Opinion
A154160
10-12-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL A. MENDIVIL, SR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 4-187001-3)
Michael A. Mendivil, Sr., was placed on probation, after plea, for possession of methamphetamine for sale (Health & Saf. Code, § 11378). Multiple petitions were filed to revoke probation based on his failure to comply with drug treatment conditions and commission of new criminal offenses. After hearing, the court imposed a previously suspended two-year prison sentence.
Assigned counsel submitted a Wende brief, certifying an inability to identify any issues for appellate review. Counsel also submitted a declaration confirming Mendivil was advised of his right to personally file a supplemental brief raising any points which he wished to call to the court's attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109-110.) We agree no arguable issues are presented and affirm.
People v. Wende (1979) 25 Cal.3d 436.
BACKGROUND AND PROCEDURAL HISTORY
In April 2016, Mendivil was charged by felony complaint with one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378). It was alleged he had suffered six prior felonies, including one serious felony/strike offense, and served two prior prison terms. Mendivil, appearing pro se, pled no contest to the charged drug offense in May 2016. The court (Hon. Mary Ann O'Malley) imposed a two-year prison sentence, with execution suspended pending successful completion of a three-year probation term. Conditions of probation included a requirement that Mendivil complete a one-year residential drug treatment program.
Sentence was concurrent with that imposed in a separate matter.
A July 5, 2016 petition to revoke probation alleged Mendivil absconded from the drug treatment center. A July 19, 2016 supplemental petition alleged he violated probation by possessing a stolen car and credit and debit cards not in his name. A March 2017 petition alleged he violated probation by possessing methamphetamine for sale and committing identity theft. A January 2018 supplemental petition alleged he violated a restraining order and possessed methamphetamine and drug paraphernalia. A February 2018 supplemental petition alleged Mendivil had been arrested for grand theft of access cards, using an access account without permission, identity theft, and possessing burglar tools.
Mendivil represented himself at a March 2018 hearing. The court (Hon. Patricia M. Scanlon) heard testimony from the arresting officer on the January 2018 petition. Contra Costa County Sheriff's Deputy Peter Engstrand was on patrol on January 2, 2018. He saw Mendivil, whom he knew, crouching behind trash cans and bushes between 28 and 30 Oceanview Drive in Bay Point. Mendivil walked toward the patrol car. Engstrand called dispatch and learned Mendivil was on felony probation with a search and seizure clause, and a restraining order required Mendivil to stay at least 100 yards away from 30 Oceanview. Engstrand estimated Mendivil was five to ten yards from the residence at that address when he first saw him. Engstrand searched Mendivil and found a glass pipe used to ingest methamphetamine and three plastic bags. One bag contained 0.7 grams of a white powder that presumptively tested positive for methamphetamine; the other two contained a powdery residue. When asked if he had any argument to make, Mendivil said, "I violated probation obviously, so there's no argument, your honor." The court found true the violation of probation and set the matter for sentencing on March 27, 2018, with Mendivil's consent. Judge Scanlon asked Mendivil if, in the event she was unavailable on that date, "another judge could sentence [him]." Mendivil responded, "I think I['d] rather wait for you, your Honor."
The prior petitions were adjudicated earlier and are not at issue here.
On March 21, 2018, Mendivil filed a self-designated "peremptory challenge" under "Civ. Proc. Code § 170.6" against Judge Scanlon, alleging she was prejudiced against him. He also filed a motion requesting sentencing by Judge Theresa J. Canepa, alleging she had accepted his original plea in 2016. At the March 27 sentencing hearing, the court denied both motions as untimely. The court imposed the previously suspended two-year sentence, with credit for 326 days of actual time served. The February 2018 petition was dismissed.
Mendivil apparently also submitted a "cause challenge" declaration, alleging Judge Scanlon previously heard other matters in which he was a defendant, sentenced him to state prison on a different probation violation, and made unspecified "comments" about him and about his family in other proceedings. Mendivil also alleged the court forced him to proceed with the revocation hearing over his objection. There is no indication this declaration was ever served on Judge Scanlon. (See Code Civ. Proc., § 170.3, subd. (c)(1).)
As noted ante, Judge O'Malley was the judicial officer who accepted Mendivil's plea.
Mendivil argued he was entitled to an additional day of credit. His argument was based on an erroneous view of the revocation hearing date. The court was correct.
At the conclusion of the sentencing proceedings, the court suspended Mendivil's self-representation privileges when he became loud and disruptive. --------
Mendivil filed a timely notice of appeal.
DISCUSSION
We find no arguable issues. An alleged probation violation must be proved by a preponderance of the evidence. (In re Miller (2006) 145 Cal.App.4th 1228, 1234-1235 [parole and probation revocation after imposition of sentence are "constitutionally indistinguishable"].) Substantial evidence supports the court's determination that Mendivil violated his terms of probation, and Mendivil admitted the violation in open court. The court properly found Mendivil's peremptory challenge, submitted after the evidentiary hearing, to be untimely. (See Code Civ. Proc., § 170.6, subd. (a)(2).) To the extent Mendivil sought to present a challenge for cause, it likewise was not timely and, in any event, not properly served upon the judge. (Id., § 170.3, subd. (c)(1).) His untimely demand for sentencing by the judge (misidentified) who took his original plea (People v. Arbuckle (1978) 22 Cal.3d 749) similarly raises no arguable issue, particularly in light of his earlier specific request that Judge Scanlon impose sentence. "The Arbuckle right is not a constitutional or a statutory right; it is contract right recognized in the case law." (In re Cristian S. (2017) 9 Cal.App.5th 510, 521.) "[It] does not apply to sentencing in probation revocation proceedings, which might occur months or years after the plea bargain." (Id., at p. 523.) While his self-representation privileges were ultimately revoked, Mendivil was allowed to represent himself throughout the evidentiary and sentencing hearings. He can show no prejudice from that order.
At the time of sentencing, Mendivil argued he had been denied due process because the court "pushed" him into a hearing when he had just received the police report concerning the alleged probation violation and his request for a continuance denied. Mendivil appears to have been referring to a February 20, 2018 probable cause hearing, which did not adjudicate the probation violation. Mendivil was provided with the police report at the time of the probable cause hearing. He therefore had the police report at least two weeks before the March 8, 2018 revocation hearing, and he made no request for a continuance of the revocation hearing. We find no arguable due process violation.
DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.