THE PEOPLE, Plaintiff and Respondent, v. DONALD L. MAKI, Defendant and Appellant.
Crim. No. 23902
Supreme Court of California
Sept. 3, 1985.
39 Cal. 3d 707 | 217 Cal. Rptr. 676 | 704 P.2d 743
OPINION
LUCAS, J.-We granted hearing in this case to clarify the standards for admitting documentary evidence at probation and parole revocation hearings. We will conclude that documentary hearsay evidence 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, and will affirm the trial court judgment revoking probation.
In 1981, following a negotiated plea to two counts of fraudulently issuing checks with insufficient funds (
During the hearing the court, over defendant‘s objections, admitted into evidence copies1 of a car rental invoice and a hotel receipt which had been seized from defendant‘s home during his arrest on unrelated charges. The car rental invoice bore defendant‘s name in three places and indicated rental of a Hertz car at Chicago‘s O‘Hare Airport on January 27, 1983, with return due two days later. The hotel receipt was dated January 28, 1983, and indicated payment for services at the Hyatt Regency O‘Hare in Chicago. This latter document was unsigned but had upon it the name “Maki.” The court admitted into evidence two probation reports signed by defendant and presented by Pisor. Both Pisor and the judge compared the signatures on the reports and two signatures on the invoice and concluded that they were made by the same person. (See
DISCUSSION
I. Exceptions to the Hearsay Rule
Hearing in this case was granted to consider the application of People v. Winson (1981) 29 Cal.3d 711, to a case in which the evidence relied upon was documentary. In Winson, we held that a transcript of preliminary hearing testimony 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.” (Id., at pp. 713-714.) We emphasized, however, that the right of confrontation upon which we rested our holding was not absolute and where “‘appropriate,’ witnesses may give evidence by document, affidavit or deposition (Gagnon [v. Scarpelli (1973) 411 U.S. 778,] 782, fn. 5; Morrissey [v. Brewer (1972) 408 U.S. 471,] 478 [the parolee ‘may bring letters, documents, or individuals who can give relevant information to the hearing officer‘]; In re Bye [(1974) 12 Cal.3d 96,] 110, fn. 15).” (Id., at p. 719.)
Before reaching the issue of the application of Winson to this case, we first consider whether the evidence here admitted was in fact properly considered under pertinent exceptions to the hearsay rule. If it was, then there is no need to inquire as to whether and what flexible standards may be applied to the use of otherwise inadmissible documentary evidence in revocation proceedings.
Defense counsel objected to the introduction of the invoice and receipt on the grounds that it had not been shown that they were in fact from Chicago, or that the invoice had been signed by defendant outside of San Diego. Counsel also stressed that it had not been established where the police had actually seized the documents. He disputed the court‘s conclusion that they had been found on defendant‘s person or in his possession which the court
There are, however, significant questions regarding the admissibility of the documents under usual exceptions to the rule against hearsay. The people made no attempt to admit them as business records. Section 1271 provides that a writing is not made inadmissible by the hearsay rule, and may be used to prove an act, condition or event if “(a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” There was no evidence presented to meet the cited criteria and the documents therefore do not qualify as admissible business records.
In urging affirmance of the trial court‘s ruling, the prosecution contends that the records, particularly the invoice, were properly admitted as “adoptive admissions.” Section 1221 states that “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.” Here, the court after comparison concluded, as it was entitled to do pursuant to section 1417, that the signature on the invoice was by the defendant. The prosecution asserts that the exception for adoptive admissions therefore applies because the signature on the invoice sufficiently served to authenticate and “adopt” the contents of the document.
The objections raised here put into question whether the documents were what they purported to be. (See Interinsurance Exchange v. Velji (1975) 44 Cal.App.3d 310, 318.) The mere fact of defendant‘s signature on the invoice did not constitute authentication because there was no testimony regarding the preparation of the document, or its purpose. The signature alone demonstrated nothing about the authenticity of the contents.
It is true that under some circumstances the invoice may have been admissible. In Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 42-43, we explained that “Since invoices, bills, and receipts for repairs are hearsay, they are inadmissible independently to prove that liability for the
In at least one instance, the Court of Appeal has approved admission of a car rental receipt found in a car driven by the defendant without discussing whether it amounted to an adoptive admission. The court held that “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
Justice Jefferson has strongly criticized the use of possession alone as a basis for avoiding exclusion as hearsay. He asserts that the Whittaker decision was “clearly untenable and erroneous” because if it were generally applied then “the truth of a document written by any declarant is established from the mere fact of possession of such document by a party.” (Jefferson, supra, § 1.1 at p. 19.) Instead, he argues invoices should be viewed as “implied hearsay statements” which are admissible only under exceptions
In one later case Whittaker was used for a limited purpose. The trial court admitted as relevant to whether a defendant had resided in a house where narcotics were being manufactured: (1) an unsigned lease and a rent receipt, both bearing her name; (2) a receipt from a moving company addressed to the residence and signed by the defendant; (3) an unlawful detainer summons addressed to her; (4) a driver‘s license in defendant‘s maiden name; and (5) numerous photographs of defendant and her husband and child. (People v. Goodall (1982) 131 Cal.App.3d 129, 139-140.) On appeal, the defendant asserted that the documents were inadmissible hearsay. The trial court had admitted them at trial “simply for the fact that those documents were found,” and the Court of Appeal approved, holding that “the trial court was correct in determining that the documents and other evidence ... were relevant for a nonhearsay purpose (People v. Whittaker, [supra]). Without considering the documents for the truth of the matter stated therein, it is relevant that documents bearing appellant‘s name or other items reasonably identifiable as appellant‘s were found at the residence.... The jury could infer that these items would not have been so located unless [defendant] had either some dominion and control over the residence or a presence sufficient to give her an awareness of what was going on....” (Id., at p. 143.) Unlike the use made of the documents in Goodall, however, the evidence here was utilized for the truth of the matters stated therein rather than to show that defendant lived where he was arrested.
Defendant‘s authenticated signatures on the invoice, even when considered in conjunction with the fact that it was found when his home was searched, did not provide sufficient foundation for the documents to be admitted pursuant to section 1221 or any other hearsay exception for use as to their content. The signature alone was not enough; the documents were introduced not to prove defendant‘s presence where they were found, but to show his presence outside the jurisdiction. We now turn to whether the
II. Due Process and Revocation Proceeding
In People v. Winson, supra, 29 Cal.3d 711, we explored when a court, over objection by the defendant, may admit a preliminary hearing transcript to be used in lieu of live testimony at a revocation hearing. We concluded that the use of such testimony was best determined on a case-by-case basis, and in that instance it was improper to admit the transcript. In reaching that result, we focused on the facts that “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.) However, we stressed that “within this context the right of confrontation is not absolute.” (Ibid.)
Our decision rested upon and was consistent with that of the United States Supreme Court in Morrissey v. Brewer, supra, 408 U.S. 471, in which the high court observed that “We emphasize there is no thought to equate this second stage [the hearing procedure] of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” (P. 489.) This emphasis on flexibility was echoed the next year in Gagnon v. Scarpelli, supra, 411 U.S. at p. 783, footnote 5, where the court observed “While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence. Nor did we intend to foreclose the States from holding both the preliminary and the final hearings at the place of violation or from developing other creative solutions to the practical difficulties of the Morrissey requirements.”
Paying heed to the goal of flexibility and accommodation firmly reiterated in both state and federal authority, we now review approaches which courts have taken in the wake of Morrissey and Gagnon.3 In one recent decision,
A review of other cases shows a similar willingness to consider otherwise inadmissible hearsay evidence when accompanied by reasonable indicia of reliability. For example, in United States v. Penn (11th Cir. 1983) 721 F.2d 762, a probation officer testified to results of urine tests over defendant‘s objection and the court admitted laboratory reports and an unsworn letter from the laboratory summarizing various test results. The appellate court found that the trial court reasonably determined that the laboratory reports were trustworthy and reliable and therefore worthy of consideration because they were “the regular reports of a company whose business it is to conduct such tests.” In addition, “Although there was no corroboration of the specific results of the lab reports, there was general corroboration of the allegation that Penn had been taking drugs.” (Id., at p. 766.) (See also United States v. McCallum, supra, 677 F.2d at p. 1026 [letter from Salvation Army center sufficiently reliable: official report to probation officer from the center‘s program coordinator and caseworker. Reliability “also established by McCallums’ testimony in which he admitted loss of his job and infractions of the center‘s rules“]; United States v. Burkhalter (8th Cir. 1978) 588 F.2d 604, 607 [overruling defendant‘s objection to probation officer‘s reliance on and admission into evidence of vocational school instructor‘s letter to probation officer: “The sources are people who were familiar with ap-
In another recent case, Taylor v. United States Parole Com‘n, supra, 734 F.2d 1152, the Sixth Circuit concluded that a letter from an out-of-state probation officer regarding the circumstances leading to the arrest of a parolee was admissible and could be considered as evidence of a parole violation. However, the court disagreed with the action of the regional parole commission which revoked parole after deciding that the letter “justified a finding that Taylor had engaged in new criminal conduct.” (Id., at p. 1154.) The court‘s concern was “with the paucity of reliable evidence of petitioner‘s criminal conduct and not with the hearsay nature of the evidence which was presented. A finding of criminal conduct based solely upon a probation officer‘s summary of an arrest report is but a step away from a finding of criminal conduct based solely upon evidence of a parolee‘s arrest with no account of the underlying circumstances.” (Id., at pp. 1155-1156, fn. omitted.) Taylor thus stands for the proposition that hearsay may be admissible but its substance must be treated with care before it provides grounds for revocation.
The present case is a close one. We conclude that the invoice from Hertz, accompanied by the hotel receipt, both of which were seized from defendant‘s home, here provided a sufficient basis for the court to revoke probation. The significant factor is the uncontroverted presence of defendant‘s signatures on the invoice. The invoice bears the Hertz emblem and stamped in the box in which is printed “Vehicle Rented at (City/State)” are the words “O‘Hare Field, Chicago, IL.” This stamp is followed by an additional handwritten inscription: “Hyatt.” The invoice also includes on its face a printed agreement for the rental of the car in which it is stated in capital letters that “THE VEHICLE IS RENTED UPON THE CONDITIONS SHOWN ON THIS PAGE AND UPON THE REVERSE HEREOF. CUSTOMER REPRESENTS THAT HE HAS READ, UNDERSTANDS AND AGREES WITH THE CONDITIONS.” This language is followed by the signature of Donald L. Maki. The invoice is date-stamped January 27
The second document also considered by the court is headed by the printed words “Hyatt Regency O‘Hare.” Entitled “Customer Receipt,” it states that a sum was “received from ‘Maki‘” and is dated “1-28-83.” The date, name, and sum are entered in unidentified handwriting on the otherwise printed form. Standing alone, this receipt has at best minimal probative value. It would constitute an insufficient basis upon which to revoke probation. However, when viewed in conjunction with the Hertz invoice showing rental of a car at the “O‘Hare Field, Chicago, IL ‘Hyatt‘,” it serves to corroborate the information in the invoice indicating that defendant was in Chicago in January 1983.
If the invoice were simply printed and filled out by an unidentified hand and devoid of defendant‘s signature, our conclusion would be that it alone, or even accompanied by the hotel receipt, would be insufficient to find a violation of probation.4 However, the identification of defendant‘s signature on the printed invoice and the fact that it is an invoice of the type relied upon by parties for billing and payment of money, lead us to find it sufficient here. (See United States v. Penn, supra, 721 F.2d at p. 766 [laboratory reports admissible despite no testimony by anyone from the laboratory who had been involved in either the testing which led to reports or preparation of reports themselves. “In the absence of any evidence tending to contradict Penn‘s drug usage or the accuracy of the lab tests, his confrontation rights were not infringed by the admission of Busby‘s [the probation officer who had requested the tests] testimony or the exhibits.“]) Imprinted with a Hertz emblem, the invoice appears to be a typical one utilized by Hertz in transacting business, and it contained internal evidence of its place of issue to which had been affixed an identifiable signature by defendant. “In the absence of any evidence tending to contradict” the information contained in the invoice and the accuracy of the inference that defendant was of necessity in Chicago signing the invoice on January 27, 1983, we believe that the documents here were properly considered by the trial court and provided a sufficient basis from which it could conclude that defendant violated the terms of his parole by leaving the area without permission.
The judgment is affirmed.
Mosk, J., Kaus, J., Broussard, J., and Grodin, J., concurred.
The majority use this receipt to corroborate the Hertz invoice. I fear that such reasoning could in future cases lead to the admission of unreliable hearsay and to revocations based on the cumulative weight of several items of unreliable hearsay.
Unless the majority have changed the rules of evidence, documents which do not fall within a recognized hearsay exception must be reliable in order to be admissible. I would so hold.
Reynoso, J., concurred.