to have reasonable “indicia of reliability” to be admissible.  (People v. Maki (1985) 39 Cal.3d 707, 715, 716-717 (Maki ) [unauthenticated rental car invoice and hotel receipt admissible to prove unauthorized departure from the state];  Gomez, supra, 181 Cal.App.4th at pp. 1038-1039 [records of routine matters, such as defendant's making and keeping of probation appointments, restitution and other payments, and similar records of events of which probation officer is not likely to have personal recollection and upon which officer would rely, held admissible];  Johnson, supra, 121 Cal.App.4th at pp. 1412-1413 [laboratory report is nontestimonial in nature and constitutes admissible hearsay].)   A laboratory report, for example, does not bear testimony or serve as the functional equivalent of in-court testimony.  (Johnson, supra, at p. 1412.)   Among other things, “the witness's demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts, where often the purpose of this testimony simply is to authenticate the documentary material, and where the author, signator, or custodian of the document ordinarily would be unable to recall from actual memory information relating to the specific contents of the writing and would rely instead upon the record of his or her own action.”   (People v. Arreola (1994) 7 Cal.4th 1144, 1157 (Arreola ).)

In the present case, the terms of appellant's probation prohibited her from “us[ing] or possess[ing] any narcotics, dangerous or restricted drugs or associated paraphernalia․”  Appellant was also directed to “submit [your] person and property to a search at any time ․ by any law enforcement officer or probation officer with or without a warrant or probable cause.”

At the probation revocation hearing, the court stated it considered the court file, the official docket entries and transcript “indicating how we got to this point” in addition to the testimony presented, as well as the pleadings presented by the district attorney's office in initiating the revocation proceedings.   The district attorney's pleadings included the documentation pertaining to appellant's arrest to which the probation officer referred in her testimony.

In revoking probation, the court properly gave credence to the testimony of appellant's probation officer regarding the fact of appellant's arrest on a new offense.   Bermejo testified she had been a probation officer for 10 years.   She stated she used the JDIC system daily and found the system to be very reliable.   She indicated sheriffs routinely relied on the JDIC automated system to inform them of a probationer's new arrest.   Although in the nature of double hearsay, Bermejo's testimony based on the report of the JDIC system bore sufficient indicia of reliability for admissibility.

The court, moreover, also properly considered documentary evidence contained in the court's file in determining whether appellant violated the terms of her probation.   As the trial court noted, appellant's court file included official docket entries and the district attorney's motion requesting revocation as well as underlying documentation pertaining to appellant's new arrest.   The deputy district attorney's declaration attached a number of documents relevant to appellant's arrest.   These included a Los Angeles County District Attorney Charge Evaluation Worksheet listing appellant's name, booking number, the charged offense of possession of a controlled substance and an offense date of December 22, 2009.   Also attached was an arrest report showing the arrestee as appellant, with a date of arrest listed as December 22, 2009, and the offense as possession of cocaine.   A Los Angeles Police Department “Booking Approval” form further listed appellant as the individual arrested on December 22, 2009, the booking charge as possession of cocaine and a bail amount of $20,000.   A “Receipt for Property Taken into Custody” catalogued a glass pipe containing an off-white rocklike substance resembling rock cocaine and three off-white rocklike substances resembling rock cocaine.   A laboratory report from the Los Angeles Police Department Scientific Investigation Division stated that an analysis of the off-white solids indicated the presence of cocaine in the form of cocaine base.

The trial court did not err in the consideration of such documentary hearsay.   All of the records appear to be official records.   As such, they bear indicia of reliability and trustworthiness.  (See Morrissey, supra, 408 U.S. at p. 489 [informal revocation hearing process “should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial”].)   Such documents as charge evaluation sheets, booking approval forms, laboratory reports and receipts for property taken when placed in custody are the type of nontestimonial evidence for which the author or signer's demeanor would not be significant in the evaluation of such evidence.  (See Arreola, supra, 7 Cal.4th at p. 1157;  Gomez, supra, 181 Cal.App.4th at pp. 1038-1039.)

From the police reports, which it properly reviewed, the trial court could ascertain the circumstances under which appellant was taken into custody, i.e., that appellant was arrested after police officers staking out a suspected drug house made a traffic stop of a vehicle in which appellant was a passenger leaving the location, and, upon appellant admitting she was on probation, a search of the passenger side of the vehicle uncovered a glass pipe with an off-white residue and a tissue containing what appeared to be rock cocaine that appellant was seen tossing onto the car floor.

From the property receipt, the trial court could also appropriately infer the contraband was possessed by appellant.   Under section 1412, whenever money or other property is taken from a defendant on arrest, “the officer taking it must at the time give duplicate receipts” for the property, “specifying particularly the amount of money or the kind of property taken․”  The officer must deliver one of the receipts to the defendant and the other with the property to the clerk of the court or other person in charge. (§ 1412.)   Under the official records exception to the hearsay rule, it is presumed the officer as a government official duly performed his duty to issue a receipt to the person from whom property was taken and, in the absence of clear evidence to the contrary, that the officer took the banned substances from appellant upon arrest.  (Evid.Code, § 664 [“It is presumed that official duty has been regularly performed”].)   Appellant offered no evidence to rebut that presumption.

Even if appellant had claimed the seized drugs and drug paraphernalia were not hers, the trial court reasonably could infer from admissible evidence appellant “possessed” such contraband and failed to “stay away” from places where drug users or sellers congregated, in violation of the terms of her probation.

2. Facilities Fee Assessment

Government Code section 70373, subdivision (a)(1) states in part that “[t]o ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense․”  The assessment is set at $30 for each misdemeanor or felony and $35 for nonparking infractions.  (Gov.Code, § 70373, subd. (a)(1).)   The statute was enacted in 2008 and took effect on January 1, 2009.  (Stats.2008, ch. 311, § 6.5;  People v. Davis (2010) 185 Cal.App.4th 998, 1000 (Davis ).)

It long has been settled that “a person stands ‘convicted’ upon the return of a guilty verdict by the jury or by the entry of a plea admitting guilt.”   (Davis, supra, 185 Cal.App.4th at p. 1001.)   There is an exception to the general rule when a civil penalty results from a conviction, in which case the “conviction” does not occur until the sentence has been pronounced.  (Ibid.) Imposition of a small facilities fee assessment such as the Government Code section 70373 assessment, however, is not the type of civil disability falling within this exception.  (Davis, at p. 1001.)   Thus, under the general rule, appellant is deemed to have been “convicted” on the date she entered a no contest plea, i.e., September 19, 2003.   This date was well before section 70373 was enacted or went into effect.   Accordingly, the court-imposed assessment under section 70373 is not authorized and must be stricken.   (Davis, at p. 1001.)

3. Court Security Fee

When appellant pled no contest to count one in September 2003, former section 1465.8, subdivision (a)(1) provided that “[t]o ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense․”  In October 2003, the trial court suspended imposition of sentence and placed appellant on formal probation.   The court directed appellant to pay a court security fee of $20 as called for under section 1465.8, subdivision (a)(1).

Appellant's probation was revoked in February 2010, and execution of the sentence was suspended.   In the interim, effective July 28, 2009, the court security fee under section 1465.8, subdivision (a)(1) had been increased to $30.  (Stats.2009-2010, 4th Ex.Sess., ch. 22, § 29.)   The court ordered appellant to pay a court security fee in the increased amount of $30 rather than the $20 amount in effect on the date of appellant's no contest plea.

In the context of deciding whether section 1465.8 should be applied when the statute took effect after the crime was committed but before conviction, our Supreme Court concluded the Legislature intended the statute to be applied as of the date of the conviction, regardless of when the crime was committed.   (People v. Alford (2007) 42 Cal.4th 749, 754.)   Following a like rationale, the court below should have imposed a court security fee of $20 in this case because that was the fee set by section 1465.8 on the date appellant pled no contest to count one.

Both appellant and respondent agree that the judgment should be modified to reflect a court security fee of $20, and we will so order.

DISPOSITION

The judgment is modified to reflect a court security fee of $20 pursuant to section 1465.8, subdivision (a)(1) and by striking the criminal conviction assessment of $30 pursuant to Government Code section 70373, and in all other respects is affirmed.   The trial court is directed to modify the abstract of judgment accordingly and to forward a copy of the revised abstract to the Department of Corrections and Rehabilitation.

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Among other things, appellant admitted that after being granted probation she had failed to report to the court or the probation officer for over five years..  FN2. Among other things, appellant admitted that after being granted probation she had failed to report to the court or the probation officer for over five years.

FN3. The court stated, “I have reviewed both the arrest [and] incident report showing an arrest for [a Health and Safety section] 11350.   The lab report comes back as cocaine.”.  FN3. The court stated, “I have reviewed both the arrest [and] incident report showing an arrest for [a Health and Safety section] 11350.   The lab report comes back as cocaine.”

FN4. The court informed counsel, “I do have the court file, and I have already indicated my reference to the official docket entries and transcript indicating how we got to this point.   I also have the pleadings that were presented by the district attorney's office initially with regard to the request for revocation that has documentation pertaining to the arrest testified to.”.  FN4. The court informed counsel, “I do have the court file, and I have already indicated my reference to the official docket entries and transcript indicating how we got to this point.   I also have the pleadings that were presented by the district attorney's office initially with regard to the request for revocation that has documentation pertaining to the arrest testified to.”

FN5. Appellant concedes that confrontation clause objections under the Sixth Amendment do not apply to probation revocation hearings.  (See People v. Johnson (2004) 121 Cal.App.4th 1409, 1411 (Johnson ).).  FN5. Appellant concedes that confrontation clause objections under the Sixth Amendment do not apply to probation revocation hearings.  (See People v. Johnson (2004) 121 Cal.App.4th 1409, 1411 (Johnson ).)

BIGELOW, P. J. RUBIN, J.