Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV700650. Michael A. Sachs, Judge.
Salvatore P. Ciulla for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendant and appellant Jaquelin Michelle Jarvis was on probation in San Bernardino County for burglary. The San Bernardino County Probation Department filed a petition in March 2010 to revoke defendant’s probation, based on violations that took place in 2008 and 2009. Defendant appeals, contending that the revocation of her probation was an abuse of discretion because of the delay between the violations and the petition to revoke. We affirm.
FACTS AND PROCEDURAL HISTORY
On the afternoon of April 5, 2007, Jeanine Wasson returned home and found defendant inside the house, standing on the stairs. Wasson demanded to know what defendant was doing in her house; defendant replied that she was looking for a friend who had called her because he was having a seizure. When Wasson started to call the police, defendant ran out of the house.
Defendant ran to a car outside Wasson’s house and began to drive the car away. Wasson chased after, and boarded the car as defendant was driving away. A man, who had apparently been asleep inside the car, woke up and wanted to know what was going on. Wasson, defendant and the man struggled over the ignition key. When defendant stopped the car at an intersection, the man removed the key from the ignition. Defendant got some items from the car and left on foot.
Wasson returned home and discovered that the closets and drawers had been rummaged through; Wasson’s purses had been opened and contents removed, and papers on the closet floor were disturbed or missing.
After defendant was held to answer on a charge of first degree burglary, she pleaded no contest and, on September 18, 2007, was placed on probation. One of the conditions of probation was that defendant serve 365 days in the county jail; at the time she was admitted to probation she had served 166 actual days in custody. In April 2008, defendant’s probation supervision was transferred from San Bernardino County to Orange County as a courtesy, because defendant was living with her father in Orange County.
Soon after her release from custody, however, in January 2008, defendant was arrested for unlawfully driving without a license (Veh. Code, § 12500). She was convicted of that misdemeanor offense in May 2008 and sentenced to four days in jail. Defendant was arrested again in February 2008 for driving with a suspended license (Veh. Code, § 14601.1). She was convicted of that offense in March 2009 and sentenced to three years probation on that misdemeanor offense. Defendant was arrested on more serious charges in May 2008: taking and driving a motor vehicle (Veh. Code, § 10851, subd. (a)), and receiving stolen property (Pen. Code, § 496, subd. (a)). She was convicted of the stolen vehicle felony in September 2008 and placed on three years probation, including a period of incarceration.
In September 2008 and May 2009, defendant’s probation officer submitted reports showing defendant’s new convictions. The probation officer also reported that, on one of her arrests, defendant had admitted associating with “White Power” parolees. In December 2009, another probation officer reported that defendant had been arrested for several probation violations. Defendant was found with prescription drugs and a large amount of cash. She also admitted recently using methamphetamine and heroin.
On March 11, 2010, the San Bernardino Probation Department filed a petition to violate defendant’s probation in the instant (burglary) case. The petition alleged violation of the conditions that defendant violate no law, that she cooperate with her probation officer and participate in rehabilitation as directed, that she not possess drugs, and that she not associate with known felons or persons engaged in criminal activity.
At the revocation hearing, counsel raised the same issue raised here: revocation of probation after an unreasonable delay, or under circumstances that mislead the probationer, is an abuse of discretion. The court rejected the argument, violated defendant’s probation, and sentenced her to state prison for the middle term of four years.
Defendant appeals.
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion in Acting on the Revocation Petition
The essence of defendant’s complaint is that the petition to revoke her probation was filed in April 2010, but the events that constituted the alleged probation violations had taken place several months to over a year earlier. Defendant relies on United States v. Hamilton (9th Cir. 1983) 708 F.2d 1412 and similar cases, for the proposition that, under certain circumstances, an unreasonable delay in bringing a petition to revoke probation can affect the probationer’s due process rights, and it may thus be an abuse of discretion to revoke probation. (Id. at p. 1415.)
Defendant’s argument depends in part on the supposition that the alleged violations which formed the basis for the petition were known to the San Bernardino County probation officials at or near the time of occurrence. The only basis for this supposition is the statement of counsel at the revocation hearing that he had contacted the San Bernardino Probation Department in 2008 to find out if any action would be taken with regards to her probation, on defendant’s felony charge of taking and driving an automobile (Veh. Code, § 10851); the probation department did not respond to counsel’s inquiry. Then, in a probation search, which counsel represented had taken place “six or seven months” before the revocation hearing date, defendant was discovered to be in possession of drugs. Other than counsel’s statements, there is nothing in the record to indicate precisely when the drug arrest took place. The revocation petition, however, filed in March 2010, states that the probation department received notification of the drug violations in late December 2009. The gap between December 2009 and March 2010 is only about three months.
Defendant’s reliance on United States v. Hamilton, supra, 708 F.2d 1412 is misplaced. There, a delay of three years occurred between notice to the court of the specific violation, and action to enforce the breach of the probation term. (Id. at p. 1415.) Similarly, in United States v. Tyler (5th Cir. 1979) 605 F.2d 851, the allegations of probation violation related to incidents that had occurred more than one year before the revocation petition was filed. (Id. at p. 853.) Here, although some of the incidents leading to the revocation petition occurred over a year earlier than the filing of the petition, the petition was filed within a reasonable time after the San Bernardino probation authorities were advised of the misconduct in late December 2009. The matter was further complicated because Orange County, as a courtesy, was providing probation supervision; the probation department in San Bernardino was not actively exercising immediate supervision of defendant’s probation.
In People v. Villines (1987) 192 Cal.App.3d 1298, a California case cited by defendant, the appellate court held that the probationer failed to demonstrate prejudice from delay in proceeding with the violation hearing. There, the violation took place in February 1986. The key witness was unavailable at a revocation hearing in March 1986, and the court dismissed the violation petition. After another month, the People filed a renewed revocation petition, on which hearing was eventually held in April 1986. The court held that the dismissal was not misleading, and the delay of several months was not prejudicial to the defendant. Thus, the court did not abuse its discretion in proceeding with the hearing and finding that the defendant had violated his probation. (Id. at pp. 1299-1304.)
Here, defendant has not shown any prejudice in terms of due process notice of the alleged violations, nor has she shown any deficiency in her ability to defend against the charges. In any event, the trial court did not abuse its discretion in revoking defendant’s probation: her performance on probation was abysmal, and she incurred numerous new charges and other violative misconduct whenever she was released from custody. The underlying conviction for which she had received probation-first degree burglary-was a serious felony, amounting to a strike offense. Yet defendant did not benefit from the generous clemency already extended to her.
In short, the trial court did not abuse its discretion in finding that defendant had violated her probation, and in revoking probation and sentencing defendant to state prison. Defendant’s arguments to the contrary are unpersuasive. The cases upon which she relies are distinguishable; the delay herein was not unreasonable under the circumstances, and defendant was not prejudiced.
DISPOSITION
The judgment and the order revoking probation are affirmed.
We concur: HOLLENHORST Acting P. J. KING J.