P. v. Lee

Filed 12/30/08 P. v. Lee CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Bert L. Swift, Judge. Affirmed.

Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

In October 2002, defendant pled guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) (case No. FMB005549) and was ordered to participate in the Deferred Entry of Judgment (DEJ) program. Defendant subsequently violated her DEJ program and was eventually terminated from that program. She was then placed on Proposition 36 probation for a period of 36 months.

In May 2005, defendant pled guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) (case No. FMB007544) and was placed on Proposition 36 probation in that case as well.

Defendant continued to violate her Proposition 36 probation in both cases, and in January 2008, her probation in both cases was revoked. Defendant was thereafter sentenced to the upper term of three years in case No. FMB007544 and a consecutive one-third the midterm of eight months in case No. FMB005549.

On appeal, defendant contends (1) she was deprived of her due process right to a probation violation hearing; (2) imposition of the upper term sentence in case No. FMB007544 violated her constitutional rights to a jury trial and proof beyond a reasonable doubt; and (3) her counsel was ineffective for failing to raise the hearing issue and the sentencing issue. We reject these contentions and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

On October 24, 2002, defendant pled guilty to possession of methamphetamine in case No. FMB005549 and was ordered to participate in the DEJ program.

On March 26, 2003, defendants DEJ program was terminated and a bench warrant was issued. After being taken into custody, defendant was released and ordered to appear on April 14, 2003, for purposes of a DEJ hearing. Defendant failed to appear for that hearing, and another bench warrant was issued.

Defendant eventually appeared in custody on June 2, 2003. At that hearing, DEJ was terminated, and criminal proceedings were resumed. On June 16, 2003, the trial court placed defendant on probation pursuant to Proposition 36 for a period of 36 months on various terms and conditions.

Three months later, on September 8, 2003, after defendant failed to appear for a mandatory court hearing, a bench warrant was issued and her probation was revoked.

Defendant eventually appeared about nine months later on June 24, 2004. After defendant admitted that she was in violation of her probation, probation was reinstated.

On October 14, 2004, after defendant failed to appear for a mandatory court hearing, another bench warrant was issued, and her probation was again revoked. Defendant appeared in custody on February 3, 2005, and probation was reinstated.

On March 11, 2005, after defendant again failed to appear for a mandatory court hearing, another bench warrant was issued, and her probation was revoked.

On May 11, 2005, a felony complaint (case No. FMB007544) was filed alleging defendant had unlawfully possessed methamphetamine and had given false information to a police officer (Pen. Code, 148.9, subd. (a)).

In case No. FMB005549, defendant admitted, on May 20, 2005, that she was in violation of the terms and conditions of her probation, and her probation was reinstated. On that same day, defendant pled guilty to possession of methamphetamine as alleged in case No. FMB007544 and was placed on Proposition 36 probation.

On July 22, 2005, in case No. FMB005549, a petition to revoke defendants probation was filed alleging that defendant had violated certain terms of her probation. On November 17, 2005, in case No. FMB005549, defendant admitted the allegations in the petition for revocation, declined her Proposition 36 treatment, and was accepted into drug court. As to case No. FMB007544, defendant was also accepted into drug court.

On December 1, 2005, defendant was ordered to follow numerous conditions of probation, which included that she refrain from using narcotics and that she attend court hearings as ordered. Two weeks later, on December 22, 2005, defendant tested positive for drugs and was remanded into custody.

On October 16, 2006, in both cases, defendant was given 180 days in county jail and ordered to complete the Inroads program while in custody. Defendant completed the program as ordered on February 5, 2007.

A bench warrant was issued on both cases on September 10, 2007, for defendants failure to appear for a drug court review hearing.

By January 3, 2008, defendant was back in custody.

On January 7, 2008, defendant, with counsel, appeared on both matters. The court stated, We are going to continue your matter now to the 28th. It looks like weve done â€‘‑ weve exhausted about all of our efforts to get you through what you needed to get through. So in all likelihood, youll probably be going to state prison. Defendant responded, Okay. Both of the cases were continued to January 28, 2008, for sentencing, and the probation officer was ordered to prepare a supplemental probation report.

On January 28, 2008, as to both matters, the court determined that probation was to remain revoked and terminated probation. As to case No. FMB007544, defendant was sentenced to the upper term of three years in state prison; as to case No. FMB005549, defendant was sentenced to a consecutive term of eight months in state prison.

II

DISCUSSION

A. Notice and Opportunity to be Heard

Defendant contends her right to due process was violated because the trial court revoked her probation without proper notice and an opportunity to be heard. The People argue defendant waived any due process issues relating to notice and an opportunity to be heard because she made no objection on these grounds in the trial court.

Trial courts are afforded broad discretion in deciding whether to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) An appellate court will not disturb the trial courts decision absent an abuse of discretion. (People v. Self (1991) 233 Cal.App.3d 414, 417.) As defendant contends, probationers are entitled to due process protections prior to revocation and termination of probation, including notice and an opportunity to be heard. (People v. Vickers (1972) 8 Cal.3d 451, 458-46.)

A probation revocation proceeding violates due process if it is fundamentally unfair. (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080.) [S]ome flexibility in the manner in which due process guarantees are met is acceptable. (People v. Felix (1986) 178 Cal.App.3d 1168, 1171.) In the context of a revocation of probation, due process does not require a complete recitation of procedural rights and a personal waiver of those rights. (People v. Dale (1973) 36 Cal.App.3d 191, 194-195.) Rather, a defendant can waive the formal requirements of notice and a hearing and admit a probation violation through the conduct of his or her attorney and his or her own silence. (Ibid.) The defendant in Dale complained of due process violations when the trial court revoked probation without a hearing and without obtaining a personal waiver of his right to present evidence and confront witnesses. (Id. at p. 194.) The appellate court concluded there was an effective waiver of those rights based on conduct of counsel in submitting an alleged violation of probation upon the probation report and defendants acquiescence by his silence. (Id. at p. 195.)

Similarly, in People v. Baker (1974) 38 Cal.App.3d 625 (Baker), the defendant argued his right to due process was violated because he was not given prior written notice of the probation violations charged against him. (Id. at p. 629.) However, during the sentencing hearing, defense counsel requested and was given a brief recess to read the contents of a supplemental probation report to the defendant to be certain he understood the purpose of the hearing. (Id. at p. 628.) The supplemental probation report charged the defendant with violating his probation by escaping probationary custody. (Ibid.) The hearing resumed immediately following the brief recess, and the defendant was sent to prison despite his counsels request for reinstatement of probation and a presentation of mitigating circumstances related to the probation violation. (Id. at pp. 628-629.) The appellate court rejected the defendants due process argument because prior notice could be implied from the record and because the defendants attorney did not object to inadequate notice of the charges during the sentencing hearing. (Id. at p. 629.) In this regard, the appellate court stated, Absent objection, we will not imply inadequate notice from a record which is silent as to exactly how [the appellant] was given notice of the charges. (Ibid.) Likewise, in People v. Martin (1992) 3 Cal.App.4th 482, 486, the appellate court concluded the defendant waived his right to a formal probation revocation hearing by filing a statement in mitigation which acknowledged that he would be sentenced . . . and by failing to object at the sentencing hearing either to the sentencing procedure or to the grounds for revocation.

Here, notice and an opportunity to be heard can be inferred from the record as to both cases. A supplemental probation report filed January 28, 2008, but stamped received January 22, 2008, states, as to both cases, that on August 6, 2007, defendant failed to provide a urine sample as directed, to cooperate in a plan of rehabilitation, to report to the probation office, and on September 10, 2007, failed to appear in court, thereby violating probation term Nos. 2, 3, 10, and 22.^[1] The probation report further stated that defendant had not attended any meeting or group meetings since August 6, 2007. The supplemental probation report further noted that defendant admitted to having used methamphetamine the weekend prior to her court appearance on August 6, 2007. She further admitted to failing to show up for testing, attend group meetings, and report to probation because she was scared. Defendant indicated that she wanted one more chance at the program and took responsibility for her actions. Due to the fact that defendant had repeatedly violated probation while on Proposition 36 probation, numerous sanctions, Inroads, residential treatment, the probation officer concluded defendant was no longer amenable to treatment in drug court. The officer stated defendant had exhausted all available resources and essentially recommended revocation and a prison sentence. The recommended sentence included an upper term of three years for the possession of methamphetamine charge in case No. FMB007544 and a consecutive eight-month sentence for the possession of methamphetamine charge in case No. FMB005549. Although the record does not include a proof of service for this document, probation reports are usually served on defense counsel and the court. (See Pen. Code,  1203, subd. (b)(2)(E).)

At the January 7, 2008, hearing, after defendant was back in custody, the court stated that it was continuing the matter for three weeks, ordered the supplemental probation report, and advised defendant, It looks like weve done â€‘‑ weve exhausted about all of our efforts to get you through what you needed to get through. So, in all likelihood, youll probably be going to state prison.

On January 28, 2008, the court stated that it had reviewed the supplemental probation report and invited comment from defense counsel before pronouncement of judgment. Defendants trial counsel argued that defendants two cases represented a continuous course of conduct, and therefore concurrent sentences should be imposed. Counsel expressly disagreed with the aggravated sentence recommended by the probation department in its report; however, neither counsel nor defendant objected to or otherwise challenged the probation violation allegations made in the report. In addition, counsel made no objection based on inadequate notice. Counsel did not object to revocation without a formal hearing, challenge the factual basis for the alleged violations, state any disagreement with the information contained in the probation report, or challenge the grounds for revocation and termination of probation. Defendant also made no statement or objection at the hearing. At the conclusion of the hearing, the court, after citing defendants history of positive drug tests, failures to appear, and failures to succeed on other prior grants of probation, implicitly terminated probation and pronounced sentence in accordance with the recommendation in the supplemental probation report.

Based on the record, we can infer counsel had actual notice of the alleged probation violations at or before the hearing on January 28, 2008. We can also infer counsel elected not to object or to otherwise challenge the factual basis for the alleged violations of defendants probation but instead to submit to the violations as alleged in the probation officers supplemental report without the need for a formal revocation hearing, especially in light of defendants admissions. We therefore agree with the People that defendant waived any due process challenge to the revocation and termination of her probation, because she made no objection on these grounds in the trial court despite ample opportunity to do so.^[2]

In the alternative, the People argue that assuming the court erred in failing to provide her with proper notice and an opportunity to be heard at a formal revocation of probation hearing, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].) Under the circumstances of this case, we are inclined to agree with the People. The evidence was essentially undisputed that defendant had violated the terms of her drug court probation as to both cases by her own admissions. On January 18, 2008, 10 days prior to sentencing, defendant admitted that she had used methamphetamine because she was having problems with her husband. She also admitted to failing to drug test, report to probation, attend court, or show up to her substance abuse treatment meetings because she was scared. There essentially was no evidence in dispute that defendant again had relapsed and failed to adhere to the terms and conditions of her probation. Hence, even if the court had provided defendant with proper notice and conducted a formal probation revocation hearing, we cannot find beyond a reasonable doubt the outcome of the case would have been different.

B. Ineffective Assistance of Counsel

Defendant contends her trial counsel rendered ineffective assistance of counsel by failing to assure her constitutional rights were honored. Specifically, she argues she was denied effective assistance of counsel under the Sixth Amendment when her counsel failed to object to the courts failure to hold a formal probation revocation hearing. In support of her ineffective assistance of counsel claim, defendant cites the Supreme Courts decision in Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (Strickland).

A cognizable claim of ineffective assistance of counsel requires a showing counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. (Strickland, supra, 466 U.S. at p. 687.) [T]he performance inquiry must be whether counsels assistance was reasonable considering all the circumstances. (Id. at p. 688.) To prevail on an ineffective assistance of counsel claim, a defendant must also establish counsels performance prejudiced his or her defense. (Id. at p. 687.) To establish prejudice, a defendant must demonstrate that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is probability sufficient to undermine confidence in the outcome. (Id. at p. 694.) Because a defendant must prove both elements of the Strickland test in order to prevail, courts may reject an ineffective assistance of counsel claim if it finds counsels performance was reasonable or the claimed error was not prejudicial. (Id. at p. 687.)

Here, assuming counsel was deficient in failing to object to the improper notice and the courts failure to hold a formal probation revocation hearing, or request a formal hearing and adequate notice, defendant cannot show she was prejudiced by counsels actions. As stated above, there was undisputed evidence that defendant had violated the terms of her probation by relapsing and using methamphetamine, and then by failing to drug test, report to probation, show up at her court hearing, and attend her drug treatment meetings.

Based on our review of the record, we discern no basis for concluding the trial court would have reinstated probation or imposed a more lenient sentence if defense counsel had been more vigorous in making objections or in presenting mitigating circumstances to the court. At the time her probation was terminated on January 28, 2008, reinstatement was unlikely because defendant had already taken advantage of her numerous opportunities to complete probation and drug rehabilitation beginning in October 2002.

Defendant has not presented anything indicating she had a viable basis for challenging her prior record or her long history of other probation violations and unsatisfactory performance on probation. She has not presented anything to even suggest she had a viable basis to contest allegations in the supplemental probation report of January 28, 2008, that she repeatedly violated several probation conditions throughout the course of her participation in the drug court rehabilitation program and was no longer amenable to treatment.

C. Aggravated Prison Term

Defendant also argues the trial court violated her constitutional right to a jury trial by imposing an aggravated, upper-term sentence of three years in case No. FMB007544. We disagree.

In Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), the Supreme Court concluded Californias determinate sentencing law violates a criminal defendants right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper term based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, at p. 860.)

Defendants argument is unavailing. In imposing the aggravated term, the trial court indicated it relied on the probation report. According to the probation report, defendant, who was on probation, had admitted to using drugs, had also admitted to be in possession of drugs in her two prior cases, and had performed unsatisfactorily on probation. Therefore, the facts the trial court relied on in imposing an aggravated term fall within the prior conviction exception to the constitutional rule set forth by the Supreme Court in Cunningham. Under these circumstances, a defendant is not legally entitled to the middle term sentence, and the upper term is therefore the statutory maximum that a trial court may impose without violating constitutional requirements. (People v. Black (2007) 41 Cal.4th 799, 811-820.) In short, the trial court in this case did not violate defendants constitutional right to a jury trial by imposing the upper term. Accordingly, defendant suffered no prejudice to the extent her counsel failed to make an objection on these grounds.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

KING

J.

MILLER

J.

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^[1] In pertinent part, the referenced probation conditions state defendant shall Report to the probation officer in person immediately upon release from custody and thereafter once every fourteen (14) days or as directed; [c]ooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer; [s]ubmit to a controlled Substance test at direction of probation officer; and [p]articipate in the Drug Court Rehabilitation program . . . .

^[2] Although we can infer a waiver in this case based on the record, the comments made by the appellate court in Baker under similar circumstances are appropriate here: While we hold the record before us adequately demonstrates [the defendant] was accorded due process of law under . . . Vickers, we do not imply the record is a paradigm to be emulated. It should not be necessary for this court to glean compliance with due process requirements by implication and waiver. The court and counsel should assure the record demonstrates when, how and in what form the probationer was given notice of the charges against him and that the hearing was to determine whether probation should be, or stand, revoked. The court should, of course, make a clear statement . . . or a written record of the evidence relied upon and the reasons for revoking probation. (Baker, supra, 38 Cal.App.3d at p. 630.)