Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCN205954 Richard E. Mills, Judge.
HUFFMAN, J.
Dale R. Frizzle appeals following the revocation of his probation. He contends the trial court failed to advise him of his right to an evidentiary hearing and that he did not admit the violation. Although the proceedings involved in the revocation of Frizzle's probation were not models for the resolution of allegations of probation violation, on this record we find no basis to reverse the trial court's decision.
PROCEDURAL BACKGROUND
In January 2006, Frizzle entered into a plea agreement in which he pled guilty to one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and admitted one prior serious/violent felony conviction (Pen. Code, § 667, subds. (b)-(i)). He was granted three years probation under Proposition 36.
All further statutory references are to the Penal Code unless otherwise specified.
In February 2007 Frizzle failed to appear for a scheduled review hearing, his probation was summarily revoked and a bench warrant issued. Frizzle was arrested on the bench warrant in March 2008. He was arraigned on the alleged probation violation on April 2, 2008, counsel was appointed and Frizzle was remanded to custody without bail. The matter was continued for two weeks at Frizzle's request for him to consult with private counsel.
A hearing was held on April 16, 2008, at which time the court revoked probation and scheduled the case for sentencing. Frizzle was later sentenced to the lower term of two years, doubled because of his strike prior. Frizzle filed a timely notice of appeal.
DISCUSSION
Frizzle contends the trial court denied his due process rights in the manner in which it revoked his probation. Specifically, Frizzle argues the trial court did not inform him of his rights regarding an evidentiary hearing and that he did not actually admit the alleged violation.
When a person has been placed on probation that probation may not be revoked without the due process rights as outlined in Morrissey v. Brewer (1972) 408 U.S. 471 and People v. Vickers (1972) 8 Cal.3d 451, 458. While formal advisement of rights and formal admission of any violation are much preferred, a defendant can waive a formal revocation hearing by the defendant's own conduct and that of defense counsel. (People v. Martin (1992) 3 Cal.App.4th 482, 486.)
Applying these standards to the record before us, we think it is clear that Frizzle, represented by counsel, was fully aware of his right to an evidentiary hearing and that he freely admitted his violation of probation.
At the time of his arraignment on the alleged probation violation, the principal interest of Frizzle was to remain free on bond, which was denied by the trial court. The trial court expressed its concerns about Frizzle as a flight risk since he had absconded for over a year while on probation. The court granted Frizzle's request for a two-week continuance so he could discuss the possibility of retaining private counsel. The court however warned Frizzle of the potential of a prison sentence and said: "So, if he wants to deny the violation, I can do whatever he wants. I can give him time to talk about hiring a lawyer. I can give him--I can have an evidentiary hearing."
After further discussion the court ended the hearing with the comment: "At defense request, we'll continue the hearing [until April 16] for [Frizzle] to decide whether or not he wants to admit the violation of absconding for a year."
The discussions with Frizzle at the outset of these proceedings indicate he was informed of the allegation of probation violation contained in the order to show cause he had received, the right to counsel and the opportunity to have an evidentiary hearing. Thus when Frizzle returned to court on April 16, 2008 with appointed counsel, Frizzle was clearly on notice that the hearing was his opportunity to defend against the allegation or to admit it and attempt to mitigate the potential sentence.
When the hearing commenced on April 16, Frizzle proceeded with appointed counsel. The transcript reflects that Frizzle and his counsel did not intend to deny he absconded from his probation in 2007. The court said it wanted to know if Frizzle was going to admit the violation or wanted a hearing. That statement was followed by discussions with both Frizzle and his counsel in which the defense made clear it was not denying the violation. The defense offered some mitigating reasons but clearly stated they did not rise to a legal defense. Rather, Frizzle wanted to offer reasons for his departure to explain and possibly mitigate the sentence. In one exchange with defense counsel the court said:
"The Court: Necessity defense of some sort? Otherwise everything's a sentencing issue.
"[Defense Counsel]: Well you know, it's a necessity issue. That may be or something presenting in a manner of speaking at sentencing because there's no legal defense. Truly, it wasn't. His life was threatened, et cetera. And whether it was a clear and imminent threat I don't know. But he does have some explanation and I can--I suppose we could clarify that, save that rather for sentencing later."
Following those comments, the court talked directly with Frizzle. Among other things, Frizzle apologized for his conduct. He acknowledged he left for a year to get out of a situation that "he was in." Later, counsel again acknowledged the lack of a defense. Counsel said: "Unfortunately, at this point, we do not have a defense. We're going to be submitting to the termination of probation--Prop. 36, rather."
The court ordered a probation report and set the case for sentencing. At no point in the case did Frizzle or his counsel object that he had not been informed of his rights or that he had not admitted the violation of probation by absconding for over a year.
We readily agree with Frizzle the revocation proceedings should have been handled with more formality. The court should have informed Frizzle of his rights on the record; should have obtained a waiver of the evidentiary hearing on the record and should have formally asked Frizzle to admit the violation -- on the record. It certainly would not have taken any more time than the free-flowing discussions that were involved in this case. Placing these matters on the record would have avoided this appeal and saved time and money. With all that said, we are satisfied that Frizzle did receive due process and that his probation revocation should stand.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.