The People v. Ashby CA1/5

Filed 8/27/13 P. v. Ashby CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A136489 v. GERALD A. ASHBY, (Marin County Super. Ct. Nos. SC166224A & SC170379A) Defendant and Appellant.

Appellant Gerald A. Ashby appeals following revocation and reinstatement of his probation, with the condition that he serve nine months in jail or a treatment program. We reverse, concluding the trial court committed prejudicial error in admitting hearsay testimony at the contested hearing on the revocation petition. BACKGROUND In September 2009, in case No. SC166224A, appellant pled guilty to one count of misdemeanor petty theft with priors (Pen. Code, § 666) and one count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). The trial court imposed three years’ probation. In July 2010, appellant admitted to violating the conditions of his probation and, in case No. SC170379A, he pled guilty to one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The trial court revoked and then reinstated probation in case No. SC166224A, and imposed three years’ probation in case No. SC170379A. In July 2012, a petition for revocation of probation was filed alleging that appellant disturbed the peace (Pen. Code, § 415, subd. (2)) and committed trespass (Pen.

1

Code, § 602, subd. (m)). At the August 2012 contested probation violation hearing, the People’s sole witness was the responding police officer, Anthony Augustyn. He testified he responded to a complaint at a motel, where “[t]he hotel staff was calling complaining about an unwanted subject that was refusing to leave the property.” When Augustyn arrived, he saw appellant arguing with a motel clerk, although Augustyn could not hear what was being said. Over a hearsay exception, Augustyn testified the clerk said that appellant refused to leave the property. The clerk also said he was willing to sign a citizen’s arrest form for trespassing. The hotel manager told Augustyn that appellant had been asked to leave but had refused to do so. Appellant said he had the right to be on the property and was not going to leave. Augustyn arrested appellant. Appellant testified he was sharing a room at the motel with another guest. The trial court revoked and then reinstated probation, with the condition that appellant was to serve nine months in county jail or in the Marin Services for Men program. This appeal followed. DISCUSSION Appellant contends the trial court erred in admitting Augustyn’s hearsay testimony regarding the statements made by the motel clerk and manager. In response to appellant’s objection, the court stated, “I’m overruling the objection regarding hearsay for purposes of this hearing. I think sufficient reliability has been established.” Citing People v. Arreola (1994) 7 Cal.4th 1144 (Arreola), the People essentially concede the trial court erred, stating “[t]he case law makes clear that at an adult probation hearing, simply establishing the reliability of testimonial evidence presented through hearsay is insufficient to warrant its admission. The court may admit testimonial hearsay only after taking into account other factors enumerated by the Supreme Court in Arreola, including the unavailability of the declarant.” The People do not argue that the motel employees were unavailable, or that any other factors supported admission of the hearsay testimony.