Opinion
F041890.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MCCOY, JR., 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, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Vartabedian, A.P.J., Wiseman, J., and Levy, J.
In April 2001, appellant Joseph McCoy, Jr., pled guilty to felony possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and admitted two "strike" allegations., The court deferred entry of judgment pursuant to section 1000 et seq., and appellant entered a drug diversion program. In July 2001, the court terminated appellant from that program for failing to comply with program rules, and in October 2001, placed appellant on formal probation, pursuant to the Substance Abuse and Crime Prevention Act of 2000 (§ 1210 et seq.) (Proposition 36). On September 16, 2002, the probation officer prepared a report alleging that appellant was in violation of his probation. On November 5, 2002, at the outset of the probation revocation hearing, appellants counsel stated that appellant had entered into an agreement, the terms of which were that appellant would admit violating probation, and the court would strike one of appellants strikes and impose a four-year prison sentence. Later in that hearing, the court revoked appellants probation, struck one of appellants strikes, and imposed a prison term of four years. However, at no time during that hearing did appellant admit violating probation.
We use the term "strike" in its noun form to describe a prior felony conviction that subjects a defendant to the increased punishment specified in the "three strikes" law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12).
Except as otherwise indicated, all further statutory references are to the Penal Code.
On appeal, appellant contends the court (1) imposed an unauthorized sentence; (2) abused its discretion in revoking appellants probation; and (3) failed to consider initiating civil commitment proceedings under Welfare and Institutions Code section 3051. We will vacate the sentence and remand for further proceedings.
BACKGROUND
The "Fresno County Probation Department (Proposition 36) Probation Hearing Report," prepared September 16, 2002, states that after being granted probation under Proposition 36 in October 2001, appellant, in violation of the conditions of his probation, "failed to complete community service, failed to register as a drug offender, did not pay any fines or fees[,] . . . tested positive for marijuana, methamphetamine and cocaine" and "failed to maintain contact with probation . . . ."
At the outset of the probation revocation hearing on November 5, 2002, before the Honorable Nancy Cisneros, Commissioner, defense counsel stated: "At this time, Your Honor, we have had a discussion in chambers regarding the merits of Mr. McCoys matter. The court had indicated that if he were to admit hes in violation of probation that you would exercise your discretion under [People v. Superior Court (Romero) (1996) 13 Cal.4th 497] and section 1385 of the Penal Code and strike one of the alleged [strikes] . . . and sentence [appellant] to a total term of four years in state prison. [¶] Based on that indication, Mr. McCoy is prepared to admit that he is in fact in violation and submit it for sentencing."
At that point, Commissioner Cisneros stated that in order to proceed with sentencing it would be necessary that appellant sign a stipulation allowing Commissioner Cisneros to conduct proceedings in the case. Initially, appellant refused, and there followed a discussion between appellant and defense counsel regarding the stipulation, after which appellant was presented with a written stipulation, which he signed.
At that point the court stated: "The court has received a stipulation and has reviewed in this matter both the field report submitted for a violation of probation hearing on September the 17th, the letter submitted by Mr. McCoy to the court, the orange sentencing report for Prop. 36 completed August the 21st of 2001, the full sentencing report that was prepared for hearing in Department 30 on October 16, 2001, and an earlier ASUS assessment and an earlier ASI, both of which were completed in connection with that sentencing. [¶] Mr. McCoy is admitting to the violation of probation based upon his lack of contact with Probation for a period of approximately 11 months at this point, but well say nine months based on the time that he first came to the attention of the court. That is not a drug related violation, so the court will order that his probation be revoked. The court will deny further probation. [¶] [Defense counsel] has indicated in response to a suggestion by the court that he will make a motion under People v. Romero [sic] for the court to strike one of the strikes which Mr. McCoy had previously admitted in the plea bargain, which was entered into . . . [on] April the 24th of 2001. . . . [¶] Under the totality of the circumstances, the court will exercise its discretion to conclude that the agreed upon term of 25 to life is not appropriate in this case and not warranted by the underlying facts leading to the prison commitment. So I will exercise my discretion to strike one of the prior serious violent felony convictions, which would make Mr. McCoy eligible for sentencing with one prior strike."
Section 1210.1, subdivision (e)(2) provides, in relevant part: "If a defendant receives probation under [Proposition 36], and violates that probation . . . by violating a non-drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The court may modify or revoke probation if the alleged violation is proved."
At that point, the court imposed sentence. As indicated above, at no point did the court ask appellant if he admitted violating probation, and at no point did appellant admit any such violation.
Appellant did not request, and the superior court did not issue, a certificate of probable cause. (§ 1237.5)
DISCUSSION
Appellant argues that because appellant did not admit the alleged probation violation, the court lacked "fundamental jurisdiction" to impose sentence.
The People first counter that appellants claim is not cognizable on appeal because appellant did not comply with section 1237.5. We disagree.
Section 1237.5 states that "[n]o appeal shall be taken from a judgment of conviction entered on a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation of probation" (§ 1237.5, par. One.), unless two conditions are met, viz., (1) the defendant himself has "filed with the trial court a written statement, executed under oath or penalty of perjury[,] showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings"; and (2) the trial court has "executed and filed a certificate of probable cause for such appeal with the county clerk" (§ 1237.5, subd. (a)).
As the People assert, appellant did not comply with either of the requirements of section 1237.5. However, these requirements do not apply in the instant case. As indicated above, when a defendant appeals following a revocation of probation, he or she must comply with 1237.5 "following an admission of violation of probation . . . ." (§ 1237.5, par. One) Here, as is also indicated above, appellant did not admit violating probation. Because he did not admit violating probation, it cannot be said that the instant appeal is one "taken by a defendant upon . . . a revocation of probation following an admission of violation of probation . . . ." (Ibid., emphasis added.) Therefore, section 1237.5 has no applicability in the instant case.
We turn now to the merits of appellants claim. The People argue that "it is of no moment that appellant did not formally admit the probation violation" because "[a]ppellants admission was implied by the very terms of his plea agreement, which was fully set forth in the record by his counsel." An admission may be implied, the People contend because "a formal probation revocation hearing is substantially different from a criminal prosecution" in that a defendant at such a hearing has only "`some, but by no means all, of the fundamental rights afforded a defendant at a trial."
Such differences notwithstanding, however, in the absence of an on-the-record admission, we cannot conclude that appellant admitted the probation violation allegation. On this point we find instructive People v. Bryant (1992) 10 Cal.App.4th 1584. In that case, the People charged the defendant with five felonies and alleged various enhancements in connection with each of those counts. The defendant pled no contest to all charges and admitted some of the special allegations, but he was not asked to admit and did not admit enhancement allegations in relation to the three of charged offenses. Noting the statutory requirement that the enhancements in question "be pleaded and proved" (id. at p. 1594), the court held: "Although here the [enhancement] allegation was pleaded in the information, it was not proven because the trial court failed to obtain an adequate admission. Accordingly, the enhanced term could not be imposed under this statute and the finding that Bryant admitted the allegation cannot stand" (id. at p. 1595).
The instant case presents an analogous situation. As indicated above, where, as here, a court purports to revoke Proposition 36 probation based on the violation of a "non-drug-related condition of probation," section 1210.1, subdivision (e)(2) provides that "the alleged violation" must be "proved." (§ 1210.1, subd. (e)(2).) This proof requirement was not met, and, as is also indicated above, there was no admission. Therefore, as in Bryant, the unproved allegation cannot stand.
We turn now to the question of the proper disposition. Again, Bryant is instructive. There, the appellate court reversed "the purported admissions and findings" as to the enhancements appellant did not admit (People v. Bryant, supra, 10 Cal.App.4th at p. 1604) and held as follows: "What is required here `is to return the proceedings to the point at which the court erred and reroute them to the proper track. [Citation.] Since the error consisted of the trial courts failure to take [certain] admissions . . ., findings on those allegations should be reversed and the matter remanded for further plea proceedings as to those allegations only" (id. at p. 1598).
Also instructive are the following principles: "Familiar and basic principles of law reinforced by simple justice require that when an accused withdraws his guilty plea the status quo ante must be restored. When a plea agreement has been rescinded the parties are placed by the law in the position each had before the contract was entered into." (People v. Garcia (1982) 131 Cal.App.3d 256, 258.) Thus, "`[w]hen either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from the concessions made. [Citation.] Relief for the prosecutor when a defendant challenges part of a plea agreement may take the form of restoring the dismissed counts and proceeding to trial [citation] or, alternatively, if the circumstances permit, the reviewing court may find a way to achieve the same result and give both sides the benefit of the bargain." (People v. Enlow (1998) 64 Cal.App.4th 850, 854.)
Guided by the foregoing principles, we conclude as follows. The revocation of probation must be reversed, the sentence vacated and the matter remanded for further probation revocation proceedings. On remand, in the event appellant enters a valid admission to the probation violation allegation pursuant to the agreement apparently reached by the parties, and if the court approves that agreement, the court shall proceed to sentencing in accordance with the agreement.
If, however, appellant does not admit the probation violation allegation, in order to place the prosecution in the position it occupied prior to the agreement of the parties the order dismissing the strike allegation must be vacated and that allegation reinstated, at which point the court shall conduct a hearing on the allegation that appellant has violated his probation, pursuant to section 1201, subdivision (e).
DISPOSITION
The order revoking appellants probation is reversed and the sentence vacated. The case is remanded for further proceedings in accordance with the views expressed in this opinion.