Opinion
B162889.
11-20-2003
THE PEOPLE, Plaintiff and Respondent, v. CARLOS MEJIA, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, and April S. Rylaarsdam, Deputy Attorney General, for Plaintiff and Respondent.
Carlos Mejia appeals from the judgment entered following revocation of probation previously granted upon his negotiated plea of no contest to possessing cocaine for sale. (Health & Saf. Code, § 11351.) The court lifted the suspension of execution of appellants four-year prison sentence.
In this case, we hold appellant was not denied either his due process right to a fair and impartial judge, or his right to confrontation, during his probation revocation hearing.
FACTUAL SUMMARY
The record reflects that on November 18, 1999, appellant committed the above offense in Los Angeles.
CONTENTION
Appellant contends that "[he] was denied his due process rights to a fair and impartial judge and of confrontation during the probation violation hearing."
DISCUSSION
Appellants Rights To Due Process And Confrontation Were Not Violated At His Probation Revocation Hearing.
1. Pertinent Facts.
The information alleged, inter alia, the above offense and that appellant was personally armed with a firearm (Pen. Code, § 12022, subd. (c)). On March 3, 2000, appellant agreed to plead no contest to possessing cocaine for sale with the understanding, inter alia, that a four-year prison term would be imposed with execution thereof suspended, and appellant would be placed on probation. During the taking of the plea, the following occurred: The Court: "[i]f you violate probation in any way, if you fail to report to probation, if you use drugs, if you get convicted of any other offense whatsoever, if you violate any condition of probation I will impose upon you, you will go to prison. And it will be for four years. [¶] Do you understand that? [¶] Defendant Mejia: Okay."
Appellant pled no contest as previously indicated, and the court imposed a four-year upper prison term, suspended execution thereof, and placed appellant on formal felony probation for three years. As conditions of appellants probation, the court ordered that appellant obey all laws; if he was deported, not to return unless legally; and if he was deported and returned, to report to his probation officer within 24 hours. Appellant understood and accepted the probation conditions.
On February 11, 2002, appellants probation was summarily revoked and the case was continued. On October 3, 2002, at the probation revocation hearing, appellant indicated he had been deported, he had returned to this country, and he had committed a misdemeanor theft in Iowa for which he was convicted and sentenced to jail for 30 days. Appellants counsel stated, "[Appellant] didnt check in with his probation officer, no question." Appellant urged that neither he nor the probation officer, who was present in court, believed appellant should be sentenced to prison for four years. Appellant asked that probation be reinstated with the understanding that he would waive precommitment credit and agree to be sentenced to jail for a year. Appellant indicated that several character witnesses, and appellant, wished to testify.
The court stated, in connection with the Iowa matter, that appellant had provided false identification and had been stopped in a stolen car. Appellants counsel told the court that that was inaccurate. Appellants counsel stated that he had spoken with appellant and the probation officer, and "[i]t is not clear." Appellants counsel added, "What I think happened, he might have thought he was in a stolen car and told the police that." Appellant observed that he had been deported, had returned on January 2, 2002, and had been arrested in the Iowa case.
The prosecutor urged that neither appellants counsel nor the probation officer was familiar with the circumstances of the Iowa theft, but the Iowa conviction alone indicated appellant was still engaging in illegal activity. Appellants counsel commented, "He is not engaged in drug activity, which is the main concern in this case."
The court observed that possession for sale, and theft, were crimes of moral turpitude. Appellants counsel replied, "He is not out there dealing. He is not out there involved at all." The court replied that appellant was "out there breaking the law[,]" and appellants counsel replied, "I understand that, your Honor."
The court indicated it was somewhat impressed with appellants family support and "all the barrage of letters that I have received." The court noted that the Iowa offense was a "third degree theft April 11th of this year." The court observed that, even before it had received the character letters, it had considered granting appellant probation and ordering him to serve a jail term, as an alternative to imprisonment. The court indicated it was inclined to grant probation. The prosecutor objected to probation and represented that the present offense involved 384 grams of powdered cocaine, $5,000 in cash, and a loaded weapon.
The court commented that it should hear from the probation officer concerning the Iowa matter. The probation officer indicated his knowledge about the Iowa matter was based on a document and what appellant told him. The probation officer testified as follows under court examination. An Iowa printout reflected that appellant had been convicted there of third degree theft, which was apparently a misdemeanor. Appellant received a 30-day sentence. Appellant told the probation officer that "it was a stolen car that he was in. That is all he knew, and he agreed to the sentence . . . ." The probation officer had heard the prosecutor refer to a "couple of hundred grams" of cocaine, and that was a substantial quantity. As to the present offense, appellant and a female were in a residence where cocaine and a firearm were seized. Appellant was placed on probation in the present case, the probation officer had not read that appellant had any new involvement with narcotics, and, in light of the Iowa offense, the probation officer recommended that the court grant unsupervised probation.
The court asked the probation officer if he thought it was a good idea to reinstate unsupervised probation. The probation officer replied in the affirmative, indicating the Iowa offense was not as serious an offense as the present offense, did not involve narcotics or a firearm, and was unlike the present offense.
The court indicated it needed more information about the Iowa offense. Appellants counsel told the court, under oath, that, on September 6, 2002, appellants counsel spoke with appellants Iowa defense counsel. Appellants counsel asked Iowa counsel about the stolen car issue. Appellants counsel stated that "[Iowa counsel] does not know why [appellant] would have said he was in a stolen car, because this did not involve a stolen car. He couldnt tell me what it did involve. He did say it was a misdemeanor. It was a theft charge. He couldnt tell me any more than that."
The court indicated it was important to determine what was stolen and suggested that the prosecutor obtain the Iowa police report. The court observed that the present offense was very serious, but what the court was "concentrating on is the violation of probation, whether I should send him to state prison." The prosecutor agreed to obtain the Iowa police report.
The court indicated it did not want to have to order the witnesses to return, and stated it was going to focus on, inter alia, the nature of appellants conviction (apparently referring to the Iowa conviction). The court observed that character witnesses and letters were "not going to make a great deal of difference . . . ." The court later observed it would continue the case to permit the prosecutor to obtain the Iowa police report, and that the court would "base its decision on that[]" and any testimony presented by appellant. The court added that it needed only one character witness, not twenty people telling the court "what a good guy he is." Appellants counsel replied, "Thats fine."
When the court and parties discussed ordering the probation officer to return on October 28, 2002, the probation officer, who commuted by car from San Francisco, told the court that his testimony at the next hearing would be the same as it was on October 3, 2002, and "it doesnt matter if he stole the car, I would still be recommending reinstatement on probation." The court stated, "I make a finding that this probation officers testimony is completely incredulous. All right. You dont [have to] come back." The probation officer and appellants counsel thanked the court.
The following then occurred: "[Defense Counsel]: Actually, your Honor, I have a few questions I would like to ask . . . [the probation officer]. [¶] The Court: Dont believe anything he says. [¶] [Defense Counsel]: I dont think he means if he stole it. [¶] The Court: If he stole the car, he is still on probation. [¶] [Defense Counsel]: [the probation officer] — [¶] The Court: I am not even listening."
During the ensuing direct examination by appellant, appellant asked, in essence, whether the probation officer was indicating his testimony would remain the same whether appellant had stolen the car or merely had been found inside it. The probation officer testified that he wanted to "correct [his] incredulous remark . . . ." The probation officer observed that since the Iowa conviction arose from a negotiated plea for which appellant served a 30-day sentence, ". . . I believe it does not rise to the level of a significant violation of this mans probation to the point he should go serve four years in prison . . . ."
Appellant subsequently asked if the probation officer wanted to clarify his testimony. The probation officer testified, in essence, that what he should have said was that his testimony would not change if appellant had stolen the car and was sentenced to 30 days.
The following then occurred: "[Defense Counsel]: Are you basing that basically on what the other court with the knowledge of the facts — [¶] A [The Probation Officer]: Exactly. [¶] Q — knew and gave him the 30 day sentence on? [¶] A Exactly. I believe the Iowa court had the same — [¶] The Court: Liberal judge or something. You know, okay, real fine. Thank you very much. You dont have to come back." The case was continued.
At the October 28, 2002 hearing, the prosecutor advised the court that appellant had "a four-year suspended . . . ." The prosecutor represented that he had obtained a copy of the Iowa police report. The prosecutor told the court that appellant had lied to the court when appellant had told the court that, in the Iowa case, appellant had been merely a passenger in a stolen vehicle. The prosecutor stated that, in the Iowa case, appellant "went in with several other individuals, [and] committed a theft of a substance which can be used for drug activity, . . ." The prosecutor observed that the substance was baby formula, and "[i]t was a substantial number of cans. Surveillance had to be set up because so many of these cans were being stolen, and it is used in Mexico to cut cocaine." The prosecutor added, "He had more of a substantial part in this report that is indicative of the fact that he is still probably involved in drug activity."
The court suggested that, in the present case, imposition of sentence had been suspended. Appellant acknowledged there was a "suspended sentence" in this case. The court reviewed the police report. The report reflected that, in the Iowa case, there were three suspects, appellant had given a false name to police, and he was the driver of the vehicle. The court observed there was no evidence that appellant and his accomplices were taking baby formula to give to babies, but "[r]ather, they use this powder to cut cocaine." Appellant urged that "thats alleged, . . ." The court observed, "whether its alleged or not, theres a very strong suspicion that thats what its being used for. Even, however, if it was not being used for that, hes involved in an operation that was stealing this formula and was the driver of the car." The court observed that the information in the police report was "pretty damning," the court was prepared to hear testimony from any defense witnesses, but "I dont know what he is going to say to make me change my mind."
The court later indicated it would hear any defense witnesses, but a probation violation already had been established based on the Iowa police reports and the court was going to impose a four-year prison sentence. The court observed, "[t]his court can consider anything to revoke this mans probation, even police reports, hearsay evidence." Appellants counsel later urged that a four-year prison sentence was unwarranted based on "the fact that he hasnt reported and he picked up that new misdemeanor we have been discussing, . . ." The court stated it was going to impose a four-year prison sentence absent defense evidence, and the court did not believe that defense testimony that appellant was "a good guy" was going to change the courts mind.
Appellants counsel indicated that perhaps the court might want to hear why appellant initially became a drug seller. The court replied it was not interested. Appellants counsel nonetheless represented that appellant was from a poor Honduran village, he got involved with the wrong people, he was 23 years old, he supported his family, and his family members were in court.
The probation report reflects appellant was born in May 1972, which would mean appellant was 27 years old at the time of the present offense, and 30 years old at the time of the probation hearing.
After further argument, the court began to sentence appellant, but appellant interrupted and indicated he wanted to present evidence. The court asked appellant to make an offer of proof, and appellants counsel stated that the defense witnesses were going to testify "as to the circumstances that he grew up in Honduras and really shed some light, . . . on the reason he got involved in this drug activity in the first place." The court replied, "Im really not interested."
The court later stated, "Im not going to change my mind. [¶] Youve made your offer of proof, if thats all they are going to say. All Im interested in is did he violate the terms and conditions of probation. If you have something to ameliorate the fact that he violated his probation, that he didnt do this crime, then Ill hear that. But if you are going to put people on about this young mans poverty stricken history and what led him to commit the crimes and so on and so forth, I dont want to hear that. Its not going to change my mind." Appellant asked the court to reconsider, but appellants offer of proof did not change. The court sentenced appellant to prison for four years.
The October 28, 2002 minute order reflects, "Court finds defendant in violation of probation. [¶] Probation to remain revoked. [¶] Sentence is imposed as follows: [¶] As to count (1): [¶] Serve 004 years in any state prison." (Some capitalization omitted.)
2. Analysis.
Appellant claims he was denied his right to confront and cross-examine witnesses. Specifically, appellant asserts, "[a]s defense counsel attempted to rehabilitate the probation officer, the trial court remarked, `I am not even listening. . . . By refusing to consider trial counsels attempt to question and rehabilitate the probation officer and adequately present their position that appellants probation should have been reinstated, the trial court denied appellant his due process right of cross-examination at the revocation hearing."
We reject appellants claim. First, in the present case, on March 3, 2000, appellant pled no contest with the understanding that a four-year upper term prison sentence would be imposed with execution thereof suspended, and with the understanding that the suspension would be lifted if appellant violated probation for any reason. Appellant conceded below, and concedes here, that he was convicted in the Iowa case, and there is no dispute that that conviction constituted a violation of appellants probation on the basis of which the court found appellant in violation of probation and revoked it. Once the court found appellant in violation of probation, the court honored the plea bargain and, in effect, lifted the suspension of execution of sentence with the result that appellant was imprisoned for four years. That is, appellant was not denied his right to cross-examination with respect to his "position that appellants probation should have been reinstated, . . ." because, under the plea bargain, if appellant violated probation, his probation could not have been reinstated since a prison term was mandatory. Appellant in effect complains he was denied his right to cross-examine on an issue rendered immaterial by his plea bargain.
This is not a case in which the trial court, on October 3, 2002, merely imposed sentence and suspended execution thereof, a situation in which, after a later probation violation, the trial court would have had the discretion to reinstate probation, or terminate it and lift the suspension of execution of sentence. (See People v. Medina (2001) 89 Cal.App.4th 318, 319-323.) Here, appellant agreed that if he was found in violation for any reason, the suspension of execution of sentence would be lifted.
Second, appellant was not denied his right to confront the probation officer since the probation officer was under oath and observed by appellant during the probation officers testimony. Third, the trial court stated, "I am not even listening" only after finding incredulous the probation officers testimony that he would recommend unsupervised probation even if appellant had stolen the vehicle, a finding appellant does not expressly dispute, and testimony which the probation officer himself conceded was incredulous.
Fourth, the court in fact listened to the probation officers subsequent testimony, during which the probation officer clarified his concededly incredulous remark by saying that since the Iowa conviction arose from a negotiated plea for which appellant served a 30-day sentence, the probation officer did not believe the Iowa offense justified violating appellants probation and requiring him to serve four years in prison. In short, the court heard appellant present his (immaterial) "position that appellants probation should have been reinstated, . . ." The right to confrontation is designed to protect the defendants interests in ving an opportunity to cross-examine, and observe the demeanor of, a witness. (People v. Winson (1981) 29 Cal.3d 711, 716-717.) The record fails to demonstrate that the court violated appellants right to confront and cross-examine witnesses.
Appellant also claims he was denied his due process right to a neutral and detached hearing officer. Specifically, he asserts, "the trial court made disparaging remarks to the probation officer and the [sic] probation officers opinion [of] appellants probation should have been reinstated. As defense counsel began to question the probation officer to establish their position appellants probation should simply be reinstated, the trial court remarked, `I am not even listening. . . . Appellant later brought in family members to testify as to his good character. The trial court noted, `Im not really interested. By not listening or refusing to consider such evidence, the trial judge engaged in misconduct and was not acting as a fair and neutral hearing officer."
We reject appellants claim. To the extent appellant relies on the courts comment, "I am not even listening[,]" again, appellant complains about trial court action concerning an issue rendered immaterial by his plea bargain. Moreover, our second and third reasons for previously rejecting appellants right to cross-examination/due process claim are equally applicable here.
To the extent appellant relies on the courts comment, "Im not really interested," as mentioned, once the court found appellant in violation of probation, a four-year prison sentence was mandatory. The court was properly concerned about the nature of the appellants probation violation, and the court properly lacked an interest in "the circumstances that [appellant] grew up in [] Honduras and . . . the reason he got involved in this drug activity in the first place." Again, appellant complains about trial court action concerning an issue rendered immaterial by his plea bargain. The record fails to demonstrate that appellants due process right to a neutral and detached hearing officer was violated. (Cf. People v. DeSantis (1992) 2 Cal.4th 1198, 1249 ["the line of questioning that defendant sought to pursue was improper on both relevance and [other] grounds, and the ruling sustaining the objection was correct. For that reason, we discern no violation of any federal constitutional right. Defendants entitlement to due process of law does not encompass a right to any process of his own choosing, including the right to introduce irrelevant evidence . . . ."].)
On the issue of the courts impartiality, we note that, even before the court had received defense character letters, the court had considered placing appellant on probation.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J., ALDRICH, J.