Filed 11/12/15 P. v. Holston 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                 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                             DIVISION ONE

                                      STATE OF CALIFORNIA



THE PEOPLE,                                                         D065998

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. PLH27418)

PAUL HOLSTON,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County,

Desiree Bruce-Lyle, Judge. Affirmed.

         Michael Satris, 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, A. Natasha

Cortina and Michael P. Pulos, Deputy Attorneys General, for Plaintiff and

Respondent.
                                          I.

                                 INTRODUCTION

       Paul Holston appeals from a trial court order revoking his parole and

remanding him to the custody of the Department of Corrections and Rehabilitation

(the Department).

       On appeal, Holston claims that the trial court erred in permitting the People

to introduce hearsay statements in support of the revocation because the People

failed to establish good cause warranting such admission. Holston also contends

that the trial court erred in denying his motion to strike the testimony of an

investigator concerning admissions that Holston made to the investigator during an

interview because the People failed to disclose a tape-recording of the interview to

the defense prior to the hearing. We affirm the order.

                                          II.

               FACTUAL AND PROCEDURAL BACKGROUND

A.     Procedural background

       In June 2013, Holston was granted parole after having served more than 21

years in prison for second degree murder.

       The Department filed a petition to revoke Holston's parole in March 2014.

In a parole violation report attached to the petition, the Department alleged that




                                          2
Holston violated his parole by violating Penal Code1 section 134, which prohibits

preparing any false evidence with the intent to use the evidence in a proceeding

authorized by law.

       The trial court found probable cause to support revocation, preliminarily

revoked Holston's parole, and set a good cause hearing to determine whether to

issue an order revoking Holston's parole.

       The trial court held the good cause hearing in April 2014. At the

conclusion of the hearing, the court determined that good cause existed to find that

Holston had violated his parole. The court revoked Holston's parole and

committed him to the custody of the Department.

       Holston timely appeals.

B.     Factual background

       1.     The People's evidence

       Holston operated a business called Criminal Justice Offenders Services

(CJOS). In September 2013, Correctional Officer Earl Parks received a package

that CJOS had sent to a state prison inmate, Anthony Rosser. In an attempt to

determine whether CJOS was a "legitimate" company, Officer Parks called CJOS

and posed as an inmate preparing for a parole suitability hearing. Officer Parks

inquired as to the services that CJOS offered inmates seeking parole. Holston,

who identified himself by his prison moniker—Shadow—told Officer Parks that


1     Unless otherwise specified, all subsequent statutory references are to the
Penal Code.
                                            3
he could provide Parks with job letters, support letters, and certificates, for a fee.

Holston did not mention that Parks would have to take classes or engage in any

other activities in order to obtain such documents.

       Officer Parks examined the package that CJOS had sent Rosser and found

several documents directed to a panel of the Board of Parole Hearings: (1) a letter

from CJOS, signed by Holston as "Paul Anthony,"2 stating that CJOS could

provide Rosser with supportive services upon his release on parole;3 (2) a letter

and certificate dated February 12, 2013, signed by Melody lbarra, stating that

Rosser had completed an anger management course from an entity called

Anderson & Anderson; (3) a letter from Jan Hill, president of a business called

Southern California Economic Workforce, saying that he would hire Rosser upon

Rosser's release from custody; and (4) a certificate signed by Curtis A. Caldwell

attesting that Rosser had completed a custodial training program.

       Officer Parks called CJOS a second time in January 2014, posing as the

same inmate who had called previously. Holston answered the call and identified

himself by his actual name. During this pretextual call, which lasted

approximately 50 minutes, Holston offered to provide Parks with employment

letters, anger management course certificates, sponsor support letters, and

2      Holston's full name is Paul Anthony Holston.
3      The letter also states, "Upon reviewing Mr. Rosser's resume, biography,
application, and his accomplishments while incarcerated, the staff of [CJOS] truly
believes that Mr. Rosser's transformation and his desire to seek out self-help
programs and a solid life plan while incarcerated is and will be greatly appreciated
by society."
                                           4
domestic violence course certificates. Holston informed Parks that some of the

courses ordinarily would take two years to complete. When Parks told Holston

that his parole hearing would be taking place later that year, Holston responded

that "he could make it happen and that he could do so for a fee."

       Holston also told Parks that he should procure support letters or job offers

from his girlfriend, and that she should disguise their relationship from the parole

board. Holston also told Parks to have his girlfriend's family members falsely

state that they had known him before he was incarcerated.

       Special Agent Gregory Hopkins conducted an investigation into the validity

of the documents sent by CJOS to Rosser, including the letter to Rosser from

Ibarra stating that Rosser had completed an Anderson & Anderson anger

management course. Special Agent Hopkins learned that Holston and Ibarra had a

romantic relationship for five years and that they married in December 2013.

Special Agent Hopkins also spoke to a Mr. Anderson4 from Anderson &

Anderson who informed Hopkins that Ibarra was not certified to teach Anderson

& Anderson courses.

       With respect to the employment offer from Jan Hill, Special Agent Hopkins

learned that Hill was an unemployed transient parolee. With respect to the

custodial training certificate from Curtis Caldwell, Special Agent Hopkins

discovered that Caldwell was a former parolee.



4      Special Agent Hopkins did not state Mr. Anderson's first name.
                                          5
       Special Agent Hopkins interviewed Rosser. Rosser stated that he had met

Holston while he was in prison. Holston told Rosser that he had a company that

helped parolees obtain documents needed for parole suitability hearings.

According to Special Agent Hopkins, Holston told Rosser that he would "help him

gain the documents that he need[ed]," and that Holston would "finish getting

together the documents when [Holston] was paroled . . . ."

       With respect to the documents that Rosser received in the package from

CJOS, Rosser told Special Agent Hopkins that he received the documents from

Holston and Rosser admitted that they were fraudulent. Specifically, Rosser

admitted that he had not actually completed any coursework or undergone any

training in order to obtain the anger management or custodial certifications. In

addition, Rosser admitted that he had never communicated with Hill concerning an

offer of employment. Rosser stated that he did not know Ibarra, Hill or Caldwell.

       Special Agent Hopkins also interviewed Holston. Holston admitted that he,

rather than Hill, had signed the employment offer sent to Rosser. Holston said that

he had signed the letter on behalf of Hill, and that he had a business relationship

with Hill.5 Holston stated that he did not know Caldwell, and that he was an

associate of Ibarra's.

       Holston's parole agent, Santos Sanchez, testified that he had spoken with

Holston about his employment, and that Holston had never told him about CJOS.


5       The letter bears an illegible signature above the typewritten name, "Mr. Jan
Hill," and the word, "President."
                                          6
      2.        The defense

      Ibarra's employer, James Sanders, testified that he believed that Ibarra was

a certified anger management counselor. Sanders stated that he sent Ibarra to the

Anderson & Anderson anger management course and that she completed the

course in 2010.

      3.        The court's ruling

      At the conclusion of the hearing, the trial court found good cause to revoke

Holston's parole. The court reasoned in part:

           "The court finds the People have met their burden. There is more than one
           smoking gun in this case, and to this court it is quite clear what transpired.
           Officer Parks'[s] phone conversations with Mr. Holston speak volumes. [¶]
           And that phone conversation pretty much laid out the [modus operandi] of Mr.
           Holston and his Criminal Justice Offenders Services and how he goes about
           putting the packet together.

           "In his own statement he admitted preparing the packet for Mr. Rosser and also
           admitted in his statement that he signed that employment letter from Jan Hill,
           that he was in a business relationship with Mr. Hill, and so he signed the letter
           on his behalf.

           "So when you look at that, which is one smoking gun and his phone
           conversation with Officer Parks, which lack any reference whatsoever about
           Officer Parks taking any classes, therefore suggesting that he knew that
           documents would be prepared without anyone taking any classes [sic].

           "The interaction between Officer Parks and Mr. Holston is very telling about the
           operation that Mr. Holston was running. And the entire discussion makes
           reference to the whole idea about setting a picture acceptable to the Board of
           Parole Hearings, in the court's terms, basically how to pull the wool over the
           Board of Parole Hearings' eyes. And his whole [modus operandi] as was related
           by Officer Parks based on the conversations he had with Mr. Holston
           corroborate the process that was established with Mr. Rosser.

           "[¶] . . . [¶]

           "And, once again, the phone discussions that Mr. Holston and Mr. Parks had
           point to his knowledge of the whole process and how they were going about
           putting the paperwork together and submitting the paperwork, not to mention his
           signing of the letter. [¶] All of these things point[] to his knowledge that the
           paperwork he submitted on behalf of Mr. Rosser for him to use in his suitability
           hearing was submitted with [the] intent of having those documents used in a
           legal proceeding and they were false documents.


                                                   7
            "And so based on all of that, and the totality of the evidence, the court finds that
            the People have established good cause for a violation."

                                                    III.

                                            DISCUSSION

A.     The trial court did not abuse its discretion in admitting Rosser's hearsay
       statements; any error in admitting Anderson's hearsay statements was
       harmless

       Holston claims that the trial court erred in admitting certain hearsay

statements made by Rosser and Anderson to investigators. Holston contends that

the trial court erred in determining that the People established good cause for

permitting the introduction of the hearsay evidence.

       1.       Governing law

       "In reviewing the trial court's decision to admit the hearsay . . . testimony,

we begin with the well-established principle that parole . . . revocation is not part

of a criminal prosecution, and thus 'the full panoply of rights due a defendant in [a

criminal] proceeding does not apply . . . .' " (People v. Shepherd (2007) 151

Cal.App.4th 1193, 1198.) However, in order to be admitted as evidence in a

parole revocation proceeding, hearsay evidence offered in lieu of live testimony

must not run afoul of the principles laid down in Morrissey v. Brewer (1972) 408

U.S. 471 and Gagnon v. Scarpelli (1973) 411 U.S. 778, the two "seminal" United

States Supreme Court cases which have "set forth the procedural safeguards

required by the federal Constitution for revocation proceedings." (People v.

Arreola (1994) 7 Cal.4th 1144, 1152 (Arreola).) As the Arreola court explained,

in those cases, "the United States Supreme Court held that, under the due process
                                                     8
clause of the federal Constitution, a defendant at a parole or probation revocation

hearing generally has the right 'to confront and cross-examine adverse witnesses

(unless the hearing officer specifically finds good cause for not allowing

confrontation) . . . .' " (Id. at p. 1148, italics added, citing Morrissey v. Brewer,

supra, 408 U.S. at p. 489 and Gagnon v. Scarpelli, supra, 411 U.S. at p. 786.)

       In Arreola, the California Supreme Court articulated the manner by which

California courts are to determine whether sufficient good cause exists for not

allowing such confrontation. (Arreola, supra, 7 Cal.4th at pp. 1159-1160.) "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." (Arreola, supra, at pp. 1159-1160.) The Arreola court explained

further that the good cause showing must be balanced against other circumstances

relevant to a determination of whether to admit the hearsay evidence:

           "[I]n determining the admissibility of the evidence on a case-by-case basis, the
           showing of good cause that has been made must be considered together with
           other circumstances relevant to the issue, including the purpose for which the
           evidence is offered (e.g., as substantive evidence of an alleged probation
           violation, rather than, for example, simply a reference to the defendant's
           character); the significance of the particular evidence to a factual determination
           relevant to a finding of violation of probation; and whether other admissible
           evidence, including, for example, any admissions made by the probationer,
           corroborates the former testimony, or whether, instead, the former testimony
           constitutes the sole evidence establishing a violation of probation." (Arreola,
           supra, at p. 1160.)




                                                    9
       2.     Standard of review

       "We review rulings on whether hearsay was improperly admitted at a

[parole] violation hearing for abuse of discretion." (People v. Abrams (2007) 158

Cal.App.4th 396, 400; see In re Miller (2006) 145 Cal.App.4th 1228, 1235

(Miller) [stating that the determination of whether hearsay evidence may be

admitted in a parole revocation proceeding " 'rests within the discretion of the trial

court and will not be disturbed on appeal absent an abuse of discretion' "].)6

       We reject Holston's contention that, pursuant to People v. Stanphill (2009)

170 Cal.App.4th 61, 78 (Stanphill), the de novo standard of review applies in this

appeal. In Stanphill, the court applied the de novo standard of review in

determining whether "the trial court failed to apply the proper balancing test for

admissibility." (Ibid.)7 In contrast, in this case, whether the trial court was

required to apply the balancing test for the admission of hearsay evidence is not at

issue. Rather, Holston contends that the trial court erred in its application of the

balancing test. As noted above, we review a trial court's application of the



6      Although Abrams involved a probation revocation proceeding, "[p]arole
revocation and probation revocation after the imposition of a sentence are
constitutionally indistinguishable." (Miller, supra, 145 Cal.App.4th at p. 1235.)
7      The Stanphill court concluded that the trial court had not erred in failing to
apply the balancing test of Arreola because "spontaneous statements under
[Evidence Code] section 1240 are a special breed of hearsay exception which
automatically satisfy a probationer's due process confrontation/cross-examination
rights without the court having to find good cause." (Stanphill, supra, 170
Cal.App.4th at p. 81.) The Stanphill court applied the abuse of discretion standard
of review in determining whether the hearsay evidence was admissible as a
spontaneous statement. (Id. at p. 77.)
                                          10
balancing test for the introduction of hearsay evidence at a parole revocation

hearing for an abuse of discretion. (See, e.g., Miller, supra, 145 Cal.App.4th at p.

1235.)

         3.     Factual and procedural background

                a.     The defense's motion to exclude the statements of three
                       hearsay declarants

         Prior to the evidentiary portion of Holston's parole revocation hearing,

defense counsel orally moved to exclude hearsay statements made by three

individuals to investigators that the defense anticipated the People would attempt

to offer at the hearing. First, the defense argued that the trial court should exclude

hearsay statements made by Hill to the effect that he did not write a letter offering

Rosser employment if Rosser were paroled. Defense counsel argued that Hill had

a criminal history and a reason to be untruthful with respect to whether he had

authored the letter. Defense counsel further argued that Hill could have easily

been brought to the hearing.

         Defense counsel also argued that the court should exclude hearsay

statements made by Rosser. Counsel specifically mentioned Rosser's statement to

Special Agent Hopkins that the anger management certification was false.

Defense counsel argued that Rosser's statements constituted "very important

evidence," and that Rosser was "inherently unreliable" since he was a life inmate.

In addition, counsel argued that Rosser had "used these anger management




                                           11
certificates in his Board of Parole hearing, so he was either lying to the Board of

Parole Hearings or lying to an investigator in this case."

       Defense counsel also sought to exclude hearsay statements made by

Anderson concerning whether Ibarra was a certified anger management counselor.

Counsel argued, "[W]e see no reason why this witness wasn't subpoenaed."

Counsel also stated that documents existed that indicated that Ibarra was in fact

certified.

       Defense counsel added that "this is a very important case," in that if the

court were to find that Holston had violated parole, such a finding would

potentially result in Holston being imprisoned for life.

              b.     The People's arguments in support of admission of the
                     hearsay statements

       The prosecutor responded by arguing that the trial court should permit the

People to present the hearsay statements from all three individuals. With respect

to Hill, the People contended that Hill had denied having written the employment

offer letter that was sent to Rosser. The prosecutor argued further that Hill's

statement that he had not written the letter was "not that important" because

Rosser had stated that he had not had any contact with Hill and there was other

evidence demonstrating that the employment offer letter was false.

       With respect to Rosser, the People argued that Rosser was currently a "lifer

inmate" who had suffered a conviction for murder, and who had been denied




                                         12
parole for five years in 2013. The prosecutor noted that Rosser was in a prison in

northern California and argued as follows:

          "Based on the location, the charges, the dangerousness of Mr. Rosser, the People
          believe it was not appropriate to subpoena him at great expense, at a great
          distance and great danger[] to those transporting and those in the courtroom in
          order to bring him in here today."

       The People also noted that Rosser had admitted to Special Agent Hopkins

that the letters from Holston that were presented at Rosser's parole hearing were

false, and argued that these admissions were against Rosser's penal interests and

were therefore reliable.

       As to Anderson's statement that Ibarra was not a certified anger

management counselor, the prosecutor contended that Anderson had "no reason to

speak inappropriately or dishonestly about Ms. Ibarra," and argued that Anderson's

statement was "not all that relevant" in any event.

              c.       Additional argument by counsel

       Defense counsel and the prosecutor each made several additional arguments

in support of their respective positions. The defense argued that the hearsay

evidence at issue in this case was the "least reliable type of hearsay," namely,

"unsworn verbal allegations." In addition, defense counsel responded to the

People's contention that it would be "inconvenient and perhaps dangerous," to

transport Rosser to court by emphasizing the importance of the hearing to Holston,

and noting that the People had transported other witnesses from the prison at

which Rosser was housed to the parole revocation hearing. Defense counsel also

stated that it was important for the defense to have the opportunity to cross-

                                                13
examine Rosser because Rosser might "have had a beef with Mr. Holston when in

prison" or he might harbor some other bias against Holston.

       The People responded by arguing that the admissibility of the hearsay

statements was supported by the fact that other evidence corroborated the

substance of those statements. For example, the People noted that Holston had

made several damaging admissions concerning CJOS to Officer Parks during

Parks's pretextual call with Holston, including that Holston could, according to the

prosecutor, "backdate documents." The People also stated that the other witnesses

who had been transported from afar to the hearing did not pose the risks that

Rosser posed.

              d.     The court's ruling

       In making its ruling, the trial court began by reciting several of the factors

that a trial court must consider in determining whether to admit hearsay evidence,

including whether the People had exercised due diligence in attempting to have

witnesses appear in person at the hearing, the importance of the hearsay statements

to the court's findings, and the reliability of the hearsay statements. The court then

issued rulings with respect to each hearsay declarant.

       With respect to Hill, the trial court stated that the People "did not exercise

due diligence" in attempting to secure his presence for the hearing and determined

that the "reliability of his testimony would be questionable." The court ruled that

"there is no good reason as to why [Hill] is not present," and precluded the People

from presenting Hill's hearsay statements at the hearing.

                                          14
       The court ruled that Rosser's statements that the documents sent by Holston

were false could be admitted, reasoning:

            "As to Anthony Rosser who is a parolee, he is a lifer inmate. The People did
            establish good cause for him not being here in that it would be dangerous to try
            and transport him as well as the expense involved. [¶] [Rosser] essentially
            made statements against his penal interest which would make his . . . hearsay . . .
            statements . . . more reliable, and so in conducting the balancing test, the court
            finds that that evidence would be reliable and will be admissible."

       The court also ruled that the People would be permitted to present evidence

with respect to Anderson's hearsay statements concerning whether Ibarra is a

certified anger management counselor. The court reasoned that Anderson's

statements could be deemed reliable because it "would clearly undermine the

reputation of his business for him to not be truthful in talking to the investigator in

this instance and so essentially he would be making statements against his penal

interest if he were to falsify any of those statements."

       4.       The trial court did not abuse its discretion in admitting Rosser's
                hearsay statements

       As set forth above, the prosecutor noted that Rosser was a convicted

murderer who was incarcerated in a state prison far from the location of the

hearing. The prosecutor argued that it would be difficult, expensive, and

potentially dangerous to transport Rosser to the hearing. Under these

circumstances, the trial court did not abuse its discretion in determining that the

People had established good cause for Rosser's unavailability. (See Arreola,

supra, 7 Cal.4th at p. 1160 ["The broad standard of 'good cause' is met . . . when

the declarant, although not legally unavailable, can be brought to the hearing only


                                                   15
through great difficulty or expense."].) We reject Holston's argument,

unsupported by any authority, that the trial court erred in making its finding

because there was no evidence that Rosser posed a "particular danger," apart from

his status as a convicted murderer serving a life sentence who had recently been

denied parole.

       The trial court also reasonably determined that the admissibility of Rosser's

statements was supported by the fact that the statements at issue were against

Rosser's penal interest. (See People v. McCurdy (2014) 59 Cal.4th 1063, 1108

["An extrajudicial declaration against the declarant's penal interest, however, is

admissible as an exception to the hearsay rule."].) While Holston contends that

Rosser may have told Special Agent Hopkins that the documents were false in an

attempt to curry favor, the trial court was not required to adopt this inference. The

trial court could have reasonably determined that the reliability of Rosser's

statements, which were facially against his penal interest, supported their

admissibility. (See Miller, supra, 145 Cal.App.4th at p. 1235 [noting that "indicia

of reliability" is a factor that a court may consider in determining the admissibility

of hearsay evidence at a parole revocation hearing].)

       Although not specifically mentioned by the trial court, the court also could

have reasonably relied on the prosecutor's argument that the fact that other

evidence corroborated the statements supported the admissibility of Rosser's

statements. (See Arreola, supra, 7 Cal.4th at p. 1160.) For example, the

prosecutor pointed to evidence that Holston offered to provide similar falsified

                                          16
documents to Officer Parks during the pretextual phone call. The trial court could

have found that this evidence corroborated Rosser's statements that the documents

Holston provided to him were fraudulent. (See ibid.)

       Finally, we acknowledge that there are factors that would have supported

the exclusion of Rosser's statements, including that the statements were unsworn

verbal statements of a third party, which courts have characterized as " 'the least

reliable type of hearsay.' " (Miller, supra, 145 Cal.App.4th at p. 1238, quoting

U.S. v. Comito (9th Cir. 1999) 177 F.3d 1166, 1171.) However, the record reveals

that the trial court heard extensive argument on the issue, considered the relevant

factors, and provided a reasoned ruling supported by the evidence. Under these

circumstances, we conclude that the trial court did not abuse its discretion in

admitting the statements.

       5.     Any error in admitting Anderson's hearsay statements was harmless

       Holston contends that the trial court erred in admitting Anderson's hearsay

statements that Ibarra was not a certified anger management counselor because the

People "offered no cause, good or otherwise, for failing to produce Anderson."

       Even assuming that the trial court erred in admitting the statements because

the People failed to provide any reason for failing to produce him at the hearing,

the issue of whether Ibarra was a certified anger management counselor was of

little, if any, importance in determining whether Holston violated parole. Further,

the trial court expressly stated that, even assuming that Ibarra was certified, the



                                          17
fact remained that Holston provided Rosser with a false certificate to the effect

that Rosser had attended anger management classes:

          "There has been an issue that has been delved into quite a bit about whether or
          not Ms. Ibarra was certified at the time she issued the certificate for anger
          management for Mr. Rosser. And the evidence has been quite unclear. . . . [¶] .
          . . [¶] Even if she was certified, let's assume she was certified, the bottom line
          is, she prepared a certificate for Mr. Rosser without him attending any classes.
          And she signed that certificate which was submitted by Mr. Holston as part of
          Mr. Rosser's packet for his suitability hearing."

       Further, there was strong evidence that Holston had violated his parole,

wholly independent of whether Ibarra was a certified anger management

counselor. As the trial court stated, "There is more than one smoking gun in this

case, and to this court it is quite clear what transpired. Officer Parks's phone

conversations with Mr. Holston speak volumes."

       Under these circumstances, it is clear that the trial court's admission of

Anderson's statements did not contribute in any manner to the court's order

revoking Holston's parole. Accordingly, we conclude that any error committed by

the trial court in admitting Anderson's statements concerning Ibarra's certification

was harmless, under any standard of prejudice.

B.     The trial court did not err in denying Holston's motion to strike Special
       Agent Hopkins's testimony based on the People's failure to disclose a tape-
       recording of an interview on which Hopkins's testimony was based; nor did
       the court err in denying Holston's alternative request to disclose the tape-
       recording at the hearing

       Holston contends that the trial court erred in denying his motion to strike

Special Agent Hopkins's testimony concerning admissions that Holston made

during Hopkins's interview with him. Holston maintains that the trial court should


                                                 18
have stricken the testimony because the People failed to disclose the existence of a

tape-recording of the interview to the defense prior to the hearing.8 Holston also

contends that the trial court erred in denying his alternative request that the People

disclose the tape-recording at the hearing in order to permit defense counsel to

adequately cross-examine Special Agent Hopkins.9

       Holston maintains that the "Due Process Clause's guarantee of fundamental

fairness in the deprivation of liberty" mandated disclosure of the tape-recording.10

In support of this contention, Holston cites Brady v. Maryland (1963) 373 U.S. 83,

87 (Brady), and contends that "the question of a defendant's right to exculpatory

evidence at a parole revocation proceeding is an open one in California."

       Even if we were to conclude that Brady applies in parole revocation

proceedings, it is clear that Holston has failed to establish a Brady violation in this

case.11




8      As Holston notes in his brief, "Hopkins had not provided a copy of this
recording to the prosecutor, and the fact of the tape-recording was news to both the
prosecutor and defense counsel."
9      We agree with the People that defense counsel's statements at the hearing
are ambiguous with respect to whether he was making such an alternative request.
However, we assume that counsel made such a request and consider whether the
court erred in denying the request.
10     In his reply brief, Holston makes clear that he does not contend that the
prosecution was required to disclose the recording pursuant to statutory rules of
discovery governing criminal proceedings.
11     We emphasize that we express no opinion on whether Brady applies in the
context of parole revocation proceedings.
                                          19
       1.       Governing law

       " 'Brady exculpatory evidence is the only substantive discovery mandated

by the United States Constitution.' " (Jones v. Superior Court (2004) 115

Cal.App.4th 48, 62.) In People v. Williams (2013) 58 Cal.4th 197, 255-256

(Williams), the California Supreme Court outlined the law governing Brady

claims:

            " 'Under the federal Constitution's due process clause, as interpreted by the high
            court in Brady . . . , the prosecution has a duty to disclose to a criminal
            defendant evidence that is " 'both favorable to the defendant and material on
            either guilt or punishment.' " [Citations.] . . . '[The] touchstone of materiality is
            a "reasonable probability" of a different result . . . . The question is not whether
            the defendant would more likely than not have received a different verdict with
            the evidence, but whether in its absence he received a fair trial, understood as a
            trial resulting in a verdict worthy of confidence. A "reasonable probability" of a
            different result is accordingly shown when the government's evidentiary
            suppression "undermines confidence in the outcome of the trial." ' [Citation.] In
            determining whether evidence is material under this standard, we consider ' "the
            effect of the nondisclosure on defense investigations and trial strategies." ' "
            (Williams, supra, 58 Cal.4th at pp. 255-256.)

       "We independently review the question whether a Brady violation has

occurred, but give great weight to any trial court findings of fact that are supported

by substantial evidence." (People v. Letner and Tobin (2012) 50 Cal.4th 99, 176.)

       2.       Application

       In his brief on appeal, Holston notes that Special Agent Hopkins testified at

the parole revocation hearing concerning a tape-recorded interview that he

conducted with Holston. Holston contends that Special Agent Hopkins testified

that Holston made various admissions during the interview and maintains that

defense counsel's ability to impeach Hopkins was impeded by the People's failure

to produce a copy of the recording of the interview. This argument fails because


                                                    20
the only testimony from Special Agent Hopkins that Holston refers to in his brief

in support of this argument is Hopkins's testimony that Holston admitted during

the interview that he was married to Ibarra. Holston does not dispute that he was

married to Ibarra and does not present any argument as to how a recording of the

interview would have permitted him to impeach Special Agent Hopkins on this

subject.

        Holston does cite to other purported admissions that he made to Officer

Parks during a separate conversation during which Officer Parks posed as an

inmate seeking Holston's assistance in obtaining documents for a parole hearing.

For example, Holston contends, as did his trial counsel, that there was ambiguity

with respect to several statements that he purportedly made to Officer Parks

concerning the manner by which Holston could assist Officer Parks in obtaining

certificates of completion for various self-help classes. Special Agent Hopkins,

however, provided no testimony concerning this issue.

        In sum, Holston has failed to identify any portion of Special Agent

Hopkins's testimony concerning his interview of Holston as to which the tape-

recording was necessary in order to permit defense counsel to effectively impeach

Hopkins. Holston has therefore failed to establish that the tape-recording of

Hopkins's interview was material to the outcome of the hearing, a necessary

element of a successful Brady claim. (See Williams, supra, 58 Cal.4th at pp. 255-

256.)



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       Accordingly, we conclude that the trial court did not err in denying

Holston's motion to strike Special Agent Hopkins's testimony or in denying his

request to order the People to disclose the recording at the hearing in order to

permit defense counsel to effectively impeach Special Agent Hopkins.12

                                          IV.

                                    DISPOSITION

       The order revoking parole is affirmed.



                                                                 AARON, Acting P. J.

WE CONCUR:

IRION, J.

PRAGER, J.*




12     Holston also contends that when the trial court's purported error in
admitting the hearsay statements of Rosser and Anderson is considered together
with the purported error in failing to disclose the tape-recording, the "cumulative
prejudice" stemming from these errors warrants reversal. We concluded in part
III.A.4., ante, that the trial court did not abuse its discretion in admitting Rosser's
hearsay statements. Any error in admitting Anderson's hearsay statements was
harmless under any standard of prejudice, even when considered in combination
with any purported error in failing to require the People to disclose the tape-
recording of Special Agent Hopkins's interview with Holston.
*      Judge of the San Diego Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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