Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 031945
CANTIL-SAKAUYE, J.
Defendant Michael Dean Bispo appeals from his sentence after a violation of probation hearing. He was sentenced to seven years in state prison for three felony convictions, execution of sentence was stayed, and he was placed on probation. When defendant was subsequently found in violation of his probation, the trial court formally revoked probation, lifted the stay, and ordered defendant committed to serve the previously imposed prison sentence. On appeal, defendant claims the trial court erred in using three of his violations of probation at sentencing. He also claims the court should have considered the fact that there was no room for defendant in prison. We shall affirm the judgment.
BACKGROUND
Given the nature of defendant’s claims on appeal, the facts underlying defendant’s convictions are irrelevant. We will summarize the procedural history of defendant’s case.
In 2004, defendant entered negotiated pleas of no contest to three felonies; transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), transporting Oxycodone and Hydrocodone (Health & Saf. Code, § 11352, subd. (a)), and possessing methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)). He also entered negotiated pleas of no contest to four counts deemed to be misdemeanors (Pen. Code, § 17); one count of possessing a billy club (Pen. Code, § 12020, subd. (a)(1)), two counts of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and one count of unlawfully possessing a firearm (Pen. Code, § 12021, subd. (c)(1)). Five other counts were dismissed. In accordance with the plea agreement, defendant was placed on five years’ summary probation on the misdemeanors and granted deferred entry of judgment (DEJ) on the felonies with the understanding that if he violated any of the conditions of his probation he could be sentenced on the felonies for up to seven years in state prison.
In 2005, the trial court found defendant violated a term of his DEJ by illegally possessing firearm ammunition. Deferment of judgment was lifted and defendant was sentenced to a total of seven years in state prison, composed of a five-year upper term on his conviction of transporting Oxycodone and Hydrocodone and consecutive one-year terms (one-third of the middle term) on his convictions for transporting methamphetamine and possession of methamphetamine while armed. Execution of sentence was suspended and defendant was placed on formal probation for three years, conditioned among other things on service of 60 days in jail.
We affirmed the judgment in defendant’s prior appeal. (People v. Bispo (Jan. 9, 2007, C051396) [nonpub. opn.].) As we find the records in such previous appeal unnecessary to our consideration of the issues raised by defendant in this appeal, we deny his request for judicial notice of them.
In early 2006, an affidavit was filed alleging defendant violated the conditions of his probation by failing to arrange a jail commitment date. After arrangements were made for defendant to serve his jail time, the violation was withdrawn and defendant was reinstated on probation.
In the fall of 2007, another affidavit was filed alleging defendant had violated his probation by failing to notify local probation authorities in Oregon of his change of address. Defendant admitted the violation. His probation was revoked and reinstated with a condition of service of two days in jail, credit for time served.
In February 2008, a further affidavit was filed alleging defendant had violated his probation by failing to obey all laws, specifically noting pending drug charges against defendant in Oregon, as well as several pending traffic cases. The probation violation petition was amended in May 2008 and in September 2008 to add allegations of further violations by defendant. Ultimately, the following eight violations were alleged against defendant: (1) defendant was convicted in Oregon of misdemeanor driving with a suspended license on or about May 10, 2008; (2) defendant’s Oregon probation officer found defendant in unlawful possession of marijuana on or about March 19, 2008; (3) a probation search of defendant’s residence on or about February 5, 2008, disclosed marijuana, hashish, marijuana oil, a digital scale, packaging materials, and a scanner tuned to local Oregon police radio channels--as a result defendant was under felony indictment for possession of more than an ounce of marijuana in violation of Oregon law; (4) on or about February 3, 2008, defendant drove in Oregon with a suspended driver’s license and unlawfully possessed less than an ounce of marijuana--defendant was convicted of the misdemeanor driving with a suspended license; (5) on or about January 1, 2008, defendant drove in Oregon with a suspended license; (6) defendant was convicted in Oregon of driving with a suspended driver’s license on or about October 20, 2007; (7) on or about June 25, 2007, defendant drove in Oregon under the influence of intoxicants and unlawfully refused to provide a urine sample requested by law enforcement; and (8) on or about May 27, 2006, defendant drove in Oregon under the influence of intoxicants and unlawfully possessed more than one ounce of marijuana--defendant was convicted of felony possession of marijuana in violation of Oregon law.
Defendant filed motions to dismiss allegation No. 4, allegation No. 7, and the driving under the influence of intoxicants (DUI) portion of allegation No. 8. Defendant based his request to dismiss allegation Nos. 4 and 7 on a claim that he had already been punished with jail time for violating his California probation in these incidents and that further punishment would constitute double jeopardy in violation of both the United States and California Constitutions. Defendant based his request to dismiss the DUI portion of allegation No. 8 on a claim of unreasonable delay in bringing the petition to revoke probation that prejudiced his defense, citing People v. Young (1991) 228 Cal.App.3d 171.
Defendant’s written motions referenced allegation Nos. 3, 6 and 7 of the first amended petition for revocation of probation. Such allegations became allegation Nos. 4, 7 and 8 in the second amended petition for revocation of probation. To avoid confusion, we will use the numbering of the second amended petition.
At the hearing held on the probation violations, the trial court denied defendant’s motions to dismiss. Defendant then admitted allegation No. 1 (driving with a suspended license) as an infraction, allegation No. 5 (driving with a suspended license), and the driving with a suspended license portion of allegation No. 4. It was stipulated that the issue of whether defendant had already been punished for the violation in allegation No. 4 was reserved for sentencing. The resolution of allegation No. 2 (possession of marijuana), allegation No. 3 (possession of marijuana and other drug-related items) and the marijuana portion of allegation No. 4 was deferred pending further proceedings in Oregon. The prosecution admitted documentary evidence in support of allegation No. 6 (conviction of driving with a suspended license) and the marijuana possession conviction portion of allegation No. 8. The prosecution offered testimony of the Oregon law enforcement officers involved in allegation No. 7 (DUI and refusal of urine test) and the DUI portion of allegation No. 8. The trial court found defendant guilty of allegation Nos. 6, 7, and 8. Defendant waived his right to be sentenced by the judge who conducted the probation violation hearing. (People v. Arbuckle (1978) 22 Cal.3d 749.)
At the hearing, defendant also objected based on Penal Code section 654 and questioned whether the court had jurisdiction to find a violation of Oregon law in a California court. The trial court denied defendant’s motions, but did not separately address his claims.
Probation filed a supplemental report recommending imposition of the previously suspended seven-year prison sentence, opining that defendant did not take his probation seriously and his “blatant disregard for the law and for the orders imposed by the Court” suggested he was not amenable to probation.
At the sentencing hearing, the trial court initially indicated an intention to impose additional jail time and reinstate probation, contrary to the recommendation of probation. Defendant argued for termination of defendant’s probation with some additional time in jail as a “terminal sentence.” During the course of such argument, defendant contended the court should consider the fact that California’s prison system is “abysmally overcrowded.” The trial court rejected that as a factor. The prosecutor then argued for imposition of the previously suspended prison sentence, reviewing defendant’s performance on probation and bringing to the court’s attention the numerous violations found at the most recent probation violation hearing. In response to the trial court’s invitation for comment, defendant’s California probation officer indicated that for most of the 17 months she had been supervising defendant he had been in revoked status or she had been investigating a violation of probation. She noted defendant had not been cooperative with the probation office supervising him in Oregon. She felt defendant “pretty much does what he wants to do, and he finds that his reasons are justifiable[.]” After hearing the arguments, the trial court recognized its initial impression that defendant had only a couple of minor violations and was otherwise a suitable candidate for probation was wrong. The court formally revoked defendant’s probation and ordered defendant committed to serve the previously imposed seven-year prison sentence.
Defendant appeals, contending the trial court erred in considering the three allegations of violation that were the subject of his motions to dismiss and in refusing to consider prison overcrowding as part of its decision to deny reinstatement of probation and to impose the previously suspended sentence.
DISCUSSION
Before discussing defendant’s specific contentions, we note a few of the applicable principles of law.
Penal Code section 1203.2 authorizes a court in the interest of justice to modify, revoke or terminate probation upon a petition or motion on grounds that include violation of any condition of probation or the subsequent commission of other offenses. (Pen. Code, § 1203.2, subds. (a) & (b) (hereafter section 1203.2).) Section 1203.2 does not expressly state that a defendant may be reinstated on probation, but numerous cases have recognized that the court’s authority to modify probation necessarily includes the power to reinstate it. (See, e.g., People v. Medina (2001) 89 Cal.App.4th 318, 323.) When a trial court finds a defendant in violation of probation, it has three options--it can reinstate probation on the same terms, reinstate probation on modified terms, or revoke and terminate probation, committing the probationer to prison. (People v. Harris (1990) 226 Cal.App.3d 141, 147; see also People v. Medina, supra, at pp. 322-323.)
If the trial court revokes and terminates probation in a case where a prison sentence has been imposed but execution of the sentence suspended, the trial judge must order the original sentence into full force and effect. (Pen. Code, § 1203.2, subd. (c); Cal. Rules of Court, rule 4.435(b)(2).) A trial court may not increase or decrease the prison term of a sentence that is simply unexecuted. (People v. Howard (1997) 16 Cal.4th 1081, 1088, 1095 (Howard).)
Probation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court. (Howard, supra, 16 Cal.4th at p. 1092.) We review a trial court’s decision to reinstate probation or sentence a defendant to prison for abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 909.) “A court abuses its discretion ‘whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.] We will not interfere with the trial court’s exercise of discretion ‘when it has considered all facts bearing on the offense and the defendant to be sentenced.’ [Citation.]” (Id. at pp. 909-910.)
I. The Trial Court Did Not Err In Considering Allegation Nos. 4 & 7
Defendant contends he was already “punished” for his June 25, 2007 DUI conduct (allegation No. 7) under his California probation by being ordered to serve two days in jail. He contends, therefore, the trial court’s consideration of this offense in connection with its choice of whether to reinstate probation or impose the unexecuted, suspended sentence violates both constitutional principles of double jeopardy and Penal Code section 654. In a single sentence, defendant also challenges the trial court’s “jurisdiction to make a finding that [defendant] violated Oregon law (the Oregon DUI statute).” Defendant makes the same double jeopardy argument with respect to his February 3, 2008 driving with a suspended license conviction (allegation No. 4) based on his service of five days in jail.
Defendant offers little analysis and no legal authority beyond a citation to the double jeopardy clause of the federal and California Constitutions for his arguments. Defendant’s perfunctory assertions without meaningful analysis and citation to supporting authority forfeits his contentions. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.) His contentions are also meritless.
The double jeopardy clause (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15) “protects against three potential abuses: ‘a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. [Citation.]’ [Citation.]” (People v. Nazem (1996) 51 Cal.App.4th 1225, 1229 & fn. 3.) Defendant asserts here the protection against multiple punishments.
The extra days in jail defendant claims he received on his California probation as a result of his conduct in allegation No. 4 and allegation No. 7, however, were not “punishment.” Probation is neither “punishment” nor a criminal “judgment.” (Howard, supra, 16 Cal.4th at p. 1092.) “Instead, courts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature [citation].” (Ibid.) Accordingly, jail time imposed as a condition of probation is not “punishment” nor part of a criminal “judgment.”
Moreover, “proceedings under Penal Code section 1203.2 are not part of any ‘“criminal prosecution.”’ [Citation.] In other words, revocation involves no criminal guilt, no criminal punishment, and no collateral consequences of a ‘stigmatic, permanent, or irreversible’ nature. [Citation.]” (In re Eddie M. (2003) 31 Cal.4th 480, 505.) “A revocation hearing arises as a continuing consequence of the probationer’s original conviction; any sanction imposed at the hearing follows from that crime, not from the substance of new criminal allegations against the probationer. Indeed, because the hearing--despite its obvious importance to both probationer and People--neither threatens the probationer with the stigma of a new conviction nor with punishment other than that to which he was already exposed as a result of his earlier offense, it does not place the probationer in jeopardy.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 348, italics added.)
The bar against double jeopardy is simply not implicated by the proceedings in this case.
For the same reasons, there is no violation here of Penal Code section 654, which provides statutory protection against multiple “punishment” for a criminal act or omission.
And the same reasoning explains why there is no jurisdictional problem with the trial court’s consideration of defendant’s conduct in Oregon. The trial court was not determining defendant’s criminal guilt under Oregon or any other law, but “assess[ing] whether conditions relating to punishment for a prior crime have been violated so that probation should be modified or revoked.” (Lucido v. Superior Court, supra, 51 Cal.3d at pp. 347-348.) “The fundamental role and responsibility of the hearing judge in a revocation proceeding is not to determine whether the probationer is guilty or innocent of a crime, but whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain his conditional liberty.” (Id. at p. 348.)
II. Defendant Has Not Shown Any Error In The Trial Court’s Consideration of Allegation No. 8
Defendant contends the trial court erred in considering his DUI offense committed on May 27, 2006, because “the violation was prosecuted for the first time at the probation violation hearing on September 4, 2008” in violation of his Sixth Amendment right to a speedy trial. For authority, defendant cites People v. Young (1991) 228 Cal.App.3d 171, 181, and People v. Vila (1984) 162 Cal.App.3d 76, 84.
People v. Young, supra, 228 Cal.App.3d 171, involved the statutory time limits provided in Penal Code section 1203.2a for imposition or execution of sentence on an individual previously released on probation when the probationer is committed to prison for another offense. Section 1203.2 is inapplicable to defendant’s case.
People v. Vila, supra, 162 Cal.App.3d 76, involved the denial of an federally incarcerated defendant’s constitutional right to speedy trial on California charges pending against him for four years before he was notified of them and brought into court and arraigned. (Id. at pp. 78, 84-88.) A similar situation is not present here.
However, the more fundamental problem with defendant’s speedy trial claim is his failure to recognize that he was not being “prosecuted” for the DUI offense in these probation revocation proceedings. He has cited no authority, and provided no analysis, of how a violation of probation allegation triggers his statutory or constitutional right to speedy “trial.” He is not being “tried” for the offense. (Lucido v. Superior Court, supra, 51 Cal.3d at pp. 347-348.)
Furthermore, even assuming, solely for purposes of argument, that the trial court should not have considered the DUI component of allegation No. 8, defendant cannot establish any reasonable probability that the trial court’s decision would have been different without such consideration. First of all, defendant still had another DUI violation in allegation No. 7. The trial court expressly stated that “one conviction of [DUI],..., is definitely sufficient to find a person in violation of the terms and conditions of probation.” Second, the trial court was particularly troubled by defendant’s apparent lack of interest in obeying all laws as demonstrated by his repeated driving with a suspended license. Third, the trial court noted defendant’s felony conviction for possession of marijuana while he was on probation in this case. When added to the probation officer’s statements that defendant was not really compliant with any of the positive aspects of probation and the fact that this was the second (or third) time defendant was brought before the court for probation revocation after he had violated the terms of his DEJ and sentence was imposed, the trial court found “more than enough reasons” to find defendant in violation of probation. Thus, contrary to the court’s initial impression, it found defendant was not a suitable candidate to continue on probation.
III. Prison Overcrowding
Defendant requested the trial court take judicial notice of documents showing the overcrowding of California’s state prisons. The trial court ruled “that’s not a factor of input.” On appeal, defendant submits the following single sentence argument: “It boggles the mind that a sentencing judge refuses to consider whether he is sending a defendant to a place which does not exist.”
Not only has defendant failed to provide adequate argument with supporting authority (People v. Stanley, supra, 10 Cal.4th at p. 793; People v. Turner, supra, 8 Cal.4th at p. 214, fn. 19), he is mistaken. Defendant’s placement and housing in prison is up to the Department of Corrections and Rehabilitation. The trial court correctly concluded it was not part of its determination of whether defendant should be reinstated on probation or probation revoked and the previously imposed sentence executed.
IV. Conclusion
Defendant has not shown any abuse of discretion in the trial court’s refusal to reinstate probation, formal revocation of probation, and order committing defendant on the previously imposed prison sentence.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., BUTZ, J.