P. v.
Morgan

 

 

 

 

 

 

 

 

Filed 9/5/13 
P. v. Morgan CA3

 

 

 

 

 

NOT TO
BE PUBLISHED

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE DISTRICT

(Sacramento)

----

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   AMBER ADALE MORGAN,                           Defendant and Appellant.

C068845   (Super. Ct. No. 10F00025)

 

 

 

            About 6:00
p.m.
on December 31, 2009, a search of defendant
Amber Adale Morgan during a traffic stop and pursuant to an href="http://www.mcmillanlaw.com/">arrest warrant revealed 19.1 grams of
methamphetamine and $1,251 in cash.  In
2008, defendant had been convicted of and sentenced to state prison for href="http://www.fearnotlaw.com/">possession of methamphetamine for sale.  (He   alth
& Saf. Code, § 11378; unless otherwise stated, all further statutory
references are to the Health and Safety Code.) 


            After the December
31, 2009
arrest, defendant entered a plea of no contest to transportation of
methamphetamine (§ 11379, subd. (a)) and admitted a prior drug conviction
(§ 11370.2, subd. (c)) in exchange for a sentencing lid of five years in href="http://www.mcmillanlaw.com/">state prison, that is, the low term of
two years for the offense plus three years for the prior conviction.  Defendant also admitted misdemeanor offenses
in two other cases with the agreement that punishment for those offenses would
be served concurrently with the felony conviction. 

            The trial court imposed the
five-year prison sentence, suspended execution of that sentence and placed
defendant on probation for a term of five years subject to certain terms and
conditions including 180 days incarceration in the county jail.  The minute order relating to the sentencing
reflects that the court imposed the “upper term” of five years but also refers
to count two and the prior conviction. 
In imposing sentence, the court stated it imposed five years “which is
the upper term on Count 2” although it recognized that defendant pleaded to
count two and admitted the prior conviction. 


            Within a month, defendant admitted
violating probation.  She was found in
possession of a controlled substance and paraphernalia, gave a false name to an
officer, and drove on a suspended license. 
The court revoked and reinstated probation subject to an additional 180
days in county jail and modified conditions to include the prohibition of
associating with known or reputed drug users. 


            Four months later, defendant
admitted a second violation of probation. 
She possessed a controlled substance and gave a false name to an
officer.  The court again revoked and
reinstated probation subject to an additional 240 days in county jail.  In order to serve her time in county jail,
defendant entered a waiver pursuant to People
v. Johnson (1978) 82 Cal.App.3d 183 (Johnson). 

            Eight months later, a third petition
for violation of probation alleged that defendant possessed methamphetamine
(§ 11377, subd. (a)).  Defendant
contested the allegation. 

            After a href="http://www.fearnotlaw.com/">contested hearing, the court sustained
the allegation that defendant possessed methamphetamine.  Over defense counsel’s due process objection,
the court also found that defendant violated probation by associating with
known drug users.  The court denied the
request for continued probation, and ordered execution of the five-year prison
sentence. 

            Defendant appeals. 

            We appointed href="http://www.mcmillanlaw.com/">counsel to represent defendant on
appeal.  Counsel filed an opening brief
that sets forth the facts of the case and requests this court to review the
record and determine whether there are any arguable issues on appeal.  (People
v. Wende (1979) 25 Cal.3d
436.)  Defendant was advised by counsel
of the right to file a supplemental brief within 30 days of the date of filing
of the opening brief.  More than 30 days
elapsed, and we received no communication from defendant.

            After reviewing the record this
court requested supplemental briefing on three issues:  (1) whether defendant was denied due process
of law when the trial court found a violation of probation based on grounds not
alleged in the petition, (2) whether modification of the judgment is required
because the trial court imposed an “upper term” of five years for transportation
of a controlled substance and did not sentence defendant for a prior drug
conviction, and (3) whether the trial court erred in calculating presentence
custody credits.  We conclude the
defendant was denied due process of law when the trial court considered and
relied upon a nonalleged violation of probation as a basis for its decision to
revoke defendant’s probation.  Even so,
we also conclude that the court’s error was harmless beyond a reasonable doubt.  We conclude the abstract of judgment is in
error where it reflects that defendant was sentenced to the five-year “upper
term” for a violation of section 11379, subdivision (a), a matter that we can
correct in this court on appeal.  Finally
we conclude that we must return the matter to the trial court for its further
consideration of the proper presentence custody credits. 

Discussion

I

>Due Process of Law

            Citing People v. Mosley (1988) 198 Cal.App.3d 1167 (>Mosley), defendant contends that the
trial court erred and violated her right to written notice of one of the
grounds that resulted in a finding that she violated her probation.  The People argue the issue is moot because
the trial court revoked probation on a properly alleged violation as well.  We conclude that the violation of probation
proceeding denied defendant due process of law, but that the denial was
harmless beyond a reasonable doubt.

            In his petition for an order
revoking defendant’s probation, the prosecutor alleged that:  “On or about April 27, 2011, said defendant
committed a violation of Section 11377(a) of the Health and Safety Code.” 

            At the contested hearing, the
following evidence was adduced.  About
2:00 a.m. on April 27, 2011, Officers Jacob Guillon and Marcus Masingale
stopped a car traveling with its trunk partially open.  The driver, Floyd Allen, said the car
belonged to defendant.  His passenger was
Charles Blackman. 

            A records check showed that the car
was registered to Sarah Meyer and that the registration had expired in December
2010.  A search of the car turned up 200
small plastic baggies, a glass smoking device for methamphetamine, and a pile
of a light crystal substance (rock salt). 
The ignition and steering column were stripped.  Allen was taken to an apartment complex so
that law enforcement officers could talk to defendant about the ownership of
the car. 

            At 3:00 a.m. the same day, the
officers found defendant standing outside an apartment complex.  She explained that she bought the car and
still owed $200 before the car could be registered in her name.  She admitted she was on probation.  A search of the residence where defendant was
staying revealed defendant’s purse on top of a bed which did not appear to have
been slept in recently.  The purse
contained a baggie with a white crystal substance in one lump which tested
positive for amphetamines and a letter addressed to defendant’s sister.  Next to the purse, officers found a makeup
bag and a green pouch which contained a digital scale used for weighing
narcotics.  Defendant stated that she was
staying in the apartment along with Allen and Blackman.  The bedroom belonged to Blackman. 

            A lab report which confirmed the
officer’s preliminary test for controlled substances was admitted into
evidence.  The net weight of the
substance found was 2.71 grams, a usable amount. 

            Allen testified for the defense and
claimed that he placed the bag with at least two grams of his methamphetamine
in defendant’s purse because he did not want to drive with it in the car.  He believed he would return and retrieve his
drugs before defendant woke up.  The pipe
in the car also belonged to him.  He
denied ownership of the digital scale. 
Allen admitted he used methamphetamine in the bathroom of the home he
shared with defendant. 

            Defendant testified.  She claimed that she did not know that Allen
had placed methamphetamine in her purse. 
During her testimony, she admitted that she knew Allen and Blackman had
smoked methamphetamine earlier in the day. 
She also admitted knowing that Allen was a methamphetamine user and that
she had been dating him for a month.  She
claimed he had never used methamphetamine in front of her but she had seen him
under its influence. 

            At the conclusion of the evidentiary
portion of the hearing, the trial judge asked the parties when they wanted to
return and argue the matter and then stated that defendant had “confessed to a
violation of probation while she was testifying . . . a different one
than that’s alleged,” that is, she was “associat[ing] with known users of
narcotics,” but that the court would “take the time to review and still
consider what it is that the People are offering.”  The court queried whether the parties had any
thoughts “about how I’m not allowed to consider that” and said it “want[ed] to
give [counsel] a heads-up so you can research it or do whatever you need to do,
but it seems to me that is [defendant’s] main problem.”  Defense counsel argued that the petition did
not allege what the court wanted to consider. 
The court responded, “It seems to me that anything that comes out during
the testimony of a probation violation, if it violates a court order, the
Court’s entitled to consider that and evaluate that in terms of whether it is a
violation of the Court’s order.”  Defense
counsel noted that defendant’s probation had previously been reinstated and
that defense counsel did not have modified terms and conditions which added the
nonassociation condition. 

            Prior to the hearing at which the
court planned to entertain argument, defense counsel filed a written objection
to the court’s finding defendant in violation of probation based on association
with a known drug user which counsel did not believe was a current condition of
defendant’s probation.  But in fact, the
nonassociation condition was added after defendant’s first violation of
probation.  After defendant admitted her
second violation of probation, the court restored probation on the “original”
terms and conditions.  Defense counsel
argued that this meant that only the terms and conditions imposed when she was
first admitted to probation, which terms did not include the nonassociation
condition, were again operative and not the modified terms and conditions after
the second violation of probation hearing which included the nonassociation
condition. 

            Defense counsel objected to the
court considering the nonalleged violation based on defendant’s constitutional
due process rights, specifically, defendant’s right to proper notice, citing >Mosley as directly on point.  Defense counsel argued that had proper notice
been provided, she “would have questioned the witnesses differently [and] may
have elected not to have [defendant] testify.” 


            At the hearing at which the court
heard argument, the prosecutor, having just received defense counsel’s written
objection, noted that he “had not intended to argue that [defendant’s]
probation be violated on [the nonassociation] condition anyway.”  The court proceeded to address the point
nonetheless, distinguishing Mosley
and stating, “The difficulty or the difference in this case is there’s no way
in the world for the People to have provided notice to the defense of this
particular violation.  The violation
surfaced when the defendant testified. 
And it is a term and condition of probation.  [¶] 
And while I believe--it would be perfectly appropriate for me to do one
of two things.  Either to violate her on
that term because she admitted to it on the stand--and there is no due process issue. 
[¶]  I mean, to me, it’s
this.  If the defendant got up on the
stand and admitted she had committed a robbery, the defense’s position would
have to be that I couldn’t violate her for that violation of probation because
you didn’t give her notice of the fact that she was going to make that
admission.  That’s an impossible
scenario.  You can only give notice or
due process to those things you’re aware of. 
Or I could delay the proceedings if I was going to use that as the >sole means of violating her probation,
give the defense time to prepare a defense to that particular aspect of it and
conclude the hearing at a later time.  I
think those would be appropriate procedures. 
[¶]  My thought is it is somewhat
moot.  I will hear your arguments.  I will give you focus in terms of my problem
from the defense’s perspective on the issue of the possession which is [Allen]
has no credibility whatsoever, the boyfriend.” 
(Italics added.)  The court also
determined that defendant had “some serious credibility issues” and the court
did not “have any doubts at all that she was aware of those drugs.”  Noting that it “would be certainly a much
more difficult case if it were a court trial,” the court found defendant in
violation of probation “on both grounds.” 


            We begin with basic principles.  “At any time during the probationary period
of a person released on probation . . . the court may revoke and
terminate such probation if the interests of justice so require and the court,
in its judgment, has reason to believe . . . that the person has
violated any of the conditions of his or her
probation . . . .” 
(Former Pen. Code, § 1203.2, subd. (a).)  A trial court has “very broad discretion in
determining whether a probationer has violated probation.”  (People
v. Rodriguez (1990) 51 Cal.3d 437, 443 (Rodriguez); see also People
v. Covington (2000) 82 Cal.App.4th 1263, 1267; People v. Self (1991) 233 Cal.App.3d 414, 417 (>Self).) 
“Absent abuse of that discretion, an appellate court will not disturb
the trial court’s findings.”  (>Self,
at p. 417; see also Rodriguez,> at p. 443.)

            “Morrissey
v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484] . . . established
the minimal due process requirements in parole revocation proceedings.  [Citation.] 
. . . Gagnon v.
Scarpelli [(1973)] 411 U.S. 778 [36 L.Ed.2d 656] . . . extended
the Morrissey due process guarantees
to probationers.  [Citation.]  . . . [People v.] Vickers
[(1972)] 8 Cal.3d [451,] 458 . . . held that the federal >Morrissey due process guarantees apply
to formal state probation revocation proceedings.  Thus, as a matter of due process, a
probationer facing a formal probation revocation hearing is entitled to (1)
written notice of the claimed violations of probation; (2) disclosure to the
probationer of the evidence against him or her; (3) the opportunity to be heard
in person and to present witnesses and documentary evidence; (4) the right to
confront and cross-examine adverse witnesses, unless the hearing officer
specifically finds good cause for not allowing confrontation; (5) a neutral and
detached hearing body; (6) a written statement of the evidence relied on and
the reasons for revoking probation.  [Citations.]”  (Jones
v. Superior Court (2004) 115 Cal.App.4th 48, 61-62, fn. omitted (>Jones); see also Rodriguez, supra,> 51 Cal.3d at p. 441; >Black v. Romano (1985) 471 U.S. 606,
611-612 [85 L.Ed.2d 636, 642-643].)

            Thus, the trial court may not revoke
probation if the defendant was not informed prior to the hearing of the alleged
violations and given an opportunity to prepare for and defend against the
allegations.  In Self, this court found that the defendant’s due process rights were
violated when, based on facts arising only during the revocation hearing on the
allegations that the defendant had failed to report regularly and to make
restitution payments, the trial court granted the People’s motion to amend the
petition to add the allegation that the defendant violated the condition that
she not possess a checking account.  (>Self, supra, 233 Cal.App.3d at pp. 416, 419.)  Similarly, in Mosley, the defendant’s due process rights were violated when,
based on facts arising only during a hearing on an alleged rape, the trial
court revoked the defendant’s probation for consuming alcohol.  (Mosley,
supra, 198 Cal.App.3d at
pp. 1170-1174.)

            Here, defendant was not notified
prior to the hearing that her association with Allen was an alleged basis for
revocation of probation.  As defense
counsel explained to the trial court, had counsel known this might have been a
further basis for a finding that defendant violated her probation, she may not
have called defendant to the stand to testify and may have questioned the other
witnesses differently.

            Defendant was entitled to notice and
an opportunity to prepare for and defend against the allegation that she
violated probation by associating with Allen. 
The trial court erred to the extent it found defendant violated the terms
and conditions of her probation based on her association with a known drug
user. 

            The properly alleged basis for
revoking defendant’s probation, defendant’s possession of methamphetamine, is
supported by sufficient evidence.  We
must therefore determine the effect of the court’s error.

            The Attorney General argues that the
error, although of constitutional dimension, is harmless beyond a reasonable
doubt.  (Chapman v. California (1967) 386 U.S. 18, 24.)  We agree.

            The defendant’s knowing association
with those who used drugs was of little significance when compared to her
possession of methamphetamine.  Indeed,
we take the court’s comment during argument that “[m]y thought is it is
somewhat moot” to refer to the admitted association with a known drug user and
in turn to suggest that the basis for violating defendant’s probation that we
have here found constitutionally barred made little difference to the court in
light of the evidence supporting the basis for violating defendant’s probation
alleged in the petition.

            Moreover, defendant had been
convicted of transportation of methamphetamine in 2010 and had admitted a 2008
conviction for possession of a controlled substance for sale.  In 2010, she was placed on probation for a period
of five years.  Within a month, she was
found to be in violation of probation for possessing a controlled substance,
possessing drug paraphernalia, giving a false name to a law enforcement officer
and driving on a suspended license.  Her
probation was reinstated.

            Four months later, defendant was
found once again to be in violation of her probation by possessing a controlled
substance and giving a false name to a law enforcement officer.  Her probation was again reinstated.

            Just eight months after that, she
was found to be in violation of her probation once again in this proceeding for
possessing methamphetamine.  This is a
classic case of a defendant not getting the message by continued grants of
probation, returning as she did each time to the criminal lifestyle she
insisted on leading.

            At sentencing in this matter,
defendant’s attorney asked whether the court would “consider anything less than
doing the five years suspended.”  The
court replied:  “I can’t.  In my research on it--I wouldn’t.  I’ll make the record clear.  I would
not anyway.  But my research would
indicate that I couldn’t do it even if I
wanted to.  It was time that was
imposed in sentencing.  >The only alternative I have is to give her
additional county time, and I certainly am not going to do that anymore.  (Italics added.) 

            We are convinced beyond a reasonable
doubt that the trial court would have ordered defendant’s sentence executed
even if it had not found as a ground for violation of defendant’s probation her
known association with a person using controlled substances.

II

>The “Five-Year” Sentence

            We note an error in the abstract of
judgment.  On January 28, 2010,
defendant, pleaded no contest to the charge of transportation of
methamphetamine in violation of section 11379 and to the allegation that she had
a prior conviction within the meaning of section 11370.2, subdivision (c)
pursuant to an agreement that she would be sentenced to the low term of two
years for the section 11379 violation and three years for the prior conviction
for an aggregate term of five years in state prison and be granted
probation.  The abstract of judgment here
reflects that defendant was sentenced to the “upper term” of five years for a
violation of section 11379, subdivision (a).

            Section 11379, subdivision (a)
carries an upper term of four years. 
While it is correct that the sentencing court purported to sentence
defendant to the “upper term” of five years on the section 11379 conviction and
the court that found her in violation of probation here, ordered execution of
the sentence and imposed a five-year term, it was not solely for a violation of
section 11379, subdivision (a) as reflected in the abstract of judgment but was
instead two years for a violation of that section and a consecutive three years
pursuant to section 11370.2, subdivision (c). 
The abstract of judgment must be corrected accordingly.

III

>Presentence Custody Credits

            As far as custody credits, there is
no supplemental probation report in the record which sets forth defendant’s
actual time in custody.  The trial court
announced that it had a “note” which is not part of the record on appeal and
stated that “[defendant] is still entitled to a total of 653 total days; 480
under the original sentence--well, 480 in sentence time excluding the >Johnson waiver time and then she has a
total of 87 on the current case.”  The
trial court then awarded 86 conduct days for a total of 653 days of presentence
custody credit.  The court also stated,
“Well, I’m guessing she has 720 total
days of county time that she’s done but she Johnson-waived
240 of them.”  (Italics added.)  The abstract of judgment reflects “480 dys
sent + 87 dys RAW” as actual days of custody and “86 dys” of conduct credit for
a total of “653 dys” of presentence custody credit. 

            The People claim the court should
have awarded defendant 538 days as presentence custody credits.  And defendant claims defendant “served only
360 days” when she entered her Johnson waiver
“and there were an additional five days available” which she did not
receive. 

            On this record, we cannot conclude
that the trial court’s or the parties’ calculation of presentence custody
credit is correct.  The trial court is
responsible for calculating the custody credits by “determin[ing] the date or
dates of any admission to, and release from, custody prior to sentencing
. . . .”  (Pen. Code,
§ 2900.5, subd. (d).)  We will
remand the matter to the trial court for a correct calculation of the number of
days to which defendant is entitled as presentence custody credits.   A supplemental probation report reflecting
the dates of actual custody might assist the court in its calculations.

            Having undertaken an examination of
the entire record, we find no other arguable error that would result in a
disposition more favorable to defendant.

Disposition

            The matter will be remanded to the
trial court to correct the abstract of judgment and to calculate the
presentence custody credits.  In all
other respects, the judgment is affirmed.

 

 

 

                                                                                              HULL                           ,
Acting P.  J.

 

 

 

We concur:

 

 

 

          ROBIE                          , J.

 

 

 

          DUARTE                      , J.