P. v.
Filed 6/5/13 P. v. Moreno 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
MITCHELL FELICIANO MORENO,
Defendant
and Appellant.
E056128
(Super.Ct.No.
FVI1101534)
OPINION
APPEAL
from the Superior Court
of
Bernardino County. Lynn
M. Poncin, Judge. Affirmed.
Harry
Zimmerman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and
Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Mitchell Feliciano Moreno entered a plea agreement and pled no
contest to one count of corporal injury to
a spouse. (Pen. Code, § 273.5,
subd. (a).)
name="_ftnref1" title="">[1] A court placed him on probation for a period
of three years. Defendant subsequently
admitted that he violated his probation, and the court reinstated him on
probation. Defendant then admitted that
he violated his probation a second time.
The court sentenced him to a total term of two years in state prison.
On
appeal, defendant argues that the court failed to advise him of his probation
revocation due process rights,
pursuant to People v. Vickers
(1972) 8 Cal.3d 451 (Vickers), and that he did not
knowingly, intelligently, or voluntarily waive those rights before admitting
his probation violation. We disagree.
PROCEDURAL BACKGROUND
On September 27, 2011, defendant entered a
count of corporal injury to a spouse. (§
273.5, subd. (a).) The court placed him
on probation for a period of three years, under specified conditions.
On October 26, 2011, the court revoked defendant’s probation based on the
probation officer’s allegation that defendant had violated three of his
probation conditions.
At a
probation revocation hearing on November 9, 2011, defendant waived his rights
to a Vickers hearing and admitted
that he violated the condition that he, “Cooperate with the Probation
Department in a plan of rehabilitation and follow all reasonable directives of
the Probation Department.†The court
reinstated him on probation under the original terms with a few modifications.
On February 4, 2012, defendant was arrested for violating a domestic
violence restraining order. The arrest
resulted in a new criminal case being
filed (case No. MVI1200331).
At a
probation review hearing on February 15, 2012, defendant was not present,
but was represented by counsel. The
trial court noted that the district attorney’s office had filed a petition to
revoke defendant’s probation based on the new case that was filed. The court signed the petition, revoked
defendant’s probation, and set a probation violation hearing for February 22, 2012.
The
probation department filed a petition for revocation of probation, alleging
that defendant was arrested on February 4, 2012 for violating section 273.6,
subdivision (a) (violating a domestic violence restraining order). The petition alleged that defendant violated
five of his probation conditions.
At
the outset of the probation violation hearing on February 22, 2012, the court
noted that there had been a conference in chambers regarding the matter. The court stated that a petition to revoke
defendant’s probation had been filed and asked defense counsel what he wanted
to do. Defense counsel responded, “In
accordance with the conversation we had in chambers, your Honor, [defendant]
would admit the violation.†The court
addressed defendant and stated that he had the right to an evidentiary hearing
as to whether or not he violated the terms of his probation and, specifically,
the term that he “violate no law.†The
court asked defendant, “Do you waive that evidentiary
hearing and admit that violation of probation as to that term?†Defendant responded, “Yes.†Defense counsel joined in defendant’s waiver
and admission, confirmed that defendant was waiving time for sentencing, and
added that there was “[n]o legal cause.â€
The court announced that defendant’s probation would remain revoked and
pronounced the previously withheld judgment.
The court sentenced defendant to the low term of two years in state
prison for his conviction for corporal injury on a spouse. (§ 273.5, subd. (a).) Right after the court pronounced judgment, it
asked whether the People wanted to move to dismiss the new case, case No.
MVI1200331. The People stated that it
was “mov[ing] to dismiss pursuant to the admission.†The court granted the motion and dismissed
case No. MVI1200331.
ANALYSIS
The Record Indicates That
Defendant Waived His Right to a Vickers Hearing
Defendant
contends that he was denied his due process rights when the trial court revoked
his probation without adequately advising him of his Vickers
rights. He argues that he did not
knowingly, intelligently, or voluntarily waive those rights and, therefore, the
matter should be remanded for a new probation revocation hearing. We disagree.
Probationers
are entitled to due process protections prior to revocation and termination of
probation, including notice of the claimed violations and an opportunity to be
heard. (Vickers, supra, 8 Cal.3d
at pp. 457-458; In re Moss (1985) 175 Cal.App.3d 913, 929.) A probationer may waive his Vickers rights. (Moss, at
p. 930.) “The voluntariness of a
waiver is a question of law which we review de novo. [Citation.]
To make this determination, we examine the particular facts and
circumstances surrounding the case, including the defendant’s background,
experience and conduct. [Citation.]†(People
v. Vargas (1993) 13 Cal.App.4th 1653, 1660.) A probationer 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. (See People v. Dale (1973) 36
Cal.App.3d 191, 194-195.)
The
record does not reflect that defendant was denied due process, as notice and an
opportunity to be heard can be inferred from the record. On February 4, 2012, defendant was arrested
for violating a domestic violence restraining order. (§ 273.6, subd. (a).) At a probation review hearing on February 15,
2012, defendant was not present, but he was represented by counsel. The court informed defense counsel that a
petition had been filed, alleging that defendant was in violation of his
probation “based on the new case in the arrest and contact with the
victim.†The court signed the petition
to revoke probation, set a hearing regarding the violation of probation for
February 22, 2012, and ordered defendant to appear at the hearing. Defense counsel said, “Okay.†A petition to revoke probation was filed on
February 22, 2012, stating that defendant had violated his probation when he
was arrested on February 4, 2012.
Although the record does not include a proof of service for this document,
petitions to revoke are usually served on a probationer and his
Furthermore,
the record indicates that the parties discussed defendant’s probation
violation, waiver, and sentence in chambers, prior to the revocation
hearing. At the start of the February
22, 2012 hearing, the court declared, “We had a conference in chambers
regarding this matter.†The court stated
that a petition to revoke defendant’s probation had been filed, and then asked
defense counsel what he wanted to do.
Defense counsel responded that, “In accordance with the conversation we
had in chambers, your Honor, [defendant] would admit the violation.†Defendant did not object. Instead, when the court stated that defendant
had the right to have an evidentiary hearing regarding the violation of
probation, and asked if he wanted to waive the hearing and admit the violation
of that term, defendant said, “Yes.â€
Defense counsel joined in the waiver, waived time for sentencing, and
asserted that there was no legal cause why sentence should not be
pronounced. The record demonstrates that
defendant voluntarily waived his right to a formal probation revocation
hearing, and he was prepared to be sentenced immediately. Moreover, we note that right after the court
pronounced judgment, the prosecutor “move[d] to dismiss [the new case, case
No. MVI1200331] pursuant to the
admission.†(Italics added.) Thus, it appears that the parties had agreed
that if defendant would admit the violation, the People would dismiss the new
case.
Defendant
asserts that his case is similar to United
States v. Correa-Torres (1st Cir. 2003) 326 F.3d 18 (Correa-Torres), in that the trial court never found that he made a
knowing, intelligent, and voluntary waiver.
However, while the Correa-Torres
court observed that the lower court did not make a specific finding that the
defendant’s waiver was knowing and voluntary, it also stated that “an express
finding is not ordinarily required in connection with a waiver of rights.†(Id.
at p. 23.) Furthermore,
defendant relied on a court-appointed interpreter to follow the dialogue at the
revocation hearing since he spoke Spanish.
(Id. at pp. 20-21.) The court failed to inquire of the defendant
as to his understanding of his rights or as to his guilt. (Id.
at p. 21.) Furthermore, the
defendant did not speak at all throughout most of the proceeding. (Ibid.) The court revoked the term of supervised released
based on the mere fact that the defendant, through his counsel, had declined to
contest the probation officer’s allegations.
(Id. at p. 21.) The appellate court concluded that, based on
the totality of the circumstances, there was no reason to believe that the
defendant understood the allegations against him or his rights. (Id.
at pp. 23-24.)
In
contrast, defendant in the instant case had no language barrier, and he
understood that he would be in violation of his probation conditions if he violated
any law or any restraining order obtained by his spouse. He was arrested for violating a domestic
violence restraining order. At the
revocation hearing, there was an in-chambers conference at which the parties
apparently agreed that defendant would admit the violation. Moreover, unlike the defendant in
waived the Vickers hearing and
admitted the violation.
We
additionally note that approximately three months prior to the instant
proceedings, defendant appeared in court on a previous probation revocation
allegation. Significantly, the record
indicates that defendant waived his right to a Vickers hearing and admitted that probation violation.
In
sum, based on the totality of the circumstances, we conclude that defendant
knowingly and voluntarily waived his Vickers
rights before admitting the probation violation in the instant case.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
RICHLI
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Penal Code, unless otherwise noted.
