Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2002039453, Glen M. Reiser, Judge
California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Stiner, Executive Director and Suzan E. Hier, Staff Attorney, for Appellant.
Edmund G. Brown, Jr., Attorney General, Dan R. Gillette, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Ellen Birnbaum Kehr, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Deserie Mary Molina appeals from the judgment entered following the trial court's termination of drug-treatment probation granted pursuant to Penal Code section 1210.1. Appellant contends that she was denied due process of law because she never admitted a probation violation and no evidence of a violation was presented. We disagree and affirm.
All statutory references are to the Penal Code unless otherwise indicated.
Section 1210.1 was added to the Penal Code by Proposition 36. "Proposition 36, which was approved by the voters at the November 7, 2000 General Election, effected a change in the sentencing law so that a defendant convicted of a nonviolent drug possession offense is generally "sentenced"to probation, instead of state prison or county jail, with the condition of completion of a drug treatment program." (In re DeLong (2001) 93 Cal.App.4th 562, 566.)
"Anticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time." (In re Taylor (2003) 105 Cal.App.4th 1394, 1397.) The first time that the defendant commits a drug-related probation violation, the defendant is entitled to remain on probation unless "the state proves by a preponderance of the evidence that the defendant poses a danger to the safety of others." (§ 1210.1, subd. (e)(3)(A).) The second time that the defendant commits a drug-related violation "and the state moves for a second time to revoke probation," probation may be revoked only if the state proves "by a preponderance of the evidence either that the defendant poses a danger to the safety of others or is unamenable to treatment." (§ 1210.1, subd. (e)(3)(B).) If "the state moves for a third time to revoke probation" and proves a third probation violation, the defendant is ineligible for continued drug treatment under section 1210.1. (§ 1210.1, subd. (e)(3)(C).)
Section 1210.1 was amended effective July 12, 2006. (Stats. 2006, ch. 63, § 7.) The amendment is to be applied prospectively. (Id., § 9.) All of the events pertinent to this appeal occurred before the effective date of the 2006 amendment. Accordingly, we refer to the version of section 1210.1 that existed before the 2006 amendment.
Factual and Procedural Background
In April 2003 appellant pleaded guilty to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) The proceedings were suspended and she was granted a deferred entry of judgment for 24 months. (§ 1000 et seq.) In March 2004 the court revoked deferred entry of judgment and reinstated criminal proceedings. In April 2004 the court placed appellant on probation for 36 months pursuant to section 1210.1.
In August 2004 the probation officer requested a hearing on a notice charging appellant with a drug-related probation violation. The notice was later amended to allege an additional violation. After appellant had admitted both violations, the court found that the violations constituted "strike number one" and "strike number two."
In November 2004 the probation officer requested a hearing on a notice charging appellant with a new drug-related probation violation. Appellant admitted the violation, and the trial court found that it was "strike three." The court terminated appellant's section 1210.1 probation.
Appellant appealed. The People conceded that the trial court had erroneously concluded that appellant's admission of the third probation violation rendered her ineligible for continued drug-treatment probation pursuant to section 1210.1. The People maintained that what the court had found to be "strike three" was actually "strike two." In an unpublished opinion, we accepted the People's concession. We reversed and remanded the matter to the trial court for further proceedings. (People v. Molina (June 1, 2005, B180091) [nonpub. Opn].)
On August 31, 2005, the trial court reinstated appellant's section 1210.1 probation. On November 2, 2005, the probation officer filed a notice charging appellant with violating probation. On the following day, the trial court summarily revoked probation.
A formal probation revocation hearing was set for May 12, 2006. (CT 33) On that date, the probation officer filed an amended notice of charged violations of probation. She recommended that appellant's section 1210.1 probation be revoked and "unsuccessfully terminated for Strike Three." In addition, the probation officer recommended that appellant be ordered to serve 210 days in county jail.
At the formal probation revocation hearing, appellant appeared with her counsel. Counsel stated: "Your honor, this is a matter she's going to be striking out and the recommendation is 210 days. She understands that her only request is that she can remand on Monday." The probation revocation hearing occurred on a Friday.
The trial court responded: "All right. Court enters your admission on the violations of probation, and so the Court does impose 210 days jail and you have 13 days actual against the 210. And the Court will terminate your probation as unsuccessful . . . , and I'm going to stay your remand until Monday."
Discussion
The trial court construed counsel's statement as constituting an admission by appellant of the truth of the charged violations of probation. Appellant argues that she never made such an admission and, therefore, was denied due process of law when her probation was revoked without holding an evidentiary hearing.
In People v. Dale (1973) 36 Cal.App.3d 191,the defendant's counsel stipulated that the issue of probation revocation would be heard and determined upon a " 'negative' " supplemental probation report. (Id., at p. 193.) "The trial court did not inform [defendant] of the procedural safeguards afforded by People v. Vickers [1972] 8 Cal.3d 451 . . . , and Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593]. [Defendant] did not personally waive the rights granted by Vickers and Morrissey." (Ibid.) After reading the supplemental report, the trial court revoked defendant's probation and sentenced him to state prison.
On appeal, the defendant contended that the trial court had erred in revoking probation without a hearing and without obtaining a personal waiver of his due process rights. The Dale court concluded that such a personal waiver was not required: "Where, as here, Morrissey rights are waived by conduct of counsel in submitting an alleged violation of probation upon the probation report and the defendant acquiesces by his silence, the waiver is effective." (People v. Dale, supra, 36 Cal.App.3d at p. 195.)
Just as the defendant in Dale waived his due process rights by the conduct of counsel and his acquiescent silence, so did appellant waive her due process rights and impliedly admit the probation violations. When appellant's counsel said "she's going to be striking out," counsel could only have meant that appellant was going to admit the probation violations and accept the probation officer's recommendation that her section 1210.1 probation be "unsuccessfully terminated for Strike Three." Counsel noted that the probation officer had recommended a county jail sentence of 210 days and that appellant's "only request" was that she not be remanded into custody until the following Monday. When the trial court stated that it was entering appellant's "admission on the violations of probation," terminating her probation, and sentencing her to county jail for 210 days, both appellant and her counsel manifested their acquiescence by remaining silent. (See also People v. Martin (1992) 3 Cal.App.4th 482, 486 [defendant waived his right to a revocation hearing by filing a statement in mitigation acknowledging that he would be sentenced on the case and by "failing to object at the sentencing hearing either to the sentencing procedure or to the grounds for revocation"].)
Appellant cites no authority requiring that a defendant personally and expressly admit a probation violation. It follows that the trial court did not err in terminating appellant's section 1210.1 probation and sentencing her to county jail.
Disposition
The judgment is affirmed.
We concur: GILBERT, P.J. PERREN, J.