Opinion
2d Crim. No. B229025 Super. Ct. No. VA114327
12-27-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD L. JOHNSON, Defendant and Appellant.
Elizabeth Piliavin-Godwin, 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, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County)
Richard L. Johnson appeals from a November 4, 2010, order revoking probation and sentencing him to state prison. He claims his constitutional right to due process was violated because he was not given adequate notice of the violation which resulted in the revocation of his probation. He also claims an upper term prison sentence was imposed as punishment for exercising his right to a probation revocation hearing. We affirm.
FACTS
On March 20, 2010, Johnson was charged with second degree robbery and assault by means likely to produce great bodily injury. (Pen. Code, §§ 211, 245, subd. (a)(1).) Johnson pleaded no contest to the robbery in return for dismissal of the assault charge. The trial court suspended imposition of sentence and placed Johnson on five years formal probation, subject to his serving one year in county jail and other terms and conditions.
On August 11, 2010, Johnson was charged with felony evasion of a police officer while driving recklessly. (Veh. Code, § 2800.2, subd. (a).) The charge arose from a high speed chase during which Johnson drove at excessive speeds, failed to stop at a stop sign, made an unlawful turn, and drove onto the sidewalk and through a yard. After colliding with two parked cars, Johnson fled on foot. He was apprehended by police shortly thereafter.
All further statutory references are to the Vehicle Code unless otherwise stated.
On August 13, 2010, the district attorney filed a motion requesting revocation of probation based on his commission of the section 2800.2, subdivision (a) felony evasion offense. The revocation motion incorporated various police reports describing the entire chase, including an incident report, probable cause determination (Declaration), vehicle report, and traffic collision report.
On November 4, 2010, the trial court conducted a probation revocation hearing. After oral testimony and argument, the court revoked Johnson's probation for failing to comply with the probation condition requiring him to "obey all laws." He was sentenced to the upper term of five years for the robbery. He appeals that order.
DISCUSSION
No Due Process Violation in Revocation of Probation
Johnson contends that his right to due process was violated because he had insufficient notice of the claimed violation of probation on the basis of which the trial court revoked his probation. We disagree.
Morrissey v. Brewer (1972) 408 U.S. 471, 488-489, established minimum due process standards for parole revocation hearings, and the California Supreme Court applied the Morrissey standards to probation revocation hearings. (People v. Vickers (1972) 8 Cal.3d 451, 458.) As a result, a probationer's due process rights at a revocation hearing include written notice of the claimed violations of probation, disclosure of the evidence against him or her, an opportunity to present evidence and cross-examine adverse witnesses, and a written statement by the fact finder identifying the reason for revoking probation and the evidence relied on. (Vickers, at pp. 458-459; Morrissey, at pp. 488-489.) The precise nature of revocation proceedings need not be identical if they assure equivalent due process safeguards. (Vickers, at p. 458.)
Here, the revocation motion cited the felony evasion offense (§ 2800.2, subd. (a)) as the operative probation violation. The elements of that offense are fleeing or attempting to elude a "distinctively marked" police vehicle by driving "in a willful or wanton disregard for the safety of persons or property." (§§ 2800.1, subd. (a), 2800.2, subd. (a).) To be "distinctively marked," the police vehicle must have a red light visible from the front of the vehicle, a siren, and one or more additional distinguishing physical features reasonably visible to other drivers during the pursuit. (§ 2800.1, subds. (a)(1) & (a)(3); People v. Hudson (2006) 38 Cal.4th 1002, 1012-1013.) Driving in willful and wanton disregard for safety includes driving so as to incur "three or more [traffic] violations" or driving so as to cause damage to property. (§ 2800.2, subd. (b).)
At the probation hearing, the prosecution offered evidence to establish the distinctive markings on the police vehicle, and Johnson's reckless driving in disregard for safety. Evidence regarding the vehicle was that it was an "unmarked" sedan with a forward-facing red light and siren, a blue, red and orange light in the rear window, a cage separating the front and back seats, two antennas on the trunk, and a police radio inside. There was evidence that the lights and siren were in use during the chase. Evidence regarding Johnson's driving included his multiple traffic violations and continued evasion of the police after he got out of his car.
Johnson conceded that his reckless driving satisfied the "willful and wanton" requirement of the statue, but argued that the evidence failed to establish that the pursuing police vehicle was "distinctively marked." He argued that rear window lights, cage, trunk antenna, and radio were not visible to a fleeing car and, therefore, did not meet the statutory requirement of a visible marking in addition to the forward-facing red light and siren.
After the completion of argument, the trial court did not make a finding on whether the police vehicle was distinctively marked. Instead, the court found that Johnson had violated his probation condition that he "obey all laws." The finding was based on Johnson's several traffic violations during the chase. The court revoked probation and sentenced Johnson to the upper term of five years for the underlying robbery.
Johnson argues that, because the notice of revocation expressly identified the section 2800.2, subdivision (a) felony evasion as the only probation violation, he was not given notice that his probation could be revoked for violation of the condition that he "obey all laws." Therefore, Johnson asserts, he did not receive the constitutionally required written notice of the claimed probation violations he would be required to defend against at the revocation hearing.
We conclude that the notice of revocation hearing was sufficient to satisfy constitutional due process requirements. The trial court should have identified at the hearing which specific laws were not obeyed, but the various attachments to the written notice of revocation and testimony at the hearing established the violations. While the omission by the court is regrettable, it does not affect the sufficiency of the notice of revocation. Johnson received written notice that the ground for revocation was violation of section 2800.2, subdivision (a). By virtue of such notice, both the "distinctively marked" and the reckless driving elements of the offense were placed in issue at the probation revocation hearing. In addition, the various reports attached to the revocation motion describe the facts underlying the offense and gave Johnson a meaningful opportunity to prepare for the hearing and be heard on the multiple traffic violations that served as the reason for revocation of his probation. This is not a situation where the revocation notice identified violation of one statute and revocation was ordered on the basis of an unrelated violation. Here, Johnson's probation was revoked on the basis of conduct arising out of, and a part of, the section 2800.2, subdivision (a) felony evasion offense.
Johnson's reliance on the case of People v. Mosley (1988) 198 Cal.App.3d 1167, is inapposite. In that case, the probationer was charged with rape and the rape offense was the sole noticed basis for revoking his probation. The parties stipulated that the probation revocation hearing would be conducted in conjunction with the jury trial of the rape offense. (Id. at p. 1170.) During trial, evidence revealed that the defendant had been drinking alcoholic beverages in violation of a probation condition that he abstain from drinking alcohol. (Id. at p. 1172.) While the jury deliberated the rape offense, the district attorney asked the trial court to consider his consumption of alcohol as an alternative basis for revoking his probation. Neither the trial court nor defense counsel was aware of that claimed probation violation until the district attorney's request. (Id. at pp. 1170-1173.) After the jury returned a not guilty verdict on the rape charge, the trial court found that the defendant had violated his probation by consuming alcohol. (Id. at pp. 1170-1171.)
The Court of Appeal reversed the revocation because the defendant had insufficient notice that alcohol use might be relied on to revoke his probation. (People v. Mosley, supra, 198 Cal.App.3d at p. 1174.) The court stated that the revocation process was fundamentally unfair because the evidentiary phase of the hearing was completed before the defendant had any notice, and the defendant was not offered additional time to prepare. (Ibid.)
The instant case is readily distinguishable. In Mosley, probation was revoked for an entirely different and unrelated violation of probation. There could be no reasonable basis for the Mosley defendant to believe notice of the rape charge might compel him to answer for an alcohol-use violation. Here, although there was no finding on felony evasion per se, Johnson's probation was revoked based on an essential factual element of the felony evasion charge. The written notice raised the elements of felony evasion and placed the facts supporting or negating those elements at issue in the revocation hearing. The notice satisfied constitutional due process requirements and resulted in a probation hearing which provided notice and disclosure of all relevant evidence against him. (People v. Vickers, supra, 8 Cal.3d at pp. 458, 460-462; Morrissey v. Brewer, supra, 408 U.S. at pp. 488-489.)
No Due Process Violation in Imposition of Upper Term Sentence
Johnson contends that the five-year upper term for the robbery was imposed by the trial court as punishment for exercising his right to a probation revocation hearing. We disagree.
A trial court violates a defendant's due process rights when it imposes a harsher sentence based upon the defendant's election to exercise a constitutional right. (In re Lewallen (1979) 23 Cal.3d 274, 278; see also People v. Collins (2001) 26 Cal.4th 297, 305-306.) But, the fact that, after trial, a defendant receives a more severe sentence than offered during plea negotiations does not in itself support the inference that he was penalized for exercising his constitutional rights. (People v. Szeto (1981) 29 Cal.3d 20, 35.) The defendant must make a showing that the higher sentence was imposed as punishment for exercising his or her right to a hearing. (People v. Angus (1980) 114 Cal.App.3d 973, 989-990.)
Here there is no showing that the upper term sentence was imposed as punishment for Johnson exercising his right to a probation revocation hearing. The trial court explained that it was sentencing Johnson to the five-year upper term based on the "underlying nature of the robbery where force was used and injury was caused to the victim. It's not just, 'Give me your money or I'll hit you.' He actually hit the guy. So that's an aggravating [sic] robbery."
Johnson asserts that the record demonstrates no viable reasons for the imposition of the upper term, but the evidence shows otherwise. Based on the probation report and preliminary hearing transcript, Johnson robbed a person delivering merchandise to a Starbucks. As the delivery person was leaving the store after a delivery, Johnson and his accomplice hit the victim and held him around the neck, knocked the man to the ground with a rock, and punched and kicked him multiple times.
Johnson also relies on a statement by the trial court made at a prior hearing in the case. At that hearing, defense counsel asked the court for an indication as to a ruling if probation were revoked stating that, depending on the indication, "[m]aybe we'll take it today." The trial court responded by stating that it did not have a copy of the probation report, and would have to "get input from the D.A. on what his criminal history is, if any, other than" the probation offense. The court stated, "assuming nothing good or bad I would just give him mid term."
These comments show that, although the trial court indicated a possible sentence, the court made it clear that it could make no definitive commitment because it did not have a complete file on the case. The court merely indicated that a midterm sentence probably would be imposed if a complete review of the file revealed that such a sentence was appropriate. In addition, there was no indication that the trial court was suggesting or requesting that Johnson admit the probation violation and waive his right to a probation revocation hearing in return for a midterm sentence.
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
COFFEE, J.
John Fisher, Judge
Superior Court County of Los Angeles
Elizabeth Piliavin-Godwin, 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, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.