THE PEOPLE v. BENJAMIN ALLEN WILLIAMS

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN ALLEN WILLIAMS, Defendant and Appellant.

B228228

Decided: October 26, 2011

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Benjamin Allen Williams appeals from an order revoking probation previously granted upon the imposition of a six-year prison sentence after his plea of guilty to a charge of committing a lewd act upon a child (Pen.Code, § 288, subd. (a)).  We affirm the order.

FACTUAL SUMMARY

The record reflects that on April 22, 2005, appellant, 18 years old, had sexual intercourse with 13–year–old Brianna T. in a Long Beach motel, causing her to suffer vaginal bleeding.   As a result of the incident, Brianna T. had a baby and was diagnosed as having a sexually transmitted disease which put her at lifelong risk of contracting cervical cancer.   Following the offense, appellant threatened Brianna T., telling her she could lose the baby and he would come to her house and push her down the stairs.

ISSUE

Appellant claims the trial court's use of a probation report to establish a probation violation and to revoke his probation violated his constitutional rights to due process.

DISCUSSION

The Probation Report's Entry About Appellant's 2009 Burglary Conviction Was Admissible and Was Substantial Evidence Supporting Probation Revocation.

1. Pertinent Facts.

On January 24, 2006, appellant pled guilty as previously indicated.   The court suspended imposition of sentence and placed appellant on formal probation for five years on the condition, inter alia, that he obey all laws.

On May 6, 2007, appellant was arrested for a violation of Penal Code section 12025, subdivision (a)(1), and in that matter, appellant, on June 1, 2007, was convicted of possession of a weapon by a felon and sentenced to prison for three years.   In the present case, on February 13, 2008, appellant admitted he had violated probation based on the 2007 conviction.   The court found him in violation of probation, sentenced him to prison for the six-year middle term, but suspended execution thereof on the probation condition, inter alia, that he obey all laws.

On July 29, 2010, when scheduling a probation revocation hearing, the court stated, “The formal hearing will be on the probation report alone as far as I am concerned.”   Appellant's counsel replied “Very well” and asked for a continuance.

At the August 16, 2010, probation revocation hearing, the prosecutor indicated the court was going to take judicial notice of the 2009 conviction.   The court, without objection at the time, admitted the report into evidence as People's exhibit No. 1. The People rested.

In defense, appellant's mother addressed the court and said, inter alia, that “[appellant] got into this $48 pair of shoes, which gave him a commercial burglary from J.C. Penney.”   Appellant later posed a foundation objection to People's exhibit No. 1, and the court overruled the objection.   Appellant then personally addressed the court.   The thrust of his statements was a plea for leniency.   He also told the court the following.   Appellant had been “running with the wrong people,” had received a prison term, and had been reinstated on probation.   Appellant tried to stay out of trouble.   The “situation that happened, the most recent one, you know I wanted to go to trial, but the odds were against me.   So, ․ it lead to this situation where I kind of felt like I had to take some kind of deal.”

The court then stated, “Mr. Williams, you were on probation in this case.   While on probation you got caught packing a gun.   You went to prison for it.   That didn't get your attention.   You are back on probation on this case.  [¶] Now, you got a new felony conviction for essentially commercial burglary.   Give me a break.   You are not trying hard enough.”   The court asked if appellant had another witness, and appellant indicated he did not.   The court found appellant in violation of probation, revoked probation, and committed appellant to prison for six years.

2. Analysis.

Appellant claims the trial court's use of a probation report to establish a probation violation and revoke his probation violated his constitutional rights to due process.   He argues the trial court erred by admitting into evidence at the probation revocation hearing the information in the report that appellant had suffered the 2009 conviction.   Appellant also argues that this information was insufficient either to support the trial court's finding that he violated probation or the trial court's revocation of his probation.   He bases his arguments on the premise that his rights to confrontation guaranteed by his constitutional rights to due process precluded the introduction into evidence of this information by way of a probation report in lieu of testimony from the probation officer who authored the report.   We reject appellant's claim.

a. Applicable Law.

Penal Code section 1203.2, subdivision (a) provides that “the 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 ․ that the person has violated any of the conditions of his or her probation ․ or has subsequently committed other offenses[.]”  Proof of a probation violation by a preponderance of the evidence is sufficient to revoke probation.  (People v. Rodriguez (1990) 51 Cal.3d 437, 446 (Rodriguez ).)   Trial courts have broad discretion to determine whether a defendant has violated probation and whether, as a result, the court should revoke probation (id. at pp. 443, 445).

In assessing a challenge to the sufficiency of the evidence following a probation revocation hearing, we review the record in the light most favorable to the judgment to determine whether there is substantial evidence from which the trial court could find a probation violation.  (People v. Kurey (2001) 88 Cal.App.4th 840, 848–849.)   We review the trial court's finding that appellant violated probation, and the court's resulting decision to revoke probation, for abuse of discretion.  (Rodriguez, supra, 51 Cal.3d at p. 443;  People v. Angus (1980) 114 Cal.App.3d 973, 987–988.)   A trial court does not abuse its discretion by revoking probation if the record shows the defendant violated probation conditions.  (People v. Hawkins (1975) 44 Cal.App.3d 958, 968.)

The minimum due process requirements at a formal probation revocation hearing include the right to confront witnesses.  (People v. Gomez (2010) 181 Cal.App.4th 1028, 1033–1034 (Gomez ).)   The defendant's right of confrontation at said hearing does not arise from the confrontation clause, but from due process.  (Id. at p. 1034.)   This right of confrontation is not absolute, and confrontation may be denied if the trier of fact finds and expresses good cause for doing so.   Due process does not prohibit the use, where appropriate, of conventional substitutes for live testimony, including documentary evidence, but such documentary evidence must be accompanied by “reasonable indicia of reliability” to be admissible.  (Ibid.) The determination of whether such indicia exists rests within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.  (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066.)

Concerning the issue of reasonable indicia of reliability, we note the following.   First, state statutes and court rules highlight the legislative and judicial expectations, respectively, that probation officers will produce probation reports reflecting a defendant's criminal history, and that courts will read and consider them.1  Second, in People v. Evans (1983) 141 Cal.App.3d 1019 (Evans ), the court, rejecting the defendant's claim that the trial court improperly considered his probation report when imposing sentence, stated, “here the court considered only court files and probation reports which are inherently reliable and which the court is required to consider (Pen.Code § 1203, subd. (b);  People v. Arbuckle (1978) 22 Cal.3d 749, 755).”  (Evans, supra, 141 Cal.App.3d at pp. 1021–1022.)

Third, in Gomez, a trial court at a probation revocation hearing admitted into evidence, over the defendant's hearsay and personal knowledge objections, a probation report's statement that the defendant had failed to report to a probation officer as instructed.   The probation report (written by probation officer Lindsay) reflected that its statement was based wholly on electronic probation records which indicated, inter alia, another probation officer (Kendrick) had indicated the defendant had failed to report as instructed and had not responded to letters which Kendrick had sent to the defendant's residence.   The probation report was the sole evidence introduced at the hearing.   The court, which indicated it had looked at the report, later found the defendant in violation of probation for failing to report to the probation department, and the court imposed sentence.  (Gomez, supra, 181 Cal.App.4th at pp. 1032–1033.)

Gomez observed that in People v. Maki (1985) 39 Cal.3d 707 (Maki ), our Supreme Court held that a Hertz rental car invoice signed by Maki, and a Hyatt hotel receipt, both of which were found in his possession, were admissible at a probation revocation hearing without authentication by representatives of Hertz and Hyatt, given the uncontroverted presence of defendant's signatures on the invoice and the absence of any evidence tending to contradict the information contained in the invoice and the accuracy of the inference that defendant was in Chicago signing the invoice.   The receipts indicated Maki had rented a car and had stayed in a Chicago hotel in violation of the probation condition that he obtain written permission to leave San Diego County.  (Gomez, supra, 181 Cal.App.4th at p. 1034.)

Gomez discussed People v. Arreola (1994) 7 Cal.4th 1144 (Arreola ).   Arreola held inadmissible at a probation revocation hearing a preliminary hearing transcript of a police officer's testimony relating his observations of, inter alia, a defendant's acts which provided evidence that, at the time, the defendant was driving a vehicle under the influence of alcohol.  Arreola stated, “ ‘As we observed in [People v. Winson (1981) 29 Cal.3d 711], the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness's demeanor․  Generally, 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.’   [Citation.]”  (Gomez, supra, 181 Cal.App.4th at pp. 1034–1035, quoting Arreola, supra, 7 Cal.4th at p. 1157.)

Gomez concluded the presence of Lindsay and Kendrick at the probation revocation hearing “ ‘likely would not have added anything to the truth-furthering process, because ․ [each] would be testifying to a negative’ [e.g., the defendant's failure to report].”  (Gomez, supra, 181 Cal.App.4th at p. 1038.)  Gomez also concluded “the demeanor of ․ [Lindsay and Kendrick] ․ would not have been a significant factor in evaluating the credibility of their foundational testimony pertaining to the contents of the probation department's records regarding defendant's failure to report [.]”  (Ibid.)

b. Application of the Law to This Case.

i. The Admissibility Issue.

In this case, the probation officer, in effect, stated (as reflected in the report) that (1) government records (i.e., the records of the Department of Justice and local law enforcement) stated that appellant had suffered a 2009 conviction and (2) appellant admitted the conviction to the probation officer.   Appellant appears to argue that the probation officer's above two statements, although not otherwise made inadmissible by due process, were nonetheless rendered inadmissible by due process simply because the statements were introduced into evidence by way of the introduction into evidence of the report relating those statements, instead of by way of live testimony from the report's author relating those statements.

We note at the outset that, as respondent observes, appellant did not explicitly challenge below the accuracy of the information in the report that he suffered the 2009 conviction or that he admitted the conviction to the probation officer.   Nor did appellant raise below the issue of whether the entry in the report concerning the 2009 conviction was admissible as against a due process objection, or, in particular, whether that entry was accompanied by reasonable indicia of reliability.   Appellant's foundational objection was untimely because the report was admitted into evidence during the People's case-in-chief, but appellant posed the objection only during the defense presentation of evidence.   For all of the above reasons, appellant waived the issues he now raises.  (Cf. People v. Benson (1990) 52 Cal.3d 754, 786–787, fn. 7;  Evans, supra, 141 Cal.App.3d at p. 1021;  Evid.Code, § 353, subd. (a).)

Even if these issues were not waived, appellant's arguments are without merit for the reasons discussed below.   First, as mentioned, the legislative and judicial expectations as reflected in statutes and rules, respectively, are that courts will read and consider probation reports reflecting a defendant's criminal history, and case law indicates such reports are inherently reliable.2

Second, we view this case as sufficiently close to Maki and Gomez.   It is true that, unlike the case in Gomez, the substantive information challenged here involves a 2009 conviction, and not a mere failure to act by appellant.   However, that fact is not dispositive.   The issue is whether a trial court conclusion, that the report's entry concerning the 2009 conviction was accompanied by reasonable indicia of reliability, would have been an abuse of discretion.

In this case the trial court reasonably could have concluded that if the probation officer who authored the report had testified, she simply would have authenticated the report and ordinarily would have been unable to recall from memory the information relating to the specific contents of the report, i.e., the facts that (1) government records indicated appellant had suffered the 2009 conviction and (2) appellant admitted the 2009 conviction to the probation officer.   The trial court reasonably could have concluded the probation officer would have relied instead upon the record of her own action, i.e., the report's recitation of these facts.   The demeanor of the probation officer would not have been a significant factor in evaluating the credibility of her foundational testimony pertaining to the government records' reference to appellant's 2009 conviction, or to the fact appellant admitted the prior conviction to her.

Third, the report indicated government records indicated appellant suffered a 2009 conviction, and that appellant admitted the conviction to the probation officer.   Both the government records at issue, as well as the record of the conviction, would have been admissible hearsay under the official records and business records exceptions to the hearsay rule (cf.  People v. Cummings (1993) 4 Cal.4th 1233, 1295, fn. 36;  People v. Wheeler (1992) 4 Cal.4th 284, 300, fn. 13;  see People v. Taulton (2005) 129 Cal.App.4th 1218, 1224–1225), and their introduction into evidence would have involved a relatively simple matter of proof.  (See People v. Monge (1997) 16 Cal.4th 826, 838.)   Appellant's admission to the probation officer that appellant suffered the conviction would have been admissible under the admissions exception to the hearsay rule (Evid.Code, § 1220).   These facts strengthen the inference that reasonable indicia of reliability accompanied the report's reference to the 2009 conviction.   This is not a case in which the probation officer in her report purported to recount as a percipient witness appellant's acts which provided evidence he was then committing a crime or other misconduct.

We conclude the trial court did not err or abuse its discretion by admitting into evidence at the probation revocation hearing the entry in the report that appellant suffered a 2009 conviction for second degree burglary.  (Cf. Gomez, supra, 181 Cal.App.4th at pp. 1033–1039;  People v. Abrams (2007) 158 Cal.App.4th 396, 404–405 (Abrams.) 3

Finally, even if the challenged evidence was inadmissible because it violated appellant's right to due process, we evaluate the error to determine whether it was prejudicial under the standard enunciated in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].  (Cf. Kentron D., supra, 101 Cal.App.4th at p. 1394.)   We make two observations on this issue.

First, the sole probation violation alleged at the probation revocation hearing was that appellant suffered the 2009 second degree commercial burglary conviction.   Whether or not the report was admitted into evidence, appellant's mother, during the defense presentation of evidence, indicated appellant suffered the commercial burglary conviction.   When, during the defense presentation of evidence, the trial court interrupted appellant's statement to the court and told him, inter alia, he had suffered a new felony commercial burglary conviction, appellant did not deny it.   Appellant's silence in the face of the statements of his mother and the trial court that he had suffered the prior conviction constituted adoptive admissions that he suffered that conviction.  (See People v. Riel (2000) 22 Cal.4th 1153, 1189.)   We also note that during the defense presentation of evidence, appellant, personally addressing the court, made comments which, fairly read, constituted an admission that he suffered the 2009 conviction and that it was his “most recent one.”  (Cf. Abrams, supra, 158 Cal.App.4th at p. 405.)   The gravamen of appellant's other comments to the court was a plea for leniency, not a denial he had suffered the 2009 conviction.

Second, whether or not the report was admitted into evidence, the report is part of the trial court record (Pen.Code, § 1203, subd. (b)(3)) and is also part of the record on appeal (cf.  Cal. Rules of Court, rule 8.320(b)(13)(D)) as part of the clerk's transcript.   Appellant did not below, and does not here, dispute the accuracy of the entry in the report that he suffered the 2009 conviction or claim he did not suffer it, i.e., there is no real dispute he suffered the conviction.

Evidence Code section 452, subdivision (d) provides that judicial notice may be taken of the “[r]ecords of ․ any court of this state.”   Even if the trial court erred by admitting into evidence the challenged entry in the report, it would be an idle gesture for this court to reverse the order revoking probation and to remand the matter to afford appellant a new probation revocation hearing.   Based on the trial court's comments, we have no doubt the trial court, following any such remand, would simply obtain, and take judicial notice of, the record of appellant's 2009 conviction, and revoke his probation and commit him to prison again.  (Cf. Arreola, supra, 7 Cal.4th at pp. 1161–1162.)   Any trial court error in the admission into evidence of the entry in the report that appellant suffered the 2009 conviction was harmless beyond a reasonable doubt.

ii. The Sufficiency of Evidence Issue.

As indicated, the evidence of the report's entry concerning appellant's 2009 conviction was properly before the trial court.   Moreover, as also indicated, during the defense presentation of evidence, appellant made adoptive admissions that he suffered the 2009 conviction, and admitted it was his most recent one.   No evidence was presented that appellant did not suffer the 2009 conviction.   We conclude there was sufficient evidence to convince a rational trier of fact, based on a preponderance of the evidence standard, that appellant suffered the 2009 conviction and, therefore, sufficient evidence to support both the trial court's finding that he violated probation and the trial court's revocation of his probation.

DISPOSITION

The order revoking probation is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Penal Code section 1203, subdivision (b)(1), provides that “if a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the ․ prior history and record of the person[.]”  (Italics added.)   As mentioned, Penal Code section 1203.2 indicates a trial court may revoke probation based in part on “the report of the probation officer” that the defendant has “subsequently committed other offenses.”   California Rules of Court, rule 4.411.5 indicates “A probation officer's presentence investigation report in a felony case must include at least the following:  [¶] ․ [¶] (3) A summary of the defendant's record of prior criminal conduct, including convictions as an adult․”  Penal Code section 1203, subdivision (b)(3) provides that a court must determine a defendant's suitability for probation, “the court shall consider any report of the probation officer,” and the report “shall be filed with the clerk of the court as a record in the case.”   It is presumed the court has read and considered the probation report.  (People v. Black (2007) 41 Cal.4th 799, 818, fn. 7.).  FN1. Penal Code section 1203, subdivision (b)(1), provides that “if a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the ․ prior history and record of the person[.]”  (Italics added.)   As mentioned, Penal Code section 1203.2 indicates a trial court may revoke probation based in part on “the report of the probation officer” that the defendant has “subsequently committed other offenses.”   California Rules of Court, rule 4.411.5 indicates “A probation officer's presentence investigation report in a felony case must include at least the following:  [¶] ․ [¶] (3) A summary of the defendant's record of prior criminal conduct, including convictions as an adult․”  Penal Code section 1203, subdivision (b)(3) provides that a court must determine a defendant's suitability for probation, “the court shall consider any report of the probation officer,” and the report “shall be filed with the clerk of the court as a record in the case.”   It is presumed the court has read and considered the probation report.  (People v. Black (2007) 41 Cal.4th 799, 818, fn. 7.)

FN2. In light of the above analysis, there is no need to address the issues of whether the probation report's entry was admissible under the official records exception of the hearsay rule (see People v. Monreal (1997) 52 Cal.App.4th 670, 678–679) or, if so, whether that fact would add to the reasonable indicia of reliability of the entry..  FN2. In light of the above analysis, there is no need to address the issues of whether the probation report's entry was admissible under the official records exception of the hearsay rule (see People v. Monreal (1997) 52 Cal.App.4th 670, 678–679) or, if so, whether that fact would add to the reasonable indicia of reliability of the entry.

FN3. Appellant's reliance on In re Kentron D. (2002) 101 Cal.App.4th 1381 (Kentron D.) and Arreola is inapposite.   In Kentron D., unlike the present case, the People introduced into evidence at a juvenile probation revocation hearing a probation report that acted as an accusatory pleading, i.e., a Welfare and Institutions Code section 777 notice.   The report and notice contained, in counts, allegations by probation officers that they were percipient witnesses to specific acts of misconduct by the minor, i.e., misconduct constituting violations of his probation.   (Kentron D., supra, 101 Cal.App.4th at pp. 1387–1393.)  Kentron D. is thus distinguishable.  Arreola, which we previously have discussed, is similarly factually distinguishable from the present case..  FN3. Appellant's reliance on In re Kentron D. (2002) 101 Cal.App.4th 1381 (Kentron D.) and Arreola is inapposite.   In Kentron D., unlike the present case, the People introduced into evidence at a juvenile probation revocation hearing a probation report that acted as an accusatory pleading, i.e., a Welfare and Institutions Code section 777 notice.   The report and notice contained, in counts, allegations by probation officers that they were percipient witnesses to specific acts of misconduct by the minor, i.e., misconduct constituting violations of his probation.   (Kentron D., supra, 101 Cal.App.4th at pp. 1387–1393.)  Kentron D. is thus distinguishable.  Arreola, which we previously have discussed, is similarly factually distinguishable from the present case.

CROSKEY, Acting P. J. ALDRICH, J.