Opinion
E052780 Super.Ct.No. FMB900141
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. KEITH NATHAN FREEMAN, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIO
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Keith Nathan Freeman pled guilty to possessing a controlled substance for sale (Health & Saf. Code, § 11378) and admitted three prior convictions (Pen. Code, § 667.5, subd. (b)) and one felony prior controlled substance conviction (Health & Saf. Code, § 11370.2, subd. (c)). Pursuant to his plea agreement, defendant was granted drug court probation. Defendant waived his right by agreeing to drug court probation to have a Vickers hearing should it be alleged that he violated the terms and conditions of his probation. Subsequently, without holding a full hearing, the trial court found that defendant had violated his probation terms and imposed a previously suspended prison term of nine years. Defendant contends the trial court abused its discretion by imposing the prison sentence. We affirm.
People v. Vickers (1972) 8 Cal.3d 451.
BACKGROUND
Defendant entered his plea and was released on probation on April 6, 2009. Among the initial terms, he was required to comply with was that he "[c]ooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer."
The trial court told defendant that, "by entering into drug court, you're waiving or giving up your right to a Vickers hearing. And a Vickers hearing is if it were alleged that you were in violation of the terms and conditions of your probation, you'd be entitled to have a hearing before this Court for me to determine whether or not you were actually in violation of those terms and conditions. At that hearing, you'd be represented by an attorney who would confront and cross-examine witnesses for you. You'd have witnesses against you. You'd have a right to present evidence and subpoena witnesses on your own behalf and to either testify on your own behalf or remain silent. [¶] Do you understand by entering drug court, you're giving up that right to a Vickers hearing and all those rights that go with it?" Defendant responded, "Yes."
Defendant also completed a "drug court application and agreement" in which he authorized "ex-parte communications regarding [his] case by any member of the Drug Court Treatment Team" and waived "the Court Reporter's presence for all proceedings." He also waived "the requirement for Probation to file a formal Petition to Revoke probation, and a right to a Probation Violation hearing (Vicker's Hearing) on any violations that may occur while I am on Drug Court Probation."
On July 7, 2009, after completing a residential treatment program, defendant was given additional probation terms. This included: "Keep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes. Prior to any move provide written authorization to the Post Office to forward mail to the new address."
A June 29, 2010 review hearing was transcribed. At the hearing the trial court congratulated defendant for being sober for eight months, and then stated: "It's been brought to my attention that you are at times disruptive, acting very juvenile in class, in meetings. You're disrespectful. You're defiant. You question everything. And it appears to me you need an attitude adjustment." The trial court then told defendant he was going into custody. Defendant's trial counsel then asserted that defendant's behavior may not have been "one-sided," that there may be issues with a particular person, and requested a hearing. The trial court responded, "That request for a hearing is denied. We have our meetings. You are a part of that meeting where it's discussed." The trial court and defendant's trial counsel then discussed what occurred at their meeting and what defendant told his counsel regarding the underlying incident. The trial court concluded, "He set it in motion, his juvenile behavior, his attitude. Did it call for him to be cussed at? No. If he was cussed at, he shouldn't have been cussed at. But that doesn't excuse what he did and his actions."
On September 28, 2010, the trial court released defendant back onto probation and imposed, but suspended, a nine-year prison sentence consisting of the upper term of three years for possessing a controlled substance for sale (Health & Saf. Code, § 11378), one year consecutive for each of the three prison prior enhancements (Pen. Code, § 667.5, subd. (b)), and an additional three years consecutive for the prior felony controlled substance conviction enhancement (Health & Saf. Code, § 11370.2, subd. (c)).
On December 7, 2010, the trial court commenced a hearing by telling defendant: "I've been briefed on the contact that they've had with you. You were sentenced on September 28th, 2010, to a total of 9 years 0 months. And I suspended it at that time and told you that you were walking a very fine line. [¶] And you have fallen off of that line on the wrong side, not on the good side. You have not been residing where you were supposed to be residing. You were residing back with your girlfriend or wife. I'm not sure if it's your wife or your girlfriend. You know who I am referring to. I ordered you not to be living in that location. [¶] So you were not in compliance with the probation terms. You were not providing probation with your current residence address, and I'm no longer in a position to provide you with opportunities to complete this program successfully."
Defendant's trial counsel responded, "I spoke with [defendant] after our conference and relayed to him the information that was relayed to us by the officer that went out and did the check. [Defendant] denies that that is accurate. What [defendant] states is that he in fact told the officer that he keeps things at his girlfriend's house, wife. Again, I'm not sure what the relationship is. But he stays at . . . Chris Jordan's house. Our investigator went out and spoke with Mr. Jordan, who, in fact, confirmed that [defendant] stayed there most of the time."
The trial court asked, "Most of the time?"
Trial counsel responded, "Well, obviously we can't verify that he is there every single day, but our investigator . . . was shown a place where [defendant] kept a certain percentage of his belongings, including some clothes, took photographs of that area. [¶] [Defendant] denies the fact that he was living with girlfriend slash wife. Doesn't deny contact with her. And I don't think there was a no-contact, just the residence. So he has indicated that that's not accurate. He told the officer that in fact he stayed there with Mr. Jordan but did in fact visit his girlfriend and had things there as well. So he denies that there was a violation."
The trial court ruled: "[Defendant], I find him to be a manipulator. I find that you manipulate what you need to in order to be able to try and be in compliance. But this time you were caught. You were not living where you were supposed to be living. [¶] You did—and one thing I told [defendant's trial counsel] and the rest of the team when we were discussing you is that you're one of the hardest workers in the program, but that's not enough. It's not enough to be a hard worker for your daytime job because your employer can't send you to prison, but I can. [¶] And we've been over this before. You were ordered not to live with your girlfriend. And the information provided to the court is that you were not living—when they went out on the compliance checks in November, the day before Thanksgiving, they went to the residence that you had claimed to be the location where you were living. And first off, they couldn't even find the location. [¶] Then they were able to determine another location by changing some of the numbers around. And at that time the person they contacted indicated that you were not living with him at that—or knew where you were living. And then they were able to contact you, and you did make some admissions as to residing with your girlfriend or wife because she needed your help as well. And that's something you should have brought before the court and said that she needs your help and you need to be there with her. You did not do that. So that's a violation. [¶] So the pronouncement of judgment previously imposed will now be ordered. The sentence imposed on September 28th, 2010, will be imposed."
Most of defendant's drug court review hearings were not reported and the status reports prepared for those hearings were kept confidential by the trial court. We augmented the record to include the confidential files, and fully reviewed them. However, in the interest of defendant's privacy, we do not fully recite what was stated in the status reports.
Although the confidential status reports do not record an explicit order not to reside with his girlfriend, the reports strongly imply that defendant had been explicitly told not to reside with his girlfriend. His girlfriend attempted to cover up a relapse. A subsequent report stated that defendant was supposed to move in with his father "because living with his [girlfriend] is not a healthy environment for him or his recovery." A handwritten annotation on the trial court's copy of the report states, "move to [your] dads by this [weekend]." Later status reports reference issues regarding where defendant was staying. Thus, the reports show that defendant was not to live with his girlfriend during probation.
The status reports use the terms significant other and girlfriend, and do not use the term wife. We use the term girlfriend.
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DISCUSSION
Defendant contends the trial court abused its discretion by terminating probation and imposing the suspended nine-year state prison sentence. In particular, defendant contends that it was unreasonable to refuse "to conduct at least a minimal factual hearing" and that his spending more time at his girlfriend's house was "a de minimis matter" better addressed by modifying the terms of his probation rather than imposing the prison sentence. After we augmented the record to include defendant's drug court application and status reports, we provided the parties the opportunity to submit supplemental briefing. Defendant asserts the reports do not detail how he "was supposed to have violated an order or directive." Thus, he "maintains his position that termination of probation without any hearing whatsoever on the details of what he was supposed to have done to violate a court order or probation officer directive was an abuse of discretion." We find no abuse of discretion.
Courts have broad discretion to reinstate probation or impose a prison sentence and whether to impose the upper term. We review a trial court's determination for abuse of discretion and would reverse only if there is a clear showing the sentence was arbitrary or irrational. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its discretion "if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.]" (Ibid.)
"On appeal, we presume that a judgment or order of the trial court is correct, „ "[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." ' [Citation.]" (People v. Giordano (2007) 42 Cal.4th 644, 666.)
Defendant authorized ex parte communications, waived the presence of a court reporter at all hearings, and waived his rights to a formal probation revocation notice and a formal probation revocation hearing. Consequently, we are left with a limited record and are required to draw all intendments and presumptions in favor of the judgment. In this light, and that off-the-record communications apprised the trial court and defendant's trial counsel of the violation, we find nothing arbitrary or capricious about the trial court's decision to impose the suspended sentence rather than further address the nature and scope of defendant's contact with his girlfriend and his failure to provide an accurate address. Moreover, because defendant's girlfriend and his residency had been an issue during his treatment, there was nothing irrational or arbitrary about the trial court's decision to impose the suspended sentence rather than reinstate probation. Accordingly, we find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.