Opinion
F041176.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. EDWARD LEE HALL, Defendant and Appellant.
Rodney Richard Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION:
FACTS AND PROCEEDINGS
Appellant Edward Lee Hall contends the proceedings instituted to revoke his probation violated his right to due process under law.
Hall pled nolo contendere on October 30, 1996, to one count of lewd and lascivious acts on a child under age 14 (Pen. Code, § 288, subd. (a)). Under the terms of the plea agreement, Hall was sentenced to a suspended prison term of eight years with five years probation. On December 3, 1996, the trial court imposed sentence pursuant to the terms of the plea agreement.
Based on an arrest warrant issued on October 17, 2001, Hall was placed in custody on November 6, 2001. There was an allegation Hall violated the conditions of his probation by failing to complete a treatment program for sexual offenders. On November 28, 2001, Hall admitted he violated probation. The court reinstated probation on the condition Hall serve 75 days in jail and remain on probation an additional year until December 3, 2002.
The length of probation can be no longer than the maximum term of imprisonment. (Pen. Code, § 1203.1.) A court has the discretion to set the term of probation for as long as the maximum length of a sentence. Thus, where a defendant faces an indeterminate sentence of one year to life, the court may set the term of probation from one year to life. (People v . Bittick (1960) 177 Cal. App. 2d 479, 483-484, 2 Cal. Rptr. 378.) The trial courts power to revoke or modify a term of probation pursuant to Penal Code section 1203.3 includes the power to extend the probationary term prior to its expiration. (People v. Cookson (1991) 54 Cal.3d 1091, 1095, 820 P.2d 278; Ex Parte Sizelove (1910) 158 Cal. 493, 494, 111 P. 527.)
On March 18, 2002, Hall appeared in court for a new felony violation. The matter was continued until March 29, 2002. The clerks transcript from the March 29, 2002, hearing notes Hall violated probation. A felony complaint had apparently been filed as case No. 670754-1 and trailed. The matter was continued twice more until May 29, 2002, when the trial court dismissed the violation of probation allegation on the recommendation of the probation department.
On June 6, 2002, the prosecutor filed a petition requesting reinstatement of the violation of probation. According to the petition, the felony charge in case No. 670754-1 was dismissed with the understanding the People would proceed instead on a violation of probation. The district attorney responsible for Halls case stated in the petition that she was absent during the May 29, 2002, hearing and Halls violation of probation action was dismissed inadvertently. She also stated that the criminal action was dismissed against Hall with the understanding the People would proceed on the violation of probation action. On June 11, 2002, Hall denied he violated probation.
The evidence at the contested probation revocation hearing showed Hall beat, stomped, choked, and kicked Alice E. with whom he had lived for six years. Alice went to the hospital by ambulance. Her neck and eyes were bruised and her ribs were in pain. One officer who interviewed the victim at the hospital did not notice any serious injuries. A second officer who saw the victim two days after the incident noticed her eyes were red and bloodshot and her cheeks were swollen.
Hall denied striking the victim. Hall admitted they argued over the victims use of drugs and alcohol with two other men while Hall was away.
The trial court found Hall violated the terms of his probation by failing to obey all laws. The court denied Halls request for reinstatement of probation and lifted the stay of his eight-year sentence.
DISCUSSION
Hall contends he was not given proper notice of the allegations against him and was denied due process under law. Hall argues the trial court lacked jurisdiction to revoke his probation once the petition to revoke probation was dismissed on May 29, 2002. Hall also argues the prosecutions dismissal of the criminal charge of domestic violence was arbitrary and an abuse of its charging discretion because it lead to a greater prison term for the revocation of his probation than it would have had he been prosecuted for domestic violence.
A. Notice
Hall argues the proceedings against him were improper because the prosecutor failed to provide him with written notice of the allegations against him. Hall points out the written petition for reinstating the probation revocation proceedings does not have a file stamp on it and there is no evidence demonstrating it was officially filed in this action.
The petition itself explicitly states the People seek to revoke Halls probation because he violated the condition that he obey all laws which he failed to do when he assaulted a woman with whom he had been cohabiting on January 27, 2002. The petition also alleged Hall had failed to obtain mental health counseling. The petition seeks to reinstate the violation of probation proceedings because the initial proceeding was inadvertently dismissed. The petition satisfies basic due process notice requirements because it gives Hall and his counsel notice of the specific charges against him.
Written notice of a probation violation is constitutionally mandated. (Morrissey v. Brewer (1972) 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593; People v. Vickers (1972) 8 Cal.3d 451, 457-459, 105 Cal. Rptr. 305, 503 P.2d 1313.) Failure to give a defendant written notice of a probation violation is a reversible deprivation of a defendants due process rights. (People v. Hackler (1993) 13 Cal.App.4th 1049, 1054, fn. 5; In re Moss (1985) 175 Cal. App. 3d 913, 929, 221 Cal. Rptr. 645.)
Though the absence of the file stamp on the Peoples petition is troubling, it is not dispositive of the issue of whether Hall had notice of the allegations. The probation revocation hearing commenced on July 23, 2002. At the beginning of the hearing, the trial court noted there had been an in-chambers conference with the parties. The court stated it was not considering Halls failure to obtain treatment because that issue had been resolved on November 28, 2001, when Hall was placed back on probation. The court stated it would only consider the earlier violation of probation as part of Halls overall performance on probation if it found a violation in the instant action.
The trial court then noted it was going to limit the issue in the instant proceeding to Halls failure to obey all laws as set forth in the petition "which was submitted and filed on June 6, 2002" by the prosecutor. Neither Hall nor his attorney objected to this statement. Trial counsel did not represent to the court that he had not received the petition or that he was unaware of the allegations set forth therein.
Here, the trial court represented that a document was part of the record without an objection by either party. The failure to challenge a due process violation can constitute a waiver of the issue if it is raised for the first time on appeal. (In re Brian K . (2002) 103 Cal.App.4th 39, 42.) The essence of due process is actual notice and a meaningful opportunity to be heard. (Id. at pp. 42-43.)
Where a probationer has received actual notice of a hearing, has had time to prepare a defense, and fails to seek a continuance for additional time to prepare a defense, there is no denial of due process for lack of notice. (People v. Dominguez (1973) 35 Cal. App. 3d 18, 21-23, 112 Cal. Rptr. 98.) In the instant action, it appears Hall had actual notice of the allegations against him and a meaningful opportunity both to prepare for the hearing and to be heard. Trial counsel did not seek more time to prepare for the hearing. We therefore reject Halls assertion that he was denied due process for lack of notice of the allegations against him at the probation revocation hearing.
B. Jurisdiction
Hall contends the trial court lacked jurisdiction to hear the violation of probation case because it had been dismissed on May 29, 2002, and permitting the People to refile the allegations violated his right to due process. This same argument was reviewed and rejected by this court in People v. Villines (1987) 192 Cal. App. 3d 1298, 237 Cal. Rptr. 868. Where there has been neither an unreasonable delay nor a piecemeal approach to the revocation proceeding, and where charges are dismissed only once and soon refiled, there is no violation of due process. Also, the defendant failed to show any prejudice from the delay in proceedings. (Id. at pp. 1304-1305.) Hall requests this court reexamine our holding in Villines.
The People dropped the criminal action against Hall with the express understanding they would pursue the violation of probation proceeding. Hall argues the revocation process in his case was piecemeal. It appears, however, that the first revocation hearing was dropped due to inadvertence and was quickly refiled. The allegations were consistent between the two probation violation actions. Under these circumstances, we do not find there was a piecemeal approach to Halls case. We further note that Hall has shown no prejudice from the delay in the proceedings due to the dismissal of the original violation of probation proceedings. We decline Halls invitation to revisit our holding in Villines.
C. Prosecutorial Discretion
Hall argues the victim of the alleged domestic violence lacked credibility as a witness. Hall asserts the Peoples evidentiary burden was lighter in a probation revocation proceeding than in a criminal action. Hall points out that had he been prosecuted solely for a violation of Penal Code section 273.5, he could only be imprisoned for four years. Because the People pursued the violation of probation action instead of the criminal action, Hall now faces an eight-year sentence. Hall contends the prosecution of his case was arbitrary.
Probation is an act of clemency. In placing a defendant on probation, the state takes the risk the probationer may commit further antisocial acts. Where probation fails as a rehabilitative tool, as where a probationer fails to abide by probation conditions, the state has a great interest in being able to imprison the probationer without the burden of a new adversary criminal trial. (People v. Rodriguez (1990) 51 Cal.3d 437, 445, 272 Cal. Rptr. 613, 795 P.2d 783.)
The role of the trial court during a probation revocation hearing is not to determine whether the probationer is guilty or innocent of a crime but whether he or she can be safely allowed to remain in society. (People v. McGavock (1999) 69 Cal.App.4th 332, 337.) Thus, for instance, the corpus delicti rule has been held not to apply to probation revocation proceedings. (Id. at pp. 336-340; People v. Monette (1994) 25 Cal.App.4th 1572, 1575.)
Hall acknowledges the executives prosecutorial function includes broad discretion in how to charge a criminal action. (People v. Cortes (1999) 71 Cal.App.4th 62, 79.) Indeed, courts must scrupulously avoid interfering with the executives prosecutorial function, including its charging discretion. (Ibid.)
Hall has failed to demonstrate the prosecutor abused its charging discretion. Though Hall complains he was subject to an eight-year sentence rather than a four-year sentence, the prosecutor could have pursued both the criminal action as well as the violation of probation proceeding. Had the prosecutor been successful in both actions, the trial court could have sentenced Hall to consecutive prison terms. (People v. Todd (1994) 22 Cal.App.4th 82, 85-87.) We find no merit to Halls assertion that the prosecutor acted arbitrarily in prosecuting Hall for violating a condition of his probation.
DISPOSITION
The judgment is affirmed.