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Name: People v. Gomez
Case #: B213013
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 02/04/2010

Admission of a probation report at a probation hearing to adocument probationer’s failure to report, pay restitution, attend counseling, or submit verification of employment does not violate probationer’s due process right of confrontation. Appellant was granted three years probation for conviction of felony and misdemeanor vandalism. A 2007 probation report completed by Deputy Probation Officer Kendrick stated that records indicated probationer failed to report to his assigned probation officer and failed to appear for a scheduled appointment. After reviewing the report, the court summarily revoked probation and issued a bench warrant for probationer, and he was arrested. In a supplemental report, Deputy Probation Officer Lindsay reiterated Kendrick’s summary, noting that the basis for the report was electronic records, as she had not had met probationer. The report also asserted that probationer failed to submit restitution payments or verification of counseling and employment. Over appellant’s objection, the latter report was admitted into evidence and appellant was found in violation of probation and sentenced to prison. The appellate court rejected appellant’s argument that he was denied his due process right to confrontation by admission of the report. (Because this concerns a probation hearing, appellant’s Confrontation Clause right was not implicated.) Due process does not prohibit the use of conventional substitutes for live testimony, including documentary evidence, as long as the evidence is accompanied by reasonable indicia of reliability. Evidence that involves routine matters such as the making and keeping of probation appointments, restitution and other payments, and similar records of events of which a probation officer was not likely to have personal recollection and as to which the officer would rely instead on a record of his or her own action is admissible for purposes of probation violation hearings because, such reports, which are prepared contemporaneously to, and specifically for, a hearing where defendant’s lack of compliance was at issue, have sufficient indicia of reliability.