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

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              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.


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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.




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We conclude the trial court erred in admitting Augustyn’s testimony regarding the
statements made by the motel employees.1 (Arreola, at pp. 1157-1160.)
         The People argue admission of the hearsay was harmless beyond a reasonable
doubt. (Arreola, supra, 7 Cal.4th at p. 1161.) However, as relevant to the allegation of
disturbing the peace, nothing in Augustyn’s properly admitted testimony supported a
finding that appellant “maliciously and willfully disturb[ed] another person by loud and
unreasonable noise.” (Pen. Code, § 415, subd. (2).) Further, as relevant to the trespass
allegation, nothing in Augustyn’s properly admitted testimony supported a finding that
appellant entered and occupied the motel “without the consent of the owner, the owner’s
agent, or the person in lawful possession.” (Pen. Code, § 602, subd. (m).) The motel
employees’ hearsay statements imply the absence of consent, although if the employees
had testified appellant could have attempted to establish his right to be on the premises
based on his assertion that he was sharing a room with another guest—which
demonstrates why it is problematic to prove a probation violation through hearsay.
Admission of the hearsay in Augustyn’s testimony was not harmless beyond a reasonable
doubt.




1   Appellant only objected to the testimony regarding the statement made by the motel
clerk, but the People do not dispute that a hearsay objection with respect to the testimony
regarding the statement made by the motel manager would have been futile.
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                                      DISPOSITION
       The trial court’s order sustaining the July 2012 petition for revocation of probation
is reversed.




                                                 SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.




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