Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Brian E. Hill, Judge, (Super. Ct. No. 1075244) (Santa Barbara County)
Lisa M. J. Spillman, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Supervising Deputy Attorney General, Ana R. Duarte, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Lee Frederick Minard, II, appeals a judgment after the court revoked his probation following his conviction for robbery (Pen. Code, § 211) with findings that he personally used a deadly weapon (§ 12022, subd. (b)(1)), and had a prior serious felony conviction (§ 667, subd. (a)(1)). We conclude, among other things, that 1) the probation revocation hearing complied with due process standards, 2) there was substantial evidence that Minard violated his probation conditions by using drugs, and 3) the court did not abuse its discretion in revoking his probation and sentencing him to state prison. We affirm.
All statutory references are to the Penal Code.
FACTS
In 2004, the court sentenced Minard to an aggregate state prison term of nine years after he pled no contest to robbery and admitted the allegations that he used a deadly weapon and had a prior strike. But it suspended the execution of the sentence and placed him on probation.
In December of 2004, and in January of 2005, Minard violated his probation by using cocaine and amphetamines. His probation was revoked and subsequently reinstated. He was placed at the Phoenix House treatment facility. But he did not cooperate with staff, who were trying to assist him. He missed treatment meetings frequently.
In May of 2005, Minard violated his probation by using cocaine. His probation was revoked and subsequently reinstated.
On August 5, 2005, the probation department issued a probation violation report, which states: "On 8/3/05 Probation arrested and placed a detainer on the defendant after he admitted the use of methamphetamine the night before." That report, which was the basis for Minard's probation violation arraignment on August 8, 2005, was not filed with the superior court until January 23, 2006, approximately a week after the probation violation hearing.
On August 26, 2005, the probation department issued a probation supplemental violation report. On the middle of the front page, the report states: "On 8/3/05, Probation arrested the defendant after he tested positive for the use of methamphetamine." The last sentence at the bottom of that page, states: "Probation calendared case for violation of probation for use of methamphetamine (current violation of probation)." There is no dispute that defendant received notice of this violation.
Probation Revocation Hearing
At the hearing on January 17, 2006, Patti Sanderson, Minard's probation officer, testified that Minard missed his "July 28th" drug test. She asked him to come to her office on August 3, 2005. She said Minard "admitted using methamphetamine." He also signed a statement that he used that drug on August 2nd. Sanderson said "there was a prior test on July 25th and he tested positive for methamphetamine."
On cross-examination, Minard's counsel asked Sanderson: "Do you have any documentation regarding that positive test on July 25th?" She responded, "It's in the log at the probation department."
The court asked Sanderson: "Would the probation department have the records of the test on 8/3?" She responded: "No, not on the 8/3, . . . I reviewed the logs and I could not find one for 8/3." The court asked: "But you found one for 7/20?" She answered: "For 7/25. And as people test we write it in the log."
The court also asked: "Do you have some other documentation regarding an admission [by Minard] with respect to that test on 7/25/05?" Sanderson said: "No, I don't , your Honor." The court said: "Okay. So it's just your recollection of a conversation that you had with him?" Sanderson replied: "Right." The court asked: "Where he said he had used methamphetamine?" Sanderson said: "Yes." The court asked: "Is there any question in your mind that he admitted using methamphetamine on that date?" Sanderson said: "No, there's no question in my mind."
The Court's Question to the Prosecutor
The court asked the prosecutor: "We've had some discussion regarding this 7/25/05 positive test, that's not a formal allegation of a violation of probation, do you wish to add that . . . at this time?" The prosecutor: "Yes, please."
Minard's trial counsel responded: "Judge, there's been no notice of that prior to this hearing, so I'm going to have to object to that." The court said: "[W]hat I'm suggesting is that if you think you need more time to prepare I would be willing to give you some time and we can continue the hearing." Minard's counsel responded, "That would be my request." He later retracted that and said he would not request a continuance and requested the court to exclude the evidence which had been admitted regarding the July 25th test.
The court found that Minard violated his probation by using "methamphetamine on or about July 25th, 2005 and also on or about August 2nd, 2005."
DISCUSSION
I. Due Process
Minard contends he was not afforded due process because he did not receive an adequate written notice of the alleged violations of probation. We disagree. A defendant is entitled to the due process protection of a written notice which describes the alleged violation that the prosecutor seeks to use to revoke his or her probation. (Morrisey v. Brewer (1972) 408 U.S. 471, 489; People v. Vickers (1972) 8 Cal.3d 451, 459.)
Here Minard received written notice that the prosecution sought revocation of his probation because of his drug use. Minard claims the August 26th notice of violation was limited to the single allegation that he failed a drug test on August 3rd. He contends the court did not afford him due process because: 1) it did not limit the evidence to that issue, and 2) it admitted evidence about his admissions of use of methamphetamine to his probation officer. We disagree.
Minard focuses on only one sentence in that notice. The notice also advised him that "Probation calendared case for violation of probation for use of methamphetamine." It described the use of that drug to be the "current violation of probation." The evaluation section of that notice states that his probation should be revoked because of his "persistent use of drugs." This gave Minard reasonable notice that his admissions about drug use to his probation officer would be relevant issues in his probation revocation hearing. (See, e.g., State v. Turnbull (Ariz. 1977) 114 Ariz. 289, 291 [560 P.2d 807, 809] [Court properly admitted testimony about defendant's admissions of drug use to his probation officer. Proceeding complied with due process protections even though probation revocation notice alleged drug use as the violation, but did not mention his admissions.].)
Minard contends that the court erred by allowing the prosecutor to introduce evidence about the July 25th probation violation without giving him a prior separate written notice about it. Even if the evidence amounted to a new violation, the result does not change. The trial court acts consistent with due process where it offers the defendant additional time to respond to evidence not mentioned in the written notice. (People v. Mosley (1988) 198 Cal.App.3d 1167, 1174; People v. Felix (1986) 178 Cal.App.3d 1168, 1171.) In Felix, during a probation revocation hearing, a probation officer testified about a violation which was not mentioned in the notice of violations. The defendant objected. The court gave his counsel an opportunity to request a continuance, but he did not request one and proceeded with the hearing. On appeal, the defendant claimed his due process rights were violated. The Court of Appeal disagreed. It held that the trial court "provided a constitutionally sufficient safeguard of appellant's due process rights and preserved the fundamental fairness of the proceedings when it offered to consider a motion for a continuance." (Felix, supra, at p. 1172.)
The facts here are analogous to Felix. The prosecutor introduced evidence about the July 25th test and claimed it was a probation violation. Minard's counsel objected, claiming this violation was not expressly mentioned in the notice of violations. The trial court offered Minard's counsel the due process safeguard of a continuance, which he ultimately declined. "If indeed [Minard] was surprised and unprepared due to lack of notice . . . , it was up to his counsel to take advantage of the court's offer . . . for a continuance." (People v. Felix, supra, 178 Cal.App.3d at p. 1172.) Minard was afforded adequate due process protections. (Ibid.)
A similar case in another jurisdiction is instructive. Where a defendant has written notice of the alleged violation, e.g., use of methamphetamine, the introduction of evidence not mentioned in the notice does not contravene due process if the evidence is reasonably related to the noticed violation. (State v. Turnbull, supra, 114 Ariz. at p. 291; Martineau v. Perrin (1st Cir. 1979) 601 F.2d 1201, 1205.) That is the case here. The July 25th test is not mentioned in the notice, but it is relevant to the August 3rd incident. Because Minard's July 25th test was positive and he admitted using drugs, the probation department scheduled the July 28th test. But because he missed that test, his probation officer scheduled the August 3rd meeting where he made his admission of drug use. These events are interconnected and involve a time span of only one week. They involve the same violation, the use of methamphetamine, which is mentioned as the "current violation" in the notice.
II. Substantial Evidence
Minard contends there is no substantial evidence to support a probation violation. We disagree. He notes that the August 26, 2005, probation violation report states that he was arrested on August 3, 2005, after he tested positive for the use of methamphetamine. He claims that the evidence was insufficient to prove that there was such an August test and, therefore, the finding of a violation must be overturned.
The Attorney General responds that whether there is evidence of an August test is irrelevant. He notes that the prior August 5th probation violation report states that Minard was arrested on August 3rd, "after he admitted the use of methamphetamine the night before." He claims the evidence supports that probation violation, that the August 5th report initiated the August 8th arraignment, and Minard's trial counsel was present and knew about that report.
Minard claims that the Attorney General may not rely on that report. He notes it was not filed with the court until January 23, 2006, after the probation revocation hearing, and that his trial counsel never saw it at the arraignment.
But the record is incomplete. We do not have a reporter's transcript or a settled statement for the August 8th arraignment to support Minard's claim that his counsel did not know about the August 5th report. Yet, even if Minard is correct, the result does not change.
The August positive test was not the only probation violation alleged in the August 26th probation violation report. It also stated: "Probation calendared case for violation of probation for use of methamphetamine (current violation of probation). (Italics added.)" Sanderson testified that after Minard missed his July 28th drug test, he came to her office on August 3rd and admitted to her that he was using methamphetamine. (People v. Monette (1994) 25 Cal.App.4th 1572, 1576 [probationer's admission to probation officer was admissible evidence in probation revocation hearing].) Before he was taken into custody, Minard also signed a written statement that he used methamphetamine on August 2nd. Sanderson said that on a July 25th test Minard "tested positive for methamphetamine." He also told her that he had been using methamphetamine for the period relating to that July 25th test. Sanderson's testimony is uncontradicted. Minard did not present a defense case.
Minard claims that some of Sanderson's testimony was inconsistent, she did not have documentary evidence to support parts of her testimony, and she was impeached during cross-examination. But credibility of witnesses and the weight given to testimony is a matter for the trial court. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We draw all reasonable inferences to support the judgment and the trial court resolves all evidentiary conflicts. (Ibid.) Substantial evidence supports the court's finding that Minard violated his probation by using drugs.
III. The Revocation of Probation and Sentence
Minard contends that the court erred because it should have selected alternatives other than revoking probation and sentencing him to prison. We disagree.
Minard claims the court should have offered him additional rehabilitation services. But he has a history of using violence and committing serious felonies. He had ample notice that his probation conditions required him not to use drugs. He had numerous opportunities to reform his behavior. But he did not take advantage of them and continued to use drugs. He had been placed in the Phoenix House program. But his lack of cooperation "exhausted the patience" of the staff. He also failed to go to another rehabilitation program which had been recommended for him. He had a recalcitrant attitude. He "refused to show up for individual interviews or group meetings." The probation report stated that "[g]iven the defendant's current attitude, even if a structured residential program could be found, there would be no hope of the defendant succeeding in such a program." There was no abuse of discretion.
Moreover, the sentence the court imposed was appropriate. "On revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect. [Citations.]" (People v. Howard (1997) 16 Cal.4th 1081, 1088.) Here the court imposed a nine-year prison sentence after revoking probation. It had previously sentenced Minard in 2004 to nine years in prison, but it suspended the execution of that sentence and placed him on probation.
We have reviewed Minard's remaining contentions and conclude that he has not shown reversible error.
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.