Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Ct. Nos. SCD200201 & SCD176528 Timothy R. Walsh, Judge.
HALLER, J.
In superior court case No. SCD176528, Shawn James Allen Woodall pled guilty to one count of evading a police officer with reckless driving (Veh. Code, § 2800.2, subd. (a)). The trial court suspended imposition of sentence and placed Woodall on probation for three years.
In superior court case No. SCD200201, Woodall pled guilty to one count of selling cocaine base and one count of possession of cocaine base (Health & Saf. Code, §§ 11352, subd. (a) & 11351). The trial court sentenced Woodall to five years in prison, but suspended execution of the sentence for five years. The court placed Woodall on probation for five years, on the condition that he serve 180 days in jail and 180 days in a residential drug rehabilitation facility. The court denied Woodall's request for a certificate of probable cause.
Woodall's motion for this court to take judicial notice of the reporter's transcript for the proceedings on July 25, 2006 is denied.
On August 4, 2003, Woodall drove a vehicle in a reckless manner and failed to stop after police officers indicated they wanted him to pull over by operating the flashing lights and sirens on the police vehicle. On August 15 Woodall entered a negotiated guilty plea to one count of Vehicle Code, section 2800.2, subdivision (a). On September 15 the trial court suspended imposition of sentence and placed Woodall on probation for three years on the condition, among other things, that he serve 240 days in jail.
On July 12, 2006, an undercover police officer approached Woodall and asked, "Anybody up bro?" Woodall replied, "Yeah, What's up?" The officer said he was looking for a "twenty." Woodall sold the officer two small pieces of rock cocaine, which weighed .19 grams, for $20.00. Police subsequently arrested Woodall.
On July 14 the court summarily revoked Woodall's probation granted in the 2003 evading police case (case No. SCD176528).
On August 30 Woodall pled guilty to sale of cocaine and possession of cocaine base for sale and admitted he had suffered one prior prison conviction (Pen. Code, § 667.5, subd. (b)). On September 28 the trial court sentenced Woodall to five years in prison and suspended execution of the sentence for five years. The court granted Woodall five years' probation on the condition, among others, that he serve 365 days in jail, with the option to spend six months of that period in a residential drug rehabilitation facility. The court also reinstated the probation in case No. SCD176528 and modified it to extend three more years (until September 27, 2009).
Woodall's prior prison conviction stemmed from his federal conviction for smuggling illegal immigrants into the country.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence and procedures in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether Woodall was entitled to a pre-revocation hearing prior to probation in case No. SDC176528 being summarily revoked; and (2) whether Woodall validly waived his right to an evidentiary hearing on the probation revocation.
We granted Woodall permission to file a brief on his own behalf. He has responded. Woodall contends his due process rights were violated because his probation in case No. SCD176258 was revoked without a preliminary pre-revocation hearing and a formal evidentiary hearing.
In Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey), the United States Supreme Court considered "whether the Due Process Clause of the Fourteenth Amendment requires that a State afford an individual some opportunity to be heard prior to revoking his [or her] parole." (Id. at p. 472.) The high court concluded it did and discussed two stages of parole revocation: a probable cause hearing to be held shortly after the parolee is taken into custody; and a second formal parole revocation hearing prior to the final decision on revocation. (Id. at pp. 485, 489.) The due process requirements of the formal parole revocation hearing include: "(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him [or her]; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders [sic] as to the evidence relied on and the reasons for revoking parole." (Id. at p. 489.) The following year, the high court extended the Morrissey protections to probationers in Gagnon v. Scarpelli (1973) 411 U.S. 778.
The California Supreme Court anticipated the holding of Gagnon v. Scarpelli in People v. Vickers (1972) 8 Cal.3d 451, 458 (Vickers), in which the court found that the rules stated in Morrissey in the context of a parole revocation proceeding were equally applicable to revocation of probation. However, the Vickers court noted there were procedural differences between California's probation revocation procedure and the parole revocation procedure described in Morrissey. Consequently the state courts need not follow precisely the same procedure as Morrissey set forth, so long as equivalent due process safeguards were assured. (Ibid.)
After Vickers, other California case law established that a separate pre-revocation hearing is not required if the probation revocation hearing is timely; a single hearing can serve both purposes. (People v. Buford (1974) 42 Cal.App.3d 975, 980-981; People v. Hawkins (1975) 44 Cal.App.3d 958, 967; see also In re Law (1973) 10 Cal.3d 21, 27 [preliminary hearing can serve as probable cause hearing for parole revocation]; People v. Santellanes (1989) 216 Cal.App.3d 998, 1004 [preliminary hearing can serve as probable cause hearing for probation revocation].)
Under Penal Code section 1203.2, subdivision (a), the court is authorized to revoke a defendant's probation upon his rearrest or upon the issuance of a warrant for his rearrest "if the interests of justice so require and the court . . . has reason to believe from the report of the probation officer or otherwise" that grounds for revocation exist. Summary revocation of probation is simply a device by which the defendant may be brought before the court and jurisdiction retained before formal revocation proceedings commence. (People v. Lewis (1992) 7 Cal.App.4th 1949, 1955.) It is akin to a probable cause hearing and gives the probationer/defendant notice of the revocation proceedings.
As our Supreme Court observed in People v. Coleman (1975) 13 Cal.3d 867, 894-895:
"Generally it is not necessary in California to afford a probationer faced with revocation proceedings a 'prerevocation' or 'probable cause' hearing of the type normally provided in the course of parole revocation proceedings. Probation revocation, unlike parole revocation, is in California a judicial proceeding with concomitant procedural benefits for a probationer at all stages of the revocation process. Usually a judicial determination of probable cause precedes the arrest of a probationer for violations of the conditions of his probation, and the formal revocation hearing with its full panoply of Morrissey [Morrissey v. Brewer (1973) 408 U.S. 471] procedural rights occurs relatively soon after the probationer has been deprived of his conditional liberty. Since 'the precise nature of the proceedings for (probation) revocation need not be identical' to the bifurcated Morrissey parole revocation procedures, so long as 'equivalent due process safeguards' assure that a probationer is not arbitrarily deprived of his conditional liberty for any significant period of time, a unitary hearing will usually suffice in probation revocation cases to serve the purposes of the separate preliminary and formal revocation hearings outlined in Morrissey." (Citations omitted.)
In light of this authority, Woodall's complaint that his due process rights were violated because he did not receive a pre-revocation hearing is without merit. We decline Woodall's invitation to declare California's "unitary probation revocation hearing system," as he refers to it, unconstitutional. We also note that Woodall has not raised—either below or before this court—that he was deprived of notice by the summary revocation procedure followed below on July 14, 2006.
Woodall's reliance on In re Valrie (1974) 12 Cal.3d 139 and In re Wagner (2005) 127 Cal.App.4th 138 is misplaced. The former case predated People v. Coleman, supra, 13 Cal.3d 867, which we find controlling; we also reject Woodall's arguments that People v. Coleman is not good law. In re Wagner, supra, 127 Cal.App.4th at pages 145-146, is distinguishable; in that case the trial court revoked petitioner's probation without any due process. "[A]ll the court did was tell petitioner he would be taken into custody because he was not willing to cooperate with the judicial assistant, and when [the petitioner] inquired why he was taken into custody, she [the judge] merely replied he was in violation of his probation." (Id. at p. 146.) The reviewing court ruled that a finding of a probation violation must be supported by facts to be used to revoke probation. (Id. at pp. 144-145.) This case is not at all similar to In re Wagner.
The purpose of the formal revocation hearing is to give the defendant an opportunity to require the prosecution to prove the alleged violation occurred and justifies revocation and to give the probationer a chance to explain or deny the allegations of the violation petition. (Vickers, supra, 8 Cal.3d at p. 460; People v. Perez (1994) 30 Cal.App.4th 900, 907; Morrissey, supra, 408 U.S. at p. 488.)
At the final formal revocation hearings, the probationer must be afforded the Morrissey due process protections: written notice of the claimed violation; disclosure of the evidence against him; the opportunity to be heard in person, to present witnesses and documentary evidence, and to confront and cross-examine adverse witnesses; consideration of the matter by a neutral and detached hearing body; and a written statement by the fact finder setting forth the evidence relied upon and the reasons for revocation. (People v. Santellanes, supra, 216 Cal.App.3d at p. 1003.) Even when a probationer has been duly convicted of a new crime, he is entitled to a formal revocation hearing before his probation is revoked and sentence is imposed on the prior offense. (People v. Martin (1992) 3 Cal.App.4th 482, 486 (Martin).)
However, it is possible for a probationer/defendant to waive the right to a formal probation revocation hearing. (See Martin, supra, 3 Cal.App.4th at pp. 486-487.)
At the August 30, 2006, change of plea hearing (case No. SCD200221) defense counsel told the court, "We've submitted a change of plea form, which will also incorporate a waiver of hearing vis-à-vis the two trailing probation violations." Also at the hearing, the court directly told Woodall that he had the right to a hearing on whether he violated his probation in case No. SCD176528 and inquired whether he wanted the hearing or wanted to waive it. Woodall responded that he wanted to waive the hearing.
We conclude Woodall expressly waived his right to a formal probation revocation hearing in case No. SCD176528. Woodall urges us not to consider these waivers. He claims his counsel's statement is inconsistent with the change of plea form and what happened later in the hearing, when the court put off the decision on the felony revocation matter. Assuming arguendo, that the waiver given on August 30, 2006, was defective, we nonetheless find that Woodall waived his right to a formal probation revocation hearing based on the entire record. (Martin, supra, 3 Cal.App.3d at pp. 486-487.)
After Woodall told the court that the probation in case No. SCD176528 had been "dismissed" or terminated in 2004, the court delayed action on the probation revocation issue pending verification of Woodall's representation. The record shows that probation had not been terminated in 2004; rather, at that time, the court changed it to summary probation rather than formal probation.
In Martin, supra, 3 Cal.App.3d at page 486, the defendant claimed he was denied due process because no formal revocation hearing was held prior to the revocation of his probation and the imposition of a prison sentence for burglary in an earlier case. Although the record failed to disclose either a formal probation revocation hearing or the defendant's express waiver of his right to such a hearing, the Martin court concluded—based on the entire record—that the defendant waived his right to a hearing and admitted the probation violation by filing a statement in mitigation acknowledging he would be sentenced in three separate cases, and by not objecting at the sentencing hearing either to the sentencing procedure or to the grounds for revocation. (Id. at pp. 486-487.)
Here, Woodall admitted to the probation officer that he committed the crimes charged in case No. SCD200201. Also, Woodall did not object at the sentencing hearing to the lack of a formal revocation hearing or to any other sentencing procedure. On this record, we find Woodall admitted his probation violation and waived his right to a formal revocation hearing. (Martin, supra, 3 Cal.App.4th at pp. 486-487.)
Finally, we observe that Woodall had ample reason not to object at the sentencing hearing. Woodall pled guilty to the charges in case No. SCD200201 with the understanding that the court would "strongly consider" placing him on probation for five years. That is essentially what took place at the sentencing hearing. Further, instead of revoking Woodall's probation in case No. SCD176528 and sentencing Woodall to prison for the evasion of police conviction in that case, the court revoked the probation, reinstated it and then modified it. Even if there was error in not conducting a formal revocation hearing, we are convinced beyond a reasonable doubt that such error was harmless; Woodall would have received the same result if there had been a formal revocation hearing. (Chapman v. California (1967) 386 U.S. 18, 24.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.