Filed 12/29/20 P. v. Becker CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DUSTIN WADE BECKER,

Defendant and Appellant.

 D075885

 (Super. Ct. No. SCN359237)

APPEAL from a judgment of the Superior Court of San Diego County, 

Bradley A. Weinreb, Judge. Affirmed.

Kelly E. DuFord, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. 

Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and 

Respondent.

Defendant Dustin Wade Becker appeals from a judgment sentencing 

him to prison after the court revoked his probation based on violations of his 

probation conditions. He contends that the trial court abused its discretion 
2

by relying on inadmissible hearsay, and that without that evidence there was 

insufficient evidence to support the court’s findings. 

We affirm the judgment. Substantial admissible evidence supported 

the court’s findings, and the court did not abuse its discretion.

BACKGROUND

Procedure

Defendant entered into a plea bargain in which he pleaded guilty to 

assault with force likely to cause great bodily injury (Pen. Code,1 § 245, subd. 

(a)(4)), with personal infliction of great bodily injury (§ 12022.7, subd. (a)), 

which was a serious felony (§ 1192.7, subd. (c)(8)); evading an officer, with 

reckless driving (Veh. Code, § 2800.2); and with driving under the influence 

of alcohol (Veh. Code, § 23152, subd. (a)), with a blood alcohol concentration 

of more than .15 percent (Veh. Code, § 23578). Other charges were 

dismissed. In accordance with the agreement, on November 21, 2017, the 

court imposed a sentence of eight years eight months, consisting of the upper 

term of four years for assault, three years for infliction of great bodily injury, 

one-third the middle term for evading an officer with reckless driving, and 

one year on the misdemeanor driving under the influence. The court 

suspended execution of the sentence, and placed defendant on formal 

probation for three years on the felonies and on informal probation for five 

years on the misdemeanor of driving while under the influence.

Defendant initially violated his probation on February 1, 2018. After 

his probation officer told him not to possess or use alcohol, and not to drive, 

defendant went to his car and turned on the ignition. A beer can was in the 

1 Further statutory references are to the Penal Code unless otherwise 

specified.
3

car. Defendant admitted the violation. The court revoked and reinstated 

probation on the same terms and conditions.

On July 3, 2018, the probation department alleged that defendant had 

violated several conditions of probation. After a contested hearing, the trial 

court found that defendant had willfully violated the terms of his probation, 

and revoked and terminated probation. The court executed the previously 

imposed and suspended sentence of eight years eight months. Defendant 

timely appealed. 

Underlying Crimes2

Defendant got into an argument with Trevor E. while drinking at a bar 

on January 13, 2016. Defendant challenged Trevor to go outside to fight. 

Surveillance video shows that several of defendant’s friends joined the fight. 

Trevor was hit in the head, causing him to fall to the ground and lose 

consciousness. Defendant and his friends punched Trevor heavily in the face, 

head, stomach and chest more than 25 times while he lay on the ground. One 

of the assailants kicked Trevor in the head repeatedly, and another straddled 

Trevor, punched him and struck him with his knee. Defendant kicked him in 

the ribs and knocked him back to the ground after he was up. One of the 

assailants hit Trevor on his leg with a metal baseball bat. Trevor suffered 

three facial fractures, including a broken nose. His left eye was nearly 

swollen shut. He had numerous cuts and bruises on his head, face, body and 

legs. Trevor was traumatized by the beating and suffered continuing anxiety 

as a result of the beating.

On May 7, 2016, a deputy saw defendant speeding southbound on East 

Vista Way about 75 miles per hour. Defendant turned onto a smaller road, 

with a speed limit of 25 miles per hour. Defendant drove at a rate of more 

2 The statement of facts is taken from the probation report.
4

than 40 miles per hour. The deputy followed defendant with his emergency 

lights and siren on. Defendant continued speeding on residential streets, at 

more than 20 miles per hour faster than the posted speed, weaving across the 

middle lines, and failing to stop at several stop signs, nearly causing a 

collision with a motorcycle. He finally stopped in a residential driveway. 

Sheriffs removed defendant and his passenger from the car at gun point, 

handcuffed and arrested defendant. Defendant appeared to be intoxicated, 

with red watery eyes and the smell of alcohol on his breath. He stated he had 

drunk four or five beers. He said he was grieving the death of his mother and 

started sobbing. His blood alcohol concentration was measured at .16 

percent, and he had cannabinoids in his blood as well. 

Probation Violation Hearing, July 9, 2018 

Probation officer Michelle T. testified that she explained all his 

probation conditions to defendant at their first meeting. She instructed him 

not to use or possess alcohol and not to drive, in addition to the other 

conditions. Defendant said he understood the requirements of his probation. 

He never missed a probation appointment.

Defendant was arrested on probation violations after a probation 

search of his apartment on June 29, 2019. The probation department alleged 

that defendant failed to comply with condition 2(t), payment of $207.01 in 

victim restitution; condition 6(a), obey all laws; condition 8(b), not use or 

possess alcohol; condition 8(j), requiring participation in, compliance with, 

and payment of all the costs of a continuous alcohol monitoring program; 

condition 9(c), not use or possess any controlled substance; and condition 

12(f), not possess or own any weapon or firearm. 
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Condition 2(t) - Failure to Pay Victim Restitution

Defendant was required to pay $207.01 in victim restitution (§ 1202.4, 

subd. (f)) to the Victim Compensation Board. The probation officer testified 

that defendant made only two payments, totaling $35, to the Department of 

Revenue Recovery. Defendant made those payments soon after his 

sentencing, then made no more.

The court did not mention this failure to pay in its ruling on 

defendant’s violations. Victim restitution payments are enforceable as if they 

were civil orders. (§ 1202.4, subd. (i).) We do not discuss this condition 

further. 

Condition 8(b) - Not Use or Possess Alcohol

Condition 8(b) of the probation order was not to use or possess alcohol if 

so directed by his probation officer. Probation officer Michelle directed 

defendant not to use or possess alcohol. Defendant said he understood the 

requirements. 

Sheriff’s Deputy Daniel Hackstedde testified at the hearing that on 

March 25, 2018, he and several other deputies responded to a report of a 

battery at a residence in Vista. It took about 30 minutes for the deputies to 

gain access to the home after first arriving. Hackstedde spoke to defendant 

and the others present at the apartment. All seemed to be under the 

influence of alcohol, based on their demeanors and the nature of the call. 

Defendant visibly appeared to be under the influence of alcohol, and the 

officer smelled alcohol on his breath. The officer’s assessment that defendant 

was under the influence of alcohol was based on defendant’s appearance and 

smell, and on the officer’s training and experience. Hackstedde spoke with 

defendant for a minute or less, and did not conduct a field sobriety test or any 

other test of intoxication of defendant.
6

Condition 8(j) - Participation in and Compliance with a Secure 

Continuous Alcohol Monitoring Program (SCRAM)

Condition 8(j) required defendant to participate in, comply with, and 

bear all costs of a continuous alcohol monitoring program if directed by his 

probation officer. After Hackstedde found defendant under the influence of 

alcohol on March 25, Michelle told defendant to enroll in and comply with the 

SCRAM program. Michelle verified with SCRAM that defendant had made 

only one phone call to the organization. He never enrolled. 

Tawny B., the court liaison for SCRAM, testified. She oversaw the 

SCRAM program for people on formal probation. She received a referral for 

defendant from a probation officer, but defendant never enrolled. Tawny 

instructed her administrative assistant to call defendant. Tawny reviewed 

the e-mail communications she had with her administrative assistant on 

April 17 and April 18. According to the e-mails, defendant spoke with the 

administrative assistant once by phone. Defendant said that he could not 

afford the program and would speak with his probation officer. Tawny 

testified that defendant did not call SCRAM again and he never made an 

appointment to come into the office.

Tawny explained the practice at SCRAM. If someone claims a financial 

hardship, he or she can fill out a form at the SCRAM office stating financial 

hardship. SCRAM offers reduced fees on a sliding scale for those who provide 

documentation of a hardship. The probationers are told they must come into 

the SCRAM office to enroll and to fill out the financial hardship form. The 

practice at SCRAM is not to tell probationers to talk with their probation 

officer if they cannot afford the fees. The practice is to tell the probationers 

that reduction of fees is available, but the probationer must make an 
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appointment and come into the office to enroll and request reduction of fees. 

Defendant never set up an appointment.

Defendant went to Michelle, his probation officer, and showed her 

documentation that he could barely afford food and rent. He said he could 

not afford the SCRAM program. Michelle told defendant that SCRAM offered 

financial assistance and that he needed to contact SCRAM to discuss a 

payment plan. She gave him an additional month to comply with the 

requirement but defendant never contacted SCRAM again. Michelle called 

Tawny on May 4, 2018, to ask if defendant had made any further contact 

with SCRAM. Tawny told her that defendant had no contact with SCRAM 

other than the single phone call he made.

Condition 6(a) - Obey All Laws; Condition 9(c) - Not Use or Possess Any 

Controlled Substance; and Condition 12(f) - Not Possess or Own Any Weapon, 

Firearm, or Replica 

Deputy Scott Rossall testified that he supervised a search of 

defendant’s residence on June 29, 2018. There were a total of five people in 

the house. He did not search defendant’s room personally, but delegated that 

task to other deputies. The deputies told Rossall that they found a small 

bindle of heroin in the closet in defendant’s bedroom and a replica handgun.3 

The replica handgun was not booked into evidence and was not 

photographed. There were stacks of money in a drawer in the bathroom. 

Real currency was interspersed with currency marked “for motion picture use 

only.”

Rossall went to look at the bindle in the location where it was 

discovered. It was on the right side of the closet, in a container under a stack 

3 Statements of what the other deputies reported to Rossall were 

admitted over defendant’s hearsay objection as nonhearsay for the effect of 

the statements on Rossall and his subsequent investigation.
8

of T-shirts that, to Rossall’s recollection, appeared to be male clothing. 

Rossall questioned defendant about the closet. Defendant said he and his 

girlfriend had “communal property” in the closet. Defendant kept his 

property on the right side and on the back wall of the closet. Defendant said 

he had no knowledge of the heroin in the closet and it was not his. 

The parties stipulated that the bindle found in defendant’s room 

contained .54 grams of heroin, a usable amount. Defendant did not test 

positive for opiates or their derivatives. Michelle testified that defendant 

never tested positive for opiates and never appeared to be under the influence 

of opiates.

It was further stipulated that two character witnesses would testify 

that they had each known defendant for three to five years. They never saw 

defendant use heroin and knew that he disliked it because of his brother’s 

drug use. 

DISCUSSION

Defendant contends that hearsay evidence was improperly admitted at 

his probation revocation hearing to prove the truth of his violations, and that 

without the hearsay, there was no substantial evidence to support the trial 

court’s decision to revoke probation. We disagree. Substantial admissible 

evidence supports the court’s decision. The court did not abuse its discretion 

in deciding to revoke and terminate probation, and to execute the sentence 

that was previously imposed and stayed.

Legal Principles

The goals of probation are to protect the public, ensure justice, restore 

losses to the victim, and rehabilitate the defendant. (§ 1202.7.) A court may 

revoke a defendant’s probation “if the interests of justice so require and the 

court, in its judgment, has reason to believe from the report of the probation 
9

officer . . . or otherwise that the person has violated any of the conditions of 

their [probation] . . . .” (§ 1203.2, subd. (a).) A violation of probation must be 

willful, in the sense that the defendant must have known what he was doing. 

(People v. Hall (2017) 2 Cal.5th 494, 501.)

We review the trial court’s factual findings supporting revocation of 

probation for substantial evidence, and we review the trial court’s decision to 

revoke probation for abuse of discretion. (People v. Butcher (2016) 247 

Cal.App.4th 310, 318; People v. Rodriguez (1990) 51 Cal.3d 437, 443

(Rodriguez).) Proof of a violation of probation is sufficient if it is 

demonstrated by a preponderance of the evidence. (Rodriguez, at p. 446.) 

Because “[r]evocation deprives an individual, not of the absolute liberty 

to which every citizen is entitled, but only of the conditional liberty properly 

dependent on observance of special parole4 restrictions,” “thus the full 

panoply of rights due a [criminal] defendant . . . does not apply.” (Morrissey 

v. Brewer (1972) 408 U.S. 471, 480 (Morrissey); see also People v. Arreola

(1994) 7 Cal.4th 1144, 1152–1153 (Arreola).) The minimal due process 

requirements at a probation revocation hearing include written notice of the 

claimed violations, disclosure of evidence against the defendant, an 

opportunity for the defendant to be heard and to present evidence, and “the 

right to confront and cross-examine adverse witnesses (unless the hearing 

officer specifically finds good cause for not allowing confrontation).” 

(Morrissey, at p. 489; Arreola, at pp. 1152–1153.)

The right to confrontation in a probation revocation hearing arises from 

the due process clause, not from the Sixth Amendment. (People v. Johnson

(2004) 121 Cal.App.4th 1409, 1411; People v. Abrams (2007) 158 Cal.App.4th 

4 “Parole and probation revocation hearings are equivalent in terms of 

the requirements of due process.” (Rodriguez, supra, 51 Cal.3d at p. 441.)
10

396, 400, fn. omitted (Abrams).) It is not absolute. “Hearsay that bears a 

substantial guarantee of trustworthiness is admissible in probation 

revocation proceedings. [Citation.] ‘In general, the court will find hearsay 

evidence trustworthy when there are sufficient “indicia of reliability.” ’

[Citation.] . . . [¶] The determination whether hearsay evidence is 

trustworthy rests with the trial court and will not be disturbed on appeal 

absent an abuse of discretion.” (People v. Buell (2017) 16 Cal.App.5th 682, 

689.) 

Hearsay should be excluded from a probation revocation hearing when 

the “need for confrontation is particularly important . . . because of the 

opportunity for observation of the witness’s demeanor.” (Arreola, supra, 7 

Cal.4th at p. 1157.) Hearsay evidence that is properly viewed as a substitute 

for live testimony, such as statements by victims or witnesses, should 

generally be excluded. (Abrams, supra, 158 Cal.App.4th at p. 405; see 

Arreola, supra, 7 Cal.4th at p. 1157.) For example, confrontation is helpful to 

probe a witness’s testimony that a person appears to be intoxicated. (People 

v. Shepherd (2007) 151 Cal.App.4th 1193, 1201.) In Shepherd, the trial court 

found a defendant had violated his probation condition by consuming alcohol. 

The only basis for the finding was testimony from a probation officer that a 

program administrator had told the probation officer that the defendant was 

dismissed from the program after smelling of, and testing positive for, 

alcohol. (Id. at p. 1198.) The appellate court found that hearsay was 

insufficiently reliable to be admissible to prove the truth of the fact that the 

defendant had been consuming alcohol. (Id. at p 1202.) Full confrontation 

and observation of the administrator’s demeanor was particularly important 

to assess the veracity of the out-of-court statement. (Id. at p. 1201.) Here, for 

example, defense counsel elicited from the witness that he had talked with 
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defendant for a minute or less and conducted no tests of intoxication.

On the other hand, hearsay is admissible when confrontation will not 

materially aid the decisionmaker. For example, confrontation does not 

materially further the reliability of records that show “routine matters such 

as the making and keeping of probation appointments, restitution and other 

payments, and similar records of events.” (Abrams, supra, 158 Cal.App.4th 

at p. 405; Arreola, supra, 7 Cal.4th at p. 1157.) A probation officer is not 

likely to have personal recollection of these matters and would have to 

consult records, especially to prove a negative such as the failure of a 

probationer to report. (People v. Gomez (2010) 181 Cal.App.4th 1028, 1038 

(Gomez).) Cross-examination and demeanor of the witness are not significant

factors in evaluating the credibility of an officer’s foundational testimony 

about the contents of the probation department’s records. Such records bear 

indicia of reliability and are admissible. (Ibid.; Arreola, at p. 1157; Abrams, 

at p. 405.)

We review the evidence supporting the violation findings with these 

precepts in mind.

Analysis

Use of Alcohol - Condition 8(b)

Defendant contends the evidence of his intoxication on March 25, 2018, 

was too insubstantial to support the violation, because Hackstedde spent less 

than one minute evaluating defendant. Hackstedde provided direct evidence 

of defendant’s intoxication based on his personal observations, training and 

experience. The weight and credibility of the evidence is a matter for the 

trial court to decide. The court needed to find the violation only by a 

preponderance of the evidence. (Rodriguez, supra, 51 Cal.3d at p. 446.) The 
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court did not abuse its discretion in accepting the opinion of an experienced 

officer. (Id. at p. 443.) 

Failure to Participate in SCRAM—Condition 8(j)

Defendant alleges that his failure to participate in SCRAM was based 

on improper hearsay because the administrative assistant who personally 

spoke with defendant did not testify. Defendant never objected to Tawny’s 

testimony. He has forfeited this objection on appeal. (People v. Nolan (2002) 

95 Cal.App.4th 1210, 1216.)

In any event, the evidence of this violation was admissible. The 

SCRAM violation consisted of defendant’s failure to make an appointment to 

initiate treatment. The only relevant evidence was that defendant never 

made an appointment to go to SCRAM. The negative evidence that 

defendant failed to make an appointment could be determined only from the 

records of SCRAM, which are admissible hearsay. (Gomez, supra, 181 

Cal.App.4th at pp. 1038–1039 [testimony based on electronic records was 

admissible to show that probationer did not report to probation, did not pay 

restitution, and did not submit verification of employment or counseling 

attendance]; Abrams, supra, 158 Cal.App.4th at p. 405 [probation department 

computer records admissible]; see Arreola, supra, 7 Cal.4th at p. 1157

[hearsay evidence admissible to prove routine matters such as making and 

keeping of probation appointments].) Neither the demeanor nor crossexamination of the administrative assistant would be helpful in eliciting 

more information about defendant’s failure to appear at SCRAM. (Gomez, at 

pp. 1038–1039; see also Abrams, at pp. 404–405.) 

We need not decide if the administrative assistant’s statements were 

admissible, in any event, because Michelle provided information by direct 

testimony. Michelle testified that she told defendant that SCRAM could 
13

provide financial relief but that he had to go into the SCRAM office to apply 

for financial relief. Tawny’s testimony that defendant never made an 

appointment with SCRAM was based on SCRAM’s records and admissible. 

(Arreola, supra, 7 Cal.4th at p. 1157; Abrams, supra, 158 Cal.App.4th at p.

405; and Gomez, supra, 181 Cal.App.4th at pp. 1038–1039.) Substantial 

admissible evidence showed that defendant was told he could apply for 

financial aid if he went into the SCRAM office, and that he never made the 

appointment to do so.

Defendant contends that hearsay evidence of lack of attendance was 

not “routine” because of the “role it can play for potential applicants” and 

because it was a requirement for defendant’s probation. The issue is not 

whether the program is routine but whether making and keeping 

appointments is routine. (Arreola, supra, 7 Cal.4th at p. 1157.) Making and 

keeping appointments with any treatment program is routine regardless of 

the nature of the treatment.

Defendant further contends there was insufficient evidence that his 

failure to comply with this condition was willful, because he lacked the 

money to pay for it. Defendant’s violation was willful because he knew what 

steps he had to take for financial relief. Michelle told defendant that SCRAM 

could reduce his fees and that he had to go to SCRAM to work out a payment 

plan. She gave him an additional month to work out his payments with 

SCRAM and enroll. He failed to do so. The court stated that the willful 

violation of the SCRAM compliance condition was not related to defendant’s 

inability to pay. The court would have determined that defendant 

substantially complied with the condition if he had made the appointment 

with SCRAM to follow up on the program. Defendant willfully violated 

condition 8(j) because he never made an appointment with SCRAM. 
14

Obey All Laws; Not Possess Any Controlled Substance; and Not Possess 

Any Firearm, or Replica—Conditions 6(a), 9(c) and 12(f)

Defendant agreed as conditions of probation to obey all laws, to not use 

or possess any controlled substance, and to not possess or own any weapon, 

firearm or replica. Violations of these conditions were discovered when 

deputies conducted a probation search of defendant’s residence on June 29, 

2018. Rossall supervised but did not conduct the search. Defendant objected 

to Rossall testifying about what other deputies reported to him. The court 

admitted statements from the other deputies to Rossall as nonhearsay, i.e. 

not for the truth of the matters asserted but for the effect on Rossall and his 

subsequent investigation. We review the statements with that limitation.

Based on what the deputies told him, Rossall looked in the closet in 

defendant’s room and saw the bindle in a container underneath a stack of Tshirts on the right side of the closet. Defendant told Rossall that he kept his 

clothes on the back and right sides of the closet. The T-shirts appeared to be 

male clothing. Rossall’s direct eyewitness testimony, defendant’s statements 

to Rossall, and the stipulation that the bindle contained a usable amount of 

heroin, were sufficient to support the court’s finding by a preponderance of 

evidence that defendant possessed the heroin.

Excluding the statements that other deputies made to Rossall, 

substantial evidence supports the court’s finding that defendant possessed a 

controlled substance and failed to obey all laws. We decline to decide the 

admissibility of the statements by other deputies to Rossall about the replica 

firearm, because there was more than sufficient cause to terminate 

defendant’s probation even without evidence of possession of a replica 

firearm. 

Defendant’s underlying crime, initiating a vicious group beating of 

Trevor that broke three bones in Trevor’s face, was a serious felony—a first 
15

strike conviction. Defendant had an extensive criminal history that included 

prior batteries. He had not previously been to prison but his prior 

performance on probation was abysmal. Many of his crimes involved alcohol 

consumption, including the underlying assault and reckless evasion of police. 

The initial sentencing court described the plea bargain: defendant had said 

that he had turned a corner, gotten his life in order, would work on his 

problems and remain law-abiding. He was willing to have the maximum 

sentence of eight years eight months hanging over his head for three years 

for another chance at probation. Defendant knew the serious consequences of 

violating probation.

The probation officer had given defendant several chances. She did not 

seek revocation for his first violation of driving and possessing alcohol in 

February or for his intoxication in March. Instead, she directed defendant to 

sign up for SCRAM. Defendant did not make a sincere or substantial effort 

to comply with the condition. He was later found in possession of heroin. 

The court did not abuse its discretion in revoking and terminating 

defendant’s probation, denying reinstatement, and executing the agreed upon 

sentence. (Rodriguez, supra, 51 Cal.3d at p. 443.)
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DISPOSITION

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.