Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR138434
Bruiniers, J.
Geri Lee Haworth (Haworth) pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and was placed on drug treatment probation under the terms of Proposition 36. Haworth subsequently admitted that she violated the terms of her probation by failing to appear for referral at a drug treatment program and failing to actively participate in the program. The trial court revoked and reinstated her probation and required that she serve 90 days in county jail. (Pen. Code, §§ 1210, 1210.1.) On appeal, Haworth contends that her admissions of probation violations were not voluntary and intelligent. We affirm.
Unless otherwise noted, all further statutory references are to the Penal Code.
I. Background
“In November 2000, the voters of California passed Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, codified at sections 1210, 1210.1, and 3063.1. In general, Proposition 36 requires probation and drug treatment, rather than incarceration, for a defendant convicted after its effective date of a nonviolent drug possession offense.... (§§ 1210.1, subd. (a), 1210, subd. (a).)” (People v. Goldberg (2003) 105 Cal.App.4th 1202, 1206.)
“[T]he purpose of Proposition 36 is ‘[t]o divert from incarceration into community-based substance abuse treatment programs non-violent defendants, probationers and parolees charged with simple drug possession or drug use offenses.’ [Citations.]” (People v. Esparza (2003) 107 Cal.App.4th 691, 695–696.) Under Proposition 36, anyone convicted of a “ ‘nonviolent drug possession offense’ ” is required to receive a grant of probation with a drug treatment condition, unless disqualified by one of the conditions of section 1210.1, subdivision (b). (§ 1210.1, subd. (a).)
Section 1210.1, subdivision (a), provides: “Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court shall impose appropriate drug testing as a condition of probation. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation. Aside from the limitations imposed in this subdivision, the trial court is not otherwise limited in the type of probation conditions it may impose. Probation shall be imposed by suspending the imposition of sentence. No person shall be denied the opportunity to benefit from the provisions of the Substance Abuse and Crime Prevention Act of 2000 based solely upon evidence of a co-occurring psychiatric or developmental disorder. To the greatest extent possible, any person who is convicted of, and placed on probation pursuant to this section for a nonviolent drug possession offense shall be monitored by the court through the use of a dedicated court calendar and the incorporation of a collaborative court model of oversight that includes close collaboration with treatment providers and probation, drug testing commensurate with treatment needs, and supervision of progress through review hearings. [¶] In addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program.”
On January 3, 2008, Haworth was placed on Proposition 36 probation after she pled no contest to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)
In May 2008, the Napa County Probation Department (Probation) filed a petition alleging Haworth had violated the terms of her probation by failing to actively participate in an assigned drug treatment program. The People also filed a petition alleging Haworth had violated the terms of her probation by receiving or concealing stolen property, in violation of section 496, subdivision (a), and by possessing a controlled substance, in violation of Health and Safety Code, section 11377, subdivision (a). On April 6, 2009, Haworth, represented by counsel, admitted the allegations. The court revoked and reinstated Haworth’s probation on the condition that she serve 30 days in county jail (April 6 Order).
Unless otherwise specified, all dates stated herein occurred in the year 2009.
In June, Probation filed a second petition alleging Haworth had violated the terms of her probation by testing positive for methamphetamine usage and failing to report for drug testing. On July 6, Haworth, represented by counsel, waived her right to a hearing and admitted the allegations. The court revoked and reinstated her probation on the condition that she serve two days in the county work program (July 6 Order).
In July, Probation filed a third petition alleging Haworth had violated the terms of her probation by failing to appear for referral at the S.T.A.R.T. drug treatment program, and by failing to actively participate in the drug treatment program. On July 27, Haworth, represented by counsel, waived her right to a hearing and admitted the allegations. The court revoked and reinstated her probation, in a modified form that was no longer subject to Proposition 36, and required that she serve 90 days in county jail (July 27 Order). On August 6, Haworth filed a timely notice of appeal from the July 27 Order. Pursuant to section 1237.5 and California Rules of Court, rule 8.304(b), Haworth obtained a certificate of probable cause.
An order granting probation and suspending imposition of sentence is deemed a final judgment of conviction from which an appeal may be taken. (§ 1237, subd. (a); People v. Howard (1997) 16 Cal.4th 1081, 1087; People v. Richardson (2007) 156 Cal.App.4th 574, 582, fn. 2.) Accordingly, an order revoking probation or modifying its terms is appealable as an “order made after judgment, affecting the substantial rights of the party.” (§ 1237, subd. (b); People v. Vickers (1972) 8 Cal.3d 451, 453, fn. 2; People v. Tijerina (1969) 1 Cal.3d 41, 47–48; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.)
II. Discussion
On appeal, Haworth challenges the April 6, July 6, and July 27 Orders, arguing that the trial court did not properly advise her of her rights, or obtain knowing waivers of her rights, before she admitted the probation violations. She essentially asserts that she should have been admonished as if she had been entering a guilty plea, relying on Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl).
We first note that only the July 27 revocation order is properly before us in this appeal. Haworth’s Notice of Appeal identifies the order appealed from as that entered on July 27. Her declaration in support of her request for a Certificate of Probable Cause complains only of her lack of an opportunity to consult with her attorney “before my court date.” The April 6 Order and July 6 Order were independently appealable as orders after judgment. (§ 1237, subd. (b); People v. Vickers, supra, 8 Cal.3d at p. 453, fn. 2; People v. Ramirez, supra, 159 Cal.App.4th at p. 1421.) Thus, Haworth’s notice of appeal, filed on August 6, was untimely with respect to the April 6 Order. (See Cal. Rules of Court, rule 8.308(a) [“notice of appeal... must be filed within 60 days after... the making of the order being appealed”]; People v. Ramirez, supra, 159 Cal.App.4th at p. 1421.) Even if we were to assume that her August 6 Notice of Appeal were otherwise timely with respect to the July 6 order, she did not seek to appeal from it.
In Boykin, the United States Supreme Court held that it was error for a trial court to accept a defendant’s “guilty plea without an affirmative showing that it was intelligent and voluntary.” (Boykin, supra, 395 U.S. at p. 242.) The court stated: “Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination.... [Citation.] Second, is the right to trial by jury. [Citation.] Third, is the right to confront one’s accusers. [Citation.] We cannot presume a waiver of these three important federal rights from a silent record.” (Id. at p. 243.) In Tahl, our Supreme Court interpreted Boykin to require “that each of the three rights mentioned-self-incrimination, confrontation, and jury trial-must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea.” (Tahl, supra, 1 Cal.3d at p. 132.) However, failure to provide explicit Boykin-Tahl admonishments is harmless “if the record affirmatively shows that [the guilty plea] is voluntary and intelligent under the totality of the circumstances. [Citations.]” (People v. Howard (1992) 1 Cal.4th 1132, 1175.)
We reject Haworth’s argument, as it is well established that Boykin-Tahl principles do not apply to probation revocation hearings. (People v. Clark (1996) 51 Cal.App.4th 575, 582, overruled on other grounds in People v. Mendez (1999) 19 Cal.4th 1084, 1098; People v. Garcia (1977) 67 Cal.App.3d 134, 137–138; People v. Dale (1973) 36 Cal.App.3d 191, 194–195.) As the Second District Court of Appeal noted, in People v. Garcia, supra, 67 Cal.App.3d at page 137: “At a probation revocation hearing the issue is different from that presented on the original charge, the procedure is different, and the method of proof is different, to such an extent that the forms of procedure prescribed in Boykin and Tahl have little relevance.” Haworth, having failed to cite these cases in her opening brief and having filed no reply brief, makes no attempt to distinguish this line of authority. We know of no reason to depart from this well-established precedent.
Although the admonitions required under Boykin-Tahl do not apply to probation revocation hearings (People v. Clark, supra, 51 Cal.App.4th at p. 582), due process does require that the probationer be provided: “ ‘(a) written notice of the claimed violations...; (b) disclosure... 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...; and (f) a written statement [by] the factfinders as to the evidence relied on and reasons for [the revocation]...’ ” (People v. Vickers, supra, 8 Cal.3d at p. 457, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 489).
Here, on July 27, Haworth had notice of the basis for the probation violation proceedings, the opportunity to be heard, and the assistance of counsel before she admitted the violations. Furthermore, the court specifically advised Haworth on July 27 that she had a right to a hearing. With counsel present, Haworth waived that right. Accordingly, we reject Haworth’s assertion that she did not admit the probation violations knowingly, intelligently, and voluntarily.
The colloquy reflected in the July 27 hearing transcript was as follows:
Haworth contends that she was not advised of her right to a hearing on April 6. We do not address Haworth’s contentions with respect to the April 6 Order because, as we have previously noted: 1) her Notice of Appeal identifies only the July 27 order; and 2) appeal from the April 6 order was, in any event, untimely. (§ 1237, subd. (b); Cal. Rules of Court, rule 8.308(a).)
III. Disposition
The order revoking Haworth’s Proposition 36 probation is affirmed.
We concur: Jones, P. J.Needham, J.
“THE COURT: [Defense Counsel], do you acknowledge receipt of the petition?
[DEFENSE COUNSEL]: Yes, your Honor. We have. And at this time it’s my client’s desire to admit the violations and the matter is submitted, your Honor.
THE COURT: You do waive reading, advisement of rights?
[DEFENSE COUNSEL]: We do.
THE COURT: Then at this time, Miss Haworth, do you wish to give up your right to have a hearing and make an admission in your case today?
DEFENDANT HAWORTH: Yes.”
The minutes reflect that Haworth’s admission was freely and voluntarily entered, and that she made an intelligent waiver of her hearing rights.