Filed 3/12/14 P. v. Reynolds CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G049088
v. (Super. Ct. No. R-01005)
TERI LYN REYNOLDS, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
William R. Froeberg, Judge. Affirmed.
Erica Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
Defendant Teri Lyn Reynolds pleaded guilty to petty theft with a prior
theft-related conviction. The trial court sentenced her to two years in prison, suspended
execution of the sentence, and placed her on probation. She violated the terms of her
probation and the court imposed the prison term. Upon her release in March 2012,
defendant was placed on postrelease community supervision with the Orange County
Probation Department for three years. (Pen. Code, § 3451, subd. (a).)
Between May 2012 and May 2013, defendant received three 10-day flash
incarcerations for a variety of missteps; failing to timely report to the probation
department, failing to report for drug testing, falsifying a drug test, testing positive for
drugs, and being arrested for possessing drug paraphernalia. (Pen. Code, § 3454, subd.
(b).) In addition, the trial court imposed a 90-day term for violating the conditions of her
community supervision because of positive drug tests and an arrest for possession of both
a controlled substance and drug paraphernalia. (Pen. Code, § 3455, subd. (a)(1).)
In August 2013, the probation department filed another petition alleging
defendant violated the terms of her community supervision with four positive drug tests,
plus two arrests for possession of drugs and drug paraphernalia, and shoplifting.
Defendant denied the allegations and the trial court set the matter for a hearing.
At the hearing the prosecutor focused on the failed drug tests. Randall
Gosselin, defendant’s supervising probation officer, testified he conducted the drug tests
by obtaining a buccal swab of defendant’s saliva, placing the swab in a plastic container,
and mailing it to a toxicology lab in Santa Rosa, California. Gosselin received results
from the lab by e-mail. Over a defense hearsay objection, the court allowed Gosselin to
access the toxicology lab’s Web site, e-mail a copy of defendant’s test results to the clerk,
who printed a copy that was admitted as an exhibit. The document states defendant had
four positive tests for drugs between June 5 and July 9, 2013.
The court found defendant violated the terms of her community supervision
and reinstated it with the condition she serve 180 days in county jail.
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Defendant timely appealed. We appointed counsel to represent her.
Counsel filed a brief summarizing the facts of the case and, while not arguing against
defendant, advised us no issues were found to argue on her behalf. (Anders v. California
(1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493]; People v. Wende (1979) 25 Cal.3d
436.) We notified defendant that she could file written argument on her own behalf, but
the period to do so has passed and we have received no communication from her.
Having independently examined the record, we find no arguable issue.
Under Penal Code section 3455, subdivision (a), if “the supervising county agency”
determines “intermediate sanctions . . . are not appropriate,” it “shall petition the court
pursuant to Section 1203.2 to revoke, modify, or terminate postrelease community
supervision.” An uncodified section of the legislation that added the reference to Penal
Code section 1203.2 declared, “‘[b]y amending . . . Section 3455 . . . to apply to
probation revocation procedures under Section 1203.2 . . ., it is the intent of the
Legislature that these amendments simultaneously incorporate the procedural due process
protections held to apply to probation revocation procedures under Morrissey v. Brewer
(1972) 408 U.S. 471 [92 S.Ct. 2593, 33 L.Ed.2d 484], and People v. Vickers (1972) 8
Cal.3d 451, and their progeny.’” (Stats. 2012, ch. 43, § 2(b), p. 1965, italics added.)
As a consequence, the general rule excluding a laboratory report absent an
opportunity to cross-examine a witness competent to testify to the truth of its contents
applicable in a criminal prosecution subject to the Confrontation Clause of the United
States Constitution’s Sixth Amendment (Bullcoming v. New Mexico (2011) 564 U.S. ___,
___ [131 S.Ct. 2705, 2710, 180 L.Ed.2d 610, 616]; Melendez-Diaz v. Massachusetts
(2009) 557 U.S. 305, 311 [129 S.Ct. 2527, 174 L.Ed.2d 314]), does not apply to this case.
(See People v. Gomez (2010) 181 Cal.App.4th 1028, 1039; People v. Johnson (2004) 121
Cal.App.4th 1409, 1411.) Defendant had only a “limited right to confront witnesses”
based on “the due process clause of the Fourteenth Amendment” (People v. Johnson,
supra, 121 Cal.App.4th at p. 1411), and “California case law approv[es] the use of
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various forms of documentary evidence at probation revocation hearings despite hearsay
objections” (ibid. [upholding admission of laboratory report that substance the petitioner
was observed selling was rock cocaine]).
“As long as hearsay testimony bears a substantial degree of trust-worthiness
it may legitimately be used at a probation revocation proceeding. [Citations.] In general,
the court will find hearsay evidence trustworthy when there are sufficient ‘indicia of
reliability.’ [Citation.] Such a determination rests within the discretion of the trial court
and will not be disturbed on appeal absent an abuse of discretion.” (People v. Brown
(1989) 215 Cal.App.3d 452, 454-455.) The court found the toxicology lab’s report
admissible, noting the “report on its face indicates” the toxicology lab was “licensed,”
named “the chief toxicologist,” identified the testing process as “gas chromatography
mass spectrometry,” which the court stated was a proper means “of analyzing for drugs,”
and that the testing “was performed in accordance with the standard operating
procedures.” Further, the court found the report declared “the final results [were]
reviewed by laboratory certifying scientists” and the lab retained the samples for six
months, thereby allowing for a retest of the samples “[i]f there was any question as to the
accuracy of the tests . . . .”
Appellate counsel’s opening brief suggests we consider whether revocation
of defendant’s community supervision was proper. Long ago this court discredited the
custom of raising “‘arguable-but-unmeritorious’ issue[s]’” in Anders/Wende appeals.
(People v. Johnson (1981) 123 Cal.App.3d 106, 109.) The obligation of appointed
counsel is to determine whether the appellate record presents issues that have “a
reasonable potential for success” and which, if successful, will “result in either . . . a
reversal or modification of the judgment.” (Ibid.) If not, then submission of an
Anders/Wende brief is appropriate. (Id. at p. 112.)
The proposed issue has no potential for success. Decisions in probation
revocation proceedings are reviewed for abuse of discretion. (People v. Urke (2011) 197
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Cal.App.4th 766, 773.) Since petitions to revoke, modify, or terminate community
supervision are governed by the same principles employed in probation revocation
proceedings, we conclude an identical standard of review applies in this context.
Penal Code section 3455 authorizes a court, “[u]pon a finding that the
person has violated the conditions of postrelease community supervision,” to “[r]eturn the
person to . . . community supervision with modifications of conditions, if appropriate,
including a period of incarceration in county jail” (Pen. Code, § 3455, subd. (a)(1)) not to
exceed 180 days (Pen. Code, § 3455, subd. (d)). The record reflects that, although the
trial court revoked defendant’s community supervision when she was arraigned on the
probation department’s petition, after the hearing on the petition’s merits, it reinstated
community supervision with the additional condition that she serve 180 days in the
county jail. Given the express authorization of an additional 180-day jail sentence,
defendant’s prior lack of success on probation, and the numerous instances of
noncompliance while on community release, we cannot conclude the trial court’s ruling
constituted an abuse of discretion.
The postjudgment order is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
THOMPSON, J.
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