PEOPLE v. MAKI (1984)

Donald L. Maki appeals the judgment entered after his probation was revoked.

 In 1981 Maki was placed on probation following his negotiated guilty plea to two counts of issuing insufficient funds checks.   Revocation proceedings were instituted in 1983, alleging he violated four separate probation conditions.   The court rejected three of the alleged violations but found Maki violated probation when he traveled to Chicago, Illinois without the written permission of his probation officer, Michael Pisor.   The court revoked probation and sentenced Maki to prison for two years on each NSF count, to be served concurrently.¹

As we shall explain, under the guidelines of People v. Winson (1981) 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55, cert. den., 455 U.S. 975, 102 S.Ct. 1485, 71 L.Ed.2d 688, we reverse the judgment and remand for further proceedings consistent with this opinion.

I

Factual and Procedural Background

Maki's job as an attorney's investigator occasionally required him to travel outside San Diego County.   Pisor gave Maki written permission for three trips, the last one terminating January 22, 1983.

At the probation revocation hearing the court, over Maki's objections, admitted into evidence copies of a car rental invoice and a hotel room receipt.   The invoice, bearing Maki's signature, was issued by Hertz Rent A Car at O'Hare Field in Chicago, showing rental of a car at that location on January 27, 1983 with return made two days later.   The court compared Maki's signature on the Hertz invoice with his signature on two probation reports, and found the three signatures were identical.  (Evid.Code, § 1417.)   The hotel room receipt, dated January 28, 1983, was issued by the Hyatt Regency O'Hare.   Although unsigned, the receipt shows payment was made by “Maki” for overnight accommodations.

Apart from offering the two probation reports for the court's use in identifying Maki's signature, the deputy district attorney did not authenticate either the Hertz invoice or the Hyatt receipt.  (Evid.Code, § 1401, subd. (b).)  He also laid no foundation as to the time, place or manner of the documents' preparation or the likely circumstances under which Maki signed the Hertz invoice.  (Evid.Code, §§ 1271, 1560–1562.)   The only foundation laid for the documents was Pisor's testimony that the original documents were seized at Maki's home in the course of his arrest on unrelated charges.   A police detective gave Pisor copies of the original documents.   Pisor never saw the originals themselves, and he offered no explanation of the circumstances under which the originals were seized or the reasons why the originals were not offered into evidence at the revocation hearing.

The court found Maki's presence in Chicago between January 27 and 29, 1983 could be reasonably inferred from the Hertz invoice, as corroborated by the Hyatt receipt.   Maki did not testify.

Discussion

II

 A probation revocation hearing must satisfy minimum federal due process standards.  (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, 786, 93 S.Ct. 1756, 1759, 1761, 36 L.Ed.2d 279;  accord, People v. Winson, supra, 29 Cal.3d at p. 716, 175 Cal.Rptr. 621, 631 P.2d 55;  People v. Vickers (1972) 8 Cal.3d 451, 457–458, 105 Cal.Rptr. 305, 503 P.2d 1313.)   Subject to those standards, however, the hearing process should be flexible enough to allow the court to consider evidence which would be inadmissible in a criminal trial, “including letters, affidavits, and other material.”  (People v. Vickers, supra, 8 Cal.3d at pp. 457–458, 105 Cal.Rptr. 305, 503 P.2d 1313, quoting from Morrissey v. Brewer (1972) 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484;  accord, Gagnon v. Scarpelli, supra, 411 U.S. at pp. 782–783, fn. 5, 93 S.Ct. at pp. 1760, fn. 5;  People v. Winson, supra, 29 Cal.3d at p. 716, 175 Cal.Rptr. 621, 631 P.2d 55.)   Thus, as a general rule, hearsay and secondary evidence are admissible provided probationers' constitutional rights are not infringed.  (People v. Winson, supra, 29 Cal.3d at pp. 716–717, 175 Cal.Rptr. 621, 631 P.2d 55;  People v. Rafter (1974) 41 Cal.App.3d 557, 561, 116 Cal.Rptr. 281.)

 Consistent with the requisite constitutional safeguards is the need for accurate factfinding in a probation revocation hearing.   There is concern by both the probationer and the state to accurately resolve the allegations in order to permit the trial court to properly exercise its discretion.   The probationer's concern is “ ‘to insure that his liberty is not unjustifiably taken away and the State['s concern is] to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community.’ ”  (Gagnon v. Scarpelli, supra, 411 U.S. at p. 785, 93 S.Ct. at p. 1761, quoted in People v. Winson, supra, 29 Cal.3d at p. 715, 175 Cal.Rptr. 621, 631 P.2d 55.)  “It is thus detrimental to the state and the probationer alike if probation is revoked ‘because of erroneous information or because of an erroneous evaluation of the need to revoke ․  [Citation.]’ ”  (People v. Coleman (1975) 13 Cal.3d 867, 873–874, 120 Cal.Rptr. 384, 533 P.2d 1024, quoting from Morrissey v. Brewer, supra, 408 U.S. at p. 484, 92 S.Ct. at p. 2601.)

Guided by the foregoing, we examine Maki's evidentiary challenge.

III

Pisor did not give Maki permission to leave the state after January 22, 1983.   Accordingly, the only disputed fact at the probation revocation hearing was whether Maki was in Chicago between January 27 and 29.   Assuming the Hertz invoice and Hyatt receipt are factually accurate, the documents are relevant because the court could logically infer from them that a person named Maki was in Chicago between January 27 and 29.   The court could also reasonably infer from the documents' seizure at Maki's home that Maki and the person named on the documents were one and the same.   The documents thus represent relevant circumstantial evidence because they establish a set of intermediate facts from which the court was able to infer the existence of the disputed fact (i.e., Maki's presence in Chicago between January 27 and 29).  (See Evid.Code, § 210;  1 Jefferson, Cal.Evidence Benchbook (2d ed. 1982) § 19.3, p. 453.)

 Here, the Hertz invoice and Hyatt receipt are hearsay because they are out-of-court statements which were offered to prove the truth of the matters stated (i.e., Maki's rental of a car and a hotel room in Chicago between January 27 and 29, 1983).²  (See Evid.Code, § 1200, subd. (a).)

 The only possible exception to the hearsay rule that might apply here is the adoptive admission exception of Evidence Code section 1221.³  That section provides:  “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.”   In analyzing the applicability of this exception we must distinguish between the signed Hertz invoice and the unsigned Hyatt receipt.

 A document unsigned by a party which contains a written statement by a third person declarant may constitute an adoptive admission by the party only when the circumstances of the document's possession by the party are such that a reasonable person could conclude the party “(1) had knowledge of the contents of declarant's statement, and (2) having such knowledge, has, by words or other conduct, manifested his adoption or his belief in its truth.   See Evid C § 1221.”  (1 Jefferson, Cal.Evidence Benchbook, supra, § 1.1, p. 20, italics in original.)   Accordingly, such factors “as the length of time of possession, whether the document is found in an open-faced condition as contrasted with being enclosed in a sealed envelope, or whether the document is found on the person of a party as contrasted with being found in a cabinet of a house or in the glove compartment of an automobile, would appear to be significant elements in a determination of whether the possession by a party to an action of a declarant's written statement was of such character that a reasonable mind could conclude therefrom that such party ․ [had admitted the truth of that statement].”  (Ibid., italics in original.)

 Here, the only foundational fact provided for either the Hertz invoice or the Hyatt receipt was Pisor's testimony that the original documents were found at Maki's home.   There was no evidence offered regarding the condition in which the documents were found or the exact location within Maki's home from which they were seized.   In addition, Pisor was unable to rule out the possibility the documents might have been taken from the possession of one of Maki's sons living at his home.   Under these circumstances, the mere presence of the unsigned Hyatt receipt at Maki's home, without more, is insufficient to convert that receipt into an adoptive admission by Maki.  (See 1 Jefferson, Cal.Evidence Benchbook, supra, § 1.1, p. 20.)

 Maki's signature on the Hertz invoice presents an additional fact.   The court properly authenticated Maki's signature under Evidence Code section 1417.   That authentication, however, did not and could not extend to the contents of the invoice (i.e., the hearsay statement by Hertz that Maki rented a car in Chicago between January 27 and 29, 1983).   Therefore, lacking a business record foundation for the invoice under Evidence Code section 1271, the court had no information about the time, place or manner of the invoice's preparation or the likely circumstances under which Maki signed it.   Without such evidence indicating the invoice's trustworthiness and establishing its contents when signed, Maki's signature alone does not qualify the invoice as his adoptive admission.  (See Evid.Code, § 1221.)

IV

 The minimum due process requirements applicable to probation revocation hearings include the right of the probationer “ ‘to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).’ ”  (Gagnon v. Scarpelli, supra, 411 U.S. at p. 786, 93 S.Ct. at p. 1761, quoting from Morrissey v. Brewer, supra, 408 U.S. at p. 489, 92 S.Ct. at p. 2604;  accord, People v. Winson, supra, 29 Cal.3d at p. 716, 175 Cal.Rptr. 621, 631 P.2d 55;  People v. Vickers, supra, 8 Cal.3d at pp. 457–458, 105 Cal.Rptr. 305, 503 P.2d 1313.)   Probationers, therefore, are entitled to exercise the same rights at revocation hearings under the Sixth Amendment's confrontation clause as criminal defendants are entitled to exercise at trial.   The exercise of those rights “augment[s] accuracy in the factfinding process by ensuring the defendant [or probationer] an effective means to test adverse evidence.”  (Ohio v. Roberts (1980) 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597;  accord, Dutton v. Evans (1970) 400 U.S. 74, 89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213.)

 Hearsay rules are also fundamentally designed to enhance the integrity of the factfinding process.  (See 1 Jefferson, Cal.Evidence Benchbook, supra, § 1.1, p. 5;  5 Wigmore, Evidence (1974) § 1362, p. 3;  Witkin, Cal.Evidence (2d ed. 1966) § 448.)   Given that purpose, courts have recognized the “truism” (Ohio v. Roberts, supra, 448 U.S. at p. 66, 100 S.Ct. at p. 2539) that “hearsay rules and the Confrontation Clause are generally designed to protect similar values” (California v. Green (1970) 399 U.S. 149, 155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489) and “stem from the same roots.”  (Dutton v. Evans, supra, 400 U.S. at p. 86, fn. omitted, 91 S.Ct. at p. 218.)   Thus, while the congruence between hearsay rules and the confrontation clause is not complete (California v. Green, supra, 399 U.S. at pp. 155–156, 90 S.Ct. at 1933–1934), it is often the case that “[t]he reason for excluding [hearsay] evidence as an evidentiary matter also requires its exclusion as a constitutional matter.”  (Bruton v. United States (1968) 391 U.S. 123, 136, fn. 12, 88 S.Ct. 1620, 1628, fn. 12, 20 L.Ed.2d 476, italics in original.)

 The confrontation clause therefore restricts the admissibility of hearsay evidence at trials and revocation hearings in two ways:  “In sum, when a hearsay declarant is not present for cross-examination at trial [or at a revocation hearing], the Confrontation Clause normally requires a showing that he is unavailable.   Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’   Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.   In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.”  (Ohio v. Roberts, supra, 448 U.S. at p. 66, fn. omitted, 100 S.Ct. at p. 2539;  accord, People v. Winson, supra, 29 Cal.3d at pp. 716–717, 175 Cal.Rptr. 621, 631 P.2d 55.)   The business records exception is one of the “firmly rooted hearsay exceptions” from which adequate “indicia of reliability” can be inferred for confrontation clause purposes.  (Ohio v. Roberts, supra, 448 U.S. at p. 66, fn. 8 and accompanying text, 100 S.Ct. at p. 2539, fn. 8.)

 In summary, there is a tension between the flexibility of a probation revocation proceeding which permits the consideration of hearsay evidence and the requirement that the hearing comport with a probationer's constitutional rights as those rights have been defined.  (See part II, ante.)   The crucial issue here is whether the court's consideration of relevant hearsay evidence infringed Maki's due process rights.   Unable to apply a general rule, we compare this case against the criteria of Winson.  (People v. Winson, supra, 29 Cal.3d at p. 719, 175 Cal.Rptr. 621, 631 P.2d 55.)

In rejecting the use at the revocation hearing of hearsay testimony contained in the transcript of the preliminary hearing, Winson explains:  “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.”  (29 Cal.3d at p. 719, original italics, 175 Cal.Rptr. 621, 631 P.2d 55.)

 Here, the deputy district attorney failed to produce his hearsay declarants from Hertz and Hyatt or to demonstrate their legal unavailability (Evid.Code, § 240) or other good cause for their absence.   Thus good cause was not established for denying Maki the right to confront and cross-examine those declarants.   In addition, the hearsay evidence exhibited no objective indicia of reliability or trustworthiness.  (E.g., Evid.Code, § 1271.)   In one sense this case is a Winson clone possessing the identical criteria which caused that court to hold the hearsay evidence was improperly received.   If anything, this case is a stronger one for rejection of the evidence because in Winson the probationer at least had the earlier opportunity to confront and cross-examine the hearsay declarant at the preliminary hearing, an opportunity completely denied Maki.   For these reasons, the hearsay evidence in this case was improperly received.   Since no other evidence supports the court's finding of a probation violation, we reverse the judgment.  (Compare In re Edgerly (1982) 131 Cal.App.3d 88, 93, 182 Cal.Rptr. 235;  People v. Burden (1980) 105 Cal.App.3d 917, 922, 166 Cal.Rptr. 542, cert. den., 449 U.S. 983, 101 S.Ct. 398, 66 L.Ed.2d 245.)

V

Disposition

The judgment revoking probation is reversed and the case is remanded for further proceedings consistent with this opinion.⁴

FOOTNOTES

1.   Maki's sentence was later incorporated into the judgment and sentence imposed in CR 63063.   In that case the court sentenced Maki to three years, the upper term for receiving stolen property.   Pursuant to Penal Code section 1170.1, subdivision (a), the court modified Maki's two-year sentences imposed in this case to a consecutive subordinate term of eight months, one-third of the midterm, plus a two-year concurrent midterm.   Procedurally that modification was proper.  (People v. Bozeman (1984) 152 Cal.App.3d 504, 506–507, 199 Cal.Rptr. 343.)

2.   In holding the invoice and receipt are hearsay we respectfully disagree with People v. Whittaker (1974) 41 Cal.App.3d 303, 115 Cal.Rptr. 845.   There the defendant was charged with robbing a liquor store on a Tuesday.   A prosecution witness testified the getaway car was a green Buick.   The defendant was arrested the Friday following the robbery driving a green Buick.   The police found an unsigned rental agreement in the car's glove compartment showing the Buick was rented to the defendant the previous Monday, the day before the liquor store robbery.   The trial court admitted the rental agreement into evidence over the defendant's hearsay objection.   The appellate court held:  “The rental receipt may not be deemed hearsay, for it was not offered or admitted to prove the truth of the matter stated thereon.  (See Evid. Code, § 1200.)   Instead it established that Whittaker had in his possession a paper indicating that he had rented the automobile a day after the first of the charged robberies.   It was relevant circumstantial evidence, since it had a ‘tendency in reason to prove ․ any disputed fact’ (see Evid.Code, § 210), i.e., Whittaker's guilt of the subject robberies.”  (People v. Whittaker, supra, 41 Cal.App.3d at p. 309, 115 Cal.Rptr. 845, italics in original.)Both in Whittaker and in this case the only reason the documents were offered was to prove the truth of the matters stated.   In Whittaker the rental agreement was offered to prove the defendant rented the Buick on the date shown;  here, the invoice and receipt were offered to prove Maki rented a car and a hotel room in Chicago between January 27 and 29, 1983.   “The Whittaker court's reasoning [for holding the rental agreement was not hearsay] is clearly untenable and erroneous.   The court seeks to avoid the hearsay rule by simply asserting that D's possession of the rental agreement in the automobile establishes, by circumstantial-evidence reasoning, the truth of the facts contained in the document.   If this kind of reasoning is acceptable, the truth of a document written by any declarant is established from the mere fact of possession of such document by a party.”  (1 Jefferson, Cal.Evidence Benchbook, supra, § 1.1, p. 19, italics in original.)

3.   The invoice and receipt represent statements made by Hertz and Hyatt, respectively.  (See Evid.Code, § 225;  1 Jefferson, Cal.Evidence Benchbook, supra, § 1.1, pp. 19–20.)   Therefore, Hertz and Hyatt rather than Maki are the declarants with respect to those statements.   (Evid.Code, § 135.)   Consequently, the invoice and receipt do not fall within the exception for declarations against penal interest.   (Evid.Code, § 1230.)

4.   In the event Maki's probation is not revoked, the superior court shall direct the Department of Corrections to modify the judgment in CR 63063 by striking the eight-month consecutive sentence and the two-year concurrent term imposed for Maki's NSF convictions in this case.  (See fn. 1, ante.)

WIENER, Associate Justice.

GERALD BROWN, P.J., and BUTLER, J., concur.