People v. Gilliam CA4/1 ( 2023 )

Filed 5/5/23 P. v. Gilliam CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080511
Plaintiff and Respondent,
v. (Super. Ct. No. SCD292354)
MARVIN DELANO GILLIAM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Polly H. Shamoon, Judge. Reversed and remanded with directions.
Raquel Cohen, under appointment by the Court of Appeals, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, Collette C. Cavalier and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Marvin D. Gilliam challenges a judgment revoking his probation and
the court’s sentence imposing fines and fees. First, he contends the court
erred in finding he violated probation. He asserts the finding was based on
inadmissible hearsay statements and, without which, there was no
substantial evidence to support the finding. Second, he argues the imposition
of fines and fees were not authorized by law and should be stricken. The
Attorney General concedes both points. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A
Charges, Guilty Plea, and Sentence
Gilliam exposed his genitals, masturbated, and made lewd sexual
noises to two female employees of a fast-food restaurant who were walking to
their morning shift. He pleaded guilty to felony indecent exposure and
admitted having a prior conviction for indecent exposure and a strike prior.
At the sentencing hearing in early March 2022, the trial court struck
Gilliam’s strike prior, imposed but suspended the execution of a two-year
prison sentence, and granted two years of formal probation. Among Gilliam’s
probation conditions, the court ordered Gilliam to participate in treatment,
therapy, and counseling, including sex offender treatment. The court stated
Gilliam was releasable to an assertive community treatment (ACT) program
and, once placed, the court ordered him “to remain and participate in their
program” as a condition of probation.
The court found Gilliam did not have the ability to pay fines and fees
“due to his mental health and transient status.” It therefore concluded they
were “excessive under the Eighth Amendment” and would be “deleted.”
B
Probation Report
According to a probation report prepared by Probation Officer Brian
Adkison, Gilliam was released on March 10, 2022, to an independent living
facility sponsored by the ACT program. Less than a week later, Deputy
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Probation Officer Jill Halteman received a call from the ACT housing
manager who reported Gilliam was “ ‘drinking and masturbating while naked
and making remarks’ ” to other residents. The housing manager said they
had “exhausted the list of where they can place him.”
On March 30, 2022, Supervising Probation Officer Sean Scott received
an e-mail from the ACT housing manager informing him the facility gave
Gilliam an eviction notice on March 16; that Gilliam broke a door at the
facility on March 19; and that Gilliam was “not actively engaged with the
program” and was told not to return to the facility. Gilliam refused to leave
the facility until he was arrested on March 30.
In April 2022, the ACT housing manager informed Officer Adkison that
the ACT program would “continue to provide care management” and other
services for Gilliam if he is “released back into the community,” but he was
not eligible for housing through the program. Officer Adkison also contacted
the owner of the independent living facility, who “corroborated the
information” provided by the manager.
C
Contested Probation Revocation Hearing
At the probation revocation hearing, the People called Probation Officer
Timothy Mika to testify. Officer Mika did not have personal knowledge of the
facts underlying Gilliam’s alleged probation violation. But he had reviewed
the probation record and had spoken with Officer Adkison, who confirmed
everything in the probation report “was accurate and correct.”
Gilliam objected several times to Officer Mika’s testimony as hearsay
and argued his inability to cross-examine the relevant witnesses violated his
due process rights. The court overruled all the objections and concluded the
hearsay was reliable. The court considered the probation report, including
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the witness statements in the report, the original police report about the
underlying charges, and Gilliam’s reported statements. The court did not
review the eviction notice because it was not attached to the probation report,
and no other witnesses testified at the hearing.
The court construed the probation terms to require Gilliam “to be in
good standing and be able to live” at the facility. The court found, based on
“the totality of the circumstances,” that Gilliam violated his probation
because he was evicted from the facility. Accordingly, it executed the
previously suspended sentence of two years. The court also imposed fines
and fees, saying they were “stayed pending successful completion of parole.”
DISCUSSION
A
Hearsay Statements
Gilliam contends, the Attorney General concedes, and we agree the
trial court improperly considered hearsay statements from the probation
report and Officer Mika and, absent this evidence, there is no substantial
evidence to support the court’s finding that Gilliam violated his probation.
A court may revoke probation “if the interests of justice so require and
the court, in its judgment, has reason to believe from the report of the
probation officer or otherwise that the person has violated any of the
conditions of his or her probation . . . .” (Pen. Code, § 1203.2, subd. (a).) It
may not, however, “revoke probation unless the evidence supports ‘a
conclusion [the] probationer’s conduct constituted a willful violation of the
terms and conditions of probation.’ ” (People v. Cervantes (2009) 175
Cal.App.4th 291, 295, italics added.)
Even though a probationer at a probation revocation hearing is not
entitled to “ ‘the full panoply of rights due a defendant in [a criminal]
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proceeding’ ” (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1198), the
probationer still retains the “limited right to confront witnesses” under the
due process clause of the Fourteenth Amendment (People v. Johnson (2004)
121 Cal.App.4th 1409, 1411). “Under a due process analysis, the importance
of a defendant’s confrontation right will vary with the circumstances.”
(People v. Liggins (2020) 53 Cal.App.5th 55, 66.) The People may admit
testimonial hearsay into evidence if “good cause” is shown. (Id. at p. 67.)
This “ ‘is met (1) when the declarant is ‘unavailable’ under the traditional
hearsay standard [citation], (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.’ [Citation.]” (Id. at p. 65.) “We review rulings on whether hearsay
was improperly admitted at a [probation] violation hearing for abuse of
discretion.” (People v. Abrams (2007) 158 Cal.App.4th 396, 400.)
Here, the court found Gilliam was evicted from the facility and could no
longer participate in the treatment based on hearsay statements in the
probation report about what the housing manager of the ACT program and
owner of the facility told Officers Adkison and Halteman. These statements
were then relayed by Officer Mika at the hearing. The court did not make a
good cause finding before admitting the hearsay statements. The court
therefore abused its discretion in failing to do so. (See, e.g., People v. Winson
(1981) 29 Cal.3d 711, 718–719 [neither a hearing transcript nor summary in
probation report of a witness’s testimony about probation violation satisfied
the due process right to confrontation because there was no good cause
finding].) Further, there was no other evidence (e.g., eviction notice or other
documentary evidence) to corroborate the finding of eviction. Accordingly, we
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conclude “mere uncorroborated hearsay does not constitute substantial
evidence” (In re Lucero L. (2000) 22 Cal.4th 1227, 1245) to support the
finding that Gilliam violated his probation.
B
Fines and Assessments
After revoking probation and resentencing Gilliam, the trial court also
imposed a $40 court operations assessment (Pen. Code, § 1465.8), a $30
criminal conviction assessment (Gov. Code, § 70373), a $300 probation
revocation fine (Pen. Code, § 1202.44), a $300 restitution fine (Id., § 1202.4,
subd. (b)), and a $300 parole revocation fine (Id., § 1202.45). Gilliam
contends that since the trial court declined to impose fines and fees at the
initial sentencing hearing, it was unlawful to impose them after revoking his
probation. The Attorney General concedes the court erred. We agree.
“In the absence of extraordinary and compelling circumstances, when a
person is convicted of a felony, a restitution fine must be imposed,
irrespective of whether probation is granted.” (People v. Arata (2004) 118
Cal.App.4th 195, 201, citing Pen. Code § 1202.4, subd. (b).) “[A]t the time of
imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,”
the court must also impose probation revocation and parole revocation fines.
(Pen. Code, §§ 1202.44, 1202.45.) The triggering event for imposing the
restitution fine is a conviction. (People v. Chambers (1998) 65 Cal.App.4th
819, 822.) If the restitution fine is not imposed when a conviction is obtained,
“there is no provision for imposing a restitution fine after revocation of
probation.” (Ibid.)
Here, the court declined to impose any fine or assessment at the initial
sentencing hearing. As such, the court had no legal authority to impose the
restitution, probation revocation, and parole revocation fines after Gilliam’s
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probation was revoked. (Chambers, supra, 65 Cal.App.4th at p. 822; Pen.
Code, §§ 1202.44, 1202.45.) Gilliam did not object to the fines at the time of
the probation revocation hearing, but that is of no consequence. When a fine
is unlawfully “ ‘imposed under any circumstance,’ ” it is “ ‘reviewable
“regardless of whether an objection or argument was raised in the trial and/or
reviewing court.” ’ ” (People v. Cropsey (2010) 184 Cal.App.4th 961, 965, fn.
3.) Because the fines were unlawful, they must be stricken. We also accept
the Attorney General’s concession the assessments were improperly imposed
and should be stricken.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court
with directions (1) to hold another probation revocation hearing, (2) to strike
the fines and assessments, and (3) to prepare an amended abstract of
judgment in accordance with this disposition and deliver a certified copy to
the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
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