Filed 1/15/20 P. v. Nieto CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TOMMY SHAWN NIETO,

Defendant and Appellant.

F079049

(Super. Ct. No. CRM022431)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge.

David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, for Plaintiff and Respondent.

-ooOoo-

 

Appellant Tommy Shawn Nieto appeals from a judgment revoking probation and sentencing him to a seven-year prison term. On appeal, Nieto contends (1) the court erred in admitting hearsay evidence at his probation violation hearing, and (2) the matter must be remanded for resentencing. We find merit to this latter contention and remand for resentencing. In all other respects, we affirm.

FACTS

On January 15, 2013, pursuant to the court’s indicated sentence, Nieto pled no contest to evading a peace officer (Veh. Code, § 2800.2, subd. (a)) and he admitted four prior prison term enhancements (Pen. Code, §667.5, subd. (b)) and allegations that he had two prior convictions within the meaning of the “Three Strikes” law (Pen. Code, § 667, subds. (b)–(i)). The indicated sentence also provided that the court would strike the prior conviction allegations and Nieto would receive an initial grant of probation.

On January 25, 2013, the court struck Nieto’s two prior strike convictions and sentenced him to an aggregate prison term of seven years, the aggravated term of three years on his evading a peace officer conviction and four one-year prior prison term enhancements. The court then suspended execution of sentence and placed Nieto on probation for five years. One of Nieto’s conditions of probation required him to:

“Enter and successfully complete the Teen Challenge program/a residential treatment program of at least 2 [years] duration. Appear in person at the Merced County Probation Department within one business day of leaving the program for any reason.”

On July 1, 2015, the probation department filed an affidavit of probation violation and motion for issuance of bench warrant. The affidavit alleged appellant “[F]ailed to successfully complete the Teen Challenge program for the duration of at least 2 years and failed to appear in person at the Merced County Probation Department within one business day upon leaving the program.” (Unnecessary capitalization omitted.)

On July 6, 2015, Nieto failed to appear at a hearing and the court revoked his probation and issued a warrant for his arrest.

On December 6, 2018, Nieto appeared in court in custody, was arraigned on the alleged probation violations, and denied the allegations.

On March 15, 2019, at Nieto’s probation violation hearing, Deputy Probation Officer Soulaphonh Saosavang testified he was assigned to supervise Nieto in 2012. As a condition of his probation, Nieto was ordered to complete a two-year Teen Challenge program. Although the department received information from Teen Challenge that Nieto left the program, Nieto never reported to the probation department. Saosavang could not obtain information about when Nieto left the program and the department did not have any proof that he completed it. Saosavang contacted several Teen Challenge programs but none of them had a record of Nieto. On October 14, 2014, Saosavang contacted the Oakland Teen Challenge program and spoke with Alfred, who told him Nieto had been in the program about a year earlier, but never completed it. Nieto never reported to Saosavang.

During cross-examination, Saosavang testified that based on information he received from a court officer on March 7, 2013, Saosavang wrote in a report that Nieto was transported to Teen Challenge the previous day. But Saosavang did not know what facility Nieto was transported to. Saosavang also did not know Alfred’s last name or his position at Teen Challenge. Alfred told Saosavang to call back the next day to speak with Kevin Codd, the intake coordinator. Saosavang spoke with Codd the next day but he did not have any further information. On April 28, 2015, Saosavang spoke with Tony Engleman and asked him for documentation that Nieto had left the program. He never got the documentation and never heard again from Teen Challenge after that date.

After hearing argument from counsel, the court found Nieto violated his probation by failing to report to probation within one day of leaving the Teen Challenge program.

DISCUSSION

The Admission of Hearsay at the Probation Violation Hearing

Nieto contends the court erred in admitting the following hearsay: (1) information the probation department received from the Teen Challenge program that Nieto left the program; (2) information from several Teen Challenge programs that they had no record of Nieto; and (3) Alfred’s statements to Saosavang that Nieto was in the program a year earlier and that Nieto left the program and never completed it. He contends the above hearsay was testimonial and thus its admission violated his federal constitutional due process right to confrontation because the prosecutor did not establish good cause for its admission. Nieto further contends the error prejudiced him because the statements were the only evidence introduced that showed he left the program. We will find that any error in admitting these statements was harmless.

“Before a defendant’s probation may be revoked, a preponderance of the evidence must support a probation violation. [Citation.] A trial court’s decision to admit or exclude evidence in a probation revocation hearing will not be disturbed on appeal absent an abuse of discretion.” (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197–1198.)

“The minimum due process requirements at a formal probation revocation hearing include written notice of the claimed violations, disclosure of evidence against the defendant, an opportunity for the defendant to be heard and to present evidence, and ‘the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).’ [Citations.] The defendant’s right of confrontation at the formal revocation hearing does not arise from the confrontation clause, but from due process [citation]; it is ‘not absolute. Confrontation may be denied if the trier-of-fact finds and expresses good cause for doing so.’ [Citation.] For example, the former testimony of a legally unavailable witness is generally admissible. [Citation.] Due process does not prohibit the ‘use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.’ ” (People v. Gomez (2010) 181 Cal.App.4th 1028, 1033–1034.)

In People v. Arreola (1994) 7 Cal.4th 1144, 1157–1158 (Arreola), the Supreme Court held that the introduction of a preliminary hearing transcript violated the defendant’s due process right to confrontation because the prosecutor failed to establish good cause for its admission. In so doing, the court reaffirmed its holding in People v. Winson (1981) 29 Cal.3d 711, “requiring a showing of good cause before a defendant’s right of confrontation at a probation revocation hearing can be dispensed with by the admission of a preliminary hearing transcript in lieu of live testimony.” (Arreola, supra, 7 Cal.4th at p. 1159.) “The broad standard of ‘good cause’ is met (1) when the declarant is ‘unavailable’ under the traditional hearsay standard (see Evid. Code, § 240), (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant’s presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant.” (Id. at pp. 1159–1160.)

Information the probation department received from Teen Challenge programs and that Saosavang received from Alfred was hearsay akin to the preliminary hearing testimony at issue in Arreola. Further, as in Arreola, the prosecutor here did not establish good cause for the admission of this hearsay. Thus, admission of the hearsay from the Teen challenge programs and from “Alfred” violated Nieto’s due process right to confrontation.

Further, because the error in admitting hearsay was of federal constitutional dimension, we must assess prejudice under the “harmless-beyond-a-reasonable-doubt” standard. (Arreola, supra, 7 Cal.4th at p. 1161.)

The court found Nieto violated his probation because he did not report to the probation department within one day of leaving the Teen Challenge program. More than five years passed between March 6, 2013, when Nieto was delivered to the Teen Challenge program, and December 6, 2018, when Nieto appeared in custody in court after being arrested on the outstanding warrant. Given the length of time between Nieto’s commitment to the program and the date he appeared in court after being arrested on the 2015 warrant, which exceeded his five-year probationary period, even without considering the challenged hearsay information, the trial court could reasonably find that Nieto had long since left the program. Further, coupled with Saosavang’s testimony that Nieto never contacted him after he was transported to the Teen Challenge program, the court could reasonably find by a preponderance of the evidence that Nieto did not contact the probation department within one day of leaving the program. Thus, we conclude that any error in the court admitting hearsay evidence at Nieto’s probation hearing was harmless beyond a reasonable doubt. (Cf. Arreola, supra, 7 Cal.4th at p. 1161 [erroneous admission of hearsay not prejudicial where other evidence independently established defendant violated his probation].)

The Prior Prison Term Enhancements

The parties agree that appellant benefits from Senate Bill No. 136 (Reg. Sess. 2019–2020; Senate Bill 136). On October 8, 2019, and while this appeal was pending, the Governor signed Senate Bill 136 into law. It amends Penal Code section 667.5, subdivision (b) regarding prior prison term enhancements. It provides:

“(b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended.” (Pen. Code, § 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1; emphasis added.)

Nieto was sentenced to four prior prison term enhancements pursuant to section 667.5, subdivision (b). His prior prison terms were not for sexually violent offenses under Welfare and Institutions Code section 6600, subdivision (b).

Except when passed as an urgency measure, a statute enacted at a regular session of the Legislature generally becomes effective on January 1 of the year following its enactment. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) As such, Senate Bill 136 was effective on January 1, 2020.

Respondent concedes that when Senate Bill 136 goes into effect, appellant’s judgment will likely not be final. Respondent further concedes that this change in law will apply to appellant retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 742.) We agree with respondent’s concessions.

Because appellant’s judgment was not final on January 1, 2020, he benefits from Senate Bill 136. We remand this matter for the trial court to strike the enhancements under section 667.5, subdivision (b), and to resentence appellant after January 1, 2020. On remand, a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. (People v. Buycks (2018) 5 Cal.5th 857, 893.)

DISPOSITION

The matter is remanded to the lower court for resentencing. At resentencing, the court shall strike the four prior prison term enhancements imposed pursuant to section 667.5, subdivision (b). Following resentencing, the court shall forward a new abstract of judgment to the appropriate authorities. In all other respects, appellant’s judgment is affirmed.