Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN197357, Daniel B. Goldstein and Richard E. Mills, Judges. Judgment affirmed as modified.
McINTYRE, J.
Kenneth James Adams appeals a judgment entered after the court revoked his probation, sentenced him to six years in prison and imposed restitution and parole restitution fines of $1,200 each. He contends that the trial court (1) erred in revoking his probation because the prosecutor failed to comply with the requirements of the Substance Abuse and Crime Prevention Act of 2000 (the Act, which was adopted by the voters as Prop. 36, & codified in Pen. Code, §§ 1210, 1210.1, 3063, & Health & Safety Code, § 11999.4); (2) violated his plea agreement by imposing a greater prison term than the agreement specified; (3) abused its discretion in sentencing him to six years in prison rather than reinstating his probation; and (4) improperly imposed the probation and parole revocation fines after having imposed similar fines of $200 each at the time of his plea. As the Attorney General concedes, Adams's final argument is well taken and we modify the judgment to reflect the imposition of two $200 fines. We find his remaining arguments unavailing and thus affirm the judgment as so modified.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2005, Adams pleaded guilty to one count of possession of methamphetamine and admitted the prosecution's allegations that he served four prior prison terms. Pursuant to the plea agreement, the prosecutor dismissed two additional drug-related charges alleged against Adams and the court placed Adams on three years' formal probation, conditioned upon drug treatment in accordance with Proposition 36, subject to the imposition of a "maximum punishment" of seven years if Adams failed to successfully complete drug treatment. (Pen. Code, § 1210.1 et seq.; see People v. Glasper (2003) 113 Cal.App.4th 1104, 1112.)
At a November 2005 review hearing, the probation officer alleged that Adams had violated the terms of his probation by failing to comply with the detoxification requirements of his treatment program. (There is no indication in the record that the probation officer made a formal motion or gave prior notice of the violation allegations prior to the hearing.) Adams appeared at the hearing with counsel, admitted the violation and waived an evidentiary hearing.
Shortly after the next review hearing in mid-December 2005 wherein the court found Adams to be in compliance with his drug treatment program, the probation officer submitted a notice to show cause why probation should not be revoked or modified, alleging that Adams had walked away from his residential treatment program. The matter was heard at a review hearing on January 12, 2006, where Adams again appeared with counsel. No reporter's transcript of this hearing is included in the record and the clerk's minutes do not reflect whether Adams admitted or denied the violation. The court ordered Adams to report for screening, continued him on probation and set a review hearing for January 26, 2006.
For reasons that are not disclosed by the record, the review hearing was held on January 19, 2006 rather than January 26. At the hearing, the probation officer again alleged that Adams had again left his residential treatment program. Adams appeared with counsel at the hearing, admitted the violation and waived an evidentiary hearing.
In May 2006, the court signed an ex parte order revoking Adams' probation and issuing a bench warrant for his arrest. However, at a hearing on September 14, 2006, at which Adams appeared with counsel, the probation officer withdrew the violation and the court cleared the warrant and reinstated probation.
In April 2007, the probation officer submitted a declaration that Adams had been discharged from a residential treatment program after testing positive for methamphetamine and requested an order to show cause why Adams's probation should not be revoked, to be heard at the review hearing scheduled for later that month. Adams failed to appear at that review hearing and the court summarily revoked his probation and issued another bench warrant for his arrest.
Adams appeared with counsel at a follow-up hearing on June 13, 2007. After being advised by the court that his admission of the violation would result in termination from treatment under the Act and sentencing, Adams admitted the violation, waived an evidentiary hearing and submitted to the termination of treatment. The court permanently revoked probation and, at the sentencing hearing in July 2007, imposed a six-year prison term, consisting of a two-year midterm on the possession charge, plus a consecutive one-year term for each of the four prison prior enhancements. Adams appeals.
DISCUSSION
1. Revocation of Probation
The Act generally requires that a criminal defendant who is convicted of a nonviolent drug possession offense receive probation, conditioned on participation in and completion of an appropriate drug treatment program, rather than a prison term or probation without drug treatment. (Pen. Code, §§ 1210.1, subd. (a), 1210, subd. (a); People v. Goldberg (2003) 105 Cal.App.4th 1202, 1206.) Under the Act's alternative system, a court's traditional discretion to determine whether such offenders are suitable for probation is altered. (People v. Floyd (2003) 31 Cal.4th 179, 183.) The purposes of the Act are to "enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies." (People v. Goldberg, supra, 105 Cal.App.4th at p. 1208.)
The provisions of the Act anticipate that drug abusers will often initially falter in their recovery and offer qualified offenders several chances to succeed in treatment while on probation. (In re Taylor (2003) 105 Cal.App.4th 1394, 1397.) Thus, subject to exceptions not applicable here, a defendant may twice violate a drug-related condition of his probation without his probation being revoked. (Pen. Code, § 1210.1, subd. (f)(3)(B).) A third violation, however, essentially reinstates the court's traditional discretion to reject probation and to sentence the offender instead. (Pen. Code, § 1210.1, subd. (f)(3)(C); People v. Tanner (2005) 129 Cal.App.4th 223, 233.)
The Act requires that the state make a written motion, with notice to the defendant, in each instance where it seeks to establish a violation of a drug-related probation condition for purposes of revoking the defendant's probation thereunder. (Pen. Code, § 1210.1, subd. (e)(3); People v. Hazle (2007) 157 Cal.App.4th 567, 574-575; People v. Tanner, supra, 129 Cal.App.4th at pp. 227, 234.) Arguing that the probation officer in this case did not make a formal motion to revoke his probation based on his first violation of the drug-related probation conditions, Adams argues that the court's action in revoking his probation and sentencing him in July 2007 was premature under the Act. Although we agree with his assertion that the record fails to establish that the probation officer made a written motion to have his probation revoked at the November 2005 hearing, we reject Adams's argument that this requires a reversal of the judgment.
In the context of probation revocation, due process does not require a complete "recitation of procedural rights" and a personal waiver of those rights. (People v. Dale (1973) 36 Cal.App.3d 191, 194-195.) Rather, a defendant can waive the formal requirements of notice and a hearing and admit a probation violation through the conduct of his attorney and his own silent acquiescence therein. (Ibid.; People v. Baker (1974) 38 Cal.App.3d 625, 629 [the failure to provide the defendant with prior written notice of probation violations charged against him did not violate his due process rights where it was not clear how the defendant received notice of the charged violations and defense counsel was given the opportunity to read the charged violations during a recess in the sentencing hearing and discuss them with the defendant, without any objection being raised as to lack of notice.]; see also People v. Martin (1992) 3 Cal.App.4th 482, 486 [concluding that the defendant waived his right to a formal probation revocation hearing by filing a statement in mitigation and failing to object to the procedure or the grounds for revocation].)
Here, Adams appeared at the November 2005 review hearing and, through counsel, admitted the alleged violation and waived his right to an evidentiary hearing, without raising any objection that he had not been given proper notice that the probation officer would be seeking revocation of his probation. In accordance with the foregoing authorities, these circumstances do not establish a due process violation.
This court's decision in People v. Tanner, supra, 129 Cal.App.4th 223 does not support a contrary conclusion. There, the defendant was placed on probation under the Act, but thereafter violated the conditions of his probation twice, by being discharged from his treatment program and by testing positive for drugs three days later. (Id. at p. 228.) At the review hearing, the defendant appeared, waived an evidentiary hearing and admitted the violations and the court placed him back on probation, telling him "you're on your last chance so pay attention." (Ibid.) The defendant thereafter violated the drug-related conditions of his probation several more times and at another review hearing where two of those violations were alleged, he again appeared with counsel, waived a hearing and admitted the violations. (Id. at p. 229.) The trial court found the defendant ineligible for further treatment under the Act because he had committed more than three drug-related violations, revoked his probation and ultimately sentenced him to five years in prison. (Id. at pp. 229-231.)
On appeal, the defendant argued that the revocation of his probation was premature under the Act because the probation officer had only made two revocation motions, rather than three as required by the statutory scheme. This court agreed, concluding that although the defendant had violated the drug-related conditions of his probation more than three times, he had not been afforded a third opportunity, as he was entitled to under the Act, to have the court consider his eligibility for reinstatement of probation and placement in another drug treatment program. (People v. Tanner, supra, 129 Cal.App.4th at pp. 236-238.) We also rejected an argument by the Attorney General that the defendant had waived the issue by failing to raise it below, based on the record's indication that the trial court and all counsel had operated under a mistaken belief that revocation of probation under the Act was automatic once the defendant was found to have violated the drug-related conditions of probation three times, rather than only after the state had moved three times to revoke probation based on those violations. (Id. at p. 238.)
The analysis of People v. Tanner, supra, 129 Cal.App.4th 223 is inapposite here. Unlike the defendant in that case, Adams was given three opportunities to succeed in drug treatment programs pursuant to the Act. Further, neither the court nor counsel here was operating under a misunderstanding as to what the law required. As discussed above, Adams has not established a violation of his due process rights. For these reasons, we conclude that the trial court did not act prematurely in revoking Adams's probation.
2. Imposition of a Six-Year Term
"When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement." (People v. Walker (1991) 54 Cal.3d 1013, 1024; see Santobello v. New York (1971) 404 U.S. 257, 262 [once his plea agreement is accepted by the court, the defendant has a due process right to be sentenced in accordance with the agreement].) A court may not impose punishment that significantly exceeds that to which the parties agreed and if it does so, the defendant is entitled to relief therefrom. (People v. Walker, supra, 54 Cal.3d at p. 1024.)
Adams contends that the court violated his plea agreement by imposing a six-year sentence. However, although the written plea agreement noted that Adams might be sentenced to four to five years in prison, it specifically provided, and Adams acknowledged at the plea hearing, that he would be subject to a "maximum" sentence of seven years if he failed to successfully complete his drug treatment program. This specification of a maximum sentence "implies a mutual understanding and agreement [of the defendant and the prosecutor] that the trial court has authority to impose the specified maximum sentence and preserves only the defendant's right to urge that the trial court should or must exercise its discretion in favor of a shorter term." (People v. French (2008) 43 Cal.4th 36, 44, quoting People v. Shelton (2006) 37 Cal.4th 759, 763.) For this reason, the court's imposition of a sentence that is equal to or less than the agreed-upon maximum sentence, as the court did here, does not in any way violate the underlying plea agreement. Adams's argument to the contrary is unavailing.
3. Refusal to Reinstate Probation
While the goals of probation are rehabilitative (People v. Howard (1997) 16 Cal.4th 1081, 1092), probation is a matter of clemency and, as such, it can generally be withdrawn by the court if the terms and conditions thereof are not met. (In re Solis (1969) 274 Cal.App.2d 344, 348.) Where the Act authorizes a court to revoke probation, the decision about whether to do so rests entirely within the court's sound discretion. (See generally People v. Medina (2001) 89 Cal.App.4th 318, 321-323.) "[O]nly in a very extreme case" will an appellate court interfere with a trial court's exercise of discretion as to whether probation should be revoked or denied. (People v. Lippner (1933) 219 Cal. 395, 400.)
Adams contends that the trial court abused its discretion in revoking rather than reinstating probation under the circumstances of this case, particularly given his past attempts to comply with the drug treatment requirements and the sudden death of his wife in 1998 and the resulting loss of custody of his children. However, the trial court's decision not to reinstate probation in light of Adams's recurring drug use problems and his lack of compliance with treatment while on probation was neither arbitrary nor capricious, but rather well within its discretion. (See People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Although Adams's personal tragedy is unfortunate and it remains possible that he might benefit from further treatment, these facts do not render the court's decision an abuse of discretion. In accordance with the Act, Adams was accorded several chances to participate in drug treatment while on probation. Unfortunately, he was unable to successfully take advantage of those opportunities, making the court's decision to deny him another chance at probation and to sentence him to prison proper.
4. Restitution and Probation Revocation Restitution Fines
Penal Code section 1202.4 requires a court to impose a restitution fund fine whenever a person is convicted of a crime absent a finding of "compelling and extraordinary reasons for not doing so," which reasons must be stated on the record. (Pen. Code § 1202.4, subds. (a)(3)(A), (b), (c).) In the absence of a finding of extraordinary reasons, the court must impose a fine of not less than $200 or more than $10,000. (Pen. Code, § 1202.4, subds. (b)(1), (b)(2), (c), (d).)
At the time Adams entered his guilty plea, the court imposed a $200 restitution fine and a $200 probation revocation restitution fine. Having done so, the court lacked the authority to impose the fines a second time (and in higher amounts) after revoking his probation and sentencing him. (People v. Downey (2000) 82 Cal.App.4th 899, 921; People v. Chambers (1998) 65 Cal.App.4th 819, 821-823.) Accordingly, we modify the judgment to impose one $200 restitution fine and one $200 probation revocation restitution fine.
DISPOSITION
The judgment is modified so that it imposes only one $200 restitution fine and one $200 probation revocation restitution fine. As so modified, the judgment is affirmed.
WE CONCUR: McCONNELL, P.J., HALLER, J.