Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF00-351, SF05-542A
CANTIL-SAKAUYE, J.
Defendant Matthew Bandy pled guilty in case No. SF00-351 to possession of methamphetamine and admitted he had a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced defendant to the upper term of three years, plus one year for the enhancement. The court then suspended execution of defendant’s four-year state prison sentence and placed him on supervised probation for five years.
Hereafter, undesignated statutory references are to the Penal Code.
After numerous violations of probation in case No. SF00-351, defendant was charged in case No. SF05-542A with unlawful possession of a billy club, with allegations that defendant had sustained five previous felony convictions within the meaning of section 1203, subdivision (e)(4).
On March 10, 2006, defendant pled guilty to possessing the billy club and was given a conditional pass to remain out of custody until reporting back to court a week later for sentencing. As part of the conditional release, defendant was required to report daily to one of two probation officers (Steve Mason or Cyna Kern) and submit to random drug testing a minimum of three times a week. The court informed defendant that his guilty plea in case No. SF05-542A would merely be submitted and would not be filed if he complied with the terms of the conditional release. If, on the other hand, defendant did not comply with the terms of the conditional release, the guilty pleas would be filed at that point. Specifically, the court stated, “[a]nd if you don’t comply with the conditions of the pass, then they [the guilty pleas] will be filed. And obviously you’ll be subject to sentencing on them basically with no promises.”
Also on March 10, 2006, defendant was charged with another case and pled guilty to transportation or sale of a controlled substance (Health & Saf. Code, § 11379) and admitted a prior conviction for sales pursuant to Health and Safety Code section 11370.2, subdivision (c) in case No. SF06-132. The plea was submitted and the same conditional release as was given in case No. SF05-542A was granted.
On March 17, 2006, the court denied defendant probation in case No. SF00-351 and reimposed the four-year sentence. Commitment was stayed until April 10, 2006, on defendant’s request and the terms of defendant’s conditional pass were extended to that date.
Defendant did not appear at the April 10, 2006 hearing and a bench warrant was issued for his arrest. According to defense counsel, defendant had not appeared because he was in the hospital.
On April 13, 2006, defendant filed a motion to recall the bench warrant. In support of the motion, defendant filed documents regarding his hospitalization. The bench warrant was quashed on April 14, 2006, and defendant’s conditional pass was extended until June 5, 2006.
On April 19, 2006, probation officer Cyna Kern informed the court that defendant had not contacted either her or Steve Mason since April 11, 2006, and had not tested as directed. A bench warrant was issued for defendant’s arrest.
On April 21, 2006, defendant appeared in custody. The trial court ordered defendant’s plea to the billy club violation filed in case No. SF05-542A and sentenced him to eight months (one-third the midterm) to run consecutively to his four-year sentence in case No. SF00-351. Case No. SF06-132 was dismissed.
On appeal, defendant contends the trial court was required to hold a hearing to determine if he had willfully violated the terms of his conditional release. We find no reversible error.
DISCUSSION
When defendant had a reason for his previous violation of the terms of the release, his counsel promptly informed the court and took appropriate action. Defense counsel explained that defendant had not appeared at the April 10, 2006 hearing because he was in the hospital. Defendant further filed a motion to recall the bench warrant, including supporting documentation.
In sharp contrast to the April 10, 2006 failure to appear, neither defendant nor his counsel offered any explanation for defendant’s subsequent failure to daily report to probation and to drug test three times a week or otherwise comply with the terms of his conditional release. In fact, the April 21, 2006 sentencing hearing began with defense counsel stating that he and defendant were prepared and sad to see defendant would be getting four years on case No. SF00-351, “[a]nd then in SF05-542 we’re going to I guess sentence him on the [Penal Code section] 12021 [sic] for an additional eight months.” The court and defense counsel then noted that case No. SF06-132 would be dismissed. Defense counsel then stated that there was no legal cause why judgment should not be pronounced and the court sentenced defendant. During sentencing, defendant personally participated in the hearing.
Both defendant and his counsel actively participated in the hearing and had the opportunity to speak up. Yet, unlike the previous time where defendant provided documentation excusing his failure to appear, neither defendant nor or his counsel offered any explanation regarding defendant’s failure to comply with the conditions of his conditional release. Nor did either request a hearing on whether defendant should be found to have willfully violated the terms of his conditional release.
Due process requires only that the parties be given an opportunity to be heard. (People v. Zuniga (1996) 46 Cal.App.4th 81, 84 [fundamental requisite of due process is opportunity to be heard at a meaningful time and in a meaningful manner].) Defendant was given the opportunity to be heard and remained quiet. The court was not required to hold an evidentiary hearing in the absence of a request from a party to present evidence.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., HULL, J.