P. v. Jones
Filed 2/28/08 P. v. Jones CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A116472
v. (MarinCounty
Super. Ct. No. SC140632A)
CAROL MARLENE JONES,
Defendant and Appellant.
______________________________________/
Carol Marlene Jones appeals from a judgment entered after the trial court revoked her probation. She contends (1) the court failed to provide her with adequate notice and an opportunity to be heard, and (2) the court abused its discretion when it revoked her probation. We conclude the court did not commit any prejudicial errors and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 2005, appellant pleaded guilty to two counts of selling methamphetamine (Health & Saf. Code, 11379, subd. (a)), and one count of possessing methamphetamine for purposes of sale. (Health & Saf. Code, 11378.) The trial court suspended the imposition of sentence and placed appellant on probation for five years. One of the conditions of appellants probation was that she was required to enter and successfully complete a residential drug treatment program.
Appellant failed to appear for drug testing on October 28, 2005. On November 1, 2005, the court reinstated probation.
Appellant entered the Center Point residential drug treatment program in January 2006. She was terminated from the program on July 11, 2006 for tampering with her urine samples and taking the medications of another patient. Appellant booked herself into custody the following day.
In July 2006, the probation department prepared a report for the court that recommended that appellant be reinstated on probation.
The court was unwilling to accept that recommendation. On October 27, 2006, the court on its own motion, moved to terminate appellants probation. The court asked the probation department to prepare a detailed report describing appellants many failings.
The probation department prepared the report requested and submitted it to the court. It stated that appellant was not amenable to treatment and recommended that she be sentenced to prison.
The court conducted a hearing on November 17, 2006. It denied appellants request that she be continued on probation and sentenced her to four years, eight months in prison on her original offenses.
II. DISCUSSION
A. Notice
Appellant contends the judgment must be reversed because she was not provided with written notice of her alleged probation violation and an opportunity to be heard.
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. Martin (1992) 3 Cal.App.4th 482, 486, quoting People v. Santellanes (1989) 216 Cal.App.3d 998, 1003.)
However, a defendant can waive a hearing and admit a probation violation through the conduct of his attorney and his own silence. (Ibid.) For example, in Martin, the defendant pleaded no contest to residential burglary, and the court placed him on probation on condition that he participate in a treatment program. The defendant violated probation by leaving the treatment program without permission. Subsequently, the defendant was charged in two separate complaints with felony counts that arose from incidents that occurred after he left the treatment program. The defendant pleaded no contest to the counts and the court sentenced him to prison. The court also imposed a prison term for the defendants prior residential burglary conviction, based on his violation of probation. (People v. Martin, supra, 3 Cal.App.4th at pp. 485-486.) On appeal, the defendant argued he was denied due process because the trial court imposed a prison sentence without notice and a hearing on whether his probation should be revoked. The Martin court rejected that argument. While the record failed to disclose either a formal probation revocation hearing or defendants express waiver of his right to such a hearing, the court concluded the entirety of the record reflected the defendant had waived his right to a hearing. (Id. at p. 486.) [I]t would appear [defendant] in fact waived his right to insist on a revocation hearing by filing a statement in mitigation which acknowledged that he would be sentenced on all three cases and failing to object at the sentencing hearing either to the sentencing procedure or to the grounds for revocation. Moreover, even if we were to conclude it was error to sentence [defendant] without a prior hearing, remand would be a meaningless gesture. [Defendant] admitted the fact of the probation violation in his statement to the probation officer. Since the offense in [the previous residential burglary case] presumptively precluded probation, probation was granted in the first place only upon the courts finding that unusual circumstances existed such that a grant of probation would serve the interests of justice. [Citation.] The trial courts statement at the time of [the subsequent] sentencing that no unusual circumstances existed to permit a grant of probation and decision to sentence [defendant] to the middle term on this count make clear that probation would have been revoked if a formal hearing had been held. (Id. at pp. 486-487.)
We reach a similar conclusion here. Defense counsel admitted at the November 17, 2006 hearing that appellant had violated her probation by failing to complete a residential drug treatment program. Appellant also admitted the violation to the court. Neither appellant nor her counsel objected when the court sentenced her without a formal revocation hearing. Based on the whole record, it appears appellant and her counsel waived the right to a formal revocation hearing. Moreover, given appellants and defense counsels admissions, any remand for a revocation hearing would be a meaningless gesture. (People v. Martin, supra, 3 Cal.App.4th at p. 486.) As in Martin, we conclude any possible error was harmless.
B. Whether the Court Abused Its Discretion
Appellant contends the trial court abused its discretion when it revoked her probation.
The trial court is granted broad discretion to determine whether a defendant has violated her probation. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) A courts ruling on that issue will be reversed on appeal only where the court has abused its discretion. (Ibid.)
We find no abuse here. The trial court explained its decision to revoke as follows:
[P]lacing her on probation in the circumstances of the offenses and her history was extraordinary in the first place. And it was done substantially because there were a lot of people from the community who came forward and told us what a wonderful person she was.
But shes done what she can to embarrass those people and prove that shes not a wonderful person while shes been on probation. She should have gone to state prison for sales. They had three or four sales on her. This is not a probation case.
But she was given special treatment because of the fact that she had kids, had been operating a business, and lots of people from the community came forward and spoke up for her.
But it was clearly a state prison case from the beginning. . . . And in one fashion or another, since the probation began, shes been trying to avoid the probation departments requirements, both through applying for modifications of probation to avoid doing a residential treatment program and through [binging] out of Center Point and so forth. We only have so much in the way of public resources that we can spend on anybody, and she apparently wasnt amenable to them in the first place.
The court then summed up its decision as follows:
So . . . based upon the whole picture here from the beginning and the fact that we took an extraordinary step to put a dealer on probation in the first place and the apparency of her unwillingness to work with the probation department in order to make the probation work and to deal with her own problems, the Court finds shes no longer a fit candidate for probation.
The courts analysis of the situation was reasonable. We conclude the court did not abuse its discretions when it revoked appellants probation.
Appellant contends the trial court erred because it ignored the efforts she had made to get into a new residential treatment program. She notes that she came within fifteen days of completing the Center Point program, and maintains that it was difficult for her to find a program that would accept her because she had medical problems. While the factors appellant cites would have supported the trial court if it had decided to reinstate her probation, that is not how the trial court ruled. The court decided to revoke appellants probation and that decision was well founded. The mere fact that evidence in the record might have supported a different finding does not convince us that the trial court abused its discretion.
III. DISPOSITION
The judgment is affirmed.
_________________________
Jones, P.J.
We concur:
________________________
Needham, J.
________________________
Stevens, J.*
Publication Courtesy of California lawyer directory.
Analysis and review provided by Escondido Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
*Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A116472
