Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE257420, DeAnn M. Salcido, Judge.
HALLER, J.
Carl Anthony Hale appeals from the judgment revoking his probation and sentencing him to a two-year prison sentence. Hale contends his due process rights were violated because the information filed against him did not plead that he would be ineligible for probation.
FACTS
In January 2006 Hale pled guilty to one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). The trial court suspended imposition of sentence and placed appellant on probation for three years, conditioned on, among other things, that Hale participate and complete a drug treatment program under Proposition 36. (Pen. Code, § 1210.)
Hale arrived late for his first review hearing on February 28 and was ordered to return for another review hearing on March 7. Hale arrived late for this review as well and was ordered to return on time on March 14.
On March 14 Hale did not appear for the scheduled hearing and the court revoked his probation and issued a bench warrant for his arrest. On May 25 Hale appeared in court and admitted his failure to appear on March 14 was a drug-related probation violation. The court reinstated Hale's probation and ordered him to return for a review hearing on July 13. On July 13 Hale failed to appear; the court revoked his probation and issued another bench warrant for Hale's arrest. On August 17 Hale appeared in court and said he had been unable to make his July 13 court appearance because he was incarcerated on a parole violation. The court released Hale on his own recognizance and ordered him to return on September 7 with a letter from his parole officer confirming the dates of his incarceration.
On September 7 the court issued another bench warrant when Hale did not appear. In October the court received a letter from Hale indicating he was again incarcerated and therefore could not make his September 7 court appearance. Hale asked the court to grant him probation with long-term rehabilitation upon his release from prison. On November 30 Hale appeared in court and the court reinstated his probation and ordered him to appear on January 25, 2007.
On January 25 Hale did not appear in court, and the court summarily revoked his probation and issued a bench warrant. On March 1 Hale appeared in court, and his counsel informed the court that Hale had another parole hold. The court continued the matter until March 8.
On March 8 Hale admitted his failure to appear at the January 25 hearing was his second drug-related probation violation. The court formally revoked Hale's probation. The court also noted that Hale's parole hold subjected him to a significant amount of time in custody.
On April 5 the court sentenced Hale to two years in state prison.
DISCUSSION
Hale contends that sentencing him to prison was a due process violation because the court did not consider him eligible for probation even though the information did not allege probation ineligibility and he did not admit he was ineligible. The contention is without merit for a number of reasons.
At no point in the proceedings did the court state that Hale was ineligible for probation. Rather, the court said:
"All right, sir. Well, you have a criminal history going back to 1980: Controlled substance issues, hypodermic needles, domestic violence . . . It's a constant issue. . . . That's the bottom line. I have reviewed the sentencing report and I've listened to your plea, sir, but unfortunately your criminal history goes back to 1980 and the court system is done listening to your pleas and promises that you're never going to do it again."
From our reading of the record, the court's decision to send Hale to prison did not reflect a finding of whether he was eligible for probation. The court's decision was based on Hale's abysmal performance on probation—not on a finding that he was ineligible for probation.
Furthermore, although the probation report stated that Hale was "presumptively ineligible for probation" because the instant offense was a felony and he had two prior felony convictions, the report also noted that Hale might be considered for probation because Hale committed the crime as a result of his drug addiction and there was treatment available that would be required as a condition of probation. (Cal. Rules of Court, rule 4.413(c)(2)(B).) Again, there is no showing that the court relied on the statement in the probation report that Hale was presumptively ineligible for probation.
Probation is not a right, but an act of clemency to allow rehabilitation. (People v. Johnson (1993) 20 Cal.App.4th 106, 109.) The granting and revocation of probation are entirely within the sound discretion of the trial court. (People v. Howard (1997) 16 Cal.4th 1081, 1091-1094.) "Absent abuse of that discretion, an appellate court will not disturb the trial court's findings." (People v. Self (1991) 233 Cal.App.3d 414, 417.) "[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation." (People v. Lippner (1933) 219 Cal. 395, 400.)
Given Hale's failure to comply with the terms of his probation, the court did not abuse its discretion in refusing to reinstate probation and sentencing him to prison.
Hale's claim that he was denied due process is unavailing for at least two reasons. To the extent that Hale argues he had no notice that he was going to be considered ineligible for probation because the information did not contain any statutory probation ineligibility allegations, we already have rejected the notion that he was sent to prison because of a finding that he was ineligible for probation. The original grant of probation also belies the claim that the court found him ineligible for probation. Furthermore, when Hale pled guilty to the offense, he was explicitly told that the maximum sentence for the offense was four years in prison, and he indicated he understood. Thus, Hale knew that he could be sent to prison if he violated the terms and conditions of his probation. There was no due process violation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J. IRION, J.