Opinion
A148995
08-11-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMMIE D. LEE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. SCN219551)
Defendant Jammie D. Lee appeals from an order reinstating his probation after a contested revocation hearing. Defendant contends he was denied due process because he was not given adequate written notice of the alleged probation violation and no substantial evidence supported the trial court's findings. He also argues the trial court failed to give him appropriate credit for domestic violence counseling classes. We find no merit in defendant's claims and affirm.
I. BACKGROUND
Defendant pled guilty to a domestic violence charge in 2013 and was placed on probation for three years. As a condition of his probation, defendant was ordered to participate in a 52-week domestic violence, drug, alcohol, psychological and psychiatric counseling program.
In October 2015, the San Francisco Adult Probation Department filed a motion to revoke defendant's probation. The motion recommended revocation on the basis that: "The defendant was terminated from his domestic violence program on 10/15/15. The defendant is not suitable for that program. Additionally, the defendant was terminated and dropped from his recovery class on 9/30/15." The trial court administratively revoked probation and referred the matter to the Adult Probation Department for supplemental reporting.
The probation revocation hearing was continued multiple times during the next nine months. In the interim, three supplemental probation reports were filed prior to the revocation hearing. Each report noted defendant's failure to complete his domestic violence program within 18 months as required by Penal Code section 1203.97, subdivision (a)(6). In January 2016, the trial court issued an order stating that defendant "may do individual [domestic violence] counseling."
All further statutory references are to the Penal Code. --------
On July 29, 2016, the trial court conducted the probation revocation hearing. Scott Schell, the program manager for the domestic violence program, testified defendant was not "appropriate" for the group program and his participation was terminated after he missed four sessions. Schell testified that "technically" after a client misses three classes, he or she is supposed to be dropped, but this assessment is made on a case-by-case basis. Schell noted he and his facilitator had attempted to work with defendant for 21 weeks, but defendant had "issues with boundaries." Schell wrote a memo to the trial court in January of 2016 reflecting his assessment that defendant was better suited for one-on-one counseling. Several documents were admitted as evidence at the hearing, including two reports showing that defendant began individual domestic violence counseling on February 8, 2016, attended 18 sessions, and missed one.
After hearing evidence and argument, the trial court found by a preponderance of the evidence that defendant had violated his probation because defendant "didn't finish the classes within the 18 months, [and] he was terminated from the program for being disruptive and having boundary issues."
The trial court reinstated defendant on probation, gave him credit for 10 of the 21 classes he had attended at the group program before being terminated, and gave him credit for all 18 individual counseling sessions he had attended, for a total of 28 class credits. The trial court extended defendant's probation until February 28, 2017, a time it deemed sufficient to complete the 24 remaining classes and the 25 hours of community service that the court had originally imposed as a condition of defendant's probation. Defendant was also ordered to complete substance abuse counseling.
II. DISCUSSION
A. Defendant's Due Process Claim Lacks Merit.
Defendant contends he was denied due process when the trial court determined he violated probation based on a technical violation not alleged in the motion to revoke, namely, that he failed to complete the 52-week domestic violence program within 18 months.
As an initial matter, defendant's failure to object to inadequate notice at the probation revocation hearing waived appellate review. (See People v. Hawkins (1975) 44 Cal.App.3d 958, 967; People v. Newlun (1991) 227 Cal.App.3d 1590, 1604; People v. Buford (1974) 42 Cal.App.3d 975, 982, disapproved on other grounds in People v. Rodriguez (1990) 51 Cal.3d 437, 444-445, fn. 3.)
Even assuming defendant has not forfeited his due process claim, it fails on the merits. It is well settled that trial courts are required to provide a criminal defendant with certain minimum due process protections before his or her probation is revoked, including written notice of claimed violations. (Black v. Romano (1985) 471 U.S. 606, 611-612; People v. DeLeon (July 24, 2017, S230906) ___ Cal.5th ___ [2017 Cal. Lexis 5613, p. *20] [describing same due process requirements for parole revocation proceeding]); People v. Rodriguez, supra, 51 Cal.3d at p. 441, citing Morrissey v. Brewer (1972) 408 U.S. 471, 488-489.) Nonetheless, while a probationer is entitled to certain procedural safeguards, the due process accorded in a revocation proceeding is flexible and does not require the full panoply of procedural protections of a criminal trial. (Black v. Romano, supra, 471 U.S. at p. 612-613; People v. DeLeon, supra, ___ Cal.5th ___ [2017 Cal. Lexis 5613, p. *20]; People v. Vickers (1972) 8 Cal.3d 451, 457-458; People v. Felix (1986) 178 Cal.App.3d 1168, 1172.)
Here, all three supplemental reports filed by the probation department in the months leading up to the revocation hearing noted defendant's failure to complete the group counseling program within 18 months as required by section 1203.097, subdivision (a)(6). At the revocation hearing, defense counsel specifically referred the trial court to the basis for revocation stated in the November 23, 2015 supplemental report, suggesting she was familiar with the report and its contents. (See, e.g., People v. Baker (1974) 38 Cal.App.3d 625, 629 [probationer had adequate notice of alleged violations contained in supplemental probation report counsel read during recess at beginning of revocation hearing]; People v. Buford, supra, 42 Cal.App.3d at p. 982 [no due process violation where supplemental report prepared and apparently served at some point prior to hearing described alleged probation violations and defendant failed to seek continuance or additional time for preparation].) Counsel's failure to express surprise or seek a continuance further supports a reasonable inference defendant had actual notice of the basis for the proceeding. (See, e.g., People v. Buford, supra, 42 Cal.App.3d at p. 982.)
Further, even if defendant lacked sufficient written notice of the allegation that he failed to complete the domestic violence program within 18 months, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) It is undisputed that the motion to revoke filed in October 2015 recommended revocation on the ground defendant was terminated from the domestic violence program. The trial court found that allegation true, and substantial evidence supported that finding. (See People v. Urke (2011) 197 Cal. App.4th 766, 773 [substantial evidence test applies to order on probation revocation hearing]; People v. Rodriguez, supra, 51 Cal.3d 437, 443 [appellate court should interfere with trial court's discretion regarding probation revocation only in "a very extreme case"].) Schell's testimony that defendant had "issues with boundaries," was not "appropriate" for the group class, and his participation was terminated after 21 weeks, was uncontradicted. Because the trial court based its ruling on the independent ground that defendant was terminated from the domestic violence program, defendant did not suffer any prejudice from the court's finding he also failed to complete the program within 18 months.
Defendant's reliance on People v. Mosley (1988) 198 Cal.App.3d 1167, 1174 (Mosley) and People v. Self (1991) 233 Cal.App.3d 414, 419 (Self), is misplaced. In Mosley, the reviewing court found defendant had been denied due process because "[t]he evidentiary phase of the hearing was completed before either [defendant] or the court was aware of the charge which ultimately constituted the basis for revocation." (Mosley, supra, 198 Cal.App.3d 1167, 1174.) Thus, defendant had no opportunity to prepare his defense. (Ibid.) Similarly, in Self, the trial court found a violation of due process where the court permitted the prosecution to amend the petition at the hearing to add a new alleged violation. (Self, supra, 233 Cal.App.3d 414, 419.) Here, by contrast, defendant clearly had prior written notice of the allegation regarding his termination from the domestic violence program and ample opportunity to present a defense.
Defendant argues the trial court's decision was not supported by substantial evidence because there was no requirement that he complete a particular 52-week program. He contends the trial court "permitted [him] to switch from group sessions to individual sessions," and thus he was not terminated from his "required counseling sessions."
Defendant's argument is unpersuasive. Defendant was required to complete a 52-week counseling program approved by the probation department and attend "consecutive weekly sessions." (§ 1203.097, subd. (a)(6).) His participation in the domestic violence program was terminated after he missed four sessions. The record does not reflect that the trial court's January 2016 order issued three months after he was terminated from the group program was a modification for good cause of program requirements. (See § 1203.097, subd. (a)(6) [requiring consecutive weekly sessions and completion of program within 18 months unless modified for good cause by court].)
In sum, defendant was afforded sufficient due process, and any error was harmless beyond a reasonable doubt in light of the overwhelming evidence supporting the trial court's finding he violated a term of his probation. B. Defendant Received Appropriate Credit for His Counseling Classes.
Defendant also contends the trial court erred in giving him credit for only 10 of the 21 group counseling sessions he attended. We disagree.
"What the interests of justice require in a particular case [on violation of probation] constitutes a question uniquely addressed to the broad judicial discretion of the trial court." (See, e.g., People v. Stuckey (2009) 175 Cal. App.4th 898, 916.) Schell testified defendant was terminated because he was not "appropriate" for the group program. In a progress report included with one of the supplemental probation reports, Schell wrote that defendant "has challenges with honoring boundaries and does not seem to be internalizing the program material," and recommended defendant be given "at least some of his credit" toward another program. Indeed, even defendant concedes the group classes were not the right fit for him. Given the uncontested evidence defendant did not fully benefit from the domestic violence counseling program from which he was terminated, the trial court's decision to give him credit for only half of the classes was not an abuse of discretion.
III. DISPOSITION
The order reinstating and modifying probation is affirmed.
/s/_________
REARDON, ACTING P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.