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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Marcos Osuna SALDANA aka Jorge Rivera Martinez, Defendant and Appellant.

No. G014845.

Decided: November 30, 1994

Susan S. Bauguess, under appointment by the Court of Appeal, Running Springs, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Esteban Hernandez, Deputy Atty. Gen., for plaintiff and respondent.


This is an appeal from a judgment entered after the superior court revoked probation in two cases and committed the accused to prison.   He challenges the sufficiency of the evidence presented to establish his identity as the probationer in either of them and to establish a violation in case No. C–96510 on the merits.   Because we reverse on the first issue, we do not reach the second.1


On May 7, 1991, Jorge Rivera Martinez pleaded guilty to selling marijuana in case No. C–85171.   The court imposed three years' probation and 60 days in jail.   On July 19, 1991, probation was revoked because Martinez failed to report to the probation department following his release from jail.

On November 20, 1992, Marcos Osuna Saldana pleaded guilty to illegal cocaine transportation in case No. C–96510.   He was placed on three years probation and given 180 days in jail.   On March 4, 1993, probation was revoked for Saldana's failure to report to the probation department after serving his sentence.

On July 22, 1993, the court found Martinez and Saldana were one in the same person in a probation violation hearing with respect to both cases.   Probation was revoked, and defendant was sentenced to prison on each of them.


The question here appears to be relatively rare: 2  What constitutes sufficient evidence of the identity of the probationer in a revocation proceeding?   Defendant argued, during and at the conclusion of his revocation hearing, that the prosecution failed to establish his identity as the probationer in either case.

The court relied on the testimony of the prosecution's only witness, Probation Officer John Fadul, to find the accused was Martinez and Saldana.   We are not persuaded that his testimony was sufficient, however.   Fadul, Martinez' probation officer, had never met him and admitted he could not swear under oath that the accused was the same person listed in his probation report.   He based his testimony on “office procedures” and a hearsay discussion with Saldana's probation officer, Pete Altamirano.

Fadul testified, “We have a routine that we use to verify who someone is not just by their name, but through information on their rap sheet, through their fingerprints, over at sheriff's records, and through their O.C. number.   This man's, for instance, this man's Orange County's Sheriff's number is 713508.   All of his arrests, no matter what booking number, will fall in that jacket and no matter what name.   And so sometimes, though, they don't get matched up quickly enough and they're released from county jail, even though they may have an outstanding felony warrant under another name.”   This testimony does little more than suggest probationers Martinez and Saldana could be the same person, at least in the opinion of some nameless individual in the sheriff's department.

We face a similar problem with Fadul's testimony concerning his out-of-court conversation with Altamirano.   Altamirano, like Fadul, had never seen his probationer.   Further, neither file contained a photograph for the officers to compare.   Generalizations about probation department and sheriff's office routines and hearsay discussions did not constitute sufficient evidence to establish the defendant's identity as that of the probationer(s).   The paucity of the prosecution's evidence is especially distressing because Fadul testified he had access to fingerprints for comparison, but did not think it was necessary to use them:

 When the probationer's identity is placed at issue, it is the prosecution's burden to prove this essential element of the probation violation.   Nevertheless, our holding does not relieve an accused from indicating to the court and prosecution that identity is contested.   Arraignment on the violation presents the best forum for the accused's denial of his identity as the probationer.   Unless he denies he is the probationer, the prosecution need not be prepared to prove his identity at the hearing, only that he committed the alleged violation.  (People v. Perez, supra, 30 Cal.App.4th at p. 905, 36 Cal.Rptr.2d 391.)

 However, with the practicalities of our overburdened criminal justice system, a defendant who waits until the day of hearing to raise the identity issue should not be barred from litigating the matter.  (Id. at p. 905, 36 Cal.Rptr.2d 391.)   The state has no interest in sending the wrong person to prison.   In such a case, the appropriate remedy is to recess the hearing to allow the prosecution to garner whatever evidence may be available to meet the defense challenge.  (Id. at p. 905, 36 Cal.Rptr.2d 391.)   Here, the accused, whoever he is, raised the issue at the hearing.   But the prosecutor did not seek additional time, and there was simply no satisfactory proof of identity.3

The judgments are reversed.


1.   We note, however, that the accused was seemingly denied the right to confront the witnesses against him on that case.  (People v. Winson (1981) 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55;  but see People v. Brown (1989) 215 Cal.App.3d 452, 263 Cal.Rptr. 391.)

2.   Remarkably, we decide a similar case (People v. Perez (1994) 30 Cal.App.4th 900, 36 Cal.Rptr.2d 391);  but there we determine the identity issue was not properly pressed below.

3.   The clerk's transcript records what looks to be a separate violation in case No. 85171 on February 18, 1993.   Martinez admitted the violation before Judge Brenner and was sentenced to 90 days in jail.   The probation report does not discuss this violation, and Judge Brenner did not state he recognized Martinez from that proceeding.

CROSBY, Associate Justice.

SILLS, P.J., and WALLIN, J., concur.

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