Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2006027166 Douglas W. Daily, Judge.
California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, 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, Senior Assistant Attorney General, Sarah J. Farhat, Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Gregory Frank Martinez appeals an order revoking his probation following his guilty plea to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and his admission that he had served two prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced him to three years four months in state prison. He contends the court violated his due process rights by revoking his probation without a hearing. We affirm.
All further undesignated statutory references are to the Health and Safety Code.
FACTS AND PROCEDURAL HISTORY
Because appellant pleaded guilty, the relevant facts are derived from the probation report. On July 17, 2006, appellant was contacted by the police while sitting in his car in a "no parking" zone. During a parole search, the officers found.35 grams of methamphetamine in appellant's sock and a methamphetamine pipe in his car. He was also determined to be under the influence of a controlled substance, and admitted using methamphetamine earlier that day.
Appellant was charged with possession of a controlled substance, being under the influence of a controlled substance (§ 11550, subd. (a)), and possession of a smoking device (§ 11364). It was also alleged that he had served two prior prison terms. He entered a plea of not guilty and denied the special allegations. He later withdrew his plea, entered a plea of guilty to possession of a controlled substance, and admitted the prior prison term allegations. The court accepted the plea and found appellant guilty. The remaining charges were dismissed. Appellant was placed on three years formal probation pursuant to Proposition 36 (Pen. Code, § 1210.1) and was ordered to pay various fines and fees.
On March 19, 2007, appellant admitted violating his Proposition 36 probation. The court revoked and reinstated appellant's probation. On December 26, 2007, a notice of charged violations of probation was filed. Appellant subsequently admitted a second violation of his probation, and his probation was revoked and reinstated.
Another notice of charged violations was filed on April 8, 2008. After appellant admitted the third violation of his probation, the court revoked his Proposition 36 probation. In exchange for a suspended sentence of three years four months in state prison, appellant entered a contract to participate in the drug court program. The court reinstated probation under the terms of that program, including that appellant serve 45 days in county jail.
On September 2, 2008, the People filed another notice of charged violations. After appellant admitted the violation, his probation was revoked and reinstated with the modification that he serve 90 days in county jail. The final notice of charged violations was filed on January 14, 2009. The following day, the court terminated appellant from the drug court program and continued the matter for clarification of sentence by the original sentencing judge. On February 2, 2009, the judge imposed the previously suspended sentence of three years four months.
DISCUSSION
Appellant contends the court abused its discretion and violated his due process rights by failing to afford him the opportunity for a formal hearing on the merits of the revocation of his probation. We agree with the People that appellant effectively waived his right to a revocation hearing and that any error in failing to hold a hearing was harmless.
Appellant correctly notes that he had a due process right to a probation revocation hearing. (People v. Vickers (1972) 8 Cal.3d 451, 455-457.) In his opening brief, however, he fails to acknowledge that the right was subject to waiver by his attorney. In People v. Dale (1973) 36 Cal.App.3d 191, the court concluded that the right is waived when counsel submits the matter on the probation report "and the defendant acquiesces by his silence." (Id. at p. 195.) Similarly, in People v. Martin (1992) 3 Cal.App.4th 482, the court concluded the defendant had waived his right to a formal revocation hearing "by filing a statement in mitigation which acknowledged that he would be sentenced... and failing to object at the sentencing hearing either to the sentencing procedure or to the grounds for revocation." (Id. at p. 486.)
Here, appellant's attorney appeared on the date set for the revocation hearing before Judge Colleen Toy White and stated: "Based upon discussions with the court and all members of the drug court team, I understand that it is the court's intention to discharge [appellant] from the Drug Court Program and impose a prison sentence at this time." Counsel thereafter immediately proceeded to discuss the issue of the length of prison sentence to be imposed, and referred to the fact that the People had previously offered a 28-month disposition. The court noted the original sentencing judge, Douglas W. Daily, had imposed a suspended sentence of three years four months, and stated "at this point the only thing that this court is going to do is impose that sentence that was previously suspended...." After unreported discussions between the court and counsel, appellant and his trial counsel, and the court and the clerk, the matter was continued so that Judge Daily could "do the sentencing." According to appellant's certificate of probable cause, the issue to be decided was whether "one prison prior should be dropped." When the sentencing hearing was subsequently held before Judge Daily, the judge stated the matter was before him for "clarification of sentence and perhaps imposition of sentence" because appellant had "accept[ed] a defined prison sentence that is suspended with that opportunity then to participate in drug court with the various terms of drug court, and I believe the decision has already been made now that that did not work out." After the judge reiterated that the only matter left for resolution was the "issue about clarification of the sentence I suspended," he asked appellant's attorney for his assessment. Counsel responded, "I would agree with all of the statements the Court has made." Counsel then urged the court to impose a 28-month sentence instead of vacating the stay on the previously imposed sentence of three years four months.
In light of this record, we conclude that appellant's attorney intended to waive his right to a hearing on the merit of his alleged probation violation and that appellant acquiesced in that decision. Counsel effectively submitted the matter on the probation report by acknowledging that the court was prepared to rule solely on the basis of the report and thereafter failing to urge the court to do otherwise. Moreover, appellant acquiesced in counsel's waiver by failing to object and thereafter proceeding to focus solely on the length of the sentence to be imposed. As the People note, the probation report contained appellant's admissions that he had violated his probation by using drugs and moving without prior approval. His complaints referred solely to his sentence, not the fact of the violation. Accordingly, he cannot be heard to complain that he was deprived of the right to formal hearing to contest that fact.
To the extent appellant contends the failure to hold a hearing violates his Sixth Amendment right to confront witnesses against him, the contention fails because the Confrontation Clause does not apply in probation revocation hearings. (People v. Abrams (2007) 158 Cal.App.4th 396, 400.)
When faced with the contrary authority in his reply brief, appellant asserts that both Dale and Martin are inapposite because "in both cases, either counsel or appellant did something that the courts could characterize as an explicit or implicit waiver of the right to a hearing and a determination that the defendant violated probation." Here, however, counsel stated his understanding that the court was prepared to rule on the basis of the probation report, made no effort to persuade the court to do otherwise, and proceeded to focus solely on the sentence to be imposed. Appellant did not object to this stance. These facts are not qualitatively different from those presented in Dale and Martin.
In any event, any error in failing to hold a hearing was harmless. It was essentially undisputed that appellant had violated the terms of his probation. As he acknowledges, he admitted as much to his probation officer. Under the circumstances, any error in failing to hold a formal probation revocation hearing was harmless beyond a reasonable doubt. (People v. Martin, supra, 3 Cal.App.4th at pp. 486-487 [failure to hold revocation hearing deemed harmless where defendant "admitted the fact of the probation violation in his statement to the probation officer"].) While appellant urges us to decline to follow Martin on this point, he provides no reason for us to do so.
The order revoking probation is affirmed.
We concur: GILBERT, P.J., YEGAN, J.