Commonwealth v. Gabriel Caban.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-743

COMMONWEALTH

vs.

GABRIEL CABAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The probationer, Gabriel Caban, appeals from an order

revoking his probation based on a finding that he committed

assault and battery on a family member, his mother. On appeal,

Caban first argues that he was given improper notice of the

alleged violation and that the clerk-magistrate at his initial

violation hearing abused her discretion by relying on multilevel

hearsay. He then argues that the Superior Court judge at the

final violation hearing abused her discretion by relying on

multilevel hearsay and that use of this hearsay violated his

confrontation rights. Seeing no prejudicial error or abuse of

discretion at either stage, we affirm.
Background. Caban began serving a three-year term of

probation in October 2021. In May 2023, Caban received a notice

of an alleged probation violation which stated the basis as "New

Arrest BMC Dorchester District Court -- A@B Family/Household

Member." A clerk-magistrate held an initial hearing at which a

probation officer testified that Caban's mother had told State

troopers that Caban had come home drunk, kicked in her door,

grabbed her by the arms, and shaken her violently. Caban argued

to the clerk-magistrate that he had not been arraigned (and,

implicitly, that he had not been arrested) on any charge of

assault and battery on a family or household member. But he

agreed that the probation department could seek to revoke his

probation based on criminal conduct even if he had not been

arraigned for that conduct. The clerk-magistrate found probable

cause of a violation and ordered Caban held without bail until a

final violation hearing.

In June 2023, that hearing was held, and State Trooper

Cynthia Pham testified. She stated that she had interviewed

Caban's mother with the assistance of the mother's social

worker, who spoke both Spanish and English and served as their

interpreter. Trooper Pham also observed the mother's home where

the alleged events occurred and assisted the mother in obtaining

a restraining order against Caban. Trooper Pham, who was

present at the mother’s restraining order hearing, recounted the

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mother's testimony under oath at the restraining order hearing,

as translated by a court-certified interpreter, that her son had

come home drunk and shaken her violently. Trooper Pham further

testified that a restraining order had issued. From the

trooper's testimony, the judge found the mother's hearsay

statements reliable and then found, by a preponderance of the

evidence, that Caban had violated his probation by assaulting

his mother. The judge revoked Caban's probation and imposed a

sentence of incarceration.

Discussion. 1. Notice and initial violation hearing.

Caban argues that his due process rights were violated at the

initial violation hearing because he was not given sufficient

notice of the alleged probation violation and because the clerk-

magistrate abused her discretion in finding probable cause based

on unreliable hearsay. We conclude that these arguments do not

entitle Caban to relief.

Caban does not dispute that he received a notice of an

alleged probation violation; rather, he argues that the stated

basis of the violation -- a new arrest for assault and battery

on a family member -- was inadequate where he had not, in fact,

been arrested or arraigned on such a charge. In determining the

adequacy of a violation notice, we inquire whether the defendant

was adequately informed of the alleged violation "so as to be

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able to prepare a meaningful defense." Commonwealth v.

Streeter, 50 Mass. App. Ct. 128, 131 (2000).

During the initial hearing, Caban acknowledged that his

mother had sought 1 a restraining order against him, alleging that

he "kicked in her door and violently shook her by the arms."

Caban further agreed "one hundred percent" that a probation

violation hearing could proceed based on alleged criminal

conduct regardless of whether he had been arraigned. See Rubera

v. Commonwealth, 371 Mass. 177, 180-181 (1976) ("Any conduct by

a person on probation which constitutes a violation of any of

the conditions of his probation may form the basis for the

revocation of that probation" [emphasis added]).

Caban also alerted the clerk-magistrate to multiple

defenses that he anticipated raising at a final hearing,

indicating that he was able to prepare meaningfully.

Furthermore, Caban did not (and does not now) claim that he was

prejudiced by the notice's erroneous reference to an arrest,

rather than an incident reported to police. Under these

circumstances, the error in the notice does not entitle Caban to

any relief.

1 At the final hearing, Caban appeared to agree that the
restraining order had issued. Whether an order issued is not
essential to our decision.

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We are similarly unpersuaded that Caban suffered any

prejudice from the reliance on hearsay to find probable cause.

Caban later received a final hearing at which the judge took

additional evidence, concluded by a preponderance of the

evidence that Caban violated the conditions of his probation,

and revoked his probation. He then received credit against his

sentence for the time he spent in custody following the initial

hearing. Because we conclude infra that the judge did not err

or abuse her discretion in finally revoking Caban's probation,

and because he received credit for the time served between the

two hearings, his claim that the initial probable cause

determination was based on unreliable hearsay is now moot. Even

if there was error, he would not be entitled to any additional

relief. See Lynn v. Murrell, 489 Mass. 579, 583 (2022) (case

moot where "a ruling from this court on the issues that [the

appellant] raises would offer no additional relief and would not

alter either party's legal position"). Cf. Commonwealth v.

Huggins, 84 Mass. App. Ct. 107, 109-110 (2013) ("Because the

defendant went to trial and was found guilty, there is no basis

for a claim of prejudice resulting from a pretrial determination

of probable cause").

2. Final violation hearing. Caban further argues that the

judge at the final violation hearing abused her discretion by

relying on uncorroborated multilevel hearsay. He argues that

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there was no good cause to dispense with the testimony of his

mother or her social worker and that to find a violation based

solely on Trooper Pham's testimony violated his confrontation

rights. We are not persuaded.

Evidence that is inadmissible under the rules of evidence

may be admitted at a probation hearing if reliable. See

Commonwealth v. Durling, 407 Mass. 108, 118 (1990). To evaluate

whether the hearsay relied upon here had substantial indicia of

reliability, so as to serve as the sole evidence of a violation,

we turn to the factors listed in Commonwealth v. Hartfield, 474

Mass. 474, 484 (2016). These include the following:

"(1) whether the evidence is based on personal knowledge or
direct observation; (2) whether the evidence, if based on
direct observation, was recorded close in time to the
events in question; (3) the level of factual detail;
(4) whether the statements are internally consistent;
(5) whether the evidence is corroborated by information
from other sources; (6) whether the declarant was
disinterested when the statements were made; and
(7) whether the statements were made under circumstances
that support their veracity."

Id. Not all of these criteria must be satisfied. See

Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010). A

finding of a probation violation must be supported by a

preponderance of the evidence, and we review a decision to

revoke probation for abuse of discretion. See Commonwealth v.

Jarrett, 491 Mass. 437, 440 (2023).

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For substantially the same reasons as the judge outlined in

her oral findings at the final hearing, we conclude that the

hearsay statements which the judge used in reaching her decision

had sufficient indicia of reliability:

"I find that the hearsay is substantially reliable upon
hearing the testimony that [Caban's mother] went to the
Dorchester District Court, participated in and signed an
affidavit under the pains and penalties of perjury. This
was reviewed with [Caban's mother] who assisted or drafted,
with the assistance of an interpreter, the affidavit which
was also reviewed by the trooper. The trooper was present
throughout these proceedings. Very significantly to this
Court's determination, among the other significant aspects
of the case, that the trooper was present when a Spanish
interpreter was brought in live to the Dorchester District
Court. That [Caban's mother] was placed under oath and
during a direct conversation and testimony with a District
Court Judge, while under oath with a Spanish interpreter
present, relayed the information that establishes the
violation of probation currently before the Court."

Caban's mother reported her son's assault both to Trooper

Pham and in her testimony in the District Court, and her

accounts were substantially internally consistent. Some of the

details Caban's mother reported were corroborated by the

trooper's personal observations. That Caban's mother reported

the assault under oath, and through a court-certified

interpreter, to the District Court judge, who then issued the

restraining order, are circumstances that support the mother's

veracity. The Superior Court judge did not abuse her discretion

in ruling that the hearsay was substantially reliable.

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Caban's arguments that his mother or the social worker

should have been called to testify are likewise unavailing. In

a violation hearing, the probationer has the right to confront

and cross-examine adverse witnesses unless good cause exists for

proceeding without a witness with personal knowledge of the

evidence. See Durling, 407 Mass. at 113. One way to satisfy

this good cause requirement is by presenting reliable hearsay.

See Commonwealth v. Negron, 441 Mass. 685, 691 (2004). Because

the judge permissibly determined that the hearsay was reliable,

the judge's finding of a probation violation based on the

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trooper's testimony was proper under Hartfield, 474 Mass. at

484, and did not violate Caban's confrontation rights. 2

Order dated July 24, 2023,
revoking probation and
imposing sentence affirmed.

By the Court (Massing,
Sacks & Allen, JJ. 3),

Clerk

Entered: December 24, 2025.

2 While the reliability of the hearsay alone is sufficient
to support this conclusion, see Negron, 441 Mass. at 691, the
judge also found additional reasons supporting good cause for
the mother not to testify: "[T]here are reasons why [Caban's
mother] would not be before this Court including her difficulty
with English, her demeanor which was testified to, as well as
the existence, although we don't know the details, of a
disability."

3 The panelists are listed in order of seniority.

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