Opinion
A154842
09-25-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL SOLORIO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR327022)
Defendant Jose Manuel Solorio appeals from an order revoking his probation and sentencing him to two years in state prison. On appeal, he contends the trial court erred in allowing hearsay testimony by his probation officer, violating his due process rights. We affirm.
BACKGROUND
In January 2017, defendant pleaded no contest to one count of felony possession of a billy club (Pen. Code, § 22210). The trial court suspended imposition of sentence and placed defendant on three years' formal probation subject to numerous terms and conditions, including that he serve 60 days in the county jail and report to probation.
After defendant twice violated his probation, the District Attorney filed a third petition to revoke, alleging defendant failed to attend and complete substance abuse treatment, failed to drug test, and failed to maintain contact with his probation officer.
At the hearing, the prosecutor called a single witness—defendant's probation officer, Cheryl Celones.
Celones referred defendant to the probation department's Center for Positive Change and directed him to appear on November 14, 2017. He failed to appear on this date, but did attend an orientation on December 5.
When the prosecutor asked Celones if she was "made aware of whether he continued to attend," the defense objected on hearsay grounds, and the court required further foundation. Celones then testified the Center for Positive Change is a program run through the probation department, she is familiar with the requirements of its substance abuse program, and when a probationer is referred to the program, she will be notified whether he or she attends. She further explained there is a "system in place" for notification that can be by e-mail, telephone call, or and in-person communication, and, as a probation officer, she regularly relies on these notifications.
The prosecutor then asked again whether she had received information about defendant's progress in the program. The defense again objection on hearsay grounds. The court overruled the objection. Celones testified she received a "discharge report" from the Center of Positive Change on February 13, 2018.
When the prosecutor asked whether the report stated the basis for the discharge, the defense objected on grounds of multiple hearsay. The court sustained the objection, subject to further foundation.
Celones explained that after orientation, probationers are assigned a case manager, who is also a probation officer, and she keeps in close contact with the case manager to stay abreast of how the probationer is doing, what treatment group the probationer is referred to, and whether the probationer is in compliance. At this point, the court overruled the defendant's objection, allowing Celones' testimony that defendant had failed to meet with his case manager.
Celones further testified she regularly kept in touch with his case manager until approximately January 8, when she (Celones) left for five weeks for offsite training. Defendant was transient at the time, and she had been communicating with his case manager to ensure there were no barriers to his attendance and compliance with the program. As Celones explained it, she was "his supervision officer who deals with his court orders, and then his case manager deals with how he is doing in the program." "So," defendant would check in with Celones "about once or twice a month," and he was to check in with his case manager "almost on a weekly basis."
The prosecutor then asked Celones whether defendant checked in with his case manager on a weekly basis. The defense objected for lack of foundation and on hearsay grounds. The court overruled the objection, and the prosecutor asked whether, until January, defendant was making his appointments. Celones answered: "Per case notes, no."
Before Celones left for training, she met with defendant and gave him a new appointment date for the program, February 22. When the prosecutor asked Celones whether he appeared, the defense again made a hearsay objection, which the court overruled, allowing Celones' response that he had not. She then sent defendant a new appointment date, February 28. He again failed to appear. At that point, she sent a notice that he was in violation of his probation and directing him to appear on March 8. She also attempted to contact him by phone, but received a recording the number was not in service. He again did not appear.
Celones also testified, after refreshing her recollection from her report, that on December 5, 2017, she directed defendant to participate in random drug tests. She explained this meant that, starting December 6, he was to call in Monday through Friday to determine whether or not he was required to test that day, and if he was required to test, he was to report to the probation department and submit to a drug test.
The defense then objected on lack of foundation grounds to any testimony as to whether defendant, in fact, called in. The court overruled the objection, stating Celones was, at that point, testifying only as to what defendant was instructed to do.
The prosecution next asked whether Celones was able to determine whether defendant had been directed to test. She replied "[y]es," and then, in answer to how she was able to do so, she explained that "[w]ith a sentry system, utilized by Forensic Solutions, it has a log of when they call, the time they call, what number they're calling from, and if they were directed to drug test or not." This system records the caller's phone number, and does so automatically. She is able to determine whether the caller is directed to test because that is reflected "on the system." It is also entered automatically and at or near the time they are told to test.
Celones then testified, without objection, that during the period after December 6, 2017, defendant called in only "a few times, but it wasn't on a daily basis." She could not recall "how many times or the specific dates." He was, however, supposed to be calling in every day, Monday through Friday. She also testified the "system reflect[ed]" he had been directed to test, although she did not recall how many times he had been directed to do so.
When the prosecutor asked whether defendant had submitted any samples for testing, the defense objected on foundational grounds, and the court sustained the objection for lack of foundation.
Celones then explained that when a probationer is directed to test, he or she is told to go to the probation department at a specific time. When the person reports to the probation department, it is noted by a probation officer and a record is kept through the sentry system. The system "will have a pending lab receipt or it [would] say: Missed test." The probation officer "also get e-mails if they miss a test or if they provide a test or the test return [sic]." "So when they test, then we get notified that the tests were—was done—we get e-mails. So our e-mail accounts are connected to the probationer's testing account. So if they were to miss a test or it came back, then we would be notified of that via e-mail."
At this point, the prosecution rested without a further ruling from the court on the objection.
On cross-examination, the defense elicited testimony that the call "log reflected he called [in] a total of six times." Celones again acknowledged she did not know the dates he was ordered to test "off the top of [her] head" or the dates he failed to report for testing. She also stated she "believe[d]" she had directed that defendant be tested twice a week, but was "not completely positive."
At that point, the defense had nothing further.
The court then stated it was a "little confused" as to whether the defendant "had to test six times," or whether he "called in to test six times." Celones clarified that the call log reflects whether or not a probationer calls in to see if he or she is required to test that day, and that the record for defendant showed he had called in six times. She further clarified he was supposed to call in every day, Monday through Friday. As the court then summed up, "he's supposed to call in daily and test twice per week. [¶] . . . [¶] Got it."
After minimal redirect and recross, the trial court ruled as follows: It did not find him in violation for failing to report initially to the Behavioral Health Assessment Team (a group separate from the Center for Positive Change), and it did not find him in violation for failing to test. It did, however, find him in violation for "failing to report as directed," observing defendant had "an affirmative duty to notify probation [of] the best way to get ahold of him." It also found him in violation "for failing to call daily to see whether or not he had to drug test," stating "[s]ix times over the course of a couple [of] months doesn't amount to daily calls." The court acknowledged the second ground was not expressly stated in the petition to revoke, but pointed out it was "part of the evidence" before the court and was "generally within the rubric of th[e] [violation] notice."
DISCUSSION
Focusing on the violation finding that he failed to call in daily for directions on whether to test, defendant maintains the trial court erred in allowing Celones' hearsay testimony as to what was reflected in the call logs. While acknowledging the confrontation clause does not apply to probation revocation proceedings, defendant claims the trial court failed to find "good cause" to allow the hearsay, citing to People v. Arreola (1994) 7 Cal.4th 1144, 1154-1155 (Arreola).
The Attorney General asserts defendant forfeited this issue, pointing out he did not object either to Celones' general testimony about the sentry system (elicited after defendant objected on foundation grounds to testimony on whether defendant called in) or to her testimony that followed that he did not call in on a daily basis despite being directed to do so. The Attorney General's assertion is well-taken. While defendant interposed numerous objections to Celones' testimony, including on hearsay grounds, he did not object to those portions of her testimony that defendant was directed to call in daily for testing instructions and that over a several month period he did not do so, but called in only a few times. When a defendant does not object to testimony, he forfeits any challenge thereto on appeal. (See People v. Doolin (2009) 45 Cal.4th 390, 448; Evid. Code, § 353 [an objection to the admission of evidence must be timely and clearly specify the basis of the objection].) This is especially true if the defendant elicits the same testimony on cross-examination. (People v. Boone (1954) 126 Cal.App.2d 746, 749.) Here, as we have recited above, defense counsel, on cross-examination, elicited further testimony from Celones on these precise points.
Anticipating a forfeiture problem, defendant maintains we can, and should, consider his challenge to Celones' testimony for three reasons: because he made objections to other parts of her testimony, because we have "inherent" authority to consider the merits, and because to the extent his trial attorney did not object, he received ineffective assistance of counsel.
While we rarely will consider the merits of a forfeited evidentiary issue, we do so here given the well-developed law on the use of documentary evidence during probation revocation proceedings. Essentially, the question here boils down to which of the following cases is most like the instant case—People v. Shepherd (2007) 151 Cal.App.4th 1193 (Shepherd) (which relies on and follows Arreola), cited by defendant, or Abrams, supra, 158 Cal.App.4th at page 396 (which relies on and follows People v. Maki (1985) 39 Cal.3d 707), cited by the Attorney General.
We review revocation of probation for abuse of discretion and, likewise, "review rulings on whether hearsay was improperly admitted at a violation hearing for abuse of discretion." (People v. Abrams (2007) 158 Cal.App.4th 396, 400 (Abrams).) An abuse of discretion occurs, however, when a trial court fails to apply, or to comply with, controlling legal principles. (See People v. Bolton (1979) 23 Cal.3d 208, 216 ["Discretion is compatible only with decisions 'controlled by sound principles of law, . . . free from partiality, not swayed by sympathy or warped by prejudice. . . .' "].)
Abrams ably discusses the pertinent law as follows:
"The admissibility of hearsay at a probation violation hearing has been the subject of discussion in a series of California cases which for the most part trace their history to [People v.] Winson [(1981)] 29 Cal.3d 711. In Winson, at a probation violation hearing the trial court admitted a transcript from the defendant's related criminal case that had triggered the alleged violation. For the most part, the transcript consisted of testimony by the victim of a robbery committed by defendant and another man. There was no showing that the victim was unavailable to attend the violation hearing or that other good cause existed for the use of the transcript. Relying primarily on Morrissey and Gagnon, our Supreme Court held that 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.' (Winson, at pp. 713-714.) [(Fn. omitted.)]
"Although the Supreme Court in Winson reversed the probation violation finding, the court concluded its analysis by emphasizing that in probation violation hearings the right of confrontation 'is not absolute.' (Winson, supra, 29 Cal.3d at p. 719.) As an example, 'where "appropriate," witnesses may give evidence by document, affidavit or deposition.' (Ibid.)
"Four years later the court revisited the subject in People v. Maki [, supra,] 39 Cal.3d 707. . . . [T]he Supreme Court held that the trial court properly admitted two pieces of documentary evidence: a car rental invoice and a hotel receipt, both in the defendant's name. The documents were offered to prove that the defendant had been out of state without his probation officer's permission. The Supreme Court first concluded that the prosecution had failed to establish that the documents qualified as business records or otherwise fell within any other hearsay exception. (Id. at pp. 710-714.) The court nevertheless affirmed their admissibility. The court narrowed Winson as applying only to transcripts of prior testimony offered at a subsequent violation hearing. The court then fashioned a broader test at least for the receipt of documentary hearsay testimony in violation hearings: such evidence is admissible 'if there are sufficient indicia of reliability.' (Maki, supra, at p. 709. . . .) The court repeated its exhortation from Winson that admissibility should be decided on a case-by-case basis. (Maki, supra, at p. 714.) [(Fn. omitted.)]
"Defendant argues that the Supreme Court's decision in Arreola, supra, 7 Cal.4th 1144, significantly undermines the viability of Maki. A careful review of that decision reveals the opposite. In Arreola, the defendant was on felony probation for multiple driving under the influence convictions when he was observed driving erratically by a deputy sheriff. At his preliminary hearing on new felony driving under the influence charges, the sheriff testified about his observations of the
defendant's driving, and the defendant was held to answer. Prior to a probation violation hearing on the earlier convictions, the prosecution notified the defense of its intent to rely on the transcript of the preliminary hearing testimony to establish the defendant's probation violation. The transcript was received at the violation hearing, the defendant was found in violation, and he was sentenced to state prison. The Court of Appeal reversed the probation violation based on Winson. (Arreola, at pp. 1148-1151.)
"Before the Supreme Court, the Attorney General argued that Maki stated a new rule that all hearsay evidence was admissible in probation violation hearings if it bore sufficient indicia of reliability. The Supreme Court expressly rejected that argument, distinguishing the rule for documentary evidence in Maki (car rental and hotel receipts) from that for preliminary hearing transcripts in Winson and Arreola. . . . 'There is an evident distinction between a transcript of former live testimony and the type of traditional "documentary" evidence involved in Maki that does not have, as its source, live testimony. (See 2 Witkin, Cal. Evidence (3d ed. 1986) § 901 et seq.) As we observed in Winson, 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.' (Arreola, supra, 7 Cal.4th at pp. 1156-1157. . . .)" (Abrams, supra, 158 Cal.App.4th at pp. 401-403.)
The Abrams court went on to conclude the trial court had not erred in allowing the probation officer to testify that the defendant had failed to report to probation and failed to make required monetary payments. (Abrams, supra, 158 Cal.App.4th at pp. 404-405.) The officer first testified to what a fellow probation officer had written in the probation report, and secondly testified "probation department records showed that defendant had failed to contact the probation office." (Id. at pp. 401, 404.) The officer further testified how "calls are logged into the system and that the records showed defendant had not called the probation office." (Id. at p. 404.)
The appellate court explained why Maki controlled, rather than Arreola. "The presence of [the other probation officer] likely would not have added anything to the truth-furthering process, because he would be testifying to a negative: that defendant did not make any appointments and that [he] had not spoken to defendant. (Cf. Evid. Code, § 1284 [evidence of the absence of official record].) Adding a computer custodian of records to recount the process of logging in calls likewise would have been of little assistance. The credibility of those two witnesses was not critical to the court's determination whether defendant had violated his probation. As the court in Arreola stated it: '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. . . .' (Arreola, supra, 7 Cal.4th at p. 1157.)" (Abrams, supra, 158 Cal.App.4th at p. 404.)
No court has disagreed with the Abrams court's analysis or application of Maki and Arreola. (See, e.g., People v. Gomez (2010) 181 Cal.App.4th 1028, 1038 [upholding introduction of probation report prepared by probation officer based on " 'electronic probation records' " prepared by another officer; "[a]s in Abrams, the presence [of the two probation officers] 'likely would not have added anything to the truth-furthering process, because [they] would be testifying to a negative' . . . and the demeanor of the officers 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, provide verification of his employment, attend counseling, and pay restitution"]; see also People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066 [single-page report from program manager of counseling service that the defendant was terminated from program due to " 'Too Many Absences,' " with notation " '[t]his client completed 0 of 20 sessions' " was "akin to the documentary evidence that traditionally has been admissible at probation revocation proceedings" and properly admitted under Maki].)
Shepherd, in contrast, concerned hearsay of a different sort—whether a probation officer could testify to an out-of-court statement by a substance abuse program administrator that the defendant "had smelled of, and tested positive for, alcohol consumption" and therefore had been asked to leave the program. (Shepherd, supra, 151 Cal.App.4th at p. 1197.) No other evidence supported the out-of-court statement, and it was not even clear the administrator was the one who had smelled alcohol on the defendant. (Id. at p. 1198.) The Court of Appeal concluded the circumstances were closer to Arreola than to Maki. (Id. at pp. 1200-1202.) "Because [the probation officer] testified in lieu of [the program administrator]," the defendant had no opportunity to cross-examine his accuser "and the court had no opportunity to observe her demeanor." (Id. at p. 1202.) "[N]o other evidence corroborated her alleged statements that appellant smelled of, and tested positive for, alcohol consumption." (Ibid.) The court thus commented the testimonial hearsay was "remarkably similar to that in Winson and Arreola." (Ibid.)
The instant case is much more akin to Abrams than to Shepherd. Defendant is not complaining about an uncorroborated hearsay statement that defendant was seen using drugs and was discharged from the program for that reason. Rather, the testimony he challenges concerned what was reflected by the call log, which Celones was familiar, used routinely in supervising probationers, and about which she testified generally—laying a foundation for her testimony pertaining to defendant, specifically. In fact, even before she testified as to whether defendant had called-in as he was required to do, defendant raised a foundational objection, which the trial court overruled because Celones had not then been asked any specific question. The prosecution then asked her to explain whether and how she would know that a probationer was directed to test, and she did so. She thereafter testified, without any further objection by defendant, including on foundational grounds, that he had called in only a "few" times, and not on a daily basis. The defense elicited essentially this same testimony on cross-examination, and she repeated her testimony, again without any objection, when the trial court sought clarification as to how often defendant was required to call in and how frequently he actually did so.
Accordingly, there was an adequate foundation for the challenged testimony, and to paraphrase Abrams, calling defendant's case manager "likely would not have added anything to the truth-furthering process, because [s]he would be testifying to a negative," i.e. that defendant had not called in on a daily basis. (Abrams, supra, 158 Cal.App.4th at p. 404.) "Adding a computer custodian of records to recount the process of logging in calls likewise would have been of little assistance." (Ibid.) In short, "[t]he credibility of those two witnesses was not critical to the court's determination whether defendant had violated his probation." (Ibid.)
"Because we conclude the evidence was properly received even if hearsay, we need not address the People's claim that the evidence was admissible under the official records exception." (Abrams, supra, 158 Cal.App.4th at p. 405, fn. 6.) --------
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.