Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SA058579 James R. Dabney, Judge.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Sarah J. Farhat, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Carlos E. Gutierrez appeals from an order revoking his probation. He contends that he had insufficient notice of two of the grounds upon which the revocation was based and that the court service fee was imposed in error. We conclude that the record demonstrates that Gutierrez had actual notice of the challenged grounds for revocation, and we thus affirm the trial court’s order but vacate the improperly imposed service fee.
BACKGROUND
On the morning of September 18, 2008, police officer Robert Garrido and three other officers responded to a domestic violence call at the home of Carlos Gutierrez. As they approached the house, Gutierrez yelled and cursed at them through a window. Inside the house, Officer Garrido saw a woman, Sharon Pitner, with a bloody cut on her lip. Garrido testified that Pitner told him that she and Gutierrez had smoked methamphetamine in the detached garage during the night, then Gutierrez became angry and bit her on the lip. In the detached garage, Garrido found a methamphetamine pipe containing residue and two baggies containing methamphetamine. Gutierrez jumped up and swung or flailed his arms at the officers when they approached another roommate’s bedroom. Several officers struggled with Gutierrez before they were able to handcuff him. He was arrested on suspicion of inflicting corporal injury on a cohabitant, a violation of Penal Code section 273.5.
At the time of his arrest, Gutierrez was on probation for a conviction of possessing methamphetamine. Among his probation conditions were: obeying all laws and orders of the court; not using, owning, or selling restricted drugs or related paraphernalia; and staying away from users and sellers of restricted drugs and the places where they congregate.
On September 19, 2008, the prosecutor filed a motion requesting the revocation of Gutierrez’s probation. The motion alleged that Gutierrez had violated his probation by violating “273.5.” The motion further incorporated by reference all documents attached to it, including the police booking and property record reflecting an arrest for violating Penal Code section 273.5 and a police drug test report indicating that Gutierrez had tested positive for methamphetamine the day of his arrest. The copy of the motion in the appellate record does not include a proof of service.
The trial court summarily revoked Gutierrez’s probation on the day the motion was filed, set the formal revocation hearing for October 3, 2008, and ordered a supplemental probation report filed by the same day. At the summary revocation hearing, before the court cut him off, Gutierrez stated, “I’m not a threat. This girl was a prostitute living on —.” On October 3, 2008, the trial court continued the formal revocation hearing to October 6, 2008, because the supplemental probation report had not been filed. The trial court subsequently continued the formal revocation hearing another three times. On December 12, 2008, the trial court continued the hearing for a fifth time because it still did not have the supplemental probation report and Gutierrez had a newly substituted attorney who said she had received only the arrest report. The court handed over its file to counsel to assist her in familiarizing herself with the case.
On January 16, 2009, the court conducted the formal revocation hearing. Gutierrez was represented by the same attorney who reviewed the court file on December 12, 2008. Gutierrez brought Pitner to court as a defense witness, but the prosecution called her as its witness. Pitner testified she lived with Gutierrez, but denied that she saw him use methamphetamine and attributed the cut on her lip to “overzealous kissing.” Gutierrez’s counsel cross-examined witnesses Pitner and Garrido regarding the location of the methamphetamine and the pipe, the existence of other roommates, and the accessibility of the detached garage to other roommates. Defense counsel argued that defendant did not own the methamphetamine and paraphernalia Garrido found, that defendant was drunk on the night and morning in question, but not under the influence of methamphetamine, and that the cut on Pitner’s lip that night was the result of “overzealous kissing” by Gutierrez.
The trial court found that Gutierrez had violated his probation “in that he appeared to be using drugs again, drinking alcohol, and involved in an altercation that... led to an injury.” The court revoked defendant’s probation and sentenced him to two years in state prison. Among other fines and fees, the court ordered Gutierrez to pay a $10 court service fee. Gutierrez appealed.
DISCUSSION
1. Notice of grounds for revocation
Gutierrez contends that his right to due process was violated by the failure to give him notice that the effort to revoke his probation was based upon allegations of inflicting corporal injury on a cohabitant and using methamphetamine.
In Morrissey v. Brewer (1972) 408 U.S. 471 [92 S.Ct. 2593], the United States Supreme Court held that the minimum due process requirements at a parole revocation hearing included: “(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (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 as to the evidence relied on and reasons for revoking parole.” (Morrissey, at p. 489.) During the same year, the California Supreme Court, in People v. Vickers (1972) 8 Cal.3d 451, held that the minimal due process requirements of Morrissey applied equally to probation revocation cases. Nevertheless, the court clarified that “the precise nature of the proceedings for such revocation need not be identical if they assure equivalent due process safeguards.” (Vickers, at p. 458.) As recently noted by the California Supreme Court in People v. Towne (2008) 44 Cal.4th 63 at page 83, this remains the law today.
While no proof of service is attached to the district attorney’s probation revocation motion, neither Gutierrez nor his attorney objected that they had insufficient notice of the charges. As such, the case at bar closely resembles that of People v. Baker (1974) 38 Cal.App.3d 625, where the defendant had argued his due process rights were violated by his not having received written notice of the probation violations charged against him. Because neither Baker nor his attorney objected to inadequate notice, the appellate court rejected Baker’s due process contention, stating, “Absent objection, we will not imply inadequate notice from a record which is silent as to exactly how Baker was given notice of the charges.” (Id. at p. 629.) The same is true here. The record is silent as to how Gutierrez received notice, but neither Gutierrez nor any of his attorneys, at any time during the lengthy proceedings, objected to inadequate notice or complained of any confusion regarding the grounds upon which the prosecutor sought revocation. As a consequence, this court also will not imply insufficient notice from a record silent on the issue.
In addition, we may presume, pursuant to Evidence Code section 664, that the prosecutor properly performed her duty under Penal Code section 1203.2, subdivision (b), by serving Gutierrez and defense counsel with the probation revocation motion. The motion stated that Gutierrez had violated his probation by violating “273.5, ” and any ambiguity inherent in this description was eliminated by the specification of Penal Code section 273.5 and reference to corporal injury on a cohabitant contained in the booking report that was attached to the motion and incorporated by reference. The motion also incorporated by reference the attached police drug test report indicating that Gutierrez had tested positive for methamphetamine on the day of his arrest. Thus, in the absence of any evidence rebutting the presumption of the prosecutor’s performance of her official duty, we presume that Gutierrez and his attorney were served with the revocation motion, which was itself sufficient to have given Gutierrez notice of the methamphetamine use and corporal injury on a cohabitant grounds.
What is more, the circumstances that surround the hearing establish that Gutierrez actually did have notice of the allegations against him. Gutierrez’s statement to the court at the summary revocation hearing revealed his awareness of the corporal injury on a cohabitant allegation. The prosecutor questioned both Pitner and Garrido about the methamphetamine use and possession at the morning session of the revocation hearing, which was continued to the afternoon, but defense counsel did not express surprise, object that the methamphetamine evidence was irrelevant or that she had no notice that the methamphetamine use was a ground for revocation, or request a continuance to prepare to defend against that ground. A review of the transcript of the formal revocation hearing reveals that defense counsel appeared to know the grounds upon which revocation was sought. She displayed a thorough preparedness with a defense aimed at refuting both the corporal injury to a cohabitant and methamphetamine use. Most significantly, she brought Pitner to testify as a defense witness, using her to advance the theory that the bruise on her lip was caused by overzealous kissing and the theory that any methamphetamine or paraphernalia found that night was neither used by nor belonged to Gutierrez. A further important circumstance indicating that Gutierrez had notice of the challenged grounds for revocation is the December 12, 2008 review by defense counsel of the court file, which contained a copy of the revocation motion. As our preceding discussion makes clear, reviewing this motion would have provided Gutierrez ample notice of the challenged grounds for revocation.
For the foregoing reasons, we hold that Gutierrez’s claim that he lacked proper notice of the charges against him is without merit. We conclude that Gutierrez had adequate notice of two of the three grounds upon which the trial court’s finding was based, namely, the use of methamphetamine and the infliction of injury on Pitner. Although Gutierrez does not challenge the trial court’s reliance upon Gutierrez’s use of alcohol as a third ground for revocation of his probation, we note that the record is insufficient to show that Gutierrez was subject to a probation condition precluding him from using alcohol. The record also fails to show that he had any notice that alcohol use was a ground upon which the prosecutor sought to revoke his probation. Reliance upon that ground was thus impermissible, but does not warrant reversal, in light of the court’s findings on the two more serious grounds, each of which was sufficient independently to support the court’s order.
2. Court service fee
Gutierrez argues, and the Attorney General aptly concedes, that no authority permitted the trial court to impose a $10 “court service fee.” We vacate the imposition of the fee.
DISPOSITION
The judgment is modified by vacating the $10 court service fee. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment, which is to be forwarded to the Department of Corrections and Rehabilitation.
We concur: ROTHSCHILD, J., JOHNSON, J.