Opinion
Joshua Mark O’Connell was convicted of several drug offenses and referred to a drug treatment program. The trial court terminated appellant from the program after he failed to attend any sessions. In this appeal we rejеct appellant’s claim that his termination was based on inadmissible hearsay. We will remand the case, however, because the court ordered appellant to pay for the costs of probation supervision without inquiring into his аbility to pay.
Facts and Proceedings
Appellant was charged by complaint with one count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and one count of misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364).
Appellant pleaded guilty to both counts on July 31, 2001. Appellant was placed on probation for three years on condition he participate in the deferred entry of judgment program, which required, inter alia, that he attend drug cоunseling sessions.
On January 8, 2002, appellant’s probation officer filed a report requesting that appellant show cause why he should not be terminated from the deferred entry of judgment program due to too many absences. Attached to the report was an “Adult Drug Program Termination Report” prepared by Sam Beasley, the program manager for Valley Community Counseling Services. This document stated that appellant had been terminated from the program as a result of too many absences. It stated: “This client completed 0 of 20 Sessions.”
On January 17, 2002, the court held an arraignment hearing on appellant’s alleged failure to participate in the deferred entry of judgment program. At that hearing, appellant explained that he was unable to attend his work project assignment or Valley Community Counseling because “I was never able to start work and wasn’t able to pay the fines and that’s why I didn’t go.” Appellant also failed to rеport to the jail in Stockton because “I had no way to get there or anything.”
At a subsequent hearing on appellant’s alleged violation of the deferred entry of
In response, the court stated: “HI indicate here for both counsel that the cases the Court is familiar with allow documentary evidence during the normal course, sometimes called the Government Records Exсeption, but it is, frankly, hearsay as you are indicating, but it does allow such documentation to be received, especially in probation violation proceedings and with specific case authority cited in this court many times to reflect that.
“The objections are always noted and, frankly, it’s typically found that they go to the weight and the reliability of the documents rather than the threshold for admission.
“In this case we have got the file that came out of this court from the plea on July 31st. The transcript of that plea is present in the court file. The Court ordered Mr. 0[’C]onnell to attend a certain program through Valley Community in that proceeding.
“The referrals back both from Valley Community and from the probation department reference this court file and it also references the particular sentencing procedure that we have the transcript of.
“So, frankly, the authenticity of the return from the program and from probation aрpears sufficiently based here and shown to the Court.”
Thereafter the court found appellant in violation of the deferred entry of judgment program. The court placed appellant on probation for five years, refеrred him to a Proposition 36 program, and ordered him to pay the reasonable costs of probation supervision.
Discussion
Alleged Hearsay Violation
Relying principally on
People
v.
Arreola
(1994)
In
Arreola, supra,
In
Maki
the court noted its qualification in
Winson, supra, 29
Cal.3d 711, that the right of confrontation is “not absolute and where 1 “appropriate,” witnesses may give evidence by document, affidavit or dеposition
“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. [Citation.]” (Arreola, supra, 7 Cal.4th at p. 1157.)
“As long as hearsay testimony bears a substantial degree of trustworthiness it may legitimately be used at a probation revocation proceeding. [Citations.] In general, the сourt will find hearsay evidence trustworthy when there are sufficient ‘indicia of reliability.’ [Citation.] Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. [Citation.]”
(People v. Brown
(1989)
The standard of proof required at a probation violation hearing is a preponderance of the evidence to support the violation.
(People v. Rodriguez
(1990)
The alleged inadmissible hearsay in the present case consisted of a single-page report from Sam Beasley, the program manager of Valley Community Counseling Services. The report stated that appellant had been terminated from the program due to “Too Many Absences.” Beasley added: “This client cоmpleted 0 of 20 sessions.”
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. Unlike thе fact patterns in
Winson, supra, 29
Cal.3d
711 and
Arreola, supra,
The court noted that such reports were routinely received without undertaking the added burden of calling the author to authenticate it because the reрorts were prepared in response to a referral from the court.
Appellant’s only response was to speculate that the reports were unreliable. Defense counsel stated: “If the district attorney is just going to present this, basically, Complaint as their evidence that Mr. 0[’C]onnell has violated his deferred entry of judgment, you are denying Mr. 0[’C]onnell his right to cross-examine these witnesses who would have accused him, and how do we know that this is reliable? How do we know how many absences Mr. 0[‘C]onnell has? How do we know who kept these records and whether or not roll was taken.”
The difficulty we have with defense counsel’s ruminations is that they do not, without more, undermine the trial court’s conclusion that Beasley’s rеport bore the requisite indicia of reliability and trustworthiness so as to be admissible. Our conclusion is buttressed by appellant’s apparent admission at the January 17, 2001, hearing that he had not undertaken jail time, work project, and counseling duе to financial and transportation difficulties. In sum, if there be error, it was harmless.
Turning to the issue of costs of probation supervision, appellant contends the court erred by ordering him to pay such costs without inquiring into his ability to pay, as requirеd by Penal Code section 1203.1b. 1
Here, there is no indication that the probation department or the court made a determination of appellant’s ability to pay for formal probation
supervision, or that appellant was ever informed by anyone of his right to a court hearing on his ability to pay, or that appellant knowingly and intelligently waived such a hearing, as required by section Penal Code section 1203.1b. (See
People v. Bennett
(1987)
The People concede the case should be remanded to allow the trial court to take a knowing and intelligent waiver of a hearing from defendant or to conduct a hearing as provided in Penal Code section 1203.1b.
We note that any order for payment of prоbation costs should be imposed not as a condition of probation but rather as a separate order.
(People v. Hart
(1998)
Disposition
The portion of the order granting probation that requires appellant to pay the costs of probation рursuant to Penal Code section 1203.1b is vacated. The case is remanded to the trial court for the redetermination of probation-related costs as discussed in the opinion. The order placing defendant on probation is otherwise affirmed.
Sims, Acting P. J., and Nicholson, J., concurred.
Notes
Penal Code section 1203.1b, subdivision (a), governs payment by a defendant of probation-related costs. It provides in pertinent part: “(a) In any case in which a defendant is convicted of an offense and is the subject оf any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentencе, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant tо pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report рursuant to Section 1203.7, of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203, . . . The reasonable cost of these services and of probation supervision or a conditional sentence shall not exceed the amount determined to be the actual average cost thereof. A payment schedule for the reimbursement of the costs of preplea or presentence investigations based on income shall be developed by the probation department of each county and approved by the presiding judge of the superior court. The court shall order the defendant to apрear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer, or his or her authоrized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant’s ability to pay. The probation officer shall inform the defendant that the dеfendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver." (Italics added.)