Opinion
F059720 Super. Ct. No. MCR033323A Super. Ct. No. MCR033251 Super. Ct. No. MCR032564
08-19-2011
THE PEOPLE, Plaintiff and Respondent, v. TROY MICHAEL VALENZUELA, Defendant and Appellant.
Oliver J. Northup, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Dawson, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge.
Oliver J. Northup, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On December 29, 2008, appellant, Troy Michael Valenzuela, waived his constitutional rights and entered into a plea bargain involving three criminal actions. In case No. MCR033323A, Valenzuela pled no contest to second degree burglary. (Pen. Code, § 459). In case No. MCR033251, Valenzuela pled no contest to felony possession of methamphetamine (Health & Saf. Code § 11377, subd. (a)). In case No. MCR032564, Valenzuela admitted violating his probation.
Unless otherwise indicated, all statutory references are to the Penal Code.
Under the agreement, Valenzuela would receive a stipulated sentence of three years eight months. Execution of the sentence would be stayed, and Valenzuela would be placed on probation and into the felony drug court program. Valenzuela would first enter a chemical dependency treatment program with the Veterans Administration (VA), then attend an intensive outpatient program and live in a halfway house for access to a dual diagnosis program as directed by medical personnel.
The probation officer reported that Valenzuela was released from custody so he could enroll into the VA program on December 30, 2008. Valenzuela failed to enroll immediately, even though representatives from the VA reported they made several attempts to help him enter the program. However, as of February 13, 2009, Valenzuela had completed the evaluation component of the VA program and had begun intensive outpatient treatment. Valenzuela was residing in the Clean and Sober Living Home in Fresno.
On February 20, 2009, the court sentenced Valenzuela to prison for three years for the burglary conviction and to a consecutive eight-month term for possession of methamphetamine. The court suspended execution of the sentence and placed Valenzuela on felony probation for five years. Two conditions of Valenzuela's probation were to obey all laws and that he enroll in and complete a state-certified inpatient substance abuse program to the satisfaction of the probation officer.
Valenzuela received a concurrent sentence of eight months in case No. MCR032564.
The probation department filed a petition seeking the revocation of Valenzuela's probation because he failed to complete a state-certified inpatient substance abuse program, failed to obey all laws by receiving stolen property (§ 496, subd. (a)), used another's personal identifying information without authorization (§ 530.5, subd. (a)), and failed to drive safely within a marked roadway lane (Veh. Code, § 21658, subd. (a)). On October 23, 2009, the probation department filed another petition alleging Valenzuela violated his probation for the same reasons set forth in the first petition and further alleged that Valenzuela failed to obey all laws by possessing burglary tools (§ 466).
At the conclusion of a probation revocation hearing, the trial court did not find true the allegations that Valenzuela failed to obey all laws but did find that Valenzuela violated his probation by being terminated from a halfway house program. On February 5, 2010, the court lifted its stay of execution of sentence and ordered Valenzuela to serve his prison term of three years eight months. The court granted Valenzuela 929 days of custody credits.
Valenzuela received one-for-one custody credits pursuant to section 4019 as amended on January 25, 2010.
On appeal, Valenzuela contends the trial court denied him his right to confront an adverse witness pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
FACTS
As part of his plea agreement, Valenzuela agreed to attend a VA chemical dependency treatment program, a VA intensive outpatient program, and reside in a halfway house for access to a dual diagnosis program. Valenzuela requested treatment in the VA programs but the VA programs were not normally used by the probation department in Madera County. The VA did not have residential facilities available beyond 60 days. Upon completion of the VA 60-day residential program, Valenzuela would have to go to another residential program. Because Valenzuela requested treatment in the VA programs, the probation department made special arrangements to allow him to move into a halfway house upon completion of the 60-day residential program at the VA.
Probation Officer Flora Munoz supervised Valenzuela while he was on probation. Munoz was aware Valenzuela was required to complete the VA program and monitored his progress. After completing the 60-day program, Valenzuela transitioned into a halfway house and continued inpatient treatment at the VA.
Munoz was contacted by Sally Bell, a VA addiction therapist, who explained that Valenzuela completed the 60-day program and that the second phase would be a halfway house rather than the VA inpatient program. Munoz explained to Valenzuela that the VA's inpatient program was limited in housing to 60 days and the halfway house would be considered his inpatient program. He would have to comply with the rules of the halfway house program and remain there for one year. Valenzuela stated he understood the conditions of the program.
The program coordinator for the halfway house was Ann Walker. Walker called Munoz and informed her that Valenzuela had been terminated from the halfway house program because he was aggressive and did not comply with house rules. Defense counsel lodged a hearsay objection to Munoz's testimony. The prosecutor argued this information was reliable hearsay and that probation officers could testify concerning their communications with directors and counselors of treatment programs. The court ruled, pursuant to section 1203.2, that this statement had sufficient indicia of credibility.
Munoz explained that People's exhibit No. 12 was a letter from Walker explaining that Valenzuela had been terminated from the program. The prosecutor withdrew his request for admission of this letter.
Valenzuela was terminated from the halfway house on July 15, 2009. Walker wrote Munoz that Valenzuela would not be accepted back into the halfway house. Valenzuela continued to receive substance abuse counseling and treatment from the VA program. Munoz opined that Valenzuela did not satisfactorily complete the treatment requirements of his probation.
Both Howard Earl, a substance abuse counselor at the VA, and Bell testified that Valenzuela continued to receive counseling services from the VA until he was arrested for violating his probation. Bell was also Valenzuela's case manager.
Bell explained that Valenzuela did not have a positive drug test and was doing well in the VA's treatment program. Although Valenzuela had been kicked out of his housing, he had not been kicked out of the VA's treatment program. The halfway house performed drug screening and was also a clean and sober environment. Bell had a difference of opinion with Munoz over whether Valenzuela needed to be in a residential treatment program in addition to the treatment he received during the 60-day program and continued to receive through the VA substance abuse program. Bell agreed, however, that there was an agreement between her and Munoz that instead of other options, Valenzuela would live in a halfway house because of its supervision, drug screening, and clean and sober living that included doing chores.
Valenzuela testified that he was kicked out of the halfway house on July 15, 2009, and continued to receive drug testing through the VA hospital after he was terminated from the halfway house.
DISCUSSION
Valenzuela contends on appeal that the trial court denied him his right to confrontation of an adverse witness pursuant to Crawford, supra, 541 U.S. 36, when the court permitted Munoz to testify concerning the hearsay statements of Walker, the halfway house coordinator, that Valenzuela had failed to complete the residential component of his treatment and therefore violated a condition of his probation. As we explain, because Valenzuela admitted he failed to complete the residential component of his treatment, any error by the trial court in relying on Munoz's hearsay testimony was harmless beyond a reasonable doubt even if the trial court committed Crawford error.
Initially, we note that respondent has cited authority that treats probation revocation cases differently from criminal trials. In People v. Abrams (2007) 158 Cal.App.4th 396, 401 (Abrams), a court relied on hearsay testimony from one probation officer based on the statements of another probation officer in a probation report, and probation department records, as the basis for revoking the defendant's probation. The Abrams case held that although probation department hearings involve the criminal justice system, they are not governed by all of the procedural safeguards of a criminal trial. (Id. at p. 400.) The Abrams court distinguished the Crawford case noting that Crawford involved the confrontation clause of the Sixth Amendment whereas procedural protections of probation revocation hearings are born out of the due process clause of the Fourteenth Amendment. (Abrams, supra, 158 Cal.App.4th at p. 400, fn. 1.)
The Abrams court then found that the information relied upon by the testifying probation officer, statements by a colleague and information gathered and documented by the probation office itself, carried the indicia of reliability for purposes of revoking a defendant's probation even though this information was technically hearsay. (Abrams, supra, 158 Cal.App.4th at pp. 401-405.)
We find the argument in Abrams compelling and note that Officer Munoz's reliance on the statement of the halfway house coordinator, Walker, also carries the indicia of reliability as did the hearsay information in the Abrams case.
The testimony at the hearing regarding the various programs was confusing. Munoz clearly explained that Walker was coordinator of the halfway house, but later seemed to state that Valenzuela was terminated from the VA program. Valenzuela argues there was a conflict between the hearsay statement of Walker concerning his termination from the VA program, and the testimony of Bell and Curtis who said Valenzuela successfully remained in the VA program until his arrest. We interpret Munoz's testimony regarding Walker's statement to be that Valenzuela was kicked out of the halfway house program, not the VA treatment program. We further interpret the evidence at the hearing as showing that the outpatient treatment Valenzuela was receiving from the VA was a separate program from the halfway house program.
Even if the confrontation clause and the reasoning of Crawford are found to apply to probation revocation hearings, there was other evidence that Valenzuela violated his conditions of probation other than Munoz's hearsay testimony. Valenzuela admitted that he was kicked out of the halfway house on July 15, 2009. Although he continued apparently to receive treatment from the VA, the housing component of his plea bargain and condition of probation that he obtain treatment to the satisfaction of his probation officer, had not been met. This admission makes any alleged Crawford error harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18; People v. Arreola (1994) 7 Cal.4th 1144, 1161; Abrams, supra, 158 Cal.App.4th at p. 405 [defendant admitting failure to report to probation department makes admission of hearsay testimony harmless beyond a reasonable doubt].)
Although it was also hearsay testimony, and there was no objection lodged by either party, counselor Bell also testified that Valenzuela had been kicked out of the halfway house residential treatment program.
Valenzuela further argues that he continued treatment at the VA, and the trial court's pronounced terms of conditions at the original sentencing hearing did not include the requirement that he stay in residential housing. We reject this argument for two reasons. First, Valenzuela's plea agreement included a requirement that he would be in a residential housing treatment program.
Second, Valenzuela's treatment condition of probation as pronounced by the trial court included the requirement that the treatment had to be to the satisfaction of the probation officer. Munoz testified that she informed appellant that he had to secure residential housing with a treatment program for a year to satisfy the terms of his probation. There was no other evidence to the contrary. Indeed, Bell conceded that she and Munoz agreed that Valenzuela needed to live in a residential treatment facility where he would have drug screening, a safe and sober environment, chores, and additional treatment. There was substantial evidence that Valenzuela violated the terms of his plea agreement and of his probation for failing to remain in residential housing for a year. The trial court did not abuse its discretion in revoking Valenzuela's probation.
DISPOSITION
The judgment is affirmed.