People v. Stevenson CA4/3 ( 2015 )

Filed 2/11/15 P. v. Stevenson CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G049324
v. (Super. Ct. No. 13NF0549)
DEMETRIUS STEVENSON, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Edward
W. Hall, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed as
modified.
Kenneth J. Sargoy, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, William M. Wood and Brendon W. Marshall, Deputy Attorneys General, for
Plaintiff and Respondent.
The superior court revoked defendant Demetrius Stevenson’s grant of
probation and sentenced him to state prison. He contends the trial court erred by
admitting hearsay evidence at his probation violation hearing. We find any error
harmless given the alleged hearsay went to but one of three or four grounds for revoking
his probation. Defendant also contends the court erred in awarding presentence credits.
The Attorney General agrees. We affirm the judgment and order the abstract of judgment
modified to reflect defendant’s proper presentence credits.
I
FACTS AND PROCEDURAL SETTING
On February 13, 2013, defendant pled guilty to possessing
methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possession of a hypodermic
needle, a misdemeanor (Health & Saf. Code, § 11364, subd. (a)), and admitted he served
two prior separate terms in state prison (Pen. Code, § 667.5, subd. (b)). The court placed
defendant on three years of formal probation, ordered him to complete a drug treatment
program pursuant to Penal Code section 1210, and ordered him to appear in court on
March 15, 2013, to review his progress on probation.
Defendant did not appear in court as ordered. The court revoked his
probation and issued a bench warrant for defendant’s arrest. Defendant appeared in court
on May 6, 2013. He admitted he violated his probation by failing to appear in court on
March 15, 2013, as ordered by the court, and by failing to report to the probation
department. The court reinstated probation and ordered defendant to show proof of
having completed a nine-month drug treatment program in Victor Valley Rescue Mission
on January 8, 2014.
On July 1, 2013, the probation department filed a petition for another
probation violation. The petition alleged defendant had been terminated from the
treatment program after he left the program, and he had failed to report to the probation
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department within 24 hours of leaving the drug program. The court revoked probation
and again issued a bench warrant for defendant’s arrest seven days later. Defendant
admitted the probation violation on July 26, 2013. The court reinstated defendant on
probation and ordered him to show proof of enrollment in a drug program on August 9,
2013. The court warned defendant any further violations of probation could result in
termination of probation under Penal Code section 1210.
The probation department filed yet another petition for violation of
probation on August 7, 2013. The bases for the violations this time were defendant’s
possession of dangerous weapons (a folding knife, slingshot and ball bearing
ammunition) and his giving the probation department a false address. Defendant
subsequently admitted he violated probation. The court terminated defendant from the
Penal Code section 1210 drug treatment program. Defendant was sentenced to a total of
four years in state prison and suspended execution of the sentence pending successful
completion of a 90-day residential drug treatment program.
On October 16, 2013, two days before the defendant was supposed to show
proof in court, the probation department filed a petition for a bench warrant for
defendant’s arrest. It alleged defendant thrice failed to report to the probation department
as directed. The hearing on defendant’s probation violation was held on November 19,
2013.
Deputy Probation Officer Rafael Serret testified defendant reported to the
probation department on September 20, 2013. Serret was not the probation officer to
whom defendant reported that day. Over defense objection, Serret said defendant was
instructed by the probation officer he saw on September 20, to report to Serret on
September 24, 2013. Defendant did not report on September 24. Serret then sent
defendant a letter telling him to report to the probation department on October 2, 2013.
Defendant did not report on October 2. Serret sent defendant another notice, this one to
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report to the probation department on October 9, 2013. The notice was sent to the
address defendant gave the probation department. Defendant did not report on October 9.
Each time defendant failed to report, Serret left telephone messages for defendant. Serret
did not know defendant’s whereabouts when he filed the petition for a warrant for
defendant’s arrest on October 9, 2013. Serret said a probationer is supposed to contact
his or her probation officer prior to any change in address.
On October 18, 2013, defendant informed Serret he was no longer staying
at his father’s residence. Defendant told Serret he did not receive the notices sent to his
father’s residence.
Defendant testified on his own behalf. He said he was released from
custody on September 19 and reported to the probation department the next day. Serret
was not there. Defendant filled out the form for his address and emergency numbers. On
direct examination he said he does not recall whether he was told by the other probation
officer to contact any other member of the probation department. He said he never
received any contact from the probation department about reporting because he was
living in a park at that time. On cross-examination, defendant admitted he did not inform
probation he was no longer living at his father’s residence, and said the probation officer
with whom he spoke on September 20, 2013, did not tell him to report to Serret on
September 24, 2013.
The court found defendant reported to the probation department on
September 20, 2013, and was directed to contact his probation officer on September 24,
but did not. The court further found defendant also failed to report to the probation
department on October 2 and October 9, despite notice having been given. The court
found defendant’s version of what happened on September 20, 2013, was not credible.
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Defendant requested immediate sentencing. The court terminated probation
and imposed the previously stayed sentence of four years of custody to be served in the
Orange County jail, consisting of a two-year commitment on his felony conviction and
two consecutive years, one year for each of the two separate prior terms defendant served
in state prison. The court awarded defendant 79 days actual credit and 79 days conduct
credit for a total credit of 158 days time served. Defendant filed a timely notice of
appeal.
II
DISCUSSION
A. Admission of Hearsay Evidence at the Probation Violation Hearing
Defendant complains the court should not have permitted Serret to testify to
hearsay in the probation violation hearing. Specifically, the hearsay to which defendant
now objects is the statement purportedly made to defendant by the probation officer he
saw on September 20, 2013. According to Serret, the probation officer told defendant to
report to Serret on September 24, 2013. When the prosecutor asked Serret what
directions defendant was given by the probation officer, defense counsel objected to a
lack of foundation. The objection was overruled. When Serret was asked whether
defendant was “instructed on what he should do next as it relates to reporting to
probation,” defense counsel objected to the question as leading. That objection was
overruled and Serret stated, “[Defendant] was directed to make phone contact with me on
September 24.”
Defendant now argues the court erroneously admitted hearsay evidence that
violated his right to confrontation. We review a superior court’s decision allowing
hearsay evidence at a probation violation hearing for an abuse of discretion. (People v.
Abrams (2007) 158 Cal. App. 4th 396, 400.) In order to preserve an evidentiary issue for
appeal, the defendant must make a timely objection to the evidence on the ground raised
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on appeal. (Evid. Code, § 353; People v. Hovarter (2008) 44 Cal. 4th 983, 1008.) The
failure to raise the specific ground of objection denies the opposing party the chance to
offer evidence to cure the alleged defect. (People v. Holt (1997) 15 Cal. 4th 619, 666.)
Defendant did not raise hearsay or confrontation objections. Neither did
the foundation objection alert the court to the issue now raised by defendant on appeal.
Defendant has failed to preserve the issue for appeal. That does not, however, end our
inquiry because defendant makes the alternative argument that if his attorney did not
preserve the issue for appeal, then counsel rendered ineffective assistance.
The standard of review for an ineffective assistance of counsel claim is well
settled. A criminal defendant has a federal and state constitutional right to the effective
assistance of counsel. To establish a claim of incompetence of counsel, a defendant must
establish both that counsel’s representation fell below an objective standard of
reasonableness and that it is reasonably probable that, but for counsel’s error, the result of
the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S.
668, 686-688, 694-695; People v. Ledesma (1987) 43 Cal. 3d 171, 215-218; see U.S.
Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; People v. Benavides (2005) 35
Cal. 4th 69, 92-93.) To prevail, a defendant must establish incompetence of counsel by a
preponderance of evidence. (People v. Ledesma, supra, 43 Cal.3d at p. 218.)
“If a defendant has failed to show that the challenged actions of counsel
were prejudicial, a reviewing court may reject the claim on that ground without
determining whether counsel’s performance was deficient. [Citation.]” (People v. Kipp
(1998) 18 Cal. 4th 349, 366-367.) We do not address whether “counsel’s performance fell
below an objective standard of reasonableness under prevailing professional norms” (In
re Visciotti (1996) 14 Cal. 4th 325, 351-352), because we conclude any deficiency was
harmless.
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Defendant was alleged to have violated his probation not only by failing to
report on September 24, 2013, as he was purportedly told to do by a probation officer on
September 20, 2013, but also by failing to report on October 2 and October 9, 2013, as he
had been directed by Serret. Serret sent notices to the address defendant provided the
probation department and left telephone messages on the number defendant gave.
Evidence at the probation violation established each of these additional grounds for
violation and that defendant’s whereabouts were unknown at the time the petition was
filed. Therefore, even if counsel had objected on hearsay and confrontation grounds to
Serret testifying a probation officer told defendant to report to Serret on September 24,
2013, defendant would still have been found in violation of his probation for failing to
report on the other dates.1
B. Presentence Credits
When the court sentenced the defendant, it awarded him 79 actual days and
79 conduct credits toward the sentence imposed. (Pen. Code, § 4019.) Defendant argues
he was entitled to an additional six (three actual and three conduct) days of credit. The
Attorney General agrees. We accept the concession and direct modification of the
abstract of judgment to reflect the award of 82 actual days and 82 conduct credits for a
total of 164 days.
III
DISPOSITION
The abstract of judgment is ordered amended to reflect the award of 82
actual days and 82 conduct credits for a total credit of 164 days time served. The clerk of
the superior court is directed to mail a certified copy of the amended abstract of judgment
1Defendant does not contend the superior court erred in finding he violated
his probation by failing to report twice in October as directed.
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to the Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.
MOORE, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
ARONSON, J.
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