IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO A113508

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1 Filed 6/29/07 P. v. Senegal CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. EDWARD SENEGAL, Defendant and Appellant. A (Solano County Super. Ct. No. FCR211121) The trial court entered an order revoking a grant of probation. A month after it revoked probation, the trial court ordered execution of a previously imposed state prison sentence of 11 years and four months. Defendant Edward Senegal appeals from the order of revocation, contending that the hearing was tainted by evidentiary error, and that the subsequent hearing was tainted because it was not made by the same judge who earlier revoked his probation. We conclude that these contentions are without merit. Defendant s third contention, which the Attorney General concedes is well taken, is that the parole revocation fine of $1,000 imposed should be reduced to $400. We modify the order to effect this reduction, and affirm. BACKGROUND Defendant was charged by information with two felony counts of possessing controlled substances, to wit, cocaine base and methamphetamine (Health & Saf. Code, 11350, subd. (a), 11377, subd. (a)), and a misdemeanor charge of possessing a device for smoking a controlled substance (Health & Saf. Code, 11364). It was also alleged in the information that defendant had four prior felony convictions within the meaning of 1

2 Penal Code section 667.5, subdivision (b), one of which qualified as a strike for purposes of the three strikes laws (Pen. Code, 667, subds. (b)-(i), , subds. (a)-(d)). In February 2004, defendant entered pleas of no contest to the felony charges, and admitted all of the enhancement allegations; the misdemeanor count was dismissed. Defendant s sentencing hearing was held on April 12, Judge Harrison, who had accepted defendant s no contest pleas, presided. The hearing opened with the court being advised that defendant had been accepted for the Delancey Street residential drug treatment program. When the court asked if the prosecutor had any comments, he responded: Just a reminder that the defendant pled open... and admitted all enhancements. And the agreement was that 11 years and 4 months state prison is going to be imposed with execution of that sentence suspended pending successful completion of probation. So if he [defendant] so much as hiccoughs once he is in [Delancey] Street, he is going to prison for 11 years 4 months. Defendant s counsel acknowledged the substance of the agreement as summarized by the prosecutor, [a]nd if he violated probation he would face 11 years 4 months. The court then asked defendant if he understood and agreed. There followed some discussion that evidenced defendant s fear of facing 11 years imprisonment if his probation was revoked for a trivial matter. The prosecutor reached a point of such exasperation that he suggested that the court withdraw its approval of the changed pleas and set the matter for trial. When defendant was satisfied that not just any violation would automatically result in a prison commitment, but would strongly depend on the nature of the violation, he agreed to have the sentencing proceed. The court then sentenced defendant to state prison for an aggregate term of 11 years and four months. Execution of that sentence was suspended, and defendant was admitted to probation for three years upon specified conditions. In August 2005, the probation officer, having learned that defendant had been terminated from the Delancey Street program, asked the court to revoke his probation. 2

3 The formal revocation hearing was not conducted until February 28, 2006; presided over by Judge Kessell. The sole witness for the prosecution was Joel Quiban, who testified that he is the probation officer who had supervised defendant s case since April 20, On that date, he met with defendant and advised him of his obligations under the terms of his probation, among which was that he advise the probation officer of any problems within hours, and if he completed or was terminated from the Delancey Street program. The prosecuctor asked Quiban At some point, did you learn that Mr. Senegal was no longer at [Delancey] Street? Quiban answered Yes, that he was informed on August 1, 2005, that defendant was no longer residing at Delancey Street. Quiban received this information in a telephone conversation with Tom Vicknair, who was the [Delancey] Street legal department custodian of records. When the prosecutor asked What did he tell you? defense counsel objected on the ground of hearsay. People v. Arreola 1. The prosecutor stated: For purposes of probation hearings, reliable hearsay is admissible. In addition to the telephone conversation, Mr. Quiban received a letter confirming the termination, and I submit this is reliable hearsay. When the court learned that the letter would be submitted, defendant s counsel again object[ed] under People v. Arreola. [ ]... [ ] We also object under Crawford v. Washington 2 [United States Constitution] Sixth Amendment. The court overruled both objections because, It s reliable. Quiban then testified that Vicknair told him on the telephone that defendant was discharged from the program, without completing it, on July 26th, 2005, and that he, Quiban, received a follow-up letter from [Delancey] Street confirming that information. After the prosecutor had the letter marked for identification, defendant s counsel asked Could we have a standing objection on the grounds previously stated? Judge Kessell replied All right, and then ruled The letter I m going to find to be reliable. The letter was received in evidence. 1 People v. Arreola (1994) 7 Cal.4th 1144 (Arreola). 2 People v. Crawford (2004) 541 U.S. 36 (Crawford). 3

4 Judge Kessell then read the letter. The letter, which was dated July 28, 2005, and which was attached to Quiban s petition to revoke defendant s probation, read in pertinent part: This letter is written as a follow-up to our Intake Department s phone call to inform you of the circumstances surrounding the termination of Ed Senegal s residency here at Delancey Street on 7/26/05. Mr. Senegal has been a resident here since 4/21/04. [ ] Mr. Senegal had been placed on disciplinary duty by us a couple of weeks ago because of his involvement in sending out unauthorized mail and making unauthorized phone calls while out on jobs with our moving school, having knowledge that other residents had stolen money from moving jobs, and other negative behavior. We believe in giving people a chance to admit their mistakes and be held accountable for their actions. Mr. Senegal was fired from his job training, placed on disciplinary duty and told that if his negative behavior continued he would be asked to leave Delancey Street. [ ] Mr. Senegal chose to ignore our warnings and his residency was terminated on 7/26/05. The letter s author was Charlotte Baker, who is identified as a Senior Administrative Assistant. Quiban further testified that after receiving this letter, he submitted a bench warrant request. Defendant did not contact him. Quiban testified on cross-examination that he did not check beforehand to determine if defendant had been arrested or had committed another criminal offense. After the prosecution rested, defendant testified that he was terminated from Delancey Street because he was not informing on others: They said I wasn t passing enough information.... [ ]... [ ] I mean, the program is to tell on people, and they said I wasn t telling enough.... [ ]... [ ] So they kicked me out of the program. Defendant never willfully refuse[d] to follow any of the program s rules. He found employment and had not committed another offense. When the prosecutor questioned the relevance of these questions, defense counsel answered: It goes to the mitigation issues which the Court must address in deciding what punishment, if any, to impose for a violation of probation. [ ]... [ ] I believe the case law specifically holds that at the probation violation hearing, the defendant is 4

5 entitled to present evidence in mitigation. Judge Kessell overruled the prosecutor s objection, and defendant testified that he worked as a landscaper for six months until he was arrested [a]bout 13 days ago for the probation violation. He tried without success to contact the probation office; he repeatedly left voice mails on his [Quiban s] answering machine. On cross-examination, defendant acknowledged that he received notice in the mail that a warrant had been issued for his arrest, but he tried to get accepted in another program. When he was told I have to go to the Court to get in the program, defendant took no further action because he was scared. Defendant s mother testified that he lived with her for the previous seven to eight months. At her urging, defendant made a number of telephone calls to the probation officer. In rebuttal Quiban then testified that he has voic , but defendant left no messages. Judge Kessell then heard brief argument from the parties. Defense counsel submitted that the evidence, including the letter, did not demonstrate that defendant had willfully violated the terms of his probation. The court then ruled as follows: First of all, People s 1, the letter from the [Delancey] Street Foundation indicated that Mr. Senegal was placed on disciplinary duty because of his involvement in sending out unauthorized mail and making unauthorized phone calls while in moving school. That is one. Having knowledge of other residents having stolen money from moving jobs, that is two, and other negative behavior, I read that differently. I would say that knowledge that the other residents have negative behavior, failure to rat on somebody you re living with, I kind of go along with that, but the unauthorized mail and phone calls, he denies he made. The unauthorized phone calls while on the jobs and unauthorized mails is sufficient to terminate him from the program. That alone is a probation violation. There was no evidence of any vacation time or direct evidence that the voice mail was not taken by [Quiban s] answering machine. [ ] I don t know how often his mother 5

6 says that she was on him all the time, hitting on him to make these phone calls which would indicate he may have made more than one.... I don t think there was contact. [ ] There is a probation violation found. The matter was continued to March 27, 2006, for a report from the probation officer and came on for hearing on that date with Judge Ely presiding. Defense counsel argued it would be absurd and an abuse of justice to send defendant to prison for 11 years. Counsel stated: We would ask the Court to consider returning Mr. Senegal to another residential program.... [ ]... [ ] If the Court has any doubt about this in any way, shape or form, we would submit the sentencing should be handled by the judge that heard the probation violation here, Judge Kessell. Judge Ely told defense counsel that Judge Kessell was not available. Counsel replied, I understand that.... I mean, we are willing to waive our Arbuckle 3 rights, essentially, if the Court is not going to send him to prison for a significant term, but otherwise speaking, we are not. Counsel continued: [W]e submit that Judge Kessell is required to do the sentencing because at the probation revocation hearing we are allowed to present and we did, in fact, presented evidence in mitigation that is to be... considered at the sentencing. At the conclusion of argument, Judge Ely stated The sentence has already been imposed, and this Court is not going to modify it. He then ordered into execution the sentence that was heretofore... imposed. Defendant filed a timely notice of appeal from the order. DISCUSSION I Defendant first contends that The letter from Delancey Street was inadmissible hearsay and its admission violated due process. Defendant is thus renewing the substance of the objections he made at the revocation hearing based on Crawford, supra, 541 U.S. 36, and Arreola, supra, 7 Cal.4th We conclude this contention lacks merit. 3 People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle). 6

7 Defendant contends that the letter from Delancey Street was inadmissible under Crawford because the author of the letter was not shown to be unavailable, thus the defense had no opportunity to cross-examine, and therefore his Sixth Amendment right of confrontation was violated. We disagree with defendant, and agree with the analysis from Division Three of this District in People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, as to why Crawford does not apply to probation revocation hearings: Crawford s holding is based squarely on the Sixth Amendment right to confront witnesses. [Citation.] Probation revocation proceedings are not criminal prosecutions to which the Sixth Amendment applies. [Citations.] Probationers limited right to confront witnesses at revocation hearings stems from the due process clause of the Fourteenth Amendment, not from the Sixth Amendment. [Citation.] Thus, Crawford s interpretation of the Sixth Amendment does not govern probation revocation hearings. We thus conclude that the trial court did not err in overruling defendant s Sixth Amendment-based Crawford objection. Next, defendant in effect argues that the letter was also inadmissible under the law as it stood prior to Crawford, again because there was no showing that the letter s author was unavailable. This argument is based on Arreola, which reaffirmed the earlier holding in People v. Winson (1981) 29 Cal.3d 711, , that a preliminary examination transcript could not be used at a probation revocation hearing in lieu of live testimony in the absence of the declarant s unavailability or other good cause. (Arreola, supra, 7 Cal.4th 1144, 1148; see also, id., at pp. 1154, 1159.) However, the standard for admission of documentary evidence at a probation revocation hearing is different from the standard for admission of former testimony. As held in People v. Maki (1985) 39 Cal.3d 707, 709, documentary hearsay evidence [i.e., a hotel receipt and rental car invoice] which does not fall within an exception to the hearsay rule may be admitted if there are sufficient indicia of reliability regarding the proffered material.... Indeed Arreola itself recognizes this, that [t]here 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 7

8 testimony. [Citation.] 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. [Citation.] 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 1144, 1157; accord, People v. Johnson, supra, 121 Cal.App.4th 1409, ) For present purposes we accept that the Delancey Street letter was hearsay, and not made admissible by an exception to the hearsay rule. 4 However, we do not agree with defendant when he argues that the letter is neither documentary nor reliable. Defendant candidly acknowledges that what appears to be a very persuasive precedent is found in People v. O Connell (2003) 107 Cal.App.4th 1062 (O Connell). There, the defendant was placed on probation with the condition that he attend drug counseling. To prove that this condition was not satisfied, the trial court received in evidence a termination report prepared by Mr. Beasley, manager of a drug rehabilitation program, which report stated that the probationer had been terminated from the program because of nonattendance. (Id. at p ) The Court of Appeal rejected the defendant s claim that admission of the report was error: Contrary to appellant s assertions, we believe Beasley s report is akin to the documentary evidence that traditionally has been admissible at probation revocation proceedings.... Beasley s report was prepared contemporaneously to, and specifically 4 This second assumption rests on the fact that the prosecutor made no attempt to demonstrate that the letter qualified as a business record, and thus was made admissible by Evidence Code section 1271 as an exception to the hearsay rule. The prosecutor provided no foundational information or affidavit from Delancey Street s custodian of records (see Evid. Code, 1561) that might have established that the letter was admissible pursuant to this exception. 8

9 for, the hearing where appellant s lack of compliance... was at issue. [ ] The [trial] court noted that such reports were routinely received without undertaking the added burden of calling the author to authenticate it because the reports were prepared in response to a referral from the court. (O Connell, supra, 107 Cal.App.4th 1062, ) Defendant attempts to distinguish O Connell on the ground that the report admitted there described objective events the probationer s failure to attend mandatory counseling sessions and cross-examination of the author of the O Connell letter would yield little information due to the letter s resemblance to a business record. Conversely, a cross-examination of the author of the Delancey Street letter in this case could have extremely fruitful, as the appellant could have asked questions such as: What were Delancey Street s rules authorizing phone calls? What were Delancey Street s rules authorizing mailings? How were these rules communicated to the residents? When did appellant send unauthorized mail? When did he make unauthorized calls? Who determined that these acts constituted rule violations? Who concluded that appellant knew of other residents rule violations? What is negative behavior? What personal knowledge did Charlotte Baker (the author of the letter) have? An inquiry into these issues could have challenged the basis of the allegations and was essential to determining the willfulness of any violations. Defendant s attempt to characterize the Delancey Street letter as testimonial is not convincing nor is his effort to remove his situation from O Connell s reach. The letter opens with Ms. Baker describing it as a follow-up to our Intake Department s phone call to inform you of the circumstances surrounding the termination of Ed Senegal s residency here at Delancey Street on 7/26/05. It is reasonable to conclude from this that it was Delancey Street that initiated contact with the probation office, and that Ms. Baker was merely reiterating information already provided to probation authorities. A more than plausible deduction is that, like the reporting authority in O Connell, it is common for Delancey Street to inform the probation officer (and thus the court) when a probationer is terminated. 9

10 Moreover, as a Senior Administrative Assistant, it is far from clear that Ms. Baker was speaking from personal knowledge of the information in the letter; the absence of the word I is telling. If Ms. Baker s letter was merely a conduit for information she was distilling from other sources, requiring her to testify would have been largely pointless, because most likely she would merely have authenticated the document. (People v. Johnson, supra, 121 Cal.App.4th 1409, 1412.) Lacking personal memory of the specific contents of the letter, Ms. Baker s demeanor would not have aided the trier of fact. Accordingly, the letter could be deemed nontestimonial. (See Arreola, supra, 7 Cal.4th 1144, 1157.) In addition, defendant s objective event approach backfires. The one undisputed objective event recounted in the letter was that defendant was terminated from the Delancey Street program. All questions of why he was terminated, and whether it was fair, cannot obscure the decisive fact that he was dismissed. Even according to the plain import of defendant s own testimony, his departure was willful, in that he consciously chose not to comply with rules he thought unjust. The record also discloses a basis for Judge Kessell s finding that the letter was reliable. Over several decades of operation, the Delancey Street Foundation has become accepted as one of the premier residential treatment programs. The fact it was Delancey Street that promptly advised the probation office of defendant s changed status reflects the professionalism which has earned the trust of courts throughout the Bay Area. As previously mentioned, Delancey Street is in constant communication with the courts. Judge Kessell s finding can be deemed to incorporate a history of positive interaction with Delancey Street that produced judicial trust in the reliability of information provided. 5 5 Following the completion of briefing, defendant sent us a letter drawing our attention to the decision of Division Three of this District in In re Miller (2006) 145 Cal.App.4th Miller involved revocation of a defendant s parole by the Board of Parole Hearings after the hearing officer concluded that the defendant had committed oral copulation and sexual battery. The hearing officer reached this conclusion after listening to testimony from a police officer recounting hearsay statements about the assault made by the victim. The hearing officer also considered a written hospital report 10

11 There is, moreover, another basis supporting the revocation, one completely independent of the letter. One of the conditions of defendant s probation was that he Advise the probation officer of any changes in employment or residence in writing within 48 hours of the change. Defendant was also warned in a document that he signed that it is your responsibility to remain in contact with Probation. Quiban testified that he told defendant that he was to advise the probation office of any problems within 48 hours, including if he was terminated from the Delancey Street program. Yet Quiban also testified in effect that he received no word from defendant in the period after defendant left the program in July 2005 until he was arrested in February Judge Kessell clearly did not believe defendant s testimony that during that period he tried to stay in touch with his probation officer. Thus, there is substantial evidence to support his finding that defendant failed to comply with the conditions of his probation requiring him to maintain contact with probation authorities. In summary, Judge Kessell had a sound basis for overruling defendant s objections to the Delancey Street letter. Judge Kessell also had uncontradicted evidence before him that defendant had failed to complete the Delancey Street program, and then effectively disappeared for six months. In these circumstances, Judge Kessell did not abuse his discretion in revoking defendant s probation. that also recorded some statements by the victim concerning the details of the assault. (Id. at p ) Division Three concluded receipt of this evidence was reversible error. Miller is distinguishable for the following reasons: (1) Under the Arreola analysis, the victim s statements that were recounted by the police officer were clearly testimonial, involving the most compelling need to for evaluating witness demeanor. (See In re Miller, supra, 145 Cal.App.4th 1228, ) The same was only slightly less true of the victim s statements preserved in the hospital report. (Id. at p ) Here, by contrast, the substance of the Delancey Street letter was not testimonial and was not dependent upon an evaluation of witness demeanor; (2) more significantly, the Board of Parole Hearings hearing officer, unlike the trial court here, did not determine that the officer s testimony and the hospital report were reliable (id. at p. 1231; and (3) finally, Miller was governed by a federal court stipulation by the state that it would comply with a post-arreola decision by the 9th Circuit which employed a more restrictive approach than Arreola. (Miller, supra, 145 Cal.App.4th at p ) 11

12 II To recapitulate, defendant pled guilty before, and was sentenced by, Judge Harrison; his probation was revoked by Judge Kessell; and the sentence imposed and suspended by Judge Harrison was ordered into execution by Judge Ely. Defendant contends he was denied his right to an independent, full and fair sentencing hearing because it was Judge Ely, not Judge Kessell, who ordered him committed to state prison. Defendant argues that he had the right to be sentenced by the same judge who heard the evidentiary hearing... because he is the only person who is in the position to properly review and weigh the claimed mitigating circumstances in this case, which are so dependent upon the facts adduced at the evidentiary hearing. Defendant is mistaken. Defendant s contention is based upon People v. Strunk (1995) 31 Cal.App.4th 265. Strunk, however, had a very different procedural posture. The defendant there was found guilty by a jury, and was sentenced by a judge other than the one who presided at the trial. The Court of Appeal remanded for a new sentencing hearing because the sentencing judge exercised his sentencing discretion based solely on the probation officer s report with respect to the conclusion there were no mitigating factors. Because the [sentencing] judge had not sat through the trial, and only reviewed the probation report which did not list at least three of the mitigating factors claimed by Strunk in the trial record, we cannot find that the judge exercised his required independent sentencing or properly weighed all the circumstances. The matter must thus be remanded for a new sentencing hearing. [ ] Moreover, because the trial judge is the only person who is in the position to properly review and weigh the claimed mitigating circumstances in this case, which are so dependent upon the facts adduced at trial, the matter must be remanded to him. (Id. at p. 275.) Strunk is easily distinguished from the setting here. Defendant was not found guilty after a jury trial, but upon his voluntary plea of no contest and his admissions of all the enhancement allegations. No less importantly, the same judge (i.e., Judge Harrison) who accepted his pleas did in fact impose the sentence defendant is now serving. 12

13 Although defendant does not explicitly articulate it, the essence of his contention appears to be an attempt to expand the scope of Arbuckle, supra, 22 Cal.3d 749. In Arbuckle, our Supreme Court held, not as a matter of constitutional or statutory requirement, but as an implied term of a plea bargain, that a defendant who pleads guilty is ordinarily entitled, upon timely request, to be sentenced by the same judge. (Id. at pp ) But Arbuckle has not been extended to situations where a plea-bargaining defendant is sentenced and then admitted to probation by the same judge, and probation is thereafter revoked by a different judge. (People v. Martinez (2005) 127 Cal.App.4th 1156, ; People v. Beaudrie (1983) 147 Cal.App.3d 686, ; cf. People v. Madrigal (1995) 37 Cal.App.4th 791, 795 [ The judge who originally makes a probation order is not required to hear any subsequent motions. ].) As one court cogently put it: [Defendant] was sentenced by the same judge who accepted his original plea. Sentence was suspended and he was placed on probation. Once that sentence was imposed, Arbuckle no longer applied. (People v. Beaudrie, supra, at p. 694.) We do note that the logic of defendant s argument would have required the revocation hearing and the subsequent hearing to be conducted by Judge Harrison. It was he who accepted defendant s no contest pleas, he who imposed the sentence, and he who had tacitly assured defendant that he would not be sent to prison if the probation violation was trivial. If there was a deviation, it was when the revocation hearing was conducted by Judge Kessell conducted without objection by defendant. In any event, defendant did raise the issue of possible mitigating circumstances when he objected the admission of the Delancey Street letter, and nothing prevented him from arguing to Judge Kessell the same point on which he had been reassured by Judge Harrison that it would have be a significant violation that would result in his probation being revoked. In addition, Judge Ely did subsequently listen to defendant s plea for mitigated treatment, i.e., readmission to probation in order that defendant could enroll in another treatment program, or reduction of the sentence imposed by Judge Harrison. 13

14 III When Judge Ely ordered execution of the sentence that Judge Harrison had imposed, he also imposed a $1,000 restitution fine pursuant to Penal Code section , and a parole revocation fine in a like amount pursuant to Penal Code section The court subsequently reduced the restitution fine to $400, but did not order a corresponding decrease in the parole revocation fine. Defendant contends that the parole revocation fine cannot be more than the restitution fine. The Attorney General concedes that defendant is correct, because Penal Code section clearly provides that In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing a restitution fine pursuant to... Section , assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to... Section (Pen. Code, ) The matter can be corrected by the modification ordered below. DISPOSITION The order revoking probation is modified by reducing the fine imposed pursuant to Penal Code section from $1,000 to $400. As so modified, the order is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting this modification, and to forward a certified copy to the Department of Corrections and Rehabilitation. Richman, J. We concur: Kline, P.J. Lambden, J. 14