P. v. Roxas
Filed 1/15/10 P. v. Roxas 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
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THE PEOPLE, Plaintiff and Respondent, v. ERNEST EUGENE ROXAS, Defendant and Appellant. | C061030 (Super. Ct. No. CM026220) |
Defendant Ernest Eugene Roxas committed various crimes in Yuba, Sutter, San Joaquin, and Butte Counties and was placed on probation in all four counties. He violated the terms of his probation in Yuba County, probation was revoked, and he was sentenced to state prison. In Butte County, he applied for a continuation of probation. The trial court ruled on his application for a continuation of probation and resentenced him on two matters arising in other counties. He appeals the eight-month consecutive sentence he received for his Butte County offense because he was not provided a formal probation revocation hearing. We conclude defendant waived his right to a formal revocation hearing by initiating these proceedings and failing to raise any objections at the hearing on his application to continue probation. We affirm.
DISCUSSION
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. (People v. Santellanes (1989) 216 Cal.App.3d 998, 1003.) The Attorney General contends that a remand for a formal revocation hearing would be a meaningless gesture and a waste of judicial resources, based on Yuba Countys revocation of defendants probation and commitment to prison. In the Attorney Generals view, Yuba Countys findings establish that defendant violated two conditions of his Butte County probationhis failure to complete the drug abuse treatment program and his failure to comply with all the conditions imposed in Yuba County.
Defendant does not forfeit his right to a revocation hearing even if he is convicted of a subsequent crime. [W]hen a court passes on the ultimate issue of whether probation is to be revoked, the court must decide more than merely whether, in light of an alleged conviction for a new offense, a violation of probation has occurred. If such be the case, the court must go on to decide whether under all the circumstances this violation of probation warrants revocation. [Citation.] A probationer has a right to be heard and to present evidence on this issue as well as on the threshold issue of whether his probation has in fact been violated, and a probationer thus has a right to a formal revocation hearing notwithstanding his prior conviction of a new offense. The fact of the new conviction does not ipso facto render the attending circumstances . . . factually undisputed or leave as the only matter in issue . . . the legal consequences of an undisputed course of conduct such that the court may without hearing any witness, rule on the matter of the revocation of probation. (People v. Vickers [(1972)] 8 Cal.3d 451, 457, fn. 6.) Thus, summary resolution of the issue of revocation (id.) is not appropriate following a probationers conviction of a new offense unless the probationer waives his right to a formal revocation hearing. (People v. Coleman (1975) 13 Cal.3d 867, 895, fn. 22.)
The dispositive question, therefore, is whether defendant in this case waived his right to a formal revocation hearing. In People v. Martin (1992) 3 Cal.App.4th 482 (Martin), the court found a waiver based on remarkably similar facts. The record in the present case discloses neither a formal probation revocation hearing nor an express waiver by appellant of his right to such a hearing. As respondent urges, however, it would appear appellant 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. (Id. at p. 486.)
Similarly, defendant in this case initiated the proceedings to continue his Butte County probation and attended the hearing on this matter together with his resentencing on two other matters. He failed to object to proceeding with the hearing in the absence of a formal revocation hearing. At the June 26, 2008, sentencing hearing, defense counsel agreed the proceeding was at defendants request and that there was no legal cause why sentence should not be pronounced. Although, as in Martin, the record does not disclose either a formal revocation hearing or an express waiver, we conclude, as did the court in Martin, that defendant impliedly waived the formal revocation hearing and instead participated in the hearing on his motion together with the sentencing hearing. Because he waived the formal hearing, he cannot claim a denial of due process.
DISPOSITION
The judgment is affirmed.
RAYE , J.
We concur:
BLEASE , Acting P. J.
BUTZ , J.
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