People v. Thomas CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Imperial County · No. JCF28766
- Trial judge
- William D. Lehman
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- Gilbert Nares (author), Judith D. McConnell, Joan K. Irion
Analysis
The trial court revoked Thomas's probation based on his failure to attend counseling, provide proof of attendance, and report a change of address, and admitted hearsay testimony regarding positive drug test results. The Court of Appeal affirmed the judgment, finding the revocation supported by substantial evidence and that any error in admitting the hearsay was harmless.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Admission of Coronel's hearsay testimony regarding positive drug test results“we conclude any such error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.)” | de novo | error | agree with court The court assumed error in admitting the hearsay testimony but found it harmless because the probation violation was supported by other substantial evidence (failure to attend meetings and report address). |
Finding that Thomas violated probation“the court's finding that Thomas violated the terms of his probation is supported by substantial evidence.” | substantial evidence | correct | agree with court The court found that the testimony regarding failure to attend NA meetings, complete counseling, and report a change of address supported the revocation finding, independent of the drug test results. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Mandates independent review of the record by appointed appellate counsel to ensure effective assistance of counsel.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and request leave to withdraw.
- relied: People v. Shepherd (2007) 151 Cal.App.4th 1193 — Probation revocation is not a criminal prosecution, so the full panoply of criminal rights does not apply.
- relied: Morrissey v. Brewer (1972) 408 U.S. 471 — Probationers are entitled to due process, but not the full rights of criminal defendants.
- relied: People v. Winson (1981) 29 Cal.3d 711 — A probationer's right of confrontation is not absolute; evidence may be presented via affidavits or documentary evidence.
- relied: Crawford v. Washington (2004) 541 U.S. 36 — Testimonial hearsay is inadmissible in criminal prosecutions unless the declarant is unavailable and there was a prior opportunity for cross-examination.
- relied: Chapman v. California (1967) 386 U.S. 18 — Constitutional errors are harmless if the state proves beyond a reasonable doubt that the error did not contribute to the verdict.
The appellate opinion: sound — The opinion correctly applies the standard of review for probation revocation (substantial evidence) and correctly identifies that probation revocation is not a criminal prosecution for Confrontation Clause purposes. It properly applies the harmless error analysis to the hearsay issue, noting that the violation was supported by other evidence.
How this analysis was made · dispute it
unusual dispositionThe Imperial County Superior Court accepted Thomas's no-contest plea to receiving stolen property, imposed a suspended three-year term with probation, denied his Marsden and Code of Civil Procedure section 170.6 motions, and later revoked probation after an evidentiary hearing at which the probation officer testified (over a hearsay objection) to positive out-of-state lab drug test results, ordering the suspended three-year term served. On a Wende/Anders appeal with no supplemental brief from the defendant, the Court of Appeal found no arguable issue, held the revocation finding supported by substantial evidence independent of the drug test results, assumed without deciding any confrontation/hearsay error and found it harmless beyond a reasonable doubt, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Validity of the no-contest plea (advisement of rights, knowing and voluntary waiver, factual basis)“The record shows Thomas was properly advised of his rights before he entered his no-contest plea, he knowingly and voluntarily entered his plea, there is a factual basis for his plea, and his plea is constitutionally valid.” | unclear | correct | agree with court The opinion recites that Thomas consulted counsel, initialed and signed a plea form, and waived his rights, and the probation report supplies a factual basis; nothing in the record described suggests a defect. The court did not note that plea-validity challenges ordinarily require a certificate of probable cause and that the original 2012 judgment was not before it on an appeal from the 2013 revocation order, but since it found no error the omission does not affect the result. |
Denial of Marsden motion to relieve appointed counsel“One week later, following a hearing, the court denied Thomas's Marsden motion.” | unclear | correct | unsure The appellate court implicitly found no arguable issue in the Marsden denial as part of its Wende review but gave no analysis of the hearing's content, and the opinion does not describe what Thomas told the court or why relief was denied. Without that detail I cannot independently evaluate the ruling. |
Denial of Code of Civil Procedure section 170.6 peremptory challenge as untimely“The court denied Thomas's motion under Code of Civil Procedure section 170.6 to disqualify the judge, finding the motion was untimely.” | unclear | correct | agree with court A section 170.6 challenge brought at sentencing after the judge had already presided over the plea and Marsden hearing is facially untimely, so the ruling appears correct on the facts recited; the appellate court did not separately analyze it. Also, a 170.6 denial is ordinarily reviewable only by writ, not appeal. |
Finding that Thomas violated probation (failure to attend NA meetings/counseling, failure to report change of address, positive drug tests) and order revoking probation“The record also shows the court's finding that Thomas violated the terms of his probation is supported by substantial evidence.” | substantial evidence | correct | agree with court Probation officer Coronel's live testimony that Thomas failed to provide proof of NA attendance, failed to attend any drug and alcohol classes, and left his Holtville residence without notifying probation (which Thomas himself admitted) independently supports the violation findings under the preponderance standard; the trial court was entitled to disbelieve Thomas's contrary testimony. Any single proven violation suffices to sustain revocation. |
Admission over hearsay objection of Coronel's testimony about positive drug test results from an out-of-state lab (relying on People v. Maki)“even assuming without deciding there was error, we conclude any such error was harmless beyond a reasonable doubt.” | mixed | harmless error | agree with court The appellate court correctly recognized that Crawford does not govern revocation hearings and that Morrissey/Winson permit documentary hearsay where appropriate, and it sensibly declined to decide whether oral relay of lab results satisfies that standard because the remaining violations were independently proven. Applying Chapman and finding the error harmless is consistent with how the Supreme Court treated such errors in People v. Arreola, which the court did not cite but which supports the same approach. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate court must independently review the record when appointed counsel files a no-issue brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel may file a brief identifying possible but not arguable issues for the court's independent review.
- relied: People v. Maki (1985) 39 Cal.3d 707 — Documentary hearsay bearing indicia of reliability may be admitted at a probation revocation hearing.
- relied: People v. Shepherd (2007) 151 Cal.App.4th 1193 — Probation revocation is not part of a criminal prosecution; the probationer's confrontation right is not absolute and documentary evidence may be used where appropriate.
- relied: Morrissey v. Brewer (1972) 408 U.S. 471 — Revocation proceedings require only minimum due process, not the full panoply of rights in a criminal prosecution.
- relied: People v. Winson (1981) 29 Cal.3d 711 — Probationer has a limited due process right to confront witnesses at revocation; hearsay substitutes for live testimony require good cause.
- relied: Crawford v. Washington (2004) 541 U.S. 36 — Testimonial hearsay is inadmissible in a criminal prosecution absent unavailability and prior opportunity for cross-examination.
- relied: Chapman v. California (1967) 386 U.S. 18 — Federal constitutional error requires reversal unless harmless beyond a reasonable doubt.
- missed: People v. Arreola (1994) 7 Cal.4th 1144 — Distinguishes documentary hearsay (Maki) from testimonial hearsay substituting for live testimony at revocation hearings, requires good cause for the latter, and applies Chapman harmless-error review; the controlling California authority on the hearsay issue counsel identified.
- missed: People v. Rodriguez (1990) 51 Cal.3d 437 — Probation violations are found by a preponderance of the evidence and the decision to revoke is reviewed for abuse of discretion; supplies the governing standard the court did not articulate.
The appellate opinion: sound with gaps — The court conducted the required Wende review, addressed both issues counsel flagged, and resolved the hearsay question defensibly by assuming error and finding it harmless given independent live-testimony support for the other violations. It did not cite People v. Arreola, the controlling California authority on hearsay at revocation hearings, nor articulate the preponderance/abuse-of-discretion framework from People v. Rodriguez, and it reviewed plea validity without noting certificate-of-probable-cause and appealability limits, though none of these gaps affects the result.
Opinion
Filed 3/7/14 P. v. Thomas CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064220
Plaintiff and Respondent, v. (Super. Ct. No. JCF28766)
TRAVIS WILLIAM THOMAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, William D.
Lehman, Judge. Affirmed.
Law Offices of David R. Greifinger and David R. Greifinger, by appointment of the Court of Appeal, for Defendant and Appellant.
No appearance for Respondent.
Travis William Thomas's appointed appellate counsel has filed a brief asking this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. We affirm the judgment. INTRODUCTION At a change-of-plea hearing in May 2012, Thomas─after consulting with his defense counsel and initialing and signing a "Plea of Guilty/No Contest─Felony"
form─waived his constitutional rights and pleaded no contest to one felony count of receiving stolen property in violation of Penal Code section 496, subdivision (a). In exchange for this plea, the parties stipulated that Thomas would receive a suspended prison term of three years. Thomas entered a Cruz1 waiver, and counsel stipulated to his release to the Turning Point program, if he qualified, pending sentencing.
Without court permission, Thomas walked out of the Turning Point home on June 1, 2012. A few days later, the Imperial County Probation Department gave Thomas the option of entering New Creations Men's Home. However, as of June 12, 2012, Thomas had not returned to the Turning Point home, he had not entered New Creations, and the probation department did not know his whereabouts. The court issued a no-bail warrant for Thomas's arrest.
During a hearing in early July 2012, Thomas brought a Marsden2 motion requesting that his appointed counsel be relieved and that he be appointed new counsel.
Thomas also stated he wished to withdraw his no-contest plea. One week later, following a hearing, the court denied Thomas's Marsden motion. (CT 29; 6A RT [red envelope]
103:28-104:1)
1 People v. Cruz (1988) 44 Cal.3d 1247.
2 People v. Marsden (1970) 2 Cal.3d 118. 2 At the August 2012 probation and sentencing hearing, defense counsel informed the court he had found no legal or factual basis to support Thomas's request to withdraw his no-contest plea. The court denied Thomas's motion under Code of Civil Procedure section 170.6 to disqualify the judge, finding the motion was untimely. The court then sentenced Thomas to the upper term of three years in state prison, suspended execution of the sentence, and placed him on three years' probation. The terms of probation included 365 days in county jail, with 156 days' presentence credit (78 days actual credit and 78 days behavioral credit), various fines and fees, a $10 fine under Penal Code section 1202.5, and a number of other standard conditions.
The court thereafter amended its minute order nunc pro tunc to vacate the $10 fine it had imposed under Penal Code section 1202.5.
In September 2012 the court modified Thomas's probation terms by sentencing him to one year in the Open Arms residential program in lieu of jail. However, Thomas's stay at Open Arms did not work out, and the court allowed him to serve the remainder of his program time in county jail with 340 days of credit (170 actual and 170 good-time days of credit).
Revocation of Thomas's Probation In mid-April 2013 the probation department filed a motion to revoke Thomas's probation. The motion alleged Thomas had failed to attend a mandatory drug and alcohol class on March 4, 2013; had failed to provide proof of attendance at a Narcotics Anonymous meeting on September 13, 2012; had tested positive for various controlled 3 substances from samples taken in 2013 on January 2, January 14, February 4, and February 21 and had failed to notify his probation officer of a change of address.
On June 6, 2013, following an evidentiary hearing (discussed, post), the court granted the motion, finding Thomas had violated probation by failing to attend Narcotics Anonymous meetings and failing to complete other counseling as directed, by testing positive for drug use, and by failing to provide a change of address to his probation officer. Later that month, the court ordered that probation remain revoked, and that Thomas serve the previously suspended term of three years in the county jail with 529 days of presentence credit (265 days actual credit and 264 days behavioral credit).
Thomas's appeal followed.
FACTUAL BACKGROUND
A. Underlying Offense3 On April 28, 2012, El Centro Police Officer Thompson responded to a call about a theft of a television set from a room at a Motel 6 in El Centro, California. After receiving a description of the suspect from the reporting party, another police officer contacted Thomas, the suspect, in a Chevron parking lot. During his investigation, the officer radioed that he had found a remote control and power supply to an LG television. The officer arrested Thomas.
Officer Thompson spoke to a motel clerk, who told him Thomas had rented a room the previous day. Another motel employee had seen two males leaving carrying a 3 As Thomas pleaded no contest, the facts of the underlying offense are derived from the probation officer's report. 4 large television and that another male later left with a female. The employee discovered that the television was missing.
At the police station, after he was advised of his Miranda4 rights, Thomas stated that José Mirola had stolen the television while he was sleeping. Thomas added that Mirola began throwing things in bags and that this was how he ended up with the remote control and cable. Thomas stated that he wanted to cooperate in finding the television.
He contacted his girlfriend, who told him she did not know the location of Mirola or the television. He then called a friend and demanded to know where the television was, but was unable to get any additional information.
B. Probation Violation 1. The People's Case At the probation revocation hearing, Thomas's probation officer─Julio Coronel─testified that he directed Thomas on September 13, 2012, to attend Narcotics Anonymous meetings and provide proof of attendance to fulfill a probation condition.
Thomas failed to provide proof of attendance.
On February 21, 2013, Coronel directed Thomas to attend drug and alcohol classes. Thomas failed to attend any of the classes.
On March 21, 2013, Coronel visited Thomas's last known residence in Holtville to conduct a probation-compliance check. A female was present, but Thomas was not there.
Coronel searched the residence. (12RT 250:9-11)!
4 Miranda v. Arizona (1966) 384 U.S. 436. 5 That same day, Thomas left a message on Coronel's answering machine stating that somebody had told him law enforcement was looking for him, and he wanted to know why. Thomas did not tell Coronel where he was living, and did not say he was still living at the residence in Holtville. Coronel testified he had not heard from Thomas since that date. Coronel stated he tried to call Thomas back, but got no answer. Coronel did not make any more home visits because the female told him Thomas had been kicked out.
Coronel testified he obtained saliva samples from Thomas on January 2, January 14, February 4, and February 21, 2013. Coronel placed the samples in test kits and forwarded them to a lab on the east coast. Over a defense hearsay objection, Coronel testified the samples tested positive for various controlled substances. In overruling the hearsay objection, the court found the evidence was "the kind of hearsay contemplated by cases like [People v. Maki (1985) 39 Cal.3d 707]."
2. The Defense Thomas testified that he had attended three Narcotics Anonymous meetings in February 2013, that he received proof of attendance, and that Coronel never asked to see the proof. He did not attend the class as directed on March 4, 2013, because he had no transportation and was working. He called Coronel and left a message explaining why he missed the class. Thomas testified he planned to go to the next class, but again he could not because of lack of transportation.
Thomas testified he had lived at the Holtville residence for a month and a half starting in January 2013. Without informing Coronel, Thomas left the residence because the owner used drugs, causing problems for Thomas due to his drug addiction. Thomas 6 was then homeless, living in a hotel when he had money from work and staying with a friend or wherever he could when he did not have money.
DISCUSSION
Pursuant to Anders v. California (1967) 386 U.S. 738, appointed appellate counsel refers to the following as possible, but not arguable, issues: (1) "Was the court's finding that [Thomas] violated probation supported by sufficient evidence?"; and (2) "Did the court err in admitting Coronel's hearsay testimony about the positive drug test results from the lab on the east coast?"
On November 18, 2013, we granted Thomas permission to file a brief on his own behalf. He has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, including the possible issues raised by appellate counsel has disclosed no reasonably arguable appellate issue. The record shows Thomas was properly advised of his rights before he entered his no-contest plea, he knowingly and voluntarily entered his plea, there is a factual basis for his plea, and his plea is constitutionally valid. The record also shows the court's finding that Thomas violated the terms of his probation is supported by substantial evidence. Specifically, Coronel's testimony (discussed, ante) supports the court's finding that Thomas violated the conditions of his probation by failing to attend Narcotics Anonymous meetings and complete other counseling as directed, and by failing to inform the probation officer about a change of address.
7 As noted, counsel has raised as a possible, but not arguable, issue whether the court erred in admitting Coronel's "hearsay testimony about the positive drug test results from a lab on the east coast." "'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) The confrontation clause of the Sixth Amendment to the United States Constitution guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford v. Washington (2004) 541 U.S. 36, 68, the United States Supreme Court held that testimonial hearsay evidence is admissible in a criminal prosecution only when the proponent establishes unavailability of the declarant and a prior opportunity for cross-examination of the declarant.
However, it is well-established that "probation revocation is not part of a criminal prosecution, and thus 'the full panoply of rights due a defendant in [a criminal]
proceeding does not apply . . . .'" (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1198, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 480.) Thus, "[a] probationer's right of confrontation . . . is not absolute, and where '"appropriate,"' witnesses may give evidence by '"affidavits, deposition, and documentary evidence. . . ."'" (Shepherd, at pp.
1193, 1198, quoting People v. Winson (1981) 29 Cal.3d 711, 716.)
Here, we need not resolve whether admission of Coronel's testimony about the drug test results violated Thomas's Sixth Amendment rights because, even assuming without deciding there was error, we conclude any such error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) As already 8 discussed, the court's finding that Thomas violated the conditions of his probation was supported by substantial evidence apart from Coronel's testimony concerning the drug test results.
Thomas has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
Cites, in this corpus
- People v. Shepherd A114880 · 2007-06-26
- People v. Cruz Crim. 26142 · 1988-04-21
- People v. Maki Crim. 23902 · 1985-09-03
- People v. Winson Crim. 21675 · 1981-07-23
- People v. Wende Crim. 20851 · 1979-10-12
- People v. Marsden Crim. 14119 · 1970-02-26