Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. LF011558A, SF108758A
MURRAY, J.
Defendant Byron Ignacio Morales had his probation summarily revoked. The trial court then ordered defendant’s previously imposed, suspended sentence into effect without holding formal probation revocation proceedings. Defendant appealed, raising three main arguments: (1) his procedural due process rights were violated when the trial court bypassed formal probation revocation proceedings and ordered his suspended sentence into effect, (2) the sentence he received violates Penal Code section 654, and (3) the abstract of judgment the trial court prepared contains a clerical error.
Undesignated section references are to the Penal Code.
We conclude that defendant’s first argument has merit. Reversal of the judgment and a remand for formal probation revocation proceedings is required. We further conclude we lack jurisdiction to reach defendant’s second argument because defendant failed to file a timely appeal from the order imposing and suspending execution of the sentence he now claims violates section 654. Finally, because we are reversing the judgment, any error in the abstract of judgment is moot.
BACKGROUND
On July 1, 2008, a criminal complaint was filed against defendant in San Joaquin County Superior Court, case No. SF108758A (the drug case), charging defendant with possession of methamphetamine (count 1) and giving false information to a peace officer (count 2). On July 9, 2008, pursuant to a plea agreement, defendant pled guilty to count 1. Imposition of the sentence was suspended. Defendant was placed in a drug treatment program pursuant to Proposition 36 and given five years’ formal probation. Among other conditions of probation, defendant was required to obey all laws. Count 2 was dismissed.
On August 12, 2009, another criminal complaint was filed against defendant in San Joaquin County Superior Court, case No. LF011558A (the vehicle theft case), charging defendant with vehicle theft (count 1), assault by means of force likely to produce great bodily injury or with a deadly weapon (count 2), carjacking (count 3), giving false information to a peace officer (count 4), and possession of controlled substance paraphernalia (count 5).
That same day, the district attorney filed an affidavit in the drug case alleging that defendant had violated his probation by failing to obey all laws, i.e., by committing the crimes set forth in the vehicle theft case. The trial court issued an order to show cause and summarily revoked defendant’s probation. Defendant denied the probation violation.
On October 19, 2009, the court held a hearing in both cases. Pursuant to a plea agreement reached in the vehicle theft case, defendant pled guilty to counts 1 and 2 with the understanding that the maximum potential term would be three years in state prison. Count 2 was modified to remove the assault with a deadly weapon allegation. Counts 3 through 5 were dismissed. In the drug case, defendant admitted the probation violation. Near the end of the hearing, with an eye toward sentencing, defense counsel stated that given “some addiction issues” defendant would prefer the “DeLancy Street” program, a “live-in treatment program for substance [abuse] issues, ” instead of state prison time.
As noted in the documents in the record and the parties’ appellate briefing, the name of the program is actually spelled “Delancey Street, ” not “DeLancy Street, ” as set forth in the reporter’s transcript. We utilize the correct spelling of the program throughout the remainder of this opinion.
On January 28, 2010, the trial court held a sentencing hearing in both cases. Defendant had been accepted into the Delancey Street program. Defendant agreed to a term of probation with the “maximum suspended over him” and an opportunity to complete the Delancey Street program as a condition of probation. The court indicated that the maximum combined sentence on both cases was five years four months, broken down as follows: as to the vehicle theft case, the upper term of four years on count 2, assault by means of force likely to produce great bodily injury, and eight months on count 1, vehicle theft; as to the drug case, eight months on count 1, possession of methamphetamine. Defense counsel responded, “Okay. He’s prepared to go forward. He understands that the maximum he could receive for a failure to do Delancey Street or failure for his probation and he’s prepared to go forward. [¶] He would like the opportunity to do Delancey Street.” The court then sentenced defendant.
[Matter not available]
As to the vehicle theft case, the court imposed four years on count 2, assault by means of force likely to produce great bodily injury, and eight months (one-third the middle term) on count 1, vehicle theft. The trial court suspended execution of sentence and placed defendant on five years’ informal probation on the condition that defendant successfully complete the Delancey Street program and comply with other conditions of probation.
As to the drug case, the court reinstated defendant’s probation but modified it from formal probation pursuant to Proposition 36 to informal probation with no Proposition 36 requirements. The trial court also imposed an additional eight months (one-third the middle term) on count 1, possession of methamphetamine, but suspended execution of sentence on the condition that defendant successfully complete the Delancey Street program.
On July 2, 2010, a letter purportedly from Sonny Rendall, Personal Services Coordinator at the Delancey Street Foundation, was filed with the court. The letter, dated March 10, 2010, is unsigned. The body of the letter states: “Byron Morales entered the Delancey Street Foundation on January 30, 2010 and resided at our San Francisco facility. Byron Morales left Delancey Street on March 9, 2010, without successfully completing our program. [¶] If you have any questions, please do not hesitate to contact me.”
A notation at the top of the letter and a separate fax cover sheet indicate that the letter was faxed to the court on July 2, 2010.
On July 7, 2010, as reflected in the court’s minutes, defense counsel was provided with an OSC/VOP in the drug and vehicle theft cases and the trial court revoked defendant’s probation.
The actual OSC/VOP (order to show cause/violation of probation) is not in the appellate record.
On August 9, 2010, the court held a hearing in both cases. The following exchange occurred:
“[DEFENSE COUNSEL]: Here is what I wanted to do, Your Honor. I wanted -- I wanted to try to resolve the violations. If we could have the sentencing put over to another date so that the defendant would admit and the reason
“THE COURT: He’s already done that.
“[THE PROSECUTOR]: “He’s already admitted.
“THE COURT: He admitted. He made himself a deal he would do Delancey Street in lieu of five years and four months. [¶] What’s left to resolve?
“[THE PROSECUTOR]: It was a stayed sentence. Imposition of sentence was stayed so we’re here for sentencing, not for a VOP.
“[THE CLERK]: Do we actually have an admission?
“THE COURT: I don’t know that we actually have an admission on the record.
“[THE PROSECUTOR]: Yes, on 1-28 of ’10. And then sentence was imposed and stayed. Technically there is no new VOP. We’re on for sentencing. I don’t think he’s entitled to a hearing.
As discussed more fully below, the prosecutor’s statements to the court were clearly erroneous.
“THE COURT: I have the transcript here from the January 28th proceeding before Judge Warner.
“[THE PROSECUTOR]: The stay is here to be lifted. It was executed and stayed.”
The court then read aloud excerpts of the transcript from the January 28, 2010 hearing. After further discussion about the “deal” defendant made to attend the Delancey Street program, the court proceeded to sentencing, stating, “it’s a pretty cut and dry thing. He didn’t do Delancey Street. He agreed to five years and four months. That will be the sentence.” Without a hearing concerning defendant’s compliance with the Delancey Street program, the court then ordered that the previously suspended sentence be executed: in the vehicle theft case, four years on count 2, assault by means of force likely to produce great bodily injury, and eight months on count 1, vehicle theft; in the drug case, eight months on count 1, possession of methamphetamine. This appeal followed.
DISCUSSION
I. Probation Revocation without Formal Proceedings
On appeal, defendant’s first contention is that the trial court erred when, upon receiving the letter from the Delancey Street program, it failed to conduct formal probation revocation proceedings and instead “simply ordered into effect the previously[ ]suspended prison term.” Defendant notes that the putative probation violation (i.e., his departure from the Delancey Street program) was “neither admitted nor proved” and argues that he was not afforded his due process rights. The People correctly concede that defendant’s position has merit.
The People represent, and we agree, that after it received the letter from the Delancey Street program, the trial court summarily revoked defendant’s probation on July 7, 2010. Summary revocation “is simply a device by which the defendant may be brought before the court and jurisdiction retained before formal revocation proceedings commence.” (People v. Pipitone (1984) 152 Cal.App.3d 1112, 1117.) Also, summary revocation tolls the running of the probationary period. (§ 1203.2, subd. (a); People v. Ham (1975) 44 Cal.App.3d 288, 293.) When probation is summarily revoked, the defendant “must thereafter be given a Morrissey hearing with its attendant due process protections ‘to afford the defendant an opportunity to require the Authority to establish that the alleged violations did in fact occur and justified the revocation.’” (People v. Winson (1981) 29 Cal.3d 711, 718-719 (Winson), quoting People v. Vickers (1972) 8 Cal.3d 451, 460 (Vickers).) The minimum due process rights “include written notice of the claimed [probation] violations, disclosure of evidence against the defendant, an opportunity for the defendant to be heard and to present evidence, and ‘the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).’ [Citations.]” (People v. Gomez (2010) 181 Cal.App.4th 1028 1033-1034 (Gomez).) The actual revocation of probation cannot occur until the defendant has received his due process hearing rights. (People v. Barkins (1978) 81 Cal.App.3d 30, 33; see also People v. Coleman (1975) 13 Cal.3d 867, 895, fn. 22 (Coleman).)
Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484] (Morrissey).
Here, after receiving the Delancey Street letter, the trial court summarily revoked defendant’s probation but did not thereafter commence formal revocation proceedings with the attendant due process protections. The court did not hold a Morrissey hearing, and defendant was not afforded an opportunity to be heard and present evidence on whether he violated his probation, whether revocation was warranted, or whether the trial court should modify the terms of his probation instead of sentencing him to state prison. In fact, the court never expressly found that defendant violated his probation; nor did the court obtain a waiver and admission from defendant. Instead, after summarily revoking defendant’s probation, the trial court bypassed formal probation revocation proceedings and simply proceeded to sentencing, ordering that defendant’s previously suspended sentence be executed. This deprived defendant of his due process rights.
In reviewing the record, it appears the trial court was led astray by the prosecutor’s representations at the August 9, 2010 hearing. When the trial court inquired whether defendant had admitted violating his probation, the prosecution responded: “Yes, on 1-28 of ’10. And then sentence was imposed and stayed. Technically there is no new VOP. We’re on for sentencing. I don’t think he’s entitled to a hearing.” These statements were just plain wrong.
First, defendant did not admit any probation violation on January 28, 2010. The hearing held that date was a sentencing hearing. On that day, defendant was granted probation in the vehicle theft case and had his probation reinstated in the drug case. Defendant did not admit a probation violation that very same day.
Second, the prosecution’s statement that there was “no new VOP” was erroneous. At the January 28, 2010 hearing, the court placed defendant on probation and expressly stated that the “conditions of probation would include, as I’ve indicated, successful completion of Delancey Street.” Therefore it is undeniable that successful completion of the Delancey Street program was a condition of defendant’s new grant of probation and that defendant’s purported failure to complete the program, if true, would constitute a violation of probation. Furthermore, the trial court could not have suspended execution of defendant’s sentence and released him to participate in the Delancey Street program except as incident to probation. (Oster v. Municipal Court (1955) 45 Cal.2d 134, 139; see also In re Wright (1967) 65 Cal.2d 650, 656, fn. 4; People v. Superior Court (Roam) 69 Cal.App.4th 1220, 1230.)
Lastly, the prosecutor’s statements that the matter was “on for sentencing” and “I don’t think he’s entitled to a hearing” were incorrect. Because defendant’s probation was summarily revoked, formal revocation proceedings with the attendant due process protections were absolutely required. (Winson, supra, 29 Cal.3d at pp. 718-719; Coleman, supra, 13 Cal.3d at p. 895, fn. 22; Gomez, supra, 181 Cal.App.4th at pp. 1033-1034.)
On appeal, the People do not dispute that the trial court erred by failing to hold formal probation revocation proceedings but contend that any such error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].) The People argue that “[r]emanding for a new probation revocation hearing would be a futile act because the court will have the same circumstances that formed the basis for [its] previous actions -- [defendant’s] lack of successful completion of the drug treatment program.” According to the People, at the time of the August 9, 2010 hearing, the trial court had already decided what the appropriate penalty for that probation violation should be, i.e., to order into effect the previously suspended prison sentence. Thus, remanding the case for a new probation revocation hearing “would elevate procedure over substance.” We disagree.
As defendant correctly notes, a trial court may not revoke probation unless the evidence supports a conclusion that the probationer's conduct constituted a “willful” probation violation. (People v. Cervantes (2009) 175 Cal.App.4th 291, 295; People v. Zaring (1992) 8 Cal.App.4th 362, 378-379; see also Vickers, supra, 8 Cal.3d at p. 461.) The trial court did not have before it any facts to demonstrate why or under what circumstances defendant left the Delancey Street program from which it could conclude that his alleged departure was willful. The court did not formally take any evidence with respect to the alleged probation violation. Indeed, the court did not even give defendant the opportunity to explain what had occurred. For all anybody knows, there could have been circumstances justifying or mitigating defendant’s leaving the program.
A willful violation of probation “does not automatically trigger... revocation of probation and imprisonment.” (People v. Hawthorne (1991) 226 Cal.App.3d 789, 795.) When a trial court determines that a probation violation has occurred, “the court must go on to decide whether under all the circumstances this violation of probation warrants revocation. [Citation.] A probationer has a right to be heard and to present evidence on this issue as well as on the threshold issue of whether his probation has in fact been violated[.]” (Coleman, supra, 13 Cal.3d at p. 895, fn. 22, 2d par.) Furthermore, the court is not required to execute a suspended state prison sentence even when it finds a defendant in violation and revokes probation. Indeed, under such circumstances, the court could simply modify the terms of probation by imposing additional county jail time or other conditions instead of executing the suspended state prison sentence. (People v. Medina (2001) 89 Cal.App.4th 318, 321 (Medina).)
Reinstatement of probation under such circumstances requires a determination by the trial court that the interests of justice so require, and “[w]hat the interests of justice require in a particular case constitutes a question uniquely addressed to the broad judicial discretion of the trial court.” (People v. Stuckey (2009) 175 Cal.App.4th 898, 916.)
Therefore, even assuming defendant did not complete the Delancey Street program and thus violated his probation, defendant was still entitled to be heard and present evidence as to whether, under all the circumstances, revocation of his probation was appropriate or whether his probation terms should be modified. Defendant was not given that opportunity.
The lack of formal revocation proceedings deprived defendant of his due process rights. Under the circumstances, the People have not shown that the trial court’s error was harmless. We shall reverse the judgment and remand so that the trial court may conduct formal probation revocation proceedings.
II. The Sentence in the Vehicle Theft Case and Section 654
As part of the negotiated resolution in the vehicle theft case, the prosecution dismissed count 3, carjacking, which was the most serious charge. The prosecution also agreed to strike the assault with a deadly weapon language from count 2, even though defendant used a knife. As we have noted, the trial court explained that the maximum sentence would include the upper term of four years on count 2, assault by means of force likely to produce great bodily injury and a consecutive term of eight months (one-third the midterm) on count 1, vehicle theft.
Carjacking is punishable by imprisonment in state prison for a term of three, five, or nine years. (§ 215, subd. (b).)
After having received the benefit of his bargain, including an opportunity to participate in a drug treatment program, defendant now contends that section 654 precludes separate punishment for his crimes of assault by means of force likely to produce great bodily injury and vehicle theft. Defendant reasons that these crimes were “incidental to each other with a single intent and purpose, ” as the assault was merely the means to achieve the vehicle theft. Defendant contends that the trial court erred under section 654 when it sentenced him to consecutive terms for the two offenses instead of staying the term on count 1.
Section 654, subdivision (a) provides, in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
The People contend that defendant’s section 654 argument is barred because defendant (1) failed to file a timely notice of appeal, and (2) failed to obtain a certificate of probable cause with respect to this issue. We agree with the People’s first contention and do not address the latter.
A notice of appeal “must be filed within 60 days after the rendition of the judgment or the making of the order being appealed.” (Cal. Rules of Court, rule 8.308(a).) “[T]he filing of a timely notice of appeal is a jurisdictional prerequisite.” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113.) “Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.” (In re Jordan (1992) 4 Cal.4th 116, 121.) An order granting probation and imposing but suspending execution of the sentence is an appealable order. (§ 1237, subd. (a); People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 (Ramirez).)
On January 28, 2010, the trial court granted probation in the vehicle theft case and imposed but suspended execution of the sentence. The imposed sentence included four years on count 2 and eight months on count 1, but did not provide for a section 654 stay with respect to the latter, thus creating the purported section 654 error. Because the January 28, 2010 order granting probation and imposing but suspending the sentence constituted an appealable order, the 60-day clock began to run at that time. However, defendant did not file his notice of appeal until August 11, 2010, well beyond the 60-day deadline.
The court in Ramirez explained the consequences of defendant’s delay: “In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment.... As relevant here, when a court imposes sentence but suspends its execution at the time probation is granted, a defendant has the opportunity to challenge the sentence in an appeal from the order granting probation. (People v. Amons (2005) 125 Cal.App.4th 855, 868–869.) If the defendant allows the time for appeal to lapse during the probationary period, the sentence becomes final and unappealable. (Id. at p. 869.) This is so regardless of the fact the defendant will not serve the sentence unless the court revokes and terminates probation before the probationary period expires.” (Ramirez, supra, 159 Cal.App.4th at p. 1421.)
Having obtained the benefit of his bargain, defendant did not file an appeal within 60 days from the trial court’s order granting probation and imposing but suspending the execution of his sentence, the sentence that contains the purported section 654 error. Consequently, we lack jurisdiction to consider defendant’s section 654 claim on direct review.
Citing People v. Scott (1994) 9 Cal.4th 331 (Scott), defendant argues that the “lack of an objection by trial counsel to consecutive sentences does not constitute a waiver of the Penal Code section 654 issue. It is well settled that a trial court acts in excess of its jurisdiction and imposes an unauthorized sentence when it erroneously stays or fails to stay execution of a sentence under section 654. Therefore, a claim of error under Penal Code section 654 is nonwaivable.”
Scott recognized that a defendant is not required to raise a section 654 claim in the trial court as a prerequisite to obtaining appellate review on the matter. (Scott, supra, 9 Cal.4th at p. 354, fn. 17.) As later explained in People v.Hester (2000) 22 Cal.4th 290 (Hester), “Ordinarily, a section 654 claim is not waived by failing to object below. ‘[T]he waiver doctrine does not apply to questions involving the applicability of section 654....” [Citation.] This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal. This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654.” (Hester, supra, at p. 295.) Hester went on to conclude that section 654 claims can be waived in certain circumstances (ibid.), contrary to defendant’s assertion here that such claims are “nonwaivable.”
We note that our high court stated in Hester, “Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.] While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was. ‘When a defendant maintains that the trial court's sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.’ [Citations.]” (Hester, supra, 22 Cal.4th at p. 295; see also People v. Masten (1982) 137 Cal.App.3d 579, 585-586, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8; People v. Jones (1981) 124 Cal.App.3d 749, 754-755; Cal. Rules of Court, rule 4.412(b).) Nevertheless, because defendant did not file a timely appeal with respect to his section 654 claim, thereby precluding our review of the claim, we express no opinion on whether his claim is also barred by virtue of estoppel.
The exception recognized in Scott and Hester for section 654 claims is an exception to the waiver (or forfeiture) rule that a party must raise a contention below to have it reviewed on appeal. This exception does not relieve defendant of his obligation to file a timely appeal. Defendant’s failure to file a timely appeal deprives this court of jurisdiction to address his section 654 claim on direct review. (See People v. Clinton (1966) 243 Cal.App.2d 284, 287 [a claimed section 654 error “could have been corrected by a timely appeal” or by a “habeas corpus proceeding”].) We cannot overstep the bounds of our jurisdiction to determine whether the trial court exceeded its own by running afoul of section 654. (Cf. Ramirez, supra, 159 Cal.App.4th at pp. 1427-1428.) We must simply dismiss this part of the appeal.
III. Abstract of Judgment
During the October 19, 2009 hearing, count 2 in the vehicle theft case was modified to remove the assault with a deadly weapon allegation and defendant pled guilty to count 2 as amended. Accordingly, when the trial court ultimately sentenced defendant on count 2 at the August 9, 2010 sentencing hearing, count 2 did not include the assault with a deadly weapon component. Defendant points out, however, that the abstract incorrectly describes count 2 in the vehicle theft case as “ADW/ASSLT W/FRC LIKELY GBI.” Defendant contends, and the People agree, that the abstract of judgment must be corrected to remove the reference to “ADW.”
Appellate courts may order correction of an abstract of judgment to make it consistent with the trial court’s oral pronouncement of judgment at sentencing. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) There is no need to do so here. Because we are reversing the trial court’s judgment and remanding for formal probation revocation proceedings, the abstract is a dead letter. After holding formal revocation proceedings, should the trial court determine that revocation is warranted and order imprisonment, a new abstract of judgment should be prepared that correctly reflects the nature of count 2.
We also note the abstract incorrectly reflects that, in the vehicle theft case, defendant received four years on count 1 (instead of eight months as pronounced) and eight months on count 2 (instead of four years as pronounced). Again, any subsequent abstract should correctly reflect the sentences for each count.
DISPOSITION
For the reasons stated, the judgment is reversed and the case is remanded for formal probation revocation proceedings. Defendant’s section 654 claim is not cognizable in this appeal and that part of his appeal is dismissed. Any error in the abstract of judgment is rendered moot by our disposition.
We concur: NICHOLSON, Acting P. J., HULL, J.