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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Sergio Orosco ARELLANO, Defendant and Appellant.

No. H008743.

Decided: May 12, 1993

Thomas F. Thurlow, Palo Alto, by appointment of the Sixth Dist. Appellate Program, for defendant/appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Senior Asst. Atty. Gen., Morris Beatus, Supervising Deputy Atty. Gen., Gerald Engler, Deputy Atty. Gen., for plaintiff/respondent.

Sergio Orosco Arellano violated probation by driving under the influence of alcohol (Veh.Code, § 23152, subd. (a)) and being intoxicated in public.   (Pen.Code, § 647, subd. (f).) 1  As a result of the probation violation, defendant was sentenced to two years in state prison.

On appeal, defendant attacks the evidence supporting the probation revocation.   He claims the trial court's admission of a preliminary hearing transcript as proof of the drunk driving charge violated his constitutional rights to due process and to confront witnesses.   For the reasons stated below, we affirm.

Facts and Procedural Background

A. Defendant is Placed on Probation

In June 1990, defendant pleaded no contest to driving with a blood alcohol level of at least .10 percent, with three prior convictions.  (§§ 23152, subd. (b);  23175.)   The trial court suspended imposition of sentence and placed defendant on probation for three years.

B. Defendant Violates Probation

In February 1991, defendant pleaded guilty to being intoxicated in public.   (Pen.Code § 647, subd. (f).)

In April 1991, defendant was charged with drunk driving (§ 23152, subds. (a), (b)), driving with a license suspended for driving under the influence (§ 14601.2, subd. (a)), and misrepresenting himself to a police officer.   (Pen.Code, § 148.9.)   The complaint contained the following notice:  “If the above-named defendant(s) is/are presently on felony probation in Santa Clara County, any evidence presented at a preliminary hearing in the instant case will be used not only as a basis for a holding in this case but also as a circumstance for a violation of probation and, at any formal hearing on that violation of probation, the People will move the transcript of the preliminary hearing into evidence as a basis for the violation.”  (Emphasis added.)

On May 16, 1991, the preliminary examination took place.   San Jose Police Officer Ben Gonzalez was the only witness.   According to Officer Gonzalez, on March 29, 1991, at approximately 2 a.m., he observed defendant's car attempting a turn at a high rate of speed, skidding and weaving in and out of the opposite traffic lane.

After stopping the vehicle, Officer Gonzalez observed that defendant smelled of alcohol, his eyes were bloodshot and his speech was slurred.   He staggered as he got out of the car.   He was too inebriated to perform field sobriety tests and initially gave Officer Gonzalez a false name.

For the purposes of the preliminary examination, defendant's attorney stipulated that defendant's blood alcohol level was measured at .29 percent.

C. Probation Revocation Hearing

Defendant was charged with violating his probation on grounds that he had driven while intoxicated and had been intoxicated in public.   The probation revocation hearing took place on July 12, 1991.   The judge conducting the hearing was not the same trial judge who had presided over the May 16, 1991, preliminary examination.

At the probation revocation hearing, the complaint charging defendant with driving while intoxicated was admitted into evidence to show that defendant had notice that the prosecution intended to use the preliminary hearing transcript as evidence of a probation violation.   When the prosecution offered the transcript into evidence, however, defendant objected.   He argued that the transcript was inadmissible hearsay unless the prosecution established that Officer Gonzalez was unavailable.

The prosecution acknowledged that Officer Gonzalez was not unavailable, but claimed the preliminary hearing transcript was nonetheless admissible.   According to the prosecution, hearsay is admissible at a probation revocation hearing so long as it is reliable and the defendant has notice.   The prosecution also noted that the defendant had the opportunity to confront and cross-examine Officer Gonzalez during the preliminary examination.

The trial court ruled as follows:  “[U]nder the circumstances of this case where, ․ notice was given to [defendant] that the preliminary hearing would be used during a revocation of probation hearing, as well as the fact that the Public Defender represented [defendant] both in that case and obviously here in the revocation hearing, as well as I have had an opportunity to look over and read the preliminary hearing.  [¶] I'm satisfied that the hearsay in this particular case is—bears a substantial guarantee of trustworthiness and based on the facts that are presented to me in this particular case, I am finding good cause that it can be received.”

Regarding the Penal Code section 647, subdivision (f), conviction, the trial court stated:  “That standing alone would make me think long and hard.   I could not say that because he suffered a 647(f) that I would send him to state prison.   I would have to think long and hard about that and look over his—everything in consideration.   Once I received circumstance one, I have less of a hesitancy about sending him to state prison.   I would have some difficulty, no question about it, on—based just on the 647(f).”

The trial court proceeded to receive the preliminary examination transcript into evidence along with documents showing defendant's Penal Code section 647, subdivision (f), conviction.   The trial court asked, “Is there any evidence on behalf of the defense?”   The answer was no.   However defendant again objected to consideration of the preliminary hearing transcript.

The trial court found that defendant had violated probation by driving under the influence of alcohol and by being intoxicated in public.   The court repeated, “I would have to think long and hard about a sentence if I did not find a circumstance in violation on number one, the drinking and driving case․”

The court then proceeded to sentence defendant, announcing it had read the summary probation report.   The probation report quoted defendant as acknowledging guilt “of his new offense.”   The court imposed a sentence of two years in state prison.

Admission of the Preliminary Hearing Transcript at the Probation Revocation Hearing

Defendant contends the trial court erred by admitting the preliminary hearing transcript as evidence of a probation violation at the probation revocation hearing.   He claims this violated his constitutional rights of due process and confrontation of witnesses.   A review of precedent will place this contention in context.

In Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, the United States Supreme Court considered “whether the Due Process Clause of the Fourteenth Amendment requires that a State afford an individual some opportunity to be heard prior to revoking his [or her] parole.”  (Id. at p. 472, 92 S.Ct. at p. 2596.)   Parolees enjoy a “conditional liberty” requiring constitutional protection.  (Id. at p. 484, 92 S.Ct. at p. 2601.)   The parolee and society both have a stake “in not having parole revoked because of erroneous information or because of an erroneous evaluation of the need to revoke parole․”  (Ibid.)

The Morrissey court perceived two stages of parole revocation.   The first is a preliminary hearing shortly after the parolee is taken into custody “to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.”  (408 U.S. at p. 485, 92 S.Ct. at p. 2602.)   The second stage is the parole revocation hearing itself, prior to the final decision on revocation.

Morrissey set forth the due process requirements at a parole revocation hearing, including:  “(a) written notice of the claimed violations of parole;  (b) disclosure to the parolee of evidence against him [or her];  (c) opportunity to be heard in person and to present witnesses and documentary evidence;  (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);  (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers;  and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.”  (408 U.S. at p. 489, 92 S.Ct. at p. 2604.)   The court emphasized that “there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense․  [T]he process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.”  (Ibid.)

This emphasis on flexibility was echoed the following year in Gagnon v. Scarpelli (1973) 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, which extended the Morrissey protections to probationers.   In Gagnon the court observed:  “While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.   Nor did we intend to foreclose the States from ․ developing ․ creative solutions to the practical difficulties of the Morrissey requirements.”  (411 U.S. at p. 783, fn. 5, 93 S.Ct. at p. 1760, fn. 5.)

The California Supreme Court anticipated the holding of Gagnon in People v. Vickers (1972) 8 Cal.3d 451, 458, 105 Cal.Rptr. 305, 503 P.2d 1313.   In Vickers the court found that the rules stated in Morrissey in the context of a parole revocation proceeding were equally applicable to revocation of probation.   However, the court noted there were procedural differences between California's probation revocation procedure and the parole revocation procedure described in Morrissey.   Consequently the state courts need not follow precisely the same procedure as Morrissey set forth, so long as equivalent due process safeguards were assured.  (Ibid.)

After Vickers, other California case law established that a separate prerevocation hearing is not required if the probation revocation hearing is timely.   A unitary hearing can serve both purposes.  (People v. Buford (1974) 42 Cal.App.3d 975, 980–981, 117 Cal.Rptr. 333;  People v. Hawkins (1975) 44 Cal.App.3d 958, 967, 119 Cal.Rptr. 54.)

In People v. Winson (1981) 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55, the court applied the principles developed in these cases to the question now before us, whether a preliminary hearing transcript may be admitted at a probation violation hearing in lieu of testimony.   In Winson, defendant was on probation when he was charged with assault with a deadly weapon and attempted robbery.   The victim was the only percipient witness and identified defendant and his accomplice in photographic lineups and at a preliminary examination.   In superior court the criminal charges were dismissed after the court denied the prosecution's motion to utilize the preliminary hearing transcript as evidence.   The court found the prosecution had not been diligent in attempting to locate the victim witness.   The court did, however, admit the preliminary hearing transcript at the probation revocation proceeding.   Defendant objected on several grounds, including lack of notice and denial of rights to confront and cross-examine witnesses.   The prosecution acknowledged that the witness was not legally unavailable.   The trial court overruled defendant's objections without explanation and admitted the transcript into evidence.

The Supreme Court found this to be reversible error, holding as follows:  “A preliminary hearing transcript of a witness' testimony in a defendant's related criminal case is not a proper substitute for the live testimony of the witness at defendant's probation revocation hearing in the absence of the declarant's unavailability or other good cause.”  (29 Cal.3d at pp. 713–714, 175 Cal.Rptr. 621, 631 P.2d 55.)   Appellant argues that Winson dictates the same result in this case.   However, the decision in Winson was based on the facts of that case and the court specifically qualified its holding, stating that “[t]he issue of whether former testimony may be utilized in lieu of a witness' personal appearance is best resolved on a case-by-case basis.”   (Id. at p. 719, 175 Cal.Rptr. 621, 631 P.2d 55.)   The court recited the facts and circumstances which, taken together, had persuaded it that the preliminary hearing transcript had been improperly admitted into evidence:  “the testimony at issue was that of the sole percipient witness to the alleged parole violation, a finding of no legal unavailability was made in the underlying proceedings in which the charges were then dismissed, no additional evidence was introduced which established the witness' unavailability, and the court made no specific finding of good cause for denying the right to confront and cross-examine.”  (Ibid.;  emphasis in original.)

In People v. Maki (1985) 39 Cal.3d 707, 217 Cal.Rptr. 676, 704 P.2d 743, the high court discussed its decision in Winson in the context of a case in which the evidence relied upon was documentary.  “In Winson, we held that a transcript of preliminary hearing testimony is ‘not a proper substitute for the live testimony of the witness at defendant's probation revocation hearing in the absence of the declarant's unavailability or other good cause.’  ( [People v. Winson, supra, 29 Cal.3d] at pp. 713–714 [175 Cal.Rptr. 621, 631 P.2d 55].)   We emphasized, however, that the right of confrontation upon which we rested our holding was not absolute and where ‘ “appropriate,” witnesses may give evidence by document, affidavit or deposition [citations].’  (Id., at p. 719 [175 Cal.Rptr. 621, 631 P.2d 55].)”  (People v. Maki, supra, 39 Cal.3d at p. 710, 217 Cal.Rptr. 676, 704 P.2d 743;  Gagnon v. Scarpelli, supra, 411 U.S. at p. 783, 93 S.Ct. at p. 1760.)

At issue in Maki was the introduction of a hotel receipt and a car rental invoice to prove that a probationer had left town in violation of probation.   The documents did not fit within any hearsay exceptions.  Maki quoted the passage from Morrissey, which stated that revocation hearings should be flexible enough to allow consideration of letters and other documents that would not be admissible in a criminal trial.   After reviewing foreign authority allowing consideration of hearsay documents at revocation hearings, the Maki court found those cases indicated a “willingness to consider otherwise inadmissible hearsay evidence when accompanied by reasonable indicia of reliability.”  (People v. Maki, supra, 39 Cal.3d at p. 715, 217 Cal.Rptr. 676, 704 P.2d 743.)   The court held, “documentary hearsay evidence which does not fall within an exception to the hearsay rule may be admitted [at probation and parole revocation hearings] if there are sufficient indicia of reliability․”  (Id. at p. 709, 217 Cal.Rptr. 676, 704 P.2d 743.)   The documents at issue bore such indicia because the court had authentic signatures by the probationer to compare to the alleged signatures on the documents.

Two other cases raised by the People bear mention here.   In In re Law (1973) 10 Cal.3d 21, 109 Cal.Rptr. 573, 513 P.2d 621, the Supreme Court considered whether a preliminary hearing could serve as the probable cause hearing prerequisite to revoking parole.   The court determined that “where the conduct which constitutes a prima facie violation of parole is also independently charged as a new felony the procedures afforded through the holding of a preliminary hearing are inclusive of or may be made to conform to the procedures mandated in Morrissey.  (See People v. Vickers, supra, 8 Cal.3d [at pp.] 456–457, 105 Cal.Rptr. 305, 503 P.2d 1313.)   In such instances no purpose would be served by requiring a determination that there exists probable cause to believe that a particular act occurred which constitutes a violation of parole independently of a prior determination of the existence of probable cause of the commission of a felony grounded on the same occurrence.   Due process would further require, however, that a parolee have fair notice of the nature and effect of a hearing intended to serve such a dual purpose.  [¶] ․ The use of the preliminary hearing as the equivalent of a probable cause hearing would, ․ in appropriate cases eliminate needless duplication and would preclude the possibility of a parolee being subjected to two proceedings.”  (10 Cal.3d at p. 27, 109 Cal.Rptr. 573, 513 P.2d 621.)

In People v. Santellanes (1989) 216 Cal.App.3d 998, 265 Cal.Rptr. 281, the court applied In re Law in a probation revocation case.   In Santellanes, the probation revocation hearing was held immediately following the preliminary hearing on the new charges.   Defendant stipulated that the judge who had presided as magistrate could conduct the revocation hearing.   However, he claimed his due process rights were violated by the magistrate's utilization of evidence obtained at a preliminary hearing as the basis of probation revocation.   The court rejected this claim.  “Santellanes was given ample notice that the preliminary hearing on the [new] charges would also serve as the preliminary hearing to determine whether there was sufficient cause to believe he had engaged in conduct in violation of his probation, justifying revocation thereof.   This combined hearing provided all of the rights outlined in Morrissey and Vickers which are applicable to the initial hearing.   Santellanes had adequate notice that probation revocation was to be considered during the preliminary hearing, was present at the hearing, heard the evidence against him, had ample opportunity to present witnesses and documentary evidence, was represented by counsel who was free to confront and cross-examine adverse witnesses, and was before a neutral and detached judicial officer.”   (Id. at p. 1004, 265 Cal.Rptr. 281.)   He was afforded due process.

 The guidance provided by these cases leads us to the following conclusions.   A probation revocation proceeding should be flexible enough to allow evidence which would not necessarily be admissible in an adversary criminal trial.  (Morrissey v. Brewer, supra, 408 U.S. at p. 489, 92 S.Ct. at p. 2604, People v. Maki, supra, 39 Cal.3d at p. 714, 217 Cal.Rptr. 676, 704 P.2d 743.)   When good cause is found a preliminary examination transcript can substitute for live testimony at a probation revocation hearing.  (People v. Winson, supra, 29 Cal.3d at p. 719, 175 Cal.Rptr. 621, 631 P.2d 55;  Morrissey, supra, 408 U.S. at p. 489, 92 S.Ct. at p. 2604.)   Moreover, hearsay documentary evidence, if it appears sufficiently reliable, can be used to prove a probation violation.   (Maki, supra, 39 Cal.3d at p. 709, 217 Cal.Rptr. 676, 704 P.2d 743.)   A combined or consolidated hearing on new charges and revocation satisfies due process so long as adequate notice is given the parolee or probationer.  (in rE law, supra, 10 cal.3d at p. 27, 109 caL.rptr. 573, 513 P.2d 621;  People v. Santellanes, supra, 216 Cal.App.3d at p. 1004, 265 Cal.Rptr. 281.)   And finally, the issue whether a preliminary hearing transcript may be used in lieu of a personal appearance by a witness at a revocation hearing is best decided on a case-by-case basis.  (Winson, supra, 29 Cal.3d at p. 719, 175 Cal.Rptr. 621, 631 P.2d 55.)

 We turn now to the facts of this case to conduct the case-by-case review required by Winson.   We find the following circumstances distinguish this case from Winson and support the trial court's finding of good cause to admit the preliminary hearing transcript at the probation revocation hearing over defendant's objection.   Here, defendant was afforded written notice that the prosecution intended to use the preliminary hearing transcript as proof of a probation violation.   Defendant was represented by the same legal office (the public defender) at both hearings.   Defendant was given an opportunity at the revocation hearing to present evidence.   Defendant made no offer to the trial court that his cross-examination of the witness at the preliminary hearing was less than complete.   The trial court reviewed the preliminary examination transcript before deciding to admit it and expressly found it sufficiently reliable.   The trial court implicitly concluded that it did not need to observe the demeanor of the percipient witness to the alleged probation violation.   Defendant has failed to show in what manner additional cross-examination of the witness or the court's opportunity to observe his demeanor could have altered the finding of a violation in any way in this case.   Here, unlike Winson, the percipient witness was a police officer.   Moreover, defendant stipulated for purposes of the preliminary hearing to a .29 percent blood alcohol level.

We also note that defendant acknowledged guilt of his new offense to the probation officer, although the trial court did not expressly rely on that statement in finding the probation violation.

These circumstances persuade us that defendant's constitutional rights were not infringed by the trial court's admission of the preliminary hearing transcript.   The transcript was properly admitted.

Defendant further contends that he received inadequate notice that the preliminary hearing transcript would be used not only to prove a probation violation, but also for sentencing purposes.   As we read the record, the trial court relied on the probation report for sentencing.   Defendant received adequate notice of the use of the preliminary hearing transcript.


The order is affirmed.


1.   Unspecified section references are to the Vehicle Code.

BAMATTRE–MANOUKIAN, Associate Justice.

PREMO, Acting P.J., and ELIA, J., concur.

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Docket No: No. H008743.

Decided: May 12, 1993

Court: Court of Appeal, Sixth District, California.

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