People v. Buell

16 Cal.App.5th 682

224 Cal.Rptr.3d 498

The PEOPLE, Plaintiff and Respondent,

v.Russell Dean BUELL, Defendant and Appellant.

A144046

Court of Appeal, First District, Division 4, California.

Filed October 25, 2017

Monica Rudden and La Dell Dangerfield, Deputy Public Defenders; Spero Law Office, Leah L. Spero, Menlo Park, for Defendant and Appellant.

Edward S. Berberian, District Attorney, Leon Kousharin, Lori E. Frugoli, and Margaret Pettigrew, Deputy District Attorneys; Kamala D. Harris and Xavier Becerra, Attorney Generals, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, and Ronald E. Niver, Deputy Attorney General, for Plaintiff and Respondent.

Kennedy, J.^* Appellant Russell Dean Buell appeals from revocation of his mandatory supervision following a felony conviction for driving under the influence of alcohol. As a condition of mandatory supervision, Buell was prohibited from drinking alcohol and was required to wear an alcohol monitoring ankle bracelet provided and monitored by a private company. When that company issued a report indicating Buell had consumed alcohol, the People petitioned the trial court to revoke Buell's mandatory supervision. At the hearing on the petition, the prosecution offered the testimony of Buell's probation department case manager, who testified based on the data and conclusion from the monitoring company's report. The trial court revoked Buell's mandatory supervision and sentenced him to serve the rest of his term in county jail. On appeal, Buell argues the trial court's order is not supported by substantial evidence and his counsel was ineffective in failing to object to his case manager's testimony and the company's report under People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 ( Kelly ). For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 2, 2014, Buell pled guilty to felony driving with a blood alcohol level of .08 percent or higher in violation of Vehicle Code section 23152, subdivision (b), and admitted three prior convictions for driving under the influence. (See id ., § 23550, subd. (a).) The trial court sentenced Buell to the mitigated term of 16 months in county jail. Ten months were to be served in actual custody; six months were suspended and Buell was placed on mandatory supervision, subject to various terms and conditions, including that he consume no alcohol.

On November 20, 2014, Buell began mandatory supervision, and the Marin County Probation Department enrolled him in its Continuous Alcohol Monitoring Program. The program required Buell to wear an alcohol monitoring ankle bracelet provided and monitored by Alcohol Monitoring System (AMS), a private company.

On December 10, 2014, the probation officer petitioned the trial court to revoke appellant's mandatory supervision on the grounds that his alcohol monitor indicated he had consumed alcohol on December 7 and 8, 2014, less than three weeks into his supervision.

A hearing on the petition was held on December 24, 2014. The prosecution's only witness was Shelley Mays, the lead case manager for the Marin County Probation Department who worked with the Continuous Alcohol Monitoring Program. Mays had received 10 weeks of training, 75 to 80 percent of which was devoted to the functioning of continuous alcohol monitoring devices. Mays testified that clients in the Continuous Alcohol Monitoring Program wear a bracelet attached to the ankle and pressed tightly against the skin. If the client consumes alcohol or attempts to tamper with the bracelet, the bracelet electronically notifies AMS. AMS provides Mays with a daily report of potential violations for all of Mays's clients. AMS will then analyze the report and will typically either confirm or otherwise resolve a report of a potential violation within 24 hours. When a client consumes alcohol, Mays testified, the bracelet measures changes from the client's baseline alcohol level as the level rises to the point of highest consumption and then goes back down. If the client tampers with the bracelet, the temperature gauge will measure the difference in the body temperature and the "IR" frequency will detect any difference in the distance between the bracelet and the skin.

Mays testified that a continuous alcohol monitoring bracelet was placed on Buell on November 20, 2014. On December 8, 2014, Mays received a potential alert for alcohol consumption and tampering from Buell's bracelet, and AMS confirmed that alert as a violation the next day.

The prosecution introduced a "client noncompliance report" for Buell prepared by AMS. The report includes a graph measuring "TAC," "Temperature," and "IRDistance" for a 24-hour period beginning at 12:00 p.m. on December 7, 2014.¹ The report indicates, and Mays testified that the graph shows, a "confirmed consumption with tamper" beginning at 9:44 p.m. on December 7 and ending at 5:50 a.m. on December 8, 2014. The report concludes the "[a]lert has been determined to be a confirmed violation."

On cross-examination, Mays was shown a preliminary report reflecting the same measurements as in the noncompliance report, but over a longer time frame, from November 26, 2014 until December 9, 2014. The report indicates several "spikes" in the "TAC" level on specified dates leading up to December 9, 2014. When asked whether these spikes indicated alcohol consumption, Mays testified that she could not "answer that definitively" and could "only testify to what AMS has confirmed as a consumption." When asked how AMS analyzes the data to determine whether particular events indicate alcohol consumption, Mays answered: "However they do it on their equipment. I don't know the science behind it." On redirect examination, Mays testified the spike on December 8, 2014 was "significantly higher than any other spikes indicated on the graph" and there was "also a tamper in conjunction with it," which "usually will indicate a consumption event."

After Mays's testimony concluded, the People rested. Buell presented no evidence. The trial court then found that Buell had consumed alcohol and tampered with his alcohol monitoring bracelet, and thereby violated the terms and conditions of his mandatory supervision. The trial court terminated Buell's mandatory supervision and ordered him to serve the balance of his sentence in custody, a period of 161 days. Buell appeals.

DISCUSSION

I. Standard of Review

A trial court may revoke mandatory supervision when it has reason to believe the person under supervision has committed another offense or otherwise has violated the terms of supervision. ( Pen. Code, § 1203.2, subd. (a).) The prosecution must prove the grounds for revocation by a preponderance of the evidence. ( People v. Rodriguez (1990) 51 Cal.3d 437, 447, 272 Cal.Rptr. 613, 795 P.2d 783.) We consider "whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision." ( People v. Kurey (2001) 88 Cal.App.4th 840, 848, 106 Cal.Rptr.2d 150.) Substantial evidence is evidence that is reasonable, credible, and of solid value. ( Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 507, 208 Cal.Rptr.3d 655.) We "give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." ( People v. Kurey , at pp. 848–849, 106 Cal.Rptr.2d 150.)

II. Buell's Appeal Is Not Moot

The People first argue that Buell's challenge to his probation revocation is moot because Buell already has served the sentence imposed by the trial court and has been released from custody. Buell concedes he has completed his sentence, but argues his appeal is not moot because the probation violation is part of his permanent record and a successful appeal would clear his record and remove the " ‘stigma of criminality.’ " ( People v. Nolan (2002) 95 Cal.App.4th 1210, 1213, 116 Cal.Rptr.2d 331 ( Nolan ).) In Nolan , the defendant appealed a judgment finding she violated her probation and sentencing her to 120 days in jail, and the People argued her appeal was moot because her jail term had been completed. ( Id . at pp. 1212–1213, 116 Cal.Rptr.2d 331.) The court rejected the argument, finding that, because the probation violation was part of the defendant's permanent record, the appeal afforded her the "opportunity to erase the ‘stigma of criminality.’ " ( Id . at p. 1213, 116 Cal.Rptr.2d 331, quoting In re Dana J. (1972) 26 Cal.App.3d 768, 771, 103 Cal.Rptr. 21.) We will follow Nolan and consider Buell's arguments on the merits.

III. Substantial Evidence Supports the Trial Court's Order

Buell first argues that the trial court's decision to revoke his mandatory supervision was not supported by substantial evidence because: (1) AMS did not treat several smaller spikes in Buell's transdermal alcohol concentration (TAC) measurements as alcohol consumption events; and (2) AMS's conclusion that he consumed alcohol was uncorroborated hearsay which did not constitute substantial evidence.

We do not agree that AMS's treatment of the smaller spikes means the trial court's conclusion was unsupported by substantial evidence. As Mays testified, and as the AMS graph in evidence reflects, the alcohol level spike on December 8, 2014 was significantly larger—two and one-half times higher—than the other spikes reflected on the graph. Mays also testified it was not possible to have a false reading of alcohol consumption, but the smaller spikes could indicate an "interferent" or "atmospheric alcohol" in the form of cologne, mouthwash, or cleaning products. (See People v. Dorcent (N.Y. Crim. Ct. 2010) 29 Misc.3d 1165, 909 N.Y.S.2d 618, 624–625 [studies show TAC devices such as the device used here generally do not register false positives]; State v. Lemler (S.D. 2009) ...