P. v. Kellerhall
P. v. Kellerhall
Filed 8/12/08 P. v. Kellerhall CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW B. KELLERHALL,
Defendant and Appellant. |
F054270
(Super. Ct. No. F05909039-0)
O P I N I O N | |
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THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge.
Joseph C. Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant, Matthew B. Kellerhall, pled no contest to committing a lewd act on a child 14 or 15 years old (Pen. Code, 288, subd. (c)(1)).[1] On December 8, 2006, the court placed Kellerhall on probation for three years. On October 4, 2007, Kellerhall admitted violating his probation and was sentenced to a one-year prison term. On appeal, Kellerhall contends: 1) the judgment must be reversed because the record does not reflect minimum compliance with notice and findings requirements or an intelligent waiver of hearing rights, and 2) his abstract of judgment contains certain errors. We will find merit to Kellerhalls last contention. In all other respects we will affirm.
FACTS
On Sunday November 13, 2005, Kellerhalls 13-year-old daughter had a sleep-over with two friends, 14-year-old Whitney and her younger sister Lacey. In the morning, Kellerhalls daughter awoke to find Kellerhalls penis in her hand and Kellerhall touching her breast and licking her toes. During a police interview, she stated that this happened on three or four occasions between August 23, 2005, and November 14, 2005.
During a police interview, the daughters friend Whitney reported that on November 14, 2005, at 4:30 a.m. she awoke to find Kellerhall had placed his penis in her hand. Whitney also reported that Kellerhall would sometimes grab her buttocks and her upper thigh near her genital area. On another occasion when Whitney stayed overnight at Kellerhalls house, she awoke to find to find Kellerhall laying next to her with his hand on her buttocks towards the inside of her leg.
Lacey was also interviewed by police and reported that on the morning of November 14, 2005, she awoke to find Kellerhall with his hand under the sheet over her vaginal area shaking her.
In January 2006, the district attorney filed an information charging Kellerhall with five counts of lewd and lascivious conduct with a child under the age of 14 (counts 1-4 & 6/ 288, subd. (a)) and one count of lewd and lascivious conduct with a child 14 or 15 years of age while being 10 years older than the victim (count 5/ 288, subd. (c)(1)).
On November 8, 2006, Kellerhall pled no contest to count 5 in exchange for the dismissal of the remaining counts, no initial state prison time, and the opportunity to request that the charge be reduced to a misdemeanor if he successfully completed probation.
On December 8, 2006, the court suspended imposition of sentence and placed Kellerhall on three years probation on certain terms and conditions, including that he not reside within a mile radius of any school attended by minors.
On October 2, 2007, the probation department prepared a Probation Hearing Report alleging that Kellerhall violated his probation by living within a one-mile radius of a school attended by minors. The report alleged, in pertinent part, that during his probation appointments Kellerhall reported he was living out of his car, parking it in Fresno State parking lots, and that he was not able to find a place that was located outside of a mile radius of a school attended by minors.
On September 27, 2007, the probation officer contacted Fresno State Police Detective R. Madrigal who informed him that Kellerhall told Madrigal he was parking his car in Fresno State parking lots. Madrigal told Kellerhall he would have to find another place to park his car. Madrigal told the probation officer that University High School, a school attended by scholastically gifted minors, was located on campus.
The next time Kellerhall reported to probation he was arrested. Kellerhall admitted knowing there was a high school on the Fresno State campus that was attended by minors. He also reported that he was still living on campus.
The report recommended that probation be revoked and Kellerhall be sentenced to a two-year term.
At a hearing on October 4, 2007, defense counsel argued that the alleged violation was a technical violation and urged the court to reinstate probation or, alternatively, sentence Kellerhall to prison for the mitigated prison term of one year, which would allow him to go free that day because Kellerhall had already served more than a year in custody.
The court noted that on September 25, 2007, Kellerhall had submitted a letter to the court requesting the elimination of the condition prohibiting him from living within a one-mile radius of a school. The court had denied the request without prejudice to Kellerhall filing a noticed motion. The court stated that it would give Kellerhall the credit that is due for trying to get the court to modify this probation condition and indicated that it would impose a one-year term for the probation violation.
After taking Kellerhalls waiver of his right to a hearing, the court took his admission that he violated his probation by living within a one-mile radius of a school attended by minors. The court then sentenced him to a one-year term and released him from custody because he had already served more than one year in custody.
DISCUSSION
Compliance with Due Process Notice and Findings Requirements
Kellerhall contends the court did not comply with minimum due process notice and findings requirements prior to revoking his probation because: 1) he did not receive a pre-revocation hearing; 2) he probably did not see the probation officers report prior to his last appearance in court; 3) he did not receive notice that his last appearance would be a revocation hearing; 4) the court did not provide a reasoned statement of the grounds for terminating his probation or any reasons why termination of probation rather than reinstatement for an equivocal and unfair first violation was in the interests of justice; 5) the court did not issue written findings; and 6) he was not given a chance to consult with his counsel prior to entering an admission. This, according to Kellerhall, requires reversal of the courts finding that he violated his probation. We disagree.
The due process requirements pertaining to probation revocation proceedings were established generally in Morrissey v. Brewer (1972) 408 U.S. 471 and restated for California purposes in People v. Vickers (1972) 8 Cal.3d 451 .... Before probation can be finally and formally revoked written notice of the claimed violation must be given to the probationer, the evidence against him must be disclosed, he must be given an opportunity to be heard in person and to present witnesses and documentary evidence, he must be able to confront and cross-examine adverse witnesses, a neutral and detached hearing body must consider the matter, and a written statement of the fact finder must be prepared as to the evidence relied upon and the reasons for revocation. [Citation.] (People v. Santellanes (1989) 216 Cal.App.3d 998, 1003.)
Here, the probation officer issued a written notice stating the basis for the alleged violation of probation and setting forth the factual basis for the violation, including Kellerhalls admission that he was aware that there was a school attended by minors located on the Fresno State campus. At the hearing on October 4, 2007, defense counsel, with Kellerhall present, engaged in a lengthy discussion with the court regarding two alternative dispositions. Kellerhall did not say or do anything indicating any disagreement with counsels statements to the court or that he had not had sufficient time to discuss the matter with counsel. We glean from these circumstances that Kellerhall and his counsel received a copy of the probation departments report prior to the hearing and they had sufficient time to discuss how to proceed. Further, Kellerhall did not have a formal revocation hearing because his decision to admit the alleged probation violation made it unnecessary and, in any event, he waived his right to a hearing. Kellerhalls admission also made it unnecessary for the court to prepare a written statement indicating what evidence it relied on to find the alleged probation violation true. Moreover, Kellerhall waived any error in the trial courts failure to state reasons for choosing a prison term over reinstating probation by his failure to object. (People v. Scott (1994) 9 Cal.4th 331, 353.) Accordingly we reject Kellerhalls contention that the procedure employed by the court here failed to comply with minimum due process notice and hearing requirements.
Kellerhalls Admission that he Violated his Probation
Kellerhall contends that his admission was not knowingly, intelligently or voluntarily entered into because it was rushed, coerced, and not preceded by minimally adequate Boykin/Tahl[2]admonitions regarding the rights he was giving up and the consequences of his plea. We will reject this contention.
Case law is clear that Boykin/Tahl admonitions and waivers of rights need not be given to a defendant prior to the defendant admitting a probation violation. As stated in People v. Garcia (1977) 67 Cal.App.3d 134,
Boykin and Tahl established a prophylactic rule of procedure, requiring certain waivers to be recited in open court, and memorialized in the court record, to establish the voluntariness of a plea of guilty. That rule was created to reduce the likelihood of a guilty plea by a defendant who lacked adequate understanding of the safeguards which the Constitution afforded a person accused of crime.
In re Yurko (1974) 10 Cal.3d 857 applied the Boykin-Tahl principle to a defendant who is asked to admit or deny allegations that he has suffered prior convictions which, if admitted or proved, will operate to increase his punishment. Yurko held that before the court accepts an admission of such a charge, express and specific admonitions and advice are required.
The effect of these cases is that the prosecution may not be relieved of its burden of proving either the offense charged or the allegation of prior conviction until the court has ascertained on the record that the accused has intelligently waived his right to a trial.
At a probation revocation hearing the issue is different from that presented on the original charge, the procedure is different, and the method of proof is different, to such an extent that the forms of procedure prescribed in Boykin and Tahl have little relevance. (Id. at p. 137.)
Here, prior to entering his admission Kellerhall had adequate notice of the basis for the probation violation proceeding against him, the opportunity to be heard, and the assistance of counsel. Further, the court advised him of his right to a hearing and obtained from him a waiver of that right. Accordingly, we reject Kellerhalls contention that he did not enter his admission knowingly, intelligently and voluntarily.
Kellerhalls Abstract of Judgment
Kellerhall contends his abstract of judgment erroneously indicates that he was convicted of a violation of section 288, subdivision (a) in count 1 of the information rather than a violation of section 288, subdivision (c)(1) in count 5. We agree and will direct the court to file a corrected abstract of judgment.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment that indicates Kellerhall was convicted of a violation of section 288, subdivision (c)(1) in count 5. In all other respects, the judgment is affirmed.
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*Before Gomes, Acting P.J., Dawson, J., and Kane, J.
[1] All further statutory references are to the Penal Code.
[2]Boykin v. Alabama (1969) 395 U.S. 238, In re Tahl (1969) 1 Cal.3d 122.
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