Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR 260259
HAERLE, J.
I. INTRODUCTION
After pleading no contest to one count of a multi-count information, appellant was placed on probation for a period of three years. A few months later, a complaint was filed charging him with several new offenses. That complaint was subsequently dismissed on the motion of the district attorney after the court found that appellant violated the terms and conditions of probation, revoked that probation, and ordered him to serve a total prison term of four years. Appellant appeals, claiming the trial court erred by (1) allowing him to represent himself at the probation revocation hearing, (2) finding that he had violated his probation on several occasions, and (3) relying on appellant’s admitted use of marijuana as a basis for revoking his probation. We disagree with all these contentions and hence affirm the trial court’s order and judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 5, 2009, an information was filed in Solano County Superior Court charging appellant with three counts, namely: (1) second degree burglary of a vehicle (Pen. Code, § 459 ; count 1); (2) petty theft with a prior (§ 666; count 2); and (3) giving false information to a police officer (§ 148.9, subd. (a); count 3). The information also included allegations that appellant had served two prior felony prison terms. (§ 667.5, subd. (b).)
Unless otherwise stated, all further dates noted are in 2009.
All statutory references are to the Penal Code, unless otherwise noted.
On May 1, as part of a plea agreement, appellant pled no contest to the second count and admitted the priors. Via that agreement, the prosecution dismissed the first and third counts.
On May 29, the trial court suspended sentence and placed appellant on formal probation, with typical terms and conditions, for a period of three (3) years.
On August 5, the trial court granted the probation department’s request for the issuance of a warrant for appellant’s arrest and revoked his probation. The request and revocation was based on the allegation that appellant had “failed to maintain contact with Probation.”
On September 30, appellant was arrested by the Fairfield police; the details of that arrest will be set forth below. The arrest resulted in a new complaint being filed against appellant on October 2. It charged him with possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a); count 1) and giving false information to a police officer (Veh. Code, § 31; count 2). The complaint also alleged that appellant had served four prior prison terms. (§ 667.5, subd. (b).) At his arraignment that day, appellant requested that he be allowed to represent himself; after he signed a Faretta waiver, the court permitted such.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
On October 19, the court held a formal probation revocation hearing and, at the same time, a preliminary hearing on the October 2 complaint. At the conclusion of that hearing, the court found that appellant had failed to maintain contact with the probation office, and also held him to answer regarding the new complaint filed on October 2.
On October 23, on the motion of the prosecution, the court vacated its October 19 finding that appellant had violated probation and ordered a new hearing. It did so based on the prosecution’s representation that, at the October 19 hearing, it might have presented some incomplete evidence regarding appellant’s failure to contact the probation department a few months earlier.
A second probation revocation hearing was held on November 2 and 30.
At the November 2 session, probation officer Tammy Dewitt testified that, although appellant had come to that office on June 2, he had only filled out a form containing personal information, but had not met with either her or any other probation officer that day, or made an appointment for such a meeting. This was contrary to the court’s May 29 order, which specifically required that appellant “make an appointment with the supervising probation officer” within two days.
As a result, the office sent appellant a notice to appear at that office on June 18; on that date, appellant left a telephone message for Dewitt to the effect that he would be unable to keep that appointment. Dewitt called appellant back at the number he had left on her voice-mail, and an unidentified male told her that appellant was “not available at that time.” She left a message for appellant to call her back, which he did not do. Dewitt subsequently sent appellant a notice requiring him to appear on July 20; he neither appeared nor telephoned to explain why he could not and had not.
On the basis of this testimony, at the conclusion of the November 30 hearing, the trial court again found appellant to be in violation of probation.
On December 7, the prosecution moved to dismiss the new charges against appellant, i.e., those contained in the October 2 complaint. The trial court granted that motion, but ordered those charges considered in connection with the motion to revoke probation.
On December 14, the court heard testimony from Fairfield Police Officer Jausiah Jacobsen regarding the arrest of appellant on September 30. Jacobsen testified that, during that evening, he had stopped a car in which appellant was a passenger on Pacific Avenue in Fairfield. He saw an open container of alcoholic beverage between appellant’s feet and a strong smell of fresh marijuana in the car. Officer Jacobsen asked appellant for his name and date of birth, and appellant twice gave the officer false names. The officer then arrested appellant because of his misrepresentations of his identity and took him to the police station where a subsequent search revealed a marijuana cigarette and one to two ounces of concentrated cannabis in his underwear. During this period, appellant also provided Officer Jacobsen a third false identity.
Testifying in his defense at this hearing, appellant admitted giving the officer “fake names” and testified that he used the marijuana, with a doctor’s verbal approval, to alleviate pain in his arms and shoulders and also migraine headaches.
At the conclusion of the testimony on December 14, the court found appellant to be in violation of the second condition of probation, the condition requiring him to obey all laws. In so holding, it specifically cited the fact that appellant had given the officer “three phony names.”
On January 19, 2010, the court sentenced appellant to state prison for the midterm of two years on the second count of the March 5 information, and to consecutive terms of one year on each of the admitted prior prison term allegations, for a total unstayed sentence of four (4) years.
On January 21, 2010, appellant filed a notice of appeal.
III. DISCUSSION
Appellant presents three bases for reversal, namely, that: (1) the trial court erred in allowing him to represent himself at the probation revocation hearing; (2) substantial evidence did not support the trial court’s findings that appellant failed to maintain contact with the probation department; and (3) the trial court erred in revoking his probation because, in part, of his possession of marijuana. We disagree with all three contentions.
A.
With regard to appellant’s self-representation in both the probation revocation and new-complaint proceedings, appellant argues that, although he admittedly waived his right to counsel with regard to the new complaint filed against him on October 2, he did not do so with regard to the probation revocation proceeding which was effectively consolidated with the new complaint proceeding. The record before us undermines this claim.
In the first place, the “Faretta Waiver” form which appellant signed and the trial court approved on October 2 specifically bears two case numbers, namely FCR 260259 and FCR 270759. The first number is that of the three-count information filed against appellant on March 5. The second number relates to the complaint filed on October 2 based on appellant’s arrest on September 30.
In his reply brief in this court, appellant contends that the Faretta waiver “did not mention the probation violation proceedings and the case name and number do not appear to be in appellant’s handwriting.” We are rather mystified by this argument; the waiver form specifically listed the case number of the proceeding in which alleged probation violations were to be considered, i.e., case No. FCR 260259. And we are aware of no law even suggesting that a Faretta waiver must include the relevant case name and number in the defendant’s personal handwriting.
Secondly, at his October 2 arraignment, the trial court commenced that proceeding by questioning appellant very specifically regarding his action in “fill[ing] out a Feretta [sic] waiver” and pointing out the several dangers in his quest for self-representation. In so doing, it made clear that appellant would be representing himself in both the new case and regarding whether he would be allowed to continue on probation for his prior conviction. The dialogue between the court and appellant on that subject was as follows:
“THE COURT: And in spite of everything I just said you still want to represent yourself?
“THE DEFENDANT: Yes, I do.
“THE COURT: Do you understand the nature of the charges? [¶] You are charge[d] with having concentrated cannabis and giving false information to a police officer, which isn’t the real major point. [¶] The major point is the petty theft felony prior conviction.
“THE DEFENDANT: Uh-huh.
“THE COURT: Do you understand all of that is pending right now?
“THE DEFENDANT: Yes.” (Emphasis supplied.)
A few minutes later, the court again emphasized that “your probation matter may be heard along with the preliminary hearing” and if appellant objected to that “you need to file a written motion.” Appellant responded: “Okay.”
This interchange effectively rebuts appellant’s statement, in his reply brief to us, that “there was no discussion of what the ramifications of not bifurcating the matters would be.”
The same day, the court signed an order granting the Faretta waiver in the pending case, i.e., the case in which probation was later revoked.
By the emphasized wording in the dialogue quoted above, the court made it clear to appellant that, via his Faretta waiver, he would be representing himself both regarding the new complaint and, even more importantly (“the major point, ” in the court’s words), in the earlier case in which probation revocation was pending. Appellant’s contention to the contrary is simply not credible.
In support of his argument, appellant relies on People v. Hall (1990) 218 Cal.App.3d 1102. That case involved a trial court’s action in revoking the probation of a criminal defendant who had been convicted of sale of a criminal substance two years earlier, but then granted probation. The sentencing/probation hearing occurred in 1987, at which the defendant made a Faretta waiver. However, the probation revocation hearing did not take place until 1989; at it, the trial court never advised appellant that he had a right to be represented by counsel, which the appellate court found to be reversible error. This authority is clearly inapplicable here because, as noted above, this appellant specifically waived, both in writing and verbally, his right to legal representation regarding both the pending probation revocation proceeding and the new complaint. (Cf. also People v. Goodwillie (2007) 147 Cal.App.4th 695, 722-723, disagreed with on other grounds in People v. Miralrio (2008) 167 Cal.App.4th 448, 462.)
B.
Appellant’s second contention is that there was no substantial evidence to support the trial court’s finding that he had failed to maintain contact with the Solano County probation department, as required by the court’s order of May 29.
As noted above, the trial court revoked probation not only on this ground, but also on the ground that appellant had given three “false names” to the police upon his arrest on September 30. Appellant’s briefs to us do not mention, much less challenge, that basis for the revocation of probation, which effectively renders his challenge to the failure “to maintain contact” rationale pointless. Nevertheless, we opt to address it.
First of all, our standard of review of an order revoking probation is abuse of discretion. (See People v. Rodriguez (1990) 51 Cal.3d 437, 442 (Rodriguez), and cases cited therein.) That discretion is properly exercised when, per the governing statute, the trial court “has reason to believe from the report of the probation officer... that the person has violated any of the conditions of his or her probation... or has subsequently committed other offenses....” (§ 1203.2, subd. (a).) Such a determination is made by a trial court based on a preponderance of the evidence burden of proof. (Rodriquez, supra, 51 Cal.3d at p. 441.)
There was indeed substantial evidence in support of the finding of the trial court that appellant had violated the term of his probation which required him to “[r]eport to and comply with all orders of the probation officer” and “[p]ersonally appear at the Probation Department... within two (2) business days after release from custody/program and make an appointment with the supervising probation officer.” That evidence was the testimony of Probation Officer Dewitt. She testified that, although appellant came to the probation office four days after he was granted probation, he did not, in fact, “make an appointment with the supervising probation officer” as ordered.
Appellant was subsequently ordered-via a letter admittedly sent to the wrong address but nevertheless received by him-to report to that department on June 18. Appellant called Dewitt and left a message on her voicemail explaining that he was unable to come in on that date; Dewitt called him back, talked to a man who claimed he was not appellant, and left a message for appellant to call her. He never did and never again either contacted that office or reported to it. This evidence is clearly sufficient to satisfy the substantial evidence test regarding the “maintain contact” with the probation department issue. (See, e.g., People v. Bookasta (1982) 136 Cal.App.3d 296, 300-301.)
Further, and as previously noted, the trial court also cited appellant’s three “false names” conduct after his September 30 arrest as a second basis for revoking probation, a basis appellant does not challenge on appeal.
C.
We also reject appellant’s third and final contention, i.e., that the trial court erred in relying, at least in part, on his possession of marijuana as a basis for revoking his probation. As the Attorney General points out, the trial court made clear at the January 19, 2010, hearing that it was not revoking appellant’s probation on the basis of his admitted use of marijuana without having a medical marijuana card or other written authorization. Rather, it was basing its revocation on the bases that appellant had (1) given “multiple false names” to the police when arrested on September 30 and (2) “failed to maintain contact with probation and failed to report to probation as directed.” As noted above, both of these bases for the revocation of appellant’s probation are amply supported by the record.
In his reply brief to us, appellant notes that the probation report to the trial court included references to appellant’s possession of marijuana when he was arrested on September 30 and had commented that his behavior in that connection had been “not only illegal, but deceptive.” That brief goes on to note that the trial court had read and considered the probation department report before the sentencing hearing. Thus, appellant contends: “As the trial court relied upon the probation department’s recommendation, it cannot be said that this did not affect [its] decision.”
This argument borders on the frivolous. First of all, and as noted above, at the sentencing hearing, the trial court specifically stated that it was not basing its order revoking appellant’s probation on his possession and admitted use of marijuana. Secondly, the trial court clearly did not accept the probation department’s recommendations regarding appellant; both it and the prosecution had recommended that he be sentenced to the high term for the count to which he had pled no contest, which would have resulted in an aggregate term of five (5) years. The trial court, however, ordered the midterm imposed for that count, resulting in appellant’s total sentence being four years.
IV. DISPOSITION
The judgment and the order revoking probation are both affirmed.
We concur: Kline, P.J., Richman, J.