P. v. Taravella
Filed 1/22/09 P. v. Taravella CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY TARAVELLA, Defendant and Appellant. | B207870 (Los Angeles County Super. Ct. No. NA069187) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Arthur H. Jean, Jr., Judge. Affirmed.
A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Mark Anthony Taravella appeals the judgment (order revoking probation) entered following Taravellas plea of no contest to possession for sale of a controlled substance and his admission he personally was armed with a firearm in the commission of the offense. (Health & Saf. Code, 11351; Pen. Code, 12022, subd. (c).) The trial court sentenced Taravella to a term of five years in state prison. We reject the contention raised on appeal by Taravella and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
On May 15, 2006, Taravella pleaded no contest to possession for sale of a controlled substance and admitted he personally was armed with a firearm in the commission of the offense.[1] On June 13, 2006, the trial court sentenced Taravella to a term of five years in state prison but suspended the term and granted probation for a period of three years.
Taravella admitted a violation of probation in October of 2007, based on positive drug test results. As a result of that admission, probation was revoked and reinstated on the same terms.
On March 10, 2008, Taravella and a codefendant pleaded not guilty in a new case. The trial court revoked probation and continued the matter to March 17, 2008, to set a hearing on violation of probation. Taravella appeared on the probation violation case and the new case with privately retained counsel on March 17 and 24, 2008.
On April 7, 2008, the trial court called the case and noted Taravella was appearing on both cases. The trial court asked defense counsel if there were any reason Taravella should not be sentenced on the probation violation case. Defense counsel responded there was no legal cause. The trial court found Taravella in violation of probation and imposed the previously suspended five-year term. The trial court then dismissed the new case on the motion of the People.
CONTENTION
Taravella contends the trial court lacked jurisdiction to revoke probation.
DISCUSSION
Taravella asserts the trial court found him in violation of probation without conducting a probation violation hearing or obtaining an admission from Taravella that he violated probation. Taravella argues he was not given notice of the claimed violation or any of the constitutional guarantees that precede a probation violation hearing. (Morrissey v. Brewer (1972) 408 U.S. 471, 488-489 [33 L.Ed.2d 484]; People v. Vickers (1972) 8 Cal.3d 451, 458-461.) Taravella concludes the order revoking probation must be reversed.
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, supra, 8 Cal.3d at pp. 458-460.) However, due process is a flexible concept which requires only those procedural protections the particular situation demands. (Morrissey v. Brewer, supra, 408 U.S. 471 at p. 481.) Thus, 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.) Rather, a defendant can waive the formal requirements of notice and a hearing and admit a probation violation through the conduct of his attorney and his own silence. (Ibid.)
In People v. Martin(1992) 3 Cal.App.4th 482, the defendants probation was revoked without a formal probation revocation hearing or an express waiver of his right to such a hearing. Martin concluded the defendant waived the 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. (Id. at p. 486.)
Like the defendant in People v. Martin, supra, 3 Cal.App.4th 482, Taravella impliedly admitted violating probation and waived his right to an evidentiary hearing. We reach this conclusion because Taravella appeared in court with counsel on the probation violation case and the new criminal matter on March 10, 17, and 24, 2008. When the trial court called the probation violation matter on April 7, 2008, and asked if there were any reason Taravella should not be sentenced, defense counsel responded, No. No legal cause.
Thus, as in Martin, Taravella waived the right to a formal probation violation hearing by failing to object to the lack of a formal revocation hearing or to any other sentencing procedure. Indeed, Taravella had notice of the basis for the violation of probation in that he was appearing concurrently on both the probation violation case and the new case. Further, it appears Taravella admitted the violation of probation in exchange for dismissal of the new case. Consequently, we perceive no due process impediment to the revocation of Taravellas probation.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J.
ALDRICH, J.
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[1] The report of the probation officer indicated Taravella was arrested on February 2, 2006, when Huntington Beach police officers served a warrant at Taravellas residence. Taravella was found standing next to a pump action shotgun and a rifle. A substantial amount of cocaine and a scale was found in Taravellas bedroom.
