California Court of Appeal May 3, 2016 No. E063864Unpublished
Filed 5/3/16 P. v. Hernandez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063864
v. (Super.Ct.No. FSB1304710)
MIGUEL ANGEL HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Elia V. Pirozzi,
Judge. Affirmed.
David Cohen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor, and Warren J.
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1
Miguel Angel Hernandez, appeals from a judgment imposing a two-year term in
state prison following the revocation of probation on his conviction for driving under the
influence of alcohol or drugs and causing injury. (Veh. Code, § 23153, subd. (a).)
Hernandez contends the trial court erred by allowing testimony at the revocation hearing
regarding statements he made to his probation officer while in custody before the hearing
without benefit of counsel. We conclude that even assuming the Sixth Amendment right
to have counsel present during questioning applies in connection with probation
revocation proceedings, any error was harmless beyond a reasonable doubt and therefore
affirm.
I
BACKGROUND
On January 30, 2014, Hernandez entered a negotiated guilty plea to one count of
driving under the influence of alcohol or drugs causing injury with two or more
convictions for driving under the influence. (Veh. Code, § 23153, subd. (a), count 1.) In
exchange, the prosecution dismissed four other counts and several enhancement
allegations.1
On March 3, 2014, the trial court imposed three years of formal probation. As
conditions of probation, the trial court ordered, inter alia, that Hernandez: (1) “[r]eport to
the [p]rob[ation] officer in person immediately upon release from custody and thereafter
1 The dismissed counts charged felony violations of Vehicle Code sections 23153, subdivision (b), 23153, subdivision (a), and 20001, subdivision (a).
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once every fourteen (14) days or as directed” (condition 3); (2) “[c]ooperate with the
probation officer in a plan of rehabilitation” (condition 4); (3) “[k]eep the probation
officer informed of [his] place of residence and cohabitants” (condition 7); and (4)
“[r]egister for an SB-38 alcohol rehabilitation program and submit proof of enrollment”
to the probation officer by April 3, 2014 (condition 29).
Miguel Pares became Hernandez’s probation officer in March 2014. Hernandez
reported to the probation office on March 4, the day after his sentencing. The next day,
Maria Mellado, an office assistant for the probation department, testified she received a
change of address form from Hernandez, ensured the address on file was correct, and
provided the form to Pares.2 Pares called Hernandez by telephone on March 27 and left a
message, but Hernandez never returned the call. On August 27, 2014, Pares visited the
address Hernandez had provided, and discovered an empty lot at the location. According
to Pares, “I looked at the building that was before, and I went across the street and looked
at that building and those numbers. That building number would have fallen in between
those two numbers for the west address. So it was an empty lot.” Pares also consulted
with law enforcement officers who were conducting a separate investigation at a nearby
house to see whether they knew Hernandez. They said they did not. On September 12,
2014, Pares again visited the address Hernandez had provided to confirm there was no
2 According to Mellado, though the form submitted was designated a change of address form, she found the address on the form matched the address already on file.
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residence at the location. Pares also discovered Hernandez had never provided proof he
had enrolled in an SB-38 alcohol rehabilitation program.
On September 12, 2014, Pares filed a petition to revoke Hernandez’s probation for
violating conditions of his probation. On September 30, 2014, the trial court revoked
Hernandez’s probation and issued a bench warrant for his arrest. Hernandez was arrested
and arraigned on January 20, 2015.
On February 18, 2015, while Hernandez was incarcerated and awaiting a hearing
on the revocation of his probation, Pares contacted him by telephone and questioned him.
Pares testified at the hearing that Hernandez gave the same false home address and
admitted he had not enrolled in an alcohol rehabilitation program. According to Pares,
Hernandez claimed “he didn’t have enough money, and he needed help enrolling in the
class.” Pares also testified Hernandez admitted he had been cited and released for
disorderly conduct and that he had been drinking, which violated a separate condition of
his probation. Hernandez’s counsel objected to the admission of all the statements
Hernandez gave Pares on the ground, among others, that he was questioned by law
enforcement outside the presence of counsel. The superior court overruled the
objections.
The superior court ordered Hernandez’s probation revoked. The superior court
found the People had met their burden of proving, by a preponderance of the evidence,
that Hernandez violated conditions 4, 7, and 29. The superior court found Hernandez
violated condition 4 by failing to cooperate in devising a rehabilitation plan based on
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Pares’s testimony “that he tried to contact the defendant on numerous occasions to devise
some sort of a plan of rehabilitation, was unsuccessful in doing that, and I believe his
exact words were, ‘the defendant did not do his part.’” The court found Hernandez
violated condition 7 because “there was a specific address given as to Mr. Hernandez’s
residence, and when house inspections were made, it was determined that address did not
exist.” Finally, the superior court found Hernandez violated condition 29 because
“there’s sufficient proof in this case, substantiation, that the SB-38 alcohol rehabilitation
program proof of enrollment had not been provided.” The superior court sentenced
Hernandez to the midterm of two years.
The superior court found Hernandez did not fail to “[r]eport to the [p]rob[ation]
officer in person immediately upon release from custody and thereafter once every
fourteen (14) days or as directed,” because “although Officer Pares did testify . . . there
was evidence that Mr. Hernandez did report a day after sentencing, there was no further
evidence that he was directed to do anything past that point.” In addition, the superior
court refused to consider as reasons for revoking probation Hernandez’s admissions to
Pares that he had been cited and released for disorderly conduct or that he had been
drinking while on probation.
II
DISCUSSION
Hernandez contends “the probation officer violated [his] right to counsel under the
Sixth Amendment to the U.S. Constitution” by “eliciting incriminating statements from
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[him] without his counsel present.” According to Hernandez, the trial court committed
prejudicial error by admitting and relying on testimony as to incriminating statements
Hernandez made during that interview. We disagree.
Even assuming the Sixth Amendment protections apply to probation revocation
proceedings, any error in admitting Hernandez’s statements was harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Harris
(1994) 9 Cal.4th 407, 431.) The Chapman test requires the People to prove beyond a
reasonable doubt that the admission of Pares’s testimony did not contribute to the
conclusion that Hernandez had violated the conditions of his probation. (People v.
Elizalde (2015) 61 Cal.4th 523, 542.) We conclude the People have met this burden.
The problem with Hernandez’s argument is that his statements were not needed to
establish he had violated the three conditions of probation which served as the basis for
the superior court’s decision to revoke probation. It is true Pares testified that Hernandez,
while in custody, repeated the same false home address and admitted he had not enrolled
in an SB-38 alcohol program or cooperated with his probation officer in coming up with
a rehabilitation plan. And it is true the superior court admitted Hernandez’s statements,
over the objection of Hernandez’s counsel, that doing so violated his Sixth Amendment
rights. However, Hernandez’s violations were clearly based on evidence already
available to the probation officer prior to the interview.
Hernandez’s statements were not needed to show he had provided a false home
address to the probation office. Pares testified that Hernandez reported to the probation
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office on March 4, 2014. Mellado testified she received a change of address form from
Hernandez on March 5, 2015, which reported the same address the probation department
had on file. Pares testified he visited that address on August 27 and September 12, 2014,
and found an empty lot at the location. Moreover, there was no contrary evidence either
that Hernandez had submitted a different address or that the address he submitted was, in
fact, his residence. Thus, the superior court’s finding that Hernandez violated the
condition that he “[k]eep the probation officer informed of [his] place of residence and
cohabitants” was supported by overwhelming evidence. Furthermore, in articulating the
basis of its finding, the superior court found Hernandez violated condition 7 because
“there was a specific address given as to Mr. Hernandez’s residence, and when house
inspections were made, it was determined that address did not exist.” Hernandez’s
repetition of the misrepresentation about his address at the February 18 interview with
Pares only corroborated the other evidence. The record therefore makes clear the
superior court did not need to and in fact did not rely on Hernandez’s February 18
statements to find he did not keep the probation officer informed of his place of
residence.
Hernandez’s statements were not needed to show he had not provided proof of
enrollment in an SB-38 alcohol rehabilitation program to the probation office. The
condition required him to provide such proof by April 3, 2014. Pares testified the parole
office had received no such proof of enrollment by April 3 or thereafter. Moreover, there
was no contrary evidence that Hernandez had submitted proof he had enrolled in a
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rehabilitation program. Thus, the superior court’s finding that Hernandez violated the
condition that he “[r]egister for SB-38 alcohol rehabilitation program and submit proof of
enrollment by 4/3/2014” was supported by overwhelming evidence. Again, in
articulating the basis of its finding, the superior court found Hernandez violated condition
29 because “there’s sufficient proof in this case, substantiation, that the SB-38 alcohol
rehabilitation program proof of enrollment had not been provided.” Hernandez’s
statement confirming he had not enrolled in the alcohol program merely provided the
reason he had not submitted proof of enrollment. The record therefore makes clear the
superior court did not need to and in fact did not rely on Hernandez’s February 18
statement that he had not registered for the alcohol rehabilitation program to find he had
not submitted proof of his enrollment.
Hernandez’s February 18 statements were not needed to show he did not cooperate
with his probation officer on a rehabilitation plan. Pares testified he tried to contact
Hernandez by telephone on March 27, 2014. He testified that he left a message for
Hernandez, but never received a return telephone call. He also testified that he went to
Hernandez’s putative place of residence on two occasions to try and make contact, but
found Hernandez had provided a false address. Setting aside Pares’s interview with
Hernandez, the evidence is that Hernandez made no effort to cooperate with Pares on a
plan of rehabilitation or otherwise. Instead, that evidence establishes Hernandez actively
avoided cooperating by refusing to return Pares’s telephone call and by supplying a false
home address. Thus, the superior court’s finding that Hernandez violated the condition
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that he “[c]ooperate with the probation officer in a plan of rehabilitation” was supported
by overwhelming evidence. Furthermore, in articulating the basis of its finding, the
superior court found Hernandez violated condition 4 because based on Pares’s testimony
“that he tried to contact the defendant on numerous occasions to devise some sort of a
plan of rehabilitation, was unsuccessful in doing that, and I believe his exact words were,
‘the defendant did not do his part.’” Hernandez’s statement that he did not know why he
never contacted his probation officer for assistance only corroborated the other evidence.
The record again makes clear the superior court did not need to and in fact did not rely on
Hernandez’s February 18 statement to reach its conclusion that he had not cooperated in
creating a rehabilitation plan.
Finally, Hernandez contends his statements “that he had been cite released for
disorderly conduct and did in fact consume alcohol” and “that he did not turn himself in
after the cite release because he just assumed at that point that he would be arrested” are
“incriminating in that they are admissions by [Hernandez] that he violated the terms and
conditions of his probation.”3 However, the superior court specifically refused to
consider statements related to Hernandez’s cite and release as evidence that he had
violated the conditions of his probation. Thus, there is no basis for concluding the
introduction of those statements prejudiced Hernandez.
3 It was a condition of Hernandez’s probation that he “[n]either possess nor consume any alcoholic beverages,” but the probation officer did not allege a violation of that condition as a basis for revoking his probation.
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We conclude the People have established beyond a reasonable doubt that the
superior court’s allowing Pares’s testimony about Hernandez’s statements was harmless.
III
DISPOSITION
We affirm judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
HOLLENHORST Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. Even assuming the Sixth Amendment right to counsel applies to probation revocation proceedings, the trial court's admission of the defendant's statements made to his probation officer without counsel present was harmless beyond a reasonable doubt.
Issues
Whether the trial court erred by admitting incriminating statements made by the defendant to his probation officer without counsel present during a probation revocation proceeding.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude that even assuming the Sixth Amendment right to have counsel present during questioning applies in connection with probation revocation proceedings, any error was harmless beyond a reasonable doubt and therefore affirm.”
“We conclude the People have established beyond a reasonable doubt that the superior court’s allowing Pares’s testimony about Hernandez’s statements was harmless.”