Opinion
A145074 A147497
10-16-2017
THE PEOPLE, Plaintiff and Respondent, v. ERIC C. DAVIESSON, Defendant and Appellant. In re ERIC C. DAVIESSON, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. Nos. SCR622762, SCR632694, SCR634531)
Defendant Eric C. Daviesson appeals from judgments filed in three consolidated cases, in which the court revoked his probation on 10 felony convictions and resentenced him to an aggregate state prison term of 19 years and four months (Pen. Code, § 1170, subd. (d)). He contends the trial court erred when it revoked his probation and refused to reinstate him to probation at the conclusion of the resentencing hearing. In his petition for a writ of habeas corpus, filed concurrently with this appeal, defendant petitions this court to set aside the judgments on the basis of prosecutorial misconduct and ineffective assistance of trial counsel. We conclude defendant's arguments do not warrant reversal of the orders revoking probation. However, we remand the matters for resentencing due to an unauthorized sentence imposed in Case No. SCR622762. We summarily deny defendant's petition for a writ of habeas corpus.
All further unspecified statutory references are to the Penal Code.
We consolidated the petition with this appeal. Additionally, we now grant defendant's motion to file certain exhibits in support of his reply (mislabeled a traverse).
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant pleaded no contest, the facts of his offenses are taken from the probation department's presentence report filed August 5, 2013 and the sentencing report filed December 9, 2014, following the adjudication of his violation of probation.
A. Background
This appeal arises from an information and two felony complaints in which defendant was charged with multiple felony counts relating to incidents that occurred in August 2012, April 2013, and May 2013.
In Case No. SCR622762, the Sonoma County District Attorney filed an information, later amended in court, charging, in pertinent part, that defendant committed eight felony offenses, together with sentence enhancement allegations, including several counts of assault with force likely to produce great bodily injury, together with sentence enhancement allegations of great-bodily injury and a hate crime (Pen. Code, § 245, subd. (a)(4)); 422.75, 12022.7). The charges stemmed from the following facts. On the evening of August 21, 2012, defendant's motorcycle broke down. A nearby resident, R.Q., gave a portable telephone to defendant for him to use to summon a ride. Defendant and R.Q. got into an altercation over defendant's use of R.Q.'s telephone. Using his cellphone, R.Q. called 911. Defendant became enraged and pummeled R.Q., forcing him to the ground while calling him derogatory names. R.Q. suffered a concussion, three fractured ribs, and multiple contusions and abrasions, as a result of the altercation with defendant.
Approximately two hours after the altercation, Sonoma County deputies responded to a report of "assaults on motorists" and arrested defendant a short distance away from where his motorcycle had broken down. Following defendant's arrest, a deputy spoke with two motorists, C.H. and R.A., as well as D.A., R.A.'s wife. The motorists reported their cars had struck several large boulders placed in the road by defendant. When the motorists got out of their cars, defendant threatened to strike them with a wooden pole. D.A. reported that as her husband was clearing boulders in the road, she was in the car calling 911. Defendant approached the open driver's side window and said he had been in a motorcycle accident and lost his clothes. D.A. offered defendant a blanket and pillowcase. Defendant grabbed the blanket, and then waved the wooden sign at her and told her to lie down on the pavement. Frightened, D.A. rolled up the driver's side window and locked the car doors until the deputies arrived. In addition, C.H. reported that defendant used racial slurs while assaulting him.
In Case No. SCR632694, the Sonoma County District Attorney filed a felony complaint, charging, in pertinent part, that defendant had committed the felony offense of weapon possession (§ 22210) (count one). This charge stemmed from the following facts. In the early morning hours of April 20, 2013, a deputy was dispatched in response to a report of a suspicious person in the area. The reporting party had seen a person looking into windows in a neighbor's residence and into vehicles parked in the area. In the parking lot of a nearby roadhouse, the deputy located defendant, who matched the description given by the reporting party. The deputy detained defendant and asked him if he had any weapons. Defendant said he had a hammer inside his vest. The deputy removed a ball peen hammer from defendant's vest and asked him why he had concealed it. Defendant said he had just found the hammer lying on the ground so he picked it up and put it inside his vest.
In Case No. SCR634531, the Sonoma County District Attorney filed a felony complaint, charging, in pertinent part, that defendant had committed the felony offense of attempting to evade a peace officer while driving recklessly (Veh. Code, § 2800.2, subd. (a)), together with sentence enhancement allegations of being out on bail (§ 12022.1) and having sustained a prior prison conviction (§ 667.5, subd. (b)) (count one). This charge stemmed from the following facts. On the evening of May 6, 2013, while driving on Highway 101, a California Highway Patrol officer observed defendant driving his vehicle at an estimated speed of 100 miles per hour in an area where the posted speed limit was 65 miles per hour. In an attempt to overtake defendant's car, the officer pursued defendant for several miles, during which time the officer activated his car's overhead lights and the siren in order to clear traffic. Using his car's loud speaker, the officer requested that defendant pull to the right. Instead of complying, defendant changed lanes and accelerated to speeds of approximately 80-90 miles per hour and, for brief periods, attained speeds of 120 miles per hour. Ultimately, defendant slowed down and stopped his car. Following his arrest, defendant told the officer he did not know the officer was attempting to pull him over, he attempted to find a safe place to pull over, and he did not think he was driving recklessly or at 120 miles per hour.
1. Change of Pleas Hearing
On July 3, 2013, the trial court held a change of pleas hearing to resolve the three cases. In all, defendant pleaded no contest to 10 felonies and admitted to related sentence enhancement allegations, pursuant to written plea and sentencing agreements under section 1192.5. Defendant confirmed his understanding that in exchange for his pleas and dismissal of remaining charges, the court would impose but suspend execution of an aggregate prison sentence of 20 years, and grant probation for a term of 60 months on various terms and conditions, including that he "attend and complete" a one year residential drug treatment program at Jericho Project.
2. Original Sentencing Hearing - August 5, 2013
Before sentencing, the probation department filed with the court and served counsel with a sentencing report. The probation officer noted that defendant was then married and had two children. He had full custody of his older child, who was then residing with defendant's parents, while the younger child was residing with the child's mother. Defendant reported he had a heavy methamphetamine addiction and alcohol was his second choice of substance abuse, having started drinking and using methamphetamine as a teenager. At nineteen, he enlisted as a United States Marine and served six years including tours of duty in Desert Storm and Afghanistan before he was honorably discharged. During his military service he abstained from using methamphetamine. Defendant had also been employed as a commercial fisherman for six years. At the time he was interviewed by probation on July 23, 2013, he had been employed for eight years by a construction company. In or around 2000, defendant resumed using alcohol and methamphetamine, and by late 2000, he was using methamphetamine on a daily basis. Except for periods of incarceration, defendant maintained a daily methamphetamine habit until his arrest on the current charges.
Prior to the commission of the current offenses, defendant sustained separate felony convictions for vehicle theft, attempted vehicle theft, possession of stolen property, possession of a stolen vehicle, and forgery, committed on three separate occasions in 2003, and two separate occasions in 2007. For each conviction defendant was sentenced to either probation or prison terms (ranging from eight months to three years), and in each case, he repeatedly violated the terms and conditions of probation or parole. On August 3, 2012, during a term of parole, defendant was convicted of misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). He was granted a conditional sentence of 36 months, and ordered to serve 13 days in county jail and to participate in a section 1210 court drug treatment program. After his release from county jail, he committed the assaults and other offenses charged in Case No. SCR622762. While he was released on bail on the charges in Case No. SCR622762, defendant committed the weapon possession offense charged in Case No. SCR632694. Once again, he was released on bail and he committed the evading arrest offense charged in Case No. SCR634531.
On May 9, 2013, three days after defendant's commission of the evading arrest charge in Case No. SCR634531, the court summarily revoked defendant's conditional sentence on the drug offense. At the change of pleas hearing on the current offenses, the court found defendant had violated the conditional sentence based on his pleas to the current offenses and the conditional sentence was terminated unsuccessfully.
Defendant also reported that he had made attempts at addressing his methamphetamine addiction by attending drug treatment programs as conditions of probation. In 2004, he was ordered to participate in a 12-month residential treatment program at Delancey Street, but he was terminated before completion based on his reported failure to comply with the program's rules and for stealing money. On August 30, 2005, he was ordered to participate and complete residential treatment and aftercare at Solidarity House, and he graduated from that program in 2006. Between November 2012 and April 2013, defendant regularly participated in AA meetings, worked with a sponsor, and had reached the third step of the 12-step recovery program.
At defendant's sentencing, the court indicated it was prepared to follow the section 1192.5 sentencing agreements reached at the July 2013 change of pleas hearing. The prosecutor stated defendant had been potentially facing a very lengthy prison sentence but the parties had reached an agreement to give defendant an opportunity to participate in the Jericho Project program to allow him to address his methamphetamine addiction. The prosecutor then stated, in pertinent part, that if defendant "violates," "fails," or "walks away from the program," the parties would be back in court and the prosecutor would ask the court to impose the agreed on 20-year prison sentence. The court noted that in accepting the parties' sentencing agreements, it had taken into account defendant's honorable service as a United States Marine and his need to address his substance abuse problem. The court then sentenced defendant as agreed. It imposed but suspended execution of an aggregate state prison term of 20 years and defendant was placed on probation for 60 months, subject to various terms and conditions, including that he serve one year in county jail with credit for time served, and thereafter, enter a one-year drug treatment program at Jericho Project.
B. Current Trial Court Proceedings Under Review
1. Violation of Probation Hearing
On July 9, 2014, some eleven months after sentencing, the court granted the probation department's request to summarily revoke defendant's probation on the three cases. Probation alleged defendant had violated the terms of his probation by failing to complete the one-year residential treatment program at Jericho Project and failing to report to probation as directed. In its written notice of a violation of probation, probation alleged: "The defendant entered Jericho Project Drug and Alcohol Recovery Program on 09/08/13. Reportedly, he was discharged from the program on 07/02/14 for his negative attitude and behavior. . . . The defendant was discharged from the treatment program on 07/02/14 yet he failed to report to probation until 07/07/14." Probation further noted: "This allegation represents the defendant's first violation on this probation grant. Should he admit the violation, it is recommended the previously suspended prison term now be imposed."
At the October 3, 2014, violation of probation hearing, the court informed defendant that he was in violation of probation because he did not complete the drug treatment program as directed and he did not "immediately report to probation." The court added, "From my memory you were discharged the late evening of [Wednesday] 7/2 and you didn't report until Monday 7/7." Defense counsel noted for the record that "Friday was a holiday," to which the court replied, "Right, but Thursday was not." Following defendant's waiver of his rights, he admitted he violated probation because he "did not finish the program as directed and [he] failed to report immediately." Based on defendant's admission, the court found defendant had violated probation and scheduled a sentencing hearing.
2. Sentencing Hearing Following Violation of Probation
Before the scheduled sentencing hearing, the probation department filed a sentencing report recommending that the court revoke probation and execute the suspended sentences. In support of the recommendation, probation described the circumstances giving rise to the violation of probation as explained by both defendant and the reports of the program director of the Jericho Project and members of the District Attorney's office.
According to defendant, he had been doing very well at the Jericho Project program. He admitted program staff had counseled him on occasions for rule violations such as: walking down the alcohol aisle at a food store and failing to report another resident who offered him tobacco. He stated that he was discharged from the program because he would not accept the staff's offer to remain in the program for another year, and operate heavy machinery at a jobsite. The probation officer indicated that defendant seemed unaware he had been discharged for his non-compliant behavior, and in fact, defendant claimed he had been excelling in all areas within the program. When questioned again about the reason for his discharge, defendant said he was discharged because he was not informing staff of what was going on with other program residents. Regarding his failure to report to probation on Thursday, July 3, the day following his discharge from the Jericho Project, defendant said he had been discharged at 10:00 p.m., did not arrive in Marin County until the next morning, and he did not have money in order to make his way to Santa Rosa. When asked why he failed to telephone the probation officer, defendant said, "I don't know why I didn't call you." Defendant believed his current violation of probation did not warrant a commitment to state prison because he had been clean and sober, and had not relapsed. He wanted another chance to complete a drug treatment program and, to that end, he had applied and been accepted into the Henry Ohloff residential drug treatment program.
The program director of Jericho Project reported the following information from his in-house investigation of defendant's discharge. Defendant told program residents that he was "manipulating the system" and had no desire to change his behavior. Defendant "seemingly touted" to other residents his desire to " 'go through the hoops' " rather than invest in the program. In fact, defendant appeared more focused on his completion date rather than any desire to change or improve his behavior. Other residents reported that they feared defendant. The program director confronted defendant with the other residents' complaints and directed defendant to " 'come clean' " with probation. Defendant did not disclose the complaints to the probation officer. Additionally, members of the District Attorney's office reported the results of their interviews with program residents regarding their experiences with defendant. One resident described defendant as a " 'bully who used his size and stories about being an active Hells Angels gang member to imply his inclination towards violence,' " "repeatedly us[ed] fear tactics and intimidation" to get other residents to follow his directives, and commented that he had " 'no intention' of truly changing [his behavior]" and "wanted to complete Jericho simply so he could return to his old life again." The resident reported defendant's behavior and actions to the program manager. Another resident reported that defendant " 'never put forth any legitimate effort,' " and defendant said he merely wanted to complete the program. In the section of the report labeled, "Probation Compliance," the probation officer noted that defendant's compliance at the Jericho Project program was "dismal," "as evidenced by the program director and other resident[s'] interviews."
In the section of the report labeled, "Evaluation," the probation officer noted that despite the disturbing aspects of some of defendant's current offenses, the court had generously given him an opportunity to participate in a long term residential treatment program with a suspended prison sentence as motivation. However, defendant had not changed his ways as he continued his " 'bully' " mentality and his "continued intimidating demeanor" towards other program residents. While defendant had maintained his sobriety, he continued to demonstrate "traits indicative of . . . "anti-social thinking," and his " 'bully' " mentality, his lack of accountability for his conduct, and his repeated associations with groups that advocate violence [were] all [negative] factors . . . ." The probation officer opined that defendant was not amenable to continued probation supervision. The probation department officer attached to the report a written statement from defendant and letters from defendant's parents, his son, and his former neighbors. The prosecutor also submitted a statement in support of revoking defendant's probation and executing the suspended sentences, relying primarily on the information in the probation department report.
At defendant's sentencing hearing, defense counsel argued that defendant's conduct did not warrant revoking probation and sending him to state prison. Defense counsel characterized defendant's conduct at the Jericho Project program as follows: during the first two months defendant sustained two fairly minor rules violations, for the next seven months he was doing well at the program, and he was discharged based on complaints by other program residents who were being supervised by defendant. Defense counsel also addressed defendant's failure to immediately report to probation after his discharge from the program in the following manner: "[T]here's a second allegation that he didn't check in at the probation within two days. And again, I would note that he was released on the evening of July 2nd. When he was sentenced he was told that he had 48 hours or two business days to check in with probation. He did not make it [t]here on July 3rd. July 4th was a holiday, was a Friday. Saturday and Sunday the Probation Department is not open. There was no one for him to check in to. There was no warrant issued for him to go into custody. There was no probation officer for him to contact. [¶] He did contact his attorney. His wife sent me an e-mail. [We] . . . spoke over the weekend, and he was at probation on Monday to turn himself in where he was taken into custody." Defense counsel further noted that defendant had been "clean for 20 months," he had been accepted at a new drug treatment program, and he should be given another opportunity at treatment for his drug addiction.
Defendant also addressed the court. He explained that during his time at the Jericho Project program he became a house manager, worked as a foreman for Jericho construction managing 50 men, and been out in the community for 10 months. As reflected in the probation department report, defendant believed that his refusal to become a full-time staff member and stay another year in the program was "part of the reason" for his discharge. Defendant also stated that when he was discharged from the program, he turned himself in "immediately," or "as quick as [he] could."
The prosecutor urged the court to revoke defendant's probation and execute the suspended sentences, noting that defendant was not doing well at the Jericho Project program. While acknowledging that defendant's sobriety "for the last 20 months" was "great," the prosecutor noted that defendant's sobriety had been achieved while he was supervised either in custody or in the Jericho Project program.
The court ruled it would follow the probation department's recommendation. It executed the previously suspended sentence and committed defendant to state prison for an aggregate term of 20 years. Several days after it pronounced sentence, the court reconvened the parties. The court informed the parties that the court clerk had noted the previously suspended sentence was actually an aggregate term of 19 years and four months, and not 20 years. The court also believed a "19-year sentence" was not "a well-thought-out disposition in the first place," noting that neither party had filed mitigating or aggravating statements at the time of the original sentencing hearing. To determine whether a 19-year commitment was appropriate, the court, on its own motion, recalled the sentence under section 1170, subdivision (d), and scheduled a new sentencing hearing.
3. Resentencing Hearing Under Section 1170 , Subdivision (d)
Defense counsel submitted a 21-page statement in mitigation in advance of the resentencing hearing. In his statement, defense counsel outlined the circumstances of defendant's current offenses, the facts relating to defendant's discharge from the Jericho Project program, as well as reasons for the court to either reinstate defendant to probation or consider mitigated sentences if the court determined that a term in state prison was warranted. In addition, defense counsel submitted to the court (a) documents regarding defendant's stay at the Jericho Project program; (b) several letters from defendant's family members, former co-workers, neighbors and friend, a United States Marine who had served with defendant, and a fellow Jericho Project client and friend, and acceptances from two new residential drug treatment programs; and (c) photographs of defendant as a volunteer firefighter and at his graduation as a United States Marine.
Defense counsel described the facts relating to the violation of probation in the following manner: Defendant "entered the JERICHO Project on September 8, 2013." He "was at the JERICHO Project for over ten months out of a twelve-month commitment prior to being terminated. A week prior to being terminated, JERICHO staff had asked [him] if he would be willing to stay on and work and live at JERICHO for an additional year. He declined. At the time of his termination, [he] was a 'house manager' and responsible for supervising the five other JERICHO Project clients living in an apartment with him. [His] ultimate termination was based upon his management of the apartment and a report of unsatisfactory supervision made by one of the five other JERICHO Project clients living in the apartment." "On Wednesday, July 2, 2014 [defendant] was terminated from the program based upon being a 'negative influence' on other clients and for attempting to 'withhold household issues.' . . . On the evening of July 2, 2014, [defendant] was left at a train station in the County of San Mateo by JERICHO staff. He was given $20 in cash to transport himself to Sonoma County. [Defendant] did not make it to Sonoma County on July 3rd. The next day, Friday, July 4th, the Probation Department and Courts were closed for the holiday. [Defendant] contacted his Sonoma County Probation officer the next business day, Monday July 7th, and informed her that he was on his way to Santa Rosa. [Defendant] appeared physically at the probation department on Monday July 7th and was taken into custody."
Defense counsel submitted several documents from the Jericho Project, including: (1) defendant's signed agreement to abide by and follow the program's rules, which explicitly provided, in pertinent part, that the rules would be enforced "at a zero tolerance level," and "[v]iolation of any rules . . . may result in your discharge," including the following rules: "[y]ou must make staff aware of any knowledge you have of other persons engaging in . . . "violations of Jericho Project[']s rules and policies;" and "[b]ehaviors of any kind that offend . . . other persons in the house will not be tolerated;" and (2) a July 3, 2014, letter, in which the Jericho Project program director informed the probation department of defendant's discharge in the following manner: "On 09/08/13, Eric Daviesson entered Jericho Project Drug & Alcohol Recovery Program. [¶] On 7/02/2014, Mr. Daviesson was discharged from the program due to his negative attitude and behavior. Mr. Daviesson had become a negative influence on other clients. Mr. Daviesson's failure to respond positively to treatment resulted in his termination from the program. Mr. Daviesson was instructed to notify Sonoma County Probation about his situation. If the probation department finds it appropriate, then we would consider, after discussion, readmitting Mr. Daviesson to the program."
The prosecutor filed a "supplemental memorandum on defendant's in-custody behavior," contending that defendant was not a suitable candidate for community supervision. In support of his argument, the prosecutor asked the court to read the transcripts of several tape-recorded telephone calls between defendant and his 16-year-old son, which calls occurred while defendant was incarcerated in the county jail between March 12, 2015 and April 13, 2015. According to the prosecutor, during those telephone conversations, defendant "attempt[ed] to covertly discuss with his 16-year-old son . . . what appear[ed] to be a plan for the illegal cultivation of marijuana for the purpose of financial gain."
At the resentencing hearing, the court initially noted it had considered the original presentence report, the probation department's violation of probation report, and the documents filed by the prosecutor and defense counsel. The court also indicated it had read the transcripts of the tape-recorded telephone conversations between defendant and his 16-year-old son. The court then heard argument from counsel, statements from several victims of defendant's current offenses, and a statement from Peter Skaife, who worked at the Heroic Living Re-Entry Project and spoke on behalf of defendant. Two letters, one from a victim now deceased and one from the victim's spouse, were read in open court.
The court denied defendant's request to be reinstated to probation as well as his request for mitigated sentences, explaining: "Mr. Daviesson was originally sentenced on August 5, 2013. I didn't get a chance to read the actual sentencing, but I did read the change of plea, and at the change of plea . . ., [the prosecutor] had stated that he believed that Mr. Daviesson had a chance at success and that they had both worked [defense counsel] and [the prosecutor] on this plea deal and it was a very considered plea negotiation. [¶] After sentencing, Mr. Daviesson's probation was revoked, and he was actually found in violation [and] at a hearing . . . he admit[ted] the violation of probation . . . . [¶] . . . [¶] And you were found in violation for, number one, not completing Jeric[h]o as directed, but, number two, although you were released from Jeric[h]o . . . on July 2nd, which was a Wednesday, and July 3rd was a Thursday, July 4th was a holiday and the courts were closed on the 5th and 6th, which were Saturday and Sunday, and then on the 7th you turned yourself in, but by not coming in on the 3rd, that was of course a violation of probation right there. [¶] . . . I am considering the facts of the violation of probation, and I believe that the circumstances of you leaving Jeric[h]o or being asked to leave Jeric[h]o certainly are somewhat mitigating circumstances on your behalf. Your not turning yourself in the very next day was your choice, and, as I said, that, alone, is a violation of probation. [¶] As to [California Rules of Court] Rules 4.413 and 4.414, I believe that by entering into what's called [a section] 1192.5 disposition, the People . . . felt it was an unusual case and that probation would be appropriate. That does not mean that probation remains appropriate, but I don't want the record to reflect that I'm considering that this is not an unusual case because that [decision] has already been made by [defendant] being placed on probation. [¶] My question is should I continue to keep you on probation, Mr. Daviesson and I can't do that. I cannot do that based on the history that you have, the five felony convictions that you had before you went on basically your crime spree, first you had assaultive behavior to these good Samaritans that came out to help you, they came to help you, and I understand that you were probably under the influence of methamphetamine and perhaps alcohol, but they came to help you and you hurt them, and then we have the possession of the ball p[een] hammer, and then we have the [Vehicle Code section] 2800.2, which is the going down the freeway at up to 120 miles per hour, between 100 and 120 miles per hour, putting every single citizen at risk, and so based on just the facts of the instant case, you did have one chance at probation, but you failed to take full advantage of that chance, and I cannot based on what I have in front of me now let you remain on probation. [¶] I have also read the transcripts . . . and . . . there is no other interpretation than you were trying to - I'm not going to use the word conspire, but you were urging your 16-year-old son to grow marijuana for money, and in reading that it makes me know or it makes me believe that you are not ready to step up into society. [¶] You might be willing to abide by some of the rules to get around going to prison, a prison sentence that you negotiated, that you said that you would behave and abide by all of the rules, that you are not ready to do that, and I find the statements of the victims in this case very compelling and how your activity on the night of the assaults continues to haunt them. [¶] You were on parole at the time you committed that assault, you were on bail at the time you possessed the ball p[een] hammer, and you were, once again, on bail when you did the [Vehicle Code section] 2800.2 with numerous, numerous violations of both parole and probation preceding that. For those reasons and for the fact that you have gone through at least three other treatment modalities, I am going to be denying reinstating your probation at this time and the previous sentence that had been imposed will once again be imposed . . . ."
DISCUSSION
I. Probation Revocation Based on Violation of Probation
Defendant challenges, on various grounds, the trial court's revocation of his probation based on his violation of probation. We find none of defendant's contentions requires reversal.
A. Violation of Probation Based on Failure to Immediately Report to Probation
Defendant challenges the court's revocation of probation on the ground that it improperly found he had violated probation based on his failure to immediately report to probation after his discharge from the Jericho Project program. According to defendant, an immediate reporting condition is unconstitutionally vague and overbroad, and therefore, his purported violation of the condition cannot support revocation. We find defendant's argument is unavailing.
We initially note that the record on the direct appeal does not include any specific information relative to what defendant was told by the probation department as to the time and method of his reporting obligations if he were discharged from the Jericho Project program. Nonetheless, we agree with defendant that the trial court determined defendant had violated probation based on its understanding that defendant had an obligation to report "immediately" to probation after his discharge from the Jericho Project program. For the purposes of addressing defendant's contention, we will therefore assume, without deciding, that defendant had an obligation to immediately report to probation after his discharge from Jericho Project program. In addition, and as defendant acknowledges, because the constitutionality of the probation condition was not raised in the trial court, his arguments are limited to a facial constitutional challenge to the immediate reporting condition on the grounds it is vague and overbroad. (People v. Quiroz (2011) 199 Cal.App.4th 1123, 1127 [forfeiture rule does not apply to defendant's contention that as a matter of law probation condition, on its face, is unconstitutionally vague and overbroad]; People v. Pirali (2013) 217 Cal.App.4th 1341, 1347 (Pirali) ["[a]lthough a probation condition may be overbroad when considered in light of all the facts, only those constitutional challenges presenting a pure question of law may be raised for the first time on appeal"]; see also In re I.V. (2017) 11 Cal.App.5th 249, 261 (I.V.) [applying "de novo review to evaluate constitutional challenges to probation conditions"].)
Defendant contends the immediate reporting condition is unconstitutionally vague because the word, "immediately," allows for arbitrary enforcement as the court could find a violation based on "personal predilections," and "subjective, ad hoc bases." He also contends the probation condition did not fairly warn in advance, with sufficient definiteness, of when he needed to report to probation and lacked an explicit knowledge requirement. We find defendant's arguments unavailing.
It is well settled that "[t]o withstand a vagueness challenge, 'a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition.' [Citation.]" (I.V., supra, 11 Cal.App.5th at p. 261.) However, "[a] probation condition is not impermissibly vague ' " 'simply because there may be difficulty in determining whether some marginal or hypothetical act is covered by the language.' " ' [Citation.] We give the condition ' "the meaning that would appear to a reasonable, objective reader" ' [citation] . . . . A probation condition survives a vagueness challenge if it can be given any reasonable and practical construction. [Citation.]" (Ibid.)
Despite defendant's arguments to the contrary, a reporting time frame using the word "immediately" is neither "highly technical" nor "obscure," and "well within due process limits." (United States v. Kennecott Copper Corp. (9th Cir. 1975) 523 F.2d 821, 823 [denying vagueness challenge to statute requiring certain persons to "immediately" report oil spillage]). "Although strictly speaking ['immediately'] means not deferred by any period of time, the word is usually construed to mean within a reasonable time having due regard to the nature and circumstances of the case." (Integrated, Inc. v. Alec Fergusson Elec. Contractor (1967) 250 Cal.App.2d 287, 295.) Thus, and as pertinent to our discussion here, the word "immediately" is commonly used as a time frame by which a probationer must comply with certain notifications or reports to probation. (See, e.g., People v. Angus (1980) 114 Cal.App.3d 973, 979 [defendant was ordered to abide by standard terms of probation, which required, among other conditions, that he "[s]eek and maintain employment and immediately notify the Probation Officer of any change in employment status"].) The need to impose an obligation on a probationer to "immediately" report to probation when there is a change in his circumstances, including his whereabouts or location, is self-evident. In order to supervise compliance with probation conditions, the probation department officer must know the whereabouts or location of the probationer, and, therefore, "the probation department must have the authority to set the time and place for . . . when the defendant is to report to the department." (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240; see In re Pedro Q (1989) 209 Cal.App.3d 1368, 1373 ["directives to the probationer will not require prior court approval if they are reasonably related to previously imposed terms"].)
By his arguments, "defendant seeks . . . 'absolutely clarity' in the text of the condition itself, without the need to rely on a 'judicial construction.' But the question before us is not whether this degree of precision would be desirable in principle, but whether it is constitutionally compelled. . . . [T]he vagueness doctrine demands ' "no more than a reasonable degree of certainty" ' [Citation.] " (People v. Hall (2017) 2 Cal.5th 494, 503 (Hall).) Here, the necessary degree of certainty is present in the immediate reporting condition. Unlike a specific time referent, the word, "immediately," imparts a sense of urgency, and, under either circumstance, necessarily allows for some flexibility in the case of unforeseen circumstances that would delay reporting. (See Porphyry Paving Co. v. Ancker (1894) 104 Cal. 340, 343.) When reasonably construed on its face, the probation condition - to report immediately to probation after discharge from the Jericho Project program - informed defendant he was report as soon as it was reasonably feasible under the circumstances. (Hall, supra, at p. 503, fn. 2 [where the probation condition sufficiently defined the required conduct no "express knowledge requirement was necessary to prevent unwitting violations"]).
Defendant also argues the immediate reporting condition is unconstitutionally overbroad because it unduly restricts his freedom of travel and was not narrowly tailored to promote his rehabilitation and to protect public safety. We disagree. It is well settled that " '[t]he essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' [Citation.]" (Pirali, supra, 217 Cal.App.4th at p. 1346.) Here, the obligation to immediately report to probation following his discharge from the Jericho Project program does not implicate defendant's constitutional right to travel as it "does not prohibit travel within the state nor does it prohibit him from travel altogether." (People v. Relkin (2016) 6 Cal.App.5th 1188, 1196 [court rejects overbroad challenge to probation condition that requires only that defendant obtain written permission to leave the state].) Moreover, the immediate reporting condition is narrowly tailored to promote defendant's rehabilitation and protect public safety. As we previously concluded, unlike a specific time referent, the word, "immediately," imparts a sense of urgency, but still allows for some flexibility in the case of unforeseen circumstances that would delay reporting.
In sum, we see no constitutional impediment to the probation condition requiring defendant to immediately report to probation following his discharge from the Jericho Project program.
B. Revocation of Probation Based on Violation of Probation
We also see no merit to defendant's arguments that the trial court abused its discretion in revoking probation based on his violation of probation. A trial court has broad discretion in determining whether to revoke probation, and its decision will be upheld whenever it is supported by substantial evidence that any condition of probation has been violated. (§ 1203.2, subd. (a) [court may revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation;" italics added]; see People v. Rodriguez (1990) 51 Cal.3d 437, 443.)
Defendant contends his failure to immediately report to probation after his discharge from the Jericho Project program was not sufficient to support revocation of probation. However, his argument ignores the fact that he admitted he violated probation based on his failure to immediately report to probation after his discharge from the Jericho Project program. Despite defendant's arguments to the contrary, the trial court was not required to accept his excuses for his failure to report to probation on Thursday, July 3. (See, e.g., People v. Friedeck (2010) 183 Cal.App.4th 892, 897 [trial court was not required to find credible defendant's excuses for refusing to comply with condition of probation].) The cases cited by defendant are factually distinguishable and do not warrant a different result.
In all events, even if revocation was not warranted based on defendant's failure to immediately report to probation, a claim of error on that ground is harmless beyond a reasonable doubt as revocation is supported based on defendant's failure to complete the Jericho Project program. We see no merit to defendant's arguments that revocation cannot be sustained for his failure to complete the Jericho Project program because his conduct was not willful and constituted a "minor" violation. While revocation typically requires proof that a violation of the probation is willful, our Supreme Court has recognized that a showing of willfulness may not necessarily be required where the violation of probation "frustrates the assumptions underlying the grant of probation." (Hall, supra, 2 Cal.5th at pp. 498, 499, fn. 1.) Here, the original sentencing court's agreement to place defendant on probation was primarily, if not exclusively, based on defendant's agreement and acknowledgement that he was being given one last chance to address his drug addiction by completing the Jericho Project program. Thus, his failure to complete the program indisputably frustrated the assumptions underlying the court's grant of probation. In all events, even if defendant's failure to complete the Jericho Project program required willful conduct on his part, there was substantial evidence to support such a finding. The record establishes, contrary to his contention, that his failure to complete the program was the result of his discharge for behavior found unacceptable by the program staff. For example, the record indicates defendant willfully engaged in negative conduct and implied threats towards other program residents, which conduct was well within his control. The cases cited by defendant are factually distinguishable and do not warrant a different result. Defendant's reliance on the trial court's comment that his failure to complete the program was a "certainly somewhat mitigated circumstance" is taken out of context as the comment was made during the resentencing hearing. The court's comment made at resentencing did not negate its earlier finding that revocation was warranted for defendant's admitted failure to complete the Jericho Project program. (See People v. Sturgeon (1975) 53 Cal.App.3d 711, 713 [at probation revocation hearing trial court did not abuse its discretion by rejecting defendant's request "to introduce evidence for purposes of mitigation only to show he did not commit the crime . . . which was the crucial evidence upon which the order for revocation was based"].)
Lastly, we see no merit to defendant's argument that the court's decision to revoke probation did not comport with due process. At the violation of probation hearing defendant was given an opportunity to challenge the facts supporting the violation of probation. Instead, he waived his rights to a hearing and admitted he violated probation by failing to complete the Jericho Project program and failing to report immediately to probation after his discharge from the program. The "determination that probation was violated alert[ed] the court to the possibility that the probationer [was] either unable or unwilling to obey the conditions and that probation may not be a suitable mode of correctional treatment." (United States v. Brown (2d Cir. 1990) 899 F.2d 189, 194 (Brown); see In re Coughlin (1976) 16 Cal.3d 52, 57 (Coughlin) ["the role of a judge in considering the question of whether a convicted offender's probation should be revoked is . . . whether the convicted offender 'can be safely allowed to return to and remain in society' "].) During the sentencing hearing following the violation of probation adjudication, the court's "inquiry into the voluntariness of the violation permit[ted] the court to make the appropriate disposition in light of the needs to rehabilitate the probationer and to protect society." (Brown, supra, at p. 194.) In this case defendant and his counsel were given ample opportunity to demonstrate that "there was a justifiable excuse for any violation that occurred [and] that societal interests, like community safety, [did] not require revocation." (Ibid.) We see nothing in the record that demonstrates the court did not give due consideration to defendant's explanations for his conduct and his arguments.
We conclude our discussion by recognizing that " ' "[o]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of . . . revoking probation. . . ." ' [Citation.] And the burden of demonstrating an abuse of the trial court's discretion rests squarely on the defendant. [Citation.]" (People v. Urke (2011) 197 Cal.App.4th 766, 773.) Defendant has failed to meet his burden of demonstrating an abuse of discretion. Under the circumstances here, the trial court could reasonably find revocation was appropriate as " 'the hoped[-]for rehabilitation [was] on the road to complete failure and that a more restrictive process [was] required both to protect society and to assist the defendant toward ultimate rehabilitation.' (Italics added.)" (Coughlin, supra, 16 Cal.3d at p. 60, quoting People v. Andre (1974) 37 Cal.App.3d 516, 521, superseded by statute on another ground as stated in People v. Leiva (2013) 56 Cal.4th 498, 512.)
II. Resentencing Following Recall of Sentence
Defendant argues that following the recall of his sentence, the trial court erred when it refused to reinstate him to probation. According to defendant, the trial court's decision violated the terms of his original plea and sentencing agreements under section 1192.5. In support of this argument defendant relies on the following language in two paragraphs of the sentencing agreements: (1) "I understand that if pending sentencing I commit another crime, violate any condition of a Supervised O.R. release, or willfully fail to appear for my sentencing hearing, this agreement will be canceled, I will be sentenced unconditionally, and I will not be allowed to withdraw my guilty/no contest plea(s);" and (2) "I understand that if I violate any condition of probation I can be sent to State Prison or County Jail." (Italics added.) We see nothing in the quoted language that, in any manner, limited the resentencing court's discretionary authority to refuse to reinstate defendant to probation. The cases cited by defendant are factually distinguishable and do not warrant a different result.
Defendant also argues the resentencing court erred when it considered the following criteria in imposing sentence: his criminal history, his current offenses that the court described as a " 'crime spree' " while defendant was probably under the influence of methamphetamine and perhaps alcohol, and the "very compelling" statements of the victims of defendant's current offenses. His argument, however, ignores the fact that once a sentence is recalled under section 1170, subdivision (d), the court is statutorily required (1) to "resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the original sentence," and (2) to apply "the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing." (§ 1170, subd. (d)(1).) Under the Judicial Council rules, the court is directed to determine whether a defendant is eligible for probation. (Cal. Rules of Court, rule 4.413(a).)) If a defendant "comes under a statutory prohibition prohibiting probation 'except in unusual cases where the interests of justice would best be served,' " the court may find, as it did in this case, that the facts established the "statutory limitation on probation [was] overcome." (Rule 4.413(b).) However, having determined a defendant is eligible for probation, the court must then "apply the criteria in rule 4.414 to decide whether to grant probation." (Rule 4.413 (b).) Rule 4.414 criteria directs the court to consider the very factors of which defendant complains of here — the "[f]acts relating to the crime," including "whether [he] inflicted physical or emotional injury" on the victims, and "facts relating to defendant," including his "prior record of criminal conduct," and his "[p]rior performance and present status on probation . . . or parole." (Rule 4.414(a)(4),(b)(1),(2).) Here, having determined that this case was "an unusual case" (rule 4.413(a)) for which defendant should be considered eligible for probation, the resentencing court correctly considered the challenged rule 4.414 criteria, as well as other factors, before deciding it was not appropriate to reinstate defendant to probation. Accordingly, defendant's claim of error fails.
All further unspecified references to rules are to the California Rules of Court.
III. Sentencing Issue
As indicated above, at the original sentencing the court orally imposed but suspended execution of a state prison sentence of an aggregate term of 20 years in the following manner: (1) in Case No. SCR622762 the court imposed consecutive terms of eight years on count one (assault (four years) with related enhancements for great bodily injury (three years) and a hate crime (one year)); one year on count three (assault); one year and eight months on count five (assault (one year) with a related enhancement for a hate crime (eight months)); one year on count 14 (robbery), and two years on count 15 (dissuading a witness), plus concurrent terms on the remaining counts; (2) in Case No. SCR632694, the court imposed a consecutive term of eight months on count one (weapon possession); and (3) in Case No. SCR634531 the court imposed consecutive terms of eight months on count one (evading a police officer) with related enhancements for being out on bail (four years) and having sustained a prior prison term (one year). However, in the court's August 5, 2013, minute order in Case No. SCR622762, the court clerk failed to record the consecutive eight-month term imposed on the enhancement for a hate crime attached to the assault conviction in count five. Consequently, the court's August 5, 2013, minute orders for the three cases reflected an aggregate term of 19 years and four months, instead of an aggregate term of 20 years that was orally pronounced by the court at sentencing.
Following the trial court's revocation hearing, the court revoked probation in all three cases and committed defendant to the Department of Corrections and Rehabilitation "for the previously suspended" aggregate term of 20 years, "which was imposed back on 8/5 of 2013." In announcing defendant's sentence the court did not orally pronounce the terms imposed on each substantive count and the related sentence enhancements. Instead, the court clerk incorporated the terms imposed by the original sentencing judge as they appeared in the August 5, 2013 minute orders, which failed to reflect the disposition on the enhancement for a hate crime attached to the assault conviction in count five in Case No. SCR622762. The omission in the clerk's August 5, 2013, minute orders resulted in the court failing to indicate a disposition on the enhancement for a hate crime attached to the assault conviction in count five in Case No. SCR622762 when it resentenced defendant on April 23, 2015 and the same omission in the clerk's April 23, 2015 minute orders. However, the original sentencing court's oral pronouncement of sentences controls over the clerk's minute orders. (See People v. Irvin (1991) 230 Cal.App.3d 180, 192, fn. 9 ["[i]nsofar as the clerk's written minutes are inconsistent with the transcript of the oral proceedings, the reporter's transcript defines the record of what occurred"].)
Based on the described facts, the Attorney General argues the trial court erred by failing to indicate its disposition on the admitted enhancement for a hate crime attached to the assault conviction in count five in Case No. SCR622762, and the error requires correction. Defendant makes no mention of the sentencing error in his reply brief. We agree with the Attorney General that the court's failure to indicate a disposition on the admitted enhancement for a hate crime is " 'analogous to a failure to pronounce sentence on all counts, which is the type of unauthorized sentence,' " which can be raised for the first time on defendant's appeal and corrected. (People v. Benton (1979) 100 Cal.App.3d 92, 102 (Benton).) The Attorney General asks us to correct the sentence here (by imposing the consecutive eight-month term previously imposed by the original sentencing court) and remand to the resentencing court with directions to amend its minute order and the abstract of judgment, accordingly. We decline to do so. Section 422.75, which provides that a person who commits a felony that is a hate crime "shall receive an additional term of one, two, or three years in the state prison" (id., subd. (a)), allows the court discretionary authority to "strike any additional term imposed . . . if the court determines there are mitigating circumstances and states on the record the reasons for striking the additional punishment" (id., subd. (g)). Because the court, on resentencing, has the discretionary authority to impose a lesser sentence than the original sentence (§ 1170, subd. (d)), we believe the proper course is to remand the matter for the limited purpose of allowing the court to exercise its discretionary authority to either strike or impose sentence on the enhancement for a hate crime attached to the assault conviction in count five of Case No. SCR622762. (See Benton, supra, at p. 102 [when mistake of an unauthorized sentence "is discovered while the defendant's appeal is pending, the appellate court should remand the case for a proper sentence"].) Our opinion should not be read and we express no opinion on how the trial court should exercise its discretionary authority on remand. IV. Petition for a Writ of Habeas Corpus
For purposes of addressing defendant's arguments presented in his petition for a writ of habeas corpus, on our own motion, we take judicial notice of the record filed in the direct appeal in Case No. A145074.
"A habeas corpus petitioner bears the burden of establishing that the judgment under which he or she is restrained is invalid. [Citation.] To do so, he or she must prove, by a preponderance of the evidence, facts that establish a basis for relief on habeas corpus. [Citation.]" (In re Visciotti (1996) 14 Cal.4th 325, 351.) If the petitioner does not state a prima facie case for relief, the court will summarily deny the petition. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) As we now discuss, we conclude defendant has failed to state a prima facie case for relief, and accordingly, we summarily deny the petition for a writ of habeas corpus.
In his petition, defendant seeks habeas relief based on the following facts. He contends that, under the terms of a letter sent to him by the probation department, he had "within two working days of termination" to report to probation after being discharged from the Jericho Project program. That letter, dated August 22, 2013, was addressed to defendant at the Sonoma County Jail after his sentencing and while he was still in custody and awaiting placement at the Jericho Project program (hereinafter the "August letter"). He asserts he met the reporting requirement in the August letter because the first working day after his Wednesday, July 2, 2014, discharge was Thursday, July 3, and the next few days (Friday July 4 (holiday), Saturday July 5, and Sunday July 6) were nonworking days, thereby allowing him to timely report to probation on the second working day, Monday, July 7.
The full text of the August 22, 2013, letter (underlining, capitalization, and bolded language in original) reads as follows:
"Upon release from custody from the Sonoma County Jail, or upon completion of a residential treatment program, you must report to the Probation Department within two (2) working days. The address is 600 Administration Drive, Room 104-J, Hall of Justice, Santa Rosa.
"If I am not in the office, you are required to complete a monthly report form. Be sure you provide your exact residential address (including apartment or unit number), mailing address and telephone number. It is your responsibility to provide the correct information and to keep your Probation Officer informed of your whereabouts at all times. I will contact you shortly thereafter to schedule an office appointment to discuss your probation conditions. You will be required to return to Sonoma County for this appointment. Please note you MAY NOT leave the state without written permission from your Probation Officer.
"NOTICE: If you are released directly to treatment or immigration and Customs Enforcement (ICE) , it is your responsibility to contact the Probation Officer and to keep the officer advised of your program status and any change in your location ."
"If you have any questions you can contact me from the jail." The letter was signed by defendant's probation officer and listed her telephone number.
Based on these facts, defendant seeks habeas corpus relief on the ground that the prosecutor committed misconduct because his failure to disclose the August letter was a violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). We disagree. "In Brady, the United States Supreme Court held 'that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' . . . The high court has since held that the duty to disclose such evidence exists even though there has been no request by the accused . . . . Such evidence is material ' "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." '. . ." (People v. Salazar (2005) 35 Cal.4th 1031 1042.) " '[S]trictly speaking, there is never a real "Brady violation" unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.' " (Id. at p. 1043, quoting from Strickler v. Greene (1999) 527 U.S. 263, 281.) "A 'reasonable probability' of a different result is . . . shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.' [Citation.]" (Kyles v. Whitley (1995) 514 U.S. 419, 434.)
Here, we cannot say the absence of the August letter undermines our confidence in the outcome of the proceedings because, simply put, the letter cannot be reasonably read as allowing defendant "two working days" to report to probation following his discharge from the Jericho Project program. The letter specifically states that the "two working days" reporting requirement applies to notice to probation of defendant's "completion of a residential treatment program." However, defendant's discharge occurred before his completion of the program. Having been discharged from the program prior to completion, the portions of the letter applicable to defendant's reporting requirements stated, "It is your responsibility . . . to keep your Probation Officer informed of your whereabouts at all times, and, having been released from custody and sent "directly to treatment," " it is your responsibility to contact the Probation Officer and to keep the officer advised of your program status and any change in your location ." In addition, the record on direct appeal includes a letter from the Jericho Project program director indicating that before defendant's discharge, he was "instructed to notify Sonoma County Probation about his situation." The only reasonable interpretation of the August letter, as well as the advisement of the Jericho program director, is that on defendant's discharge without completion of the program he was to report to probation his whereabouts as soon as it was reasonably feasible to do so. Thus, defendant's reliance on the August letter notwithstanding, we are confident the trial court would have still concluded defendant was required to report to probation on Thursday, July 3, and his failure to do so constituted a violation of probation. In all events, as we discussed in our resolution of the direct appeal, even if the trial court erred in relying on defendant's failure to report, the decision to revoke probation was supported by substantial evidence establishing defendant's failure to complete the Jericho Project program, which was not a "technical" violation, as defendant suggests in his petition.
We also see no merit to defendant's argument that he has presented a prima facie showing that his trial counsel was ineffective for failing to bring to the court's attention the August letter. In analyzing an alleged ineffective assistance of counsel claim, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" (Strickland v. Washington (1984) 466 U.S. 668, 689.) We " 'will reverse on the ground of inadequate counsel only if the record on appeal affirmatively disclose[s] that counsel had no rational tactical purpose for his act or omission.' " (People v Cox (1991) 53 Cal.3d 618, 659 (Cox), disapproved in part on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin).) Moreover, "in order to establish [ineffective assistance of counsel], a defendant must show . . . that counsel's performance prejudiced defendant's case in such a manner that his representation 'so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result.' [Citation.] . . . Prejudice is shown when there is a 'reasonably probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved in part on another ground in Doolin, supra, at p. 421, fn. 22.) Here, we conclude defendant "has failed to establish as a demonstrable reality any professional lapse in the defense actually employed" at the proceedings under review. (Cox, supra, 53 Cal.3d at p. 662.) In all events, we further conclude defendant has failed to make a prima showing that his trial counsel's failure to produce the August letter was prejudicial for the same reasons we found no prima facie showing of prejudicial prosecutorial misconduct.
Lastly, defendant argues that even if he committed a "technical" violation of probation by failing to complete the Jericho Project program, the resentencing court was required to reinstate him to probation because his initial plea and sentencing agreements and section 1210.1 entitled him to several chances at drug treatment. We disagree. Defendant's plea and sentencing agreements, conditioned on the grant of probation, were not entered under section 1210.1. To the contrary, the record clearly reflects that the agreements were entered pursuant to section 1192.5, which allows for a negotiated disposition pursuant to an agreement with the District Attorney's Office. In all events, section 1210.1 does not apply to defendant's sentencing agreements because "it is the underlying offense" that governs the applicability of section 1210.1. (People v. Esparza (2003) 107 Cal.App.4th 691, 697, fn. omitted.) None of the 10 felony convictions for which defendant was originally placed on probation were drug crimes. Thus, he was not eligible for probation and drug treatment under section 1210.1. Instead, the resentencing court, as required under section 1170, subdivision (d), correctly considered his eligibility for probation, and then considered whether defendant should be reinstated to probation based on the criteria set forth in rules 4.413 and 4.414.
DISPOSITION
The orders revoking probation are affirmed. The matters are remanded to the trial court for resentencing consistent with this opinion. The petition for a writ of habeas corpus is summarily denied.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.