Trial court’s order revoking mandatory supervision based on alcohol consumption alert from alcohol monitoring ankle bracelet was supported by substantial evidence. Buell pleaded guilty to driving under the influence of alcohol. His sentence included mandatory supervision with a condition prohibiting him from drinking alcohol. He was required to wear an ankle monitoring bracelet operated by a private company (AMS). After AMS reported Buell had consumed alcohol, the People petitioned to have his supervision revoked. At the revocation hearing, the probation department’s lead case manager testified the bracelet operates by measuring changes in baseline alcohol level. If a client consumes alcohol or tampers with the bracelet, the bracelet electronically notifies AMS of the potential violation and AMS analyzes the data to determine if a “consumption event” occurred. In Buell’s case, the AMS report indicated a “confirmed consumption with tamper” and the report was introduced into evidence. The trial court found defendant had consumed alcohol and revoked his mandatory supervision. On appeal, defendant agued the trial court’s order was not supported by substantial evidence because AMS’s report was uncorroborated hearsay. Held: Affirmed. In parole revocation proceedings, hearsay is admissible if it bears a substantial guarantee of trustworthiness. Thus, the trial court could rely on the conclusions in AMS’s report if it found the report and the circumstances under which it was prepared trustworthy. AMS generated the report as part of its regular course of business pursuant to its contract with the probation department. Defendant did not challenge the accuracy of the report nor the underlying data presented at the hearing. Furthermore, the case manager testified it was impossible for the bracelet to falsely detect alcohol consumption and that a significant spike in baseline alcohol level in conjunction with a tamper event was consistent with alcohol consumption. This testimony, together with the data, was sufficient to corroborate AMS’s conclusion that defendant consumed alcohol.

Trial counsel was not ineffective for failing to object to the AMS report under People v. Kelly (1976) 17 Cal.3d 24. To prevail on a claim of ineffective assistance of counsel, a defendant must show a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceedings would have been different. Buell argued trial counsel rendered ineffective assistance by not objecting to the case manager’s testimony and AMS’s report as failing to meet the Kelly test, which governs admissibility of new scientific techniques. Kelly requires that (1) the reliability of the method be established, usually by expert testimony; (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject; and (3) the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case. Here, an objection under the first two prongs of Kelly would have been futile because the People would have been able to cite to appellate court decisions from other states that would have established that ankle monitoring bracelet technology is generally accepted in the scientific community without need for expert testimony to that effect. As to the third prong, Buell did not argue that correct scientific procedures were not used, or that the case manager would have been unable to testify that they were. Given the case manager’s training and experience together with her testimony that the bracelet was installed correctly and that it is not possible for the bracelet to falsely report consumption, there is no reason to believe the prosecution would not have been able to satisfy the third prong had an objection been made. Thus, Buell failed to show that, had a Kelly objection been made, there was a reasonable probability of a different result.

Defendant’s appeal was not moot. Although Buell had already completed the sentence imposed by the trial court following revocation of his mandatory supervision, his appeal was not moot because the violation is part of his permanent record and the appeal affords an opportunity to erase the “stigma of criminality.” (See People v. Nolan (2002) 95 Cal.App.4th 1210, 1213.)

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A144046.PDF