Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV032626. Ingrid Adamson Uhler, Judge.
David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
Defendant was sentenced to state prison for six years when his probation was revoked for a conviction of a new crime. His previously suspended, stipulated term of six years was imposed when the court was notified of the new prison sentence.
Statement of Facts
On October 13, 2004, Tracey Moss (defendant), his girlfriend and her child, as well as a male companion (Patrick Bonar, co-defendant), shoplifted a DVD player and other miscellaneous items from a Wal-Mart store in San Bernardino. The store detective had observed appellant putting the DVD and other items into a shopping cart, over which he placed some non-Wal-Mart shopping bags. Defendant then moved the cart past the checkout counter to a location near the exit doors. Bonar was with him, but the woman and child were elsewhere in the store. Defendant then went back to the cash registers where he paid for two items, which were placed in Wal-Mart bags with the receipt. Defendant took the bag and put it into the cart which he had left near the exit. Defendant shook hands with Bonar and Bonar pushed the cart out the door. Defendant re-entered the store.
The co-defendant did not appeal.
A few minutes later, defendant exited the store, at which time he was contacted by a police officer who had been called by the store security. Defendant was arrested and subsequently charged with petty theft with a prior (Pen. Code, § 666). It was further alleged he had suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes Law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
All further references are to the Penal Code unless otherwise indicated.
On April 15, 2005, appellant pled nolo contendere to the charge and admitted the prior strike, pursuant to a plea agreement by which he was promised a grant of probation; the agreement further provided for a stipulated sentence of 6 years, execution of which would be suspended unless he violated probation. Finally, the agreement included a waiver of the right to appeal from any motion that might be brought and from the conviction and judgment in the case since defendant was getting the benefit of the plea bargain.
However, February 17, 2006, the court was notified that defendant had violated probation by committing a new crime in another county for which he had been sentenced to state prison. Thereafter, the court revoked his probation and imposed the previously suspended sentence of six years. Although defendant was not present, he was represented by counsel. He appealed.
Discussion
At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1386, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. First, the record shows defendant was adequately advised of the rights being waived and the consequences of pleading guilty. There is substantial evidence to support the trial court’s finding that the plea was knowing, intelligent, and voluntary. Further, the fact the parties stipulated that the preliminary hearing transcript established a factual basis for the plea satisfies the legal requirements for a conditional plea. (See People v. Holmes (2004) 32 Cal.4th 432, 443-444.)
We also find that the court properly followed the procedures for the imposition of sentence upon revocation of probation for the commission of a subsequent offense, despite defendant’s absence from the hearing. (§ 1203.2a.) The purpose of the legislation is to permit a defendant who has been released on probation, and subsequently committed to state prison for another offense, to request that the court which granted probation to revoke it, and impose sentence so the defendant can received the benefit of concurrent terms. (See In re Hoddinott (1996) 12 Cal.4th 992, 999.) The procedure also insures that probation violations will be disposed of during the term of confinement on a new conviction. (In re Flores (1983) 140 Cal.App.3d 1019, 1025.)
The statute distinguishes between probationers for whom the imposition of sentence has been suspended, and those for whom sentence has been imposed with execution suspended. As to the latter, the statute provides, “Upon being informed by the probation officer of the defendant’s confinement, or upon receipt from the warden or duly authorized representative of any prison in this state or another state of a certificate showing that the defendant is confined in prison, the court shall issue its commitment if sentence has previously been imposed.” Thus, where sentence has been imposed, section 1203.2a calls for mandatory summary action by the court within 60 days of learning of the defendant’s confinement on a new conviction. (In re Flores, supra, 140 Cal.App.3d at p. 1023.)
It is true that probationers retain the right to a formal hearing, to be present, and to be represented by counsel before probation may be revoked. (See People v. Vickers (1972) 8 Cal.3d 451.) However, there is a difference between summary revocation of probation for a violation of a condition of probation, involving an accusation and finding of fact that probationary terms were violated, and a revocation of probation resulting from the conviction of a new offense resulting in a prison commitment. As to the latter, the only defense against revocation of probation is a challenge to the new conviction, which did not happen here.
A defendant does not have the right to be present at every hearing held in a case; his presence is required if it bears a reasonable and substantial relationship to his full opportunity to defend against the charges. (People v. Hines (1997) 15 Cal.4th 997, 1038-1039.) Because the probation revocation hearing here involved only the condition that appellant not violate any laws, the rules relating to the conduct of trials are not applicable. (People v. Blankenship (1936) 16 Cal.App.2d 606, 609.) Defendant was represented by counsel at the hearing, and the court ordered the term for the instant case to run concurrent with any other sentence imposed by any other court, so he obtained the statutory benefits of section 1203.2a. There was no constitutional violation.
We have completed our independent review of the record and find no arguable issues.
Disposition
The judgment is affirmed.
We concur: McKINSTER J., GAUT J.