Opinion
A098640.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JOHN MARCIEL, Defendant and Appellant.
The trial court revoked appellant Robert John Marciels probation and executed a previously suspended sentence. Marciel contends the trial court erred by failing to allow certain witnesses to testify at the revocation hearing and by considering his prior convictions. We affirm.
BACKGROUND
Marciel pleaded no contest to a charge of second degree burglary (Pen. Code, § 459) in 1999. The court imposed a two-year sentence and suspended execution, instead placing Marciel on probation for five years. As a term of his probation he was ordered to enter, attend, and complete a 12-month "Support Systems Drug Treatment Program." He was also ordered not to leave the program without the permission of his probation officer and the program director.
Marciel entered Haven House of Hayward in compliance with this term of his probation, but in March 2000 was terminated from the program because he had violated curfew and avoided taking a drug test. When his probation officer was informed that he had been terminated from the program, she filed a petition to revoke probation on the grounds Marciel had been discharged from Haven House and had failed to report for two scheduled probation appointments.
On September 25, 2000, Marciel was arraigned on the bench warrant issued on the petition and remanded into custody. After interviewing him, the probation officer filed an updated report in which she concluded that Marciels "actions do not warrant a State Prison sentence. It appears that the defendant is now sincere in his desire to comply with all terms and conditions of probation." She recommended that the petition to revoke probation be withdrawn and that Marciel continue probation under the original terms and conditions. Finally, she recommended that Marciel enter and complete a one-year program at the Fisher Foundation Drug Treatment Program. On December 1, 2000, the court followed the recommendation of the probation officer and ordered that Marciel be released to a representative of the Fisher Foundation. However, Marciel failed to enter the Fisher Foundation program and the court again issued a bench warrant. After hearing evidence regarding his failure to enter the Fisher Foundation program on December 27, 2000, the court found Marciel to be in violation of his probation and executed the suspended two-year sentence.
DISCUSSION
The court "may revoke and terminate . . . probation if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . ." (Pen. Code, § 1203.2, subd. (a).) We review the trial courts decision to revoke probation for an abuse of discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 443, 272 Cal. Rptr. 613, 795 P.2d 783.)
At the December 27, 2000 hearing, Marciel sought to call as a witness his mother, who would have testified that he had shown no evidence of drug use or criminal activities during the time he was on probation and that he had been working steadily during that time. He also offered to have a representative of Courage House, another residential drug treatment program, testify that he had interviewed with the program and paid the full fees to be enrolled in the program, presumably after failing to enroll in the Fisher Foundation program. The trial court found the testimony of these witnesses to be irrelevant and did not allow them to testify.
"Before probation can be finally and formally revoked written notice of the claimed violation must be given to the probationer, the evidence against him must be disclosed, he must be given an opportunity to be heard in person and to present witnesses and documentary evidence, he must be able to confront and cross-examine adverse witnesses, a neutral and detached hearing body must consider the matter, and a written statement of the fact finder must be prepared as to the evidence relied upon and the reasons for revocation." (People v. Santellanes (1989) 216 Cal. App. 3d 998, 1003, 265 Cal. Rptr. 281.)
In this case, Marciel waived a formal revocation hearing. Nevertheless, his attorney was given the opportunity to cross examine the probation officer. Marciel did not offer evidence disputing his violation of the terms of his probation, nor does he challenge the evidence that established that violation. Rather, he contends the proffered evidence would have mitigated the seriousness of his violations. However, this evidence was irrelevant to the central inquiry of the revocation hearing-whether Marciel violated a condition of his probation-and the trial court did not abuse its discretion in rejecting it because it "would not alter his decision." (People v. Williamson (1977) 71 Cal. App. 3d 206, 218, 139 Cal. Rptr. 222.)
Lastly, since the evidence of the violation was compelling and uncontested, there is no reason to believe, as Marciel now urges us to do, that the trial court relied on the existence of prior convictions in making the decision to revoke probation. Although the court commented during the revocation hearing on the fact that Marciel had numerous prior offenses, it does not appear from the record that it relied on those prior offenses in making the decision to revoke probation. In short, the court was well within its discretion to revoke probation since it was conceded that Marciel had repeatedly violated the terms of his probation.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Corrigan, J.