P. v. Woodall
Filed 5/13/13 P. v. Woodall CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SHAWN JAMES ALLEN WOODALL,
Defendant and Appellant.
D062005
(Super. Ct.
No. SCD236538)
APPEAL from
a judgment of the Superior Court
of
Desiree Bruce-Lyle, Judge. Affirmed.
Law Office
of Kurt David Hermansen, Kurt David Hermansen for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Steve Oetting and Laura A.
Glennon, Deputy Attorneys General, for Plaintiff and Respondent.
In this
appeal Shawn Woodall challenges the trial court's order revoking his
probation. He argues that the statute
governing probation revocation proceedings (Pen. Code,
1203.2) violates the federal Constitution
(both facially and as applied to him) because (1) it permits a warrant to be
issued for a probationer's arrest unsupported by statements made by oath or
affirmation, and (2) it does not require a preliminary probable cause hearing
before a final revocation hearing as mandated by the
States Supreme Court in Morrissey v.
Brewer (1972) 408 U.S. 471 (
judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
A. Probation
Grant
On September 29, 2011, defendant
(representing himself) pled guilty to attempted
(Oxycodone) for sale, in exchange for a promise of a one-year sentence. At a sentencing hearing on December 12, 2011,
the prosecutor told the court (Judge Melinda Lasater) that defendant had expressed
an interest in participating in the reentry drug court program; the prosecutor
believed defendant was eligible for the program; and defendant had been offered
a one-year stayed sentence and probation grant conditioned on his participation
in the program. Based on these
representations, the court scheduled a sentencing hearing before Judge Desiree
Bruce-Lyle, who was presiding over the reentry drug court program.
On January 3, 2012, the drug court
suspended execution of a one-year prison sentence; placed defendant on three
years' formal probation; and ordered him to complete a drug court program as a
condition of probation. With defendant's
agreement, counsel was appointed for purposes of representing him during his
participation in drug court. The court
scheduled a review hearing for January
9, 2012.
Defendant
was released from jail on January 4 or 5, 2012, and he appeared at the January
9 review hearing accompanied by a drug court team member. Defendant told the drug court that he has a
"life-threatening illness" and he was having trouble getting his
medication. The court instructed the
drug court team member to assist defendant with this matter, and told defendant
to "lean on the folks at treatment" and "let them know what you
need help with." The court set the
next review hearing for January 17,
2012.
B.
Initial Probation Revocation Proceedings
On January 11, 2012, two days after the
January 9 review hearing, defendant left the drug court treatment program
without letting anyone from the program know where he was going or where he was
residing.
On January 12, 2012, the drug court
issued an order finding that defendant was in violation of the reentry court
participant contract because he had "failed to fulfill terms of the
treatment program." The court
summarily revoked his probation and issued a bench warrant for his arrest.
On February 18, 2012 (over one month
after he had absconded), defendant was arrested. On February
27, 2012, he appeared in custody before the drug court represented
by counsel. The court informed defendant
that it and the drug treatment team had read a letter he had submitted and
discussed whether he should be permitted to continue in the drug treatment
program. The court told defendant he
could personally address the court and say "everything that you want the
court and the [treatment] team to consider."
Defendant
told the court that he suffers from Parkinson's disease and a seizure disorder,
and based on the court's earlier order the drug treatment team had given him
advice on where to go to get the life-saving medications he needed for his
terminal illness. Defendant described
his repeated efforts to get his medications at various facilities, which proved
fruitless due to a delay in getting his medical records. He also told the court his medications cost
about $1,000 monthly; he could not afford to pay for them; he was "just
stressed out" and left the drug treatment program; and his girlfriend
ultimately went across the border and obtained some medication for his illness.
The court
responded that defendant had been in the program for three days; he then
decided to "go do whatever it is [he] felt [he] needed to do"; he had
been gone since January 11; and if he had intended to stay with the program he
would have contacted someone in the program after he started getting his
medication from across the border. The
court concluded that defendant was not suitable for the reentry drug court
program, terminated him from the program, and revoked his probation.
At the
conclusion of the February 27 hearing, defendant (reinstated to pro. per.
status) objected to the "summary revocation process" and requested an
evidentiary hearing as required by Morrissey. The court set the matter for hearing on March 23, 2012.
C.
To assist
the court at the upcoming evidentiary hearing, defendant's probation officer
(Rico Boco) interviewed defendant at the jail on March 9, and interviewed
defendant's drug court treatment counselor (Jack Boyce) on March 13. Defendant told Boco that he left the drug
treatment program because he " 'panicked' " when he did not have his
medications and felt he " 'could not get help anywhere' "; he went to
Mexico about 10 times to get medication because the cost was lower; and he
" 'had to do whatever it took to save [his] life.' " Drug counselor Boyce confirmed defendant's
unsuccessful efforts to get his medications at two medical facilities. After these two failed attempts, on January
11, 2012 (the day defendant absconded from the program), Boyce suggested that
defendant go to the University of California San Diego hospital emergency room;
however, when Boyce later contacted the hospital he was told it had no record
of defendant's arrival at the hospital.
After
interviewing defendant and Boyce, Boco prepared a supplemental probation report
setting forth the alleged probation violations.
The report stated defendant had violated probation by absconding from
the reentry drug court program on January 11, 2012, and by leaving San Diego
County and traveling to Mexico without the probation officer's permission.
1.
March Hearing
Prior to
the scheduled March 23 evidentiary hearing, defendant filed pleadings raising
facial and as-applied constitutional challenges to the probation revocation
procedures set forth in section 1203.2, claiming that the Morrissey due process
requirements had not been satisfied. At
the March 23 hearing, the trial court considered his constitutional claims and
ruled the Morrissey due process
safeguards were "inherently present" in section 1203.2. Further, the court stated the upcoming formal
revocation hearing, which would afford defendant an opportunity to call
witnesses and present evidence, sufficed to protect his due process
rights. The court granted defendant's
request for a continuance based on his claim that he had not received a copy of
the supplemental probation report until that morning. The evidentiary hearing was reset for April
6, 2012, and thereafter the hearing was continued to April 17, 2012, at
defendant's request so he could reissue a subpoena that was defective.
2. April
Evidentiary Hearing
For
purposes of the April evidentiary hearing, the parties stipulated that
defendant suffered from a painful medical condition and that he had been
prescribed medication. The court
considered Boco's supplemental probation report and heard testimony from Boco
(called by the prosecution), drug counselor Boyce (called by defendant), and
defendant. During his testimony Boco
reiterated the probation violations and the explanations provided by defendant
as set forth in the supplemental probation report. Boyce confirmed that defendant told him he
was concerned because he did not have the medications he needed for his
illness, and Boyce tried to help him get his medications.
Testifying
on his own behalf, defendant admitted the probation violation allegations,
stating he left the country because he was sick and needed his
medications. He acknowledged he made a
mistake, and requested that the court consider his problem getting his
medications as a mitigating factor for his probation violations. The prosecutor argued that it was
uncontroverted that defendant violated his probation terms, and although he may
have a medical condition requiring medication, his conduct showed he was a
"manipulative person" who would adhere only to those terms and
conditions that he chose to follow.
The court
stated that although it empathized with defendant's medical condition, it did
not find his condition a sufficient excuse for violating his probation
conditions. The court assessed that
defendant did not give the treatment program members sufficient time to attempt
to help him address his medical condition, and that his focus was "on
getting medication and doing treatment his way." The court concluded he was no longer
appropriate for the drug court program; revoked his probation; and ordered
execution of the one-year sentence.
DISCUSSION
Defendant
does not dispute that there were substantive reasons that support the court's
decision to revoke his probation.
Rather, he challenges the court's order on procedural grounds, raising
facial and as-applied constitutional challenges to the statute governing
probation revocation (§ 1203.2).
I. Lack of
Sworn Statement for Arrest Warrant
To
effectuate the arrest of a probationer who has violated probation, section
1203.2 provides: (1) a probation officer
or peace officer may arrest a probationer based on probable cause to believe he
or she has violated a probation condition, or (2) a court may issue a warrant
for the arrest of a probationer.
name="_ftnref4" title="">[4] Typically, a court will issue a bench warrant
for the probationer's arrest when the authorities report to the court that a
probation violation has occurred. (See,
e.g., People v. Hawkins (1975) 44
Cal.App.3d 958, 961-962 & fn. 1, 966; People
v. Stephens (1968) 266 Cal.App.2d 661, 664, fn. 1.) There is nothing in the express language of
section 1203.2 requiring that the report to the court be made by oath or
affirmation. (See People v. Stephens, supra, at p. 664, fn. 1.) To decide whether a sworn statement is
required as a matter of federal constitutional due process, we first review
court decisions evaluating the constitutional principles governing warrants in
the context of probationers.
A. The
Warrant Clause Vis-Ã -Vis Probationers
The warrant
clause of the Fourth Amendment states that "no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."
(U.S. Const., 4th amend., italics added.) The United States Supreme Court has stated that
if a warrant is " 'constitutionally required, the requirement cannot
be flexibly interpreted to dispense with the rigorous constitutional
restrictions for its issue.' " (
868, 878 (Griffin);
U.S. 41, 47.)
However,
the high court has established that probationers are not entitled to the same
level of search and seizure protection as other citizens: "A State's operation of a probation
system . . . presents 'special needs' beyond normal law
enforcement that may justify departures from the usual warrant and probable-cause
requirements. Probation, like
incarceration, is 'a form of criminal sanction imposed by a court upon an
offender after verdict, finding, or plea of guilty.' . . . [P]robationers . . . do
not enjoy 'the absolute liberty to which every citizen is entitled, but
only . . . conditional liberty properly dependent on
observance of special [probation] restrictions.' " (Griffin,
supra, 483 U.S. at pp. 873-874.) The
restrictions placed on probationers are designed to rehabilitate and protect
the community from harm; these goals "require and justify the exercise of
supervision to assure that the restrictions are in fact observed"; and
this supervision "is a 'special need' of the State permitting a degree of
impingement upon privacy that would not be constitutional if applied to the
public at large." (
843, 853 ["this Court has repeatedly acknowledged that a State's interests
in reducing recidivism and thereby promoting reintegration and positive citizenship
among probationers and parolees warrant privacy intrusions that would not
otherwise be tolerable under the Fourth Amendment"].) Further, by virtue of specified release
conditions and statutory enactments, supervised released offenders have reduced
expectations of privacy and liberty that permit a correlative reduction in the
traditional search and seizure protections.
(Samson v. California, supra,
547 U.S. 843 at p. 852; Evans v. State
(2012) 318 Ga.App. 706 [734 S.E.2d 527, 532]; Washington v. Olson (2011) 164 Wash.App. 187 [262 P.3d 828, 829,
831].)
Given the
government's substantial interest in monitoring released offenders and the
diminished privacy and liberty expectations of supervised releasees, the Fourth
Amendment's warrant and probable cause protections have been lessened for such
releasees in a variety of contexts. For
example, the courts have found no Fourth Amendment violations in state
procedures which: permit home searches
or arrests without a warrant and based on reasonable suspicion rather than
probable cause (Griffin, supra, 483
U.S. at pp. 872-873, 876-880; U.S. v.
Knights (2001) 534 U.S. 112, 118-112; Evans
v. State, supra, 734 S.E.2d at p. 532); permit warrantless searches without
cause as a condition of parole or probation (Samson v. California, supra,
547 U.S. at pp. 846-855; People v. Medina
(2007) 158 Cal.App.4th 1571, 1575-1577); and permit warrantless searches and
arrests based on information communicated between probation and police
departments (Griffin, supra, 483 U.S.
at pp. 871, 879-880; see U.S. v. McCarty
(10th Cir. 1996) 82 F.3d 943, 947).
Directly on point here, the courts have also found no federal
constitutional impediment to arrests of probationers (or other supervised
releasees) based on warrants that are not supported by sworn facts. (People
v. Glenn-Powers (2012) 296 Mich.App. 494 [823 N.W.2d 127, 133] (
(Sherman); State v. Barker (2011) 162 Wash.App. 858 [256 P.3d 463, 465];
pp. 829-831; U.S. v. Collazo-Castro
(1st Cir. 2011) 660 F.3d 516, 523; U.S.
v. Garcia-Avalino (5th Cir. 2006) 444 F.3d 444, 447.)
In
concluded that a warrant was not necessary to permit a search of a
probationer's home because the need for a warrant "would interfere to an
appreciable degree with the probation system, setting up a magistrate rather
than the probation officer as the judge of how close a supervision the probationer
requires. Moreover, the delay inherent
in obtaining a warrant would make it more difficult for probation officials to
respond quickly to evidence of misconduct, . . . and would
reduce the deterrent effect that the possibility of expeditious searches would
otherwise create . . . ." (Griffin,
supra, 483 U.S. at p. 876.) The
courts have applied the Griffin
principle dispensing with the search
warrant requirement for probationers to also dispense with the
probationers or other supervised released offenders. (Glenn-Powers,
supra, 823 N.W.2d at p. 133; Sherman,
supra, 502 F.3d at pp. 883-884.)
And, the courts reason that when an arrest warrant is not
constitutionally required at all, it
follows that a state's use of an unsworn
warrant does not run afoul of the federal
Constitution. (Glenn-Powers, supra, at p. 133; Sherman,
supra, at pp. 883-884.)
In
warrant requirement for the search of a probationer's home, and concluded: "If the Fourth Amendment does not
require a warrant to search a probationer's home, then it is not unreasonable
to conclude that it does not require a warrant to arrest a probationer.
. . . As such, the oath or
affirmation requirement generally applicable to warrants does not apply to a
warrant for the arrest of a probationer. [¶] . . .
[¶] . . . [I]t does
not matter whether the arrest warrant in this case was unsworn because it was
unnecessary for there to be a sworn arrest warrant." (Glenn-Powers,
supra, 823 N.W.2d at p. 133, italics added.)
Similarly,
the Sherman court reasoned that
warrantless arrests of parole violators are constitutionally valid because the
full panoply of constitutional rights does not apply to parolees, and when a
parole officer reasonably believes a parolee is in violation of parole, the
public interest in apprehending the parole violator outweighs the parolee's
privacy interest. (Sherman, supra, 502 F.3d at pp. 883-884.) The Sherman
court concluded that "[b]ecause searches and seizures of parolees are
generally not subject to the requirements of the Warrant Clause, we conclude
that the Fourth Amendment does not
require an administrative parole violator warrant to be supported by oath or
affirmation." (Id. at p. 884; accord, State
v. Barker, supra, 256 P.3d at p. 465.)
B. Analysis
We agree with the analysis and
holding in the above cases. Just as the
warrant clause is inapplicable to the search of a probationer's home, it is
inapplicable to the arrest of a probationer.
A probationer, by the very nature of the probation grant, is on notice
that he or she is subject to the supervision of the government and that the liberty
granted by the government is conditioned on compliance with probation
conditions. To effectively supervise a
probationer, the government needs to be able to expeditiously arrest the
probationer in the event of noncompliance with probation conditions. Considering the government's need to act
expeditiously while monitoring the probationer and the probationer's reduced
expectation of liberty, we conclude a probationer falls outside the ambit of
the warrant clause. Hence, in the event
a warrant is used to arrest a probationer, the warrant need not comply with the
oath or affirmation provision of the warrant clause.
To support
that a sworn warrant is required, defendant cites U.S. v. Vargas-Amaya (9th Cir. 2004) 389 F.3d 901. In Vargas-Amaya,
the Ninth Circuit interpreted a federal statute requiring that a warrant must
be issued before the expiration of a supervised release term to retain the
court's jurisdiction over the defendant after the expiration of the supervised
release term. (Id. at p. 903.) The
on both the legislative intent and federal constitutional principles, the
warrant mandated by the statute must be under oath or affirmation as required
by the warrant clause. (
and seizures of probationers may be made without a warrant, and stated it was
ruling only on the issue of whether the court retained jurisdiction after the
expiration of the supervised release term, and it was not addressing whether
the releasee's arrest "was otherwise a valid warrantless
arrest." (Id. at pp. 906-907 & fn. 5.)
Given the narrow context of Vargas-Amaya,
courts (including the Ninth Circuit) have concluded that its holding should not
be extended to other circumstances. (
U.S. v. Garcia-Avalino, supra, 444
F.3d at pp. 444-447; State v. Barker,
supra, 256 P.3d at pp. 464-465; Washington
v. Olson, supra, 262 P.3d at pp. 829-830.)
Likewise, we do not find Vargas-Amaya
persuasive here.
title="">[5]
The
inapplicability of the warrant clause to a probationer does not mean a
probationer may be arrested without limitation under any circumstances. "The touchstone of the Fourth Amendment
is reasonableness, and the reasonableness of a search [or seizure] is
determined 'by assessing, on the one hand, the degree to which it intrudes upon
an individual's privacy [or liberty] and, on the other, the degree to which it
is needed for the promotion of legitimate governmental interests.' " (U.S.
v. Knights, supra, 534 U.S. at pp. 118-119; People v. Schmitz (2012) 55 Cal.4th 909, 921.) Under section 1203.2, the arrest of a
probationer requires probable cause to believe he or she is violating the terms
of probation, as determined by a probation or police officer or by a court that
receives information from the authorities to this effect. Defendant has presented no argument or
information to show that the statute does not reasonably balance the
probationer's conditional liberty interest with the state's need to respond in
an expedient fashion to a probationer's noncompliance with the terms and
conditions of probation.
II.
Defendant
also argues that section 1203.2 is unconstitutional (facially and as applied)
because, contrary to the dictates of Morrissey,
it allows for a single revocation hearing and does not require a preliminary
probable cause hearing (or its functional equivalent) prior to a final
revocation hearing. We first summarize
relevant law concerning Morrissey,
and then turn to defendant's facial and as-applied challenges.
A.
In
Court ruled that because parole revocation deprives a parolee of a valued
conditional liberty interest, parolees are entitled to at least a minimal level
of procedural due process protection before revocation of their parole. (Morrissey,
supra, 408 U.S. at pp. 480-483, 488-489.)
In Gagnon v. Scarpelli (1973)
411 U.S. 778, 781-782, the high court held that these due process protections
applied to probationers as well.
two steps in a revocation decision: a
factual determination as to whether the parole conditions have been violated,
and a discretionary determination as to whether the violations warrant
revocation of parole and return to prison.
(Morrissey, supra, 408 U.S. at
pp. 479-480, 483-484.)
a substantial time lag between the parolee's arrest and the eventual
determination that parole should be revoked (as well as a possible geographic
distance between the place of violation and the place of incarceration) and for
this reason there should be a timely preliminary
hearing to determine whether there is probable cause to believe there has
in fact been a parole violation, followed by a final revocation hearing where
the ultimate discretionary revocation decision will be made. (Id.
at pp. 484-489.)
probable cause hearing should be conducted "as promptly as convenient
after arrest while information is fresh and sources are available," and
the probable cause determination should be made by an independent officer
(judicial or administrative) rather than by the parole officer who made the
initial decision. (Morrissey, supra, 408 U.S. at pp. 485-486.) Morrissey
delineated several basic due process requirements for the probable cause
hearing, including the parolee should be given notice of the purpose of the
hearing and the alleged violations; the parolee should be allowed to speak and
present evidence; and the hearing officer should make a record, even if
informal, that includes "a summary, or digest" of what occurs at the
hearing and the reasons for the determination and the evidence relied on. (Id.
at pp. 486-487.)
After the
preliminary probable cause hearing, "if it is desired by the parolee"
the hearing officer should conduct a final revocation hearing where the parolee
can seek to show there was no violation and present
violation does not warrant revocation. (
487-488.) The hearing officer should
make a final evaluation of any contested facts and consider whether the facts
warrant revocation. (
provided to the parolee, including written notice of the claimed violations;
disclosure of the evidence against the parolee; an opportunity to be heard in
person and to present witnesses and documentary evidence; the right to confront
and cross-examine witnesses; a neutral and detached hearing body (which need
not be a judicial body); and a written statement of the evidence relied on and
reasons for revoking parole. (
The
not attempting "to create an inflexible structure for parole revocation
procedures" adopted by the states.
(Morrissey, supra, 408 U.S. at
p. 490.) It noted that the interests of
both the state and the parolee are furthered by "an effective but informal
hearing" process; for example, "the process should be flexible enough
to consider evidence including letters, affidavits, and other material that
would not be admissible in an adversary criminal trial." (Id.
at p. 484-485, 489.)
When
applying Morrissey's principles to
California's probation revocation proceedings, the courts have concluded that a
trial court may summarily revoke probation to preserve jurisdiction and acquire
physical custody of the offender, as long as the probationer is accorded a
hearing or hearings that conform to Morrissey
standards after being taken into custody.
(People v. Vickers (1972) 8
Cal.3d 451, 460-461 (Vickers);
575, 581; People v. Hawkins, supra,
44 Cal.App.3d at pp. 965-966.) Further,
although a preliminary probable cause hearing distinct from a final revocation
hearing may be required in some cases, two hearings are not necessarily
required in all cases. (
894-896.) The Coleman court explained that Morrissey
does not mandate the precise procedures that a state must follow, so long as
" 'equivalent due process safeguards' assure that a probationer is not
arbitrarily deprived of his conditional liberty for any significant period of
time . . . ." (
cause hearing if a final revocation hearing "with its full panoply of
relatively soon after the probationer has been deprived of his conditional
liberty," or if a preliminary hearing held on new criminal charges
committed by the probationer can serve as a preliminary revocation hearing as
well. (Id. at pp. 894-895; People v.
Hawkins, supra, 44 Cal.App.3d at pp. 966-967.)
B.
Facial Challenge
Section
1203.2 requires that a probationer be given notice of a motion to revoke
probation, and provides for a hearing before a court to determine whether
probation should be revoked. (§ 1203.2,
subds. (a), (b).)
title="">[6]
In
observed that section 1203.2 "makes no provision [as required by
determination of probable cause to believe that a violation of probation has
occurred in order to warrant the detention of a probationer until a more formal
hearing is had." (
different statute) noted that in Vickers
(as well as in Morrissey) the courts
did not hold the statute under consideration to be unconstitutional "on
the ground that it did not specifically spell out all the requirements of due
process thereunder. The important factor
in each instance was determined to be whether the minimum requirements for due
process had been satisfied—not whether they were statutorily
required." Finding the statute
before it not to be unconstitutional, Amor
explained that statutes " 'are to be so construed, if their language
permits, as to render them valid and constitutional' "; "the fact
that the statute does not expressly provide for [due process procedures] does
not render it unconstitutional"; and "the [constitutional procedural]
requirements . . . [may] be implied from the due process
clause . . . ."
(Amor, supra, at p. 30.)
Under the
reasoning of Amor, there is no basis
to find section 1203.2 constitutionally invalid on its face based solely on the
fact that it does not spell out the requirement of a preliminary probable cause
hearing. The courts have long recognized
that a probationer is entitled to a probable cause hearing or its functional
equivalent if he or she is to be detained for any significant period of time
before a final revocation hearing. (
894-895; People v. Hawkins, supra, 44
Cal.App.3d at p. 966; People v. Gifford (1974)
38 Cal.App.3d 89, 91; People v. Andre
(1974) 37 Cal.App.3d 516, 521-522.)
Given this well-established case authority, we construe section 1203.2 to
impliedly require a probable cause hearing if there is any significant delay
between the probationer's arrest and a final revocation hearing.
C. As-applied
Challenge
Turning to
the initial revocation proceeding that occurred in February, defendant contends
this hearing did not satisfy the minimal due process requirements for a
probable cause hearing because (1) he was not provided notice of the purpose of
the hearing and of the alleged probation violations, (2) no record was made of
the evidence supporting the court's decision, and (3) the court formally
revoked probation and ignored its duty to make a probable cause finding.
First,
defendant's claim of error fails because he has not shown prejudice arising
from the nature of the initial revocation proceeding in February. (In re
La Croix (1974) 12 Cal.3d 146, 154 ["a parolee whose parole has been
revoked after a properly conducted revocation hearing is not entitled to have
the revocation set aside unless it appears that the failure to accord him a prerevocation
hearing resulted in prejudice to him at the revocation hearing"];
[no relief for probationer who did not show prejudice from failure to hold
immediate prerevocation hearing]; In re
Winn (1975) 13 Cal.3d 694, 698-699; In
re Marquez (2007) 153 Cal.App.4th 1, 14; People v. Andre, supra, 37 Cal.App.3d at p. 522.) Defendant does not dispute that at the final
revocation hearing in April, he was provided all the procedural due process
rights to which he was entitled, including the ones that he complains were
missing at the February hearing. Absent
a showing of prejudice, defendant's as-applied challenge to the
procedures followed at the
February hearing is unavailing.
name="_ftnref8" title="">[8]
Moreover, even if we reach the as-applied challenge on
the merits, the record refutes defendant's claim that the February hearing did
not comport with the Morrissey
standards for a preliminary probable cause hearing. The sole issue discussed at the February
hearing was defendant's absconding from the drug treatment program; i.e.,
defendant admitted to the court that he had left the drug treatment program; he
described the mitigating circumstances that gave rise to his departure; and the
court responded with its assessment of his decision to leave the program. Further, defendant knew that participation in
the drug treatment program was the key feature of his probation grant, as
reflected by the fact that his case was transferred to drug court, he was found
eligible for the drug court program, he was released from custody into the
supervision of the drug treatment team members, and his case was scheduled for
frequent review hearings before the drug court.
Defendant
has not pointed to anything in the record suggesting that when he arrived at
the February hearing he was surprised at the reason he was there or the
potential consequence of his probation violation. (See People
v. Hawkins, supra, 44 Cal.App.3d at p. 967 ["Neither the defendant nor
his counsel objected that they had inadequate notice of the [probation
violation] charges and thus, absent objection, we will not imply inadequate
notice from a record which is silent as to exactly how the defendant was given
notice of the charges."].) We are
satisfied that prior to the February hearing, defendant knew that the alleged
probation violation was his absconding from the drug treatment program and he
knew that the purpose of the hearing was to consider termination from the drug
treatment program and revocation of probation.
With
respect to the second probation violation based on defendant's unauthorized
departure from the county, this was a fact that was discovered by the probation
department after the February hearing
when the probation officer interviewed defendant at the jail in preparation for
the full evidentiary hearing requested by defendant. For purposes of the February hearing, there
can be no due process violation arising from the failure to disclose a factual
allegation that had not been discovered at the time of the February
hearing. Moreover, the allegation that
defendant had absconded from the program provided probable cause to justify
defendant's detention pending the final revocation hearing, and the failure to
provide notice of a second allegation
at the probable cause stage does not constitute error under
re Winn, supra, 13 Cal.3d at p. 698.)
Contrary to
defendant's claim, a record was made of the evidence underlying the court's
decision at the February hearing. The
proceeding was recorded by a court reporter, and the reporter's transcript
provides a written record of the matters discussed and the reasons for the
court's decision. This recordation
complies with Morrissey's directive
that the hearing officer should create a summary of the evidence and state the
reasons for the decision. (
at pp. 967-968 ["court reporter's transcript of the [parole revocation]
hearing, in form and substance, met the requirement of 'a written statement by
the factfinders as to the evidence relied on and the reasons for revoking the
parole' "].)
Finally,
there was no due process violation based on the court's ruling at the February
hearing that it was revoking probation rather than ruling that there was a
probable cause showing of a probation violation. It was undisputed that defendant had violated
probation by absconding from the treatment program; thus the purpose of the
probable cause hearing was satisfied by defendant's admission of the factual basis
for the violation. Further, the court's
ruling that probation should be revoked implicitly included a finding that a
probation violation had occurred.
Defendant's
constitutional challenges to section 1203.2 and the procedures used in his case
have no merit.
DISPOSITION
The judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.
name="_ftn1" title="">[1] Subsequent unspecified statutory references are to the Penal
Code.
name="_ftn2" title="">[2] Given our holding, we need not address the Attorney
General's assertion that defendant is collaterally estopped from challenging
the constitutionality of section 1203.2.
We deny as moot the Attorney General's motion for judicial notice of a
previous appellate decision concerning defendant.
