Opinion
B222868
09-07-2011
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY POLK, Defendant and Appellant.
Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA355806)
APPEAL from a judgment of the Superior Court of Los Angeles County. William N. Sterling, Judge. Reversed and remanded.
Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
Timothy Polk appeals from a judgment revoking probation for transfer of narcotics and failure to submit to a search or seizure. He contends he was denied due process because he was not given adequate notice that he faced probation revocation for failure to submit to a search or seizure. We reverse and remand.
FACTS
As part of a plea agreement, Polk pled no contest on October 13, 2009, to one count of sale of a controlled substance and admitted that he had suffered one prior prison term. (Health & Saf. Code, § 11352, subd. (a); Pen. Code, § 667.5, subd. (b).) Polk was sentenced to six years in state prison (the upper term of five years, plus one year for his prior prison term enhancement) and ordered to pay various fines and penalties. The sentence was suspended, however, and Polk was placed on three years' formal probation with the condition that he serve 270 days in Los Angeles county jail less credit for 253 days (169 days actual custody and 84 days good time/work time credit). Additional conditions of probation were:
The information alleged that Polk was convicted of four prior felonies within the meaning of Penal Code section 1203, subdivision (e)(4), failed to remain free of prison custody and committed a felony offense within five years after serving five prior convictions pursuant to Penal Code section 667.5, subdivision (b) and suffered two prior drug convictions pursuant to Health and Safety Code section 11370, subdivisions (a) and (c).
"Submit your person and property to search and seizure at any time of the day or night by any probation officer or other peace officer with or without a warrant, probable cause or reasonable suspicion."
[¶] . . . [¶]
"Do not own, use, possess, buy or sell any controlled substances or associated paraphernalia except with a valid prescription."
Less than one month after his sentence was imposed, the district attorney filed a request to revoke Polk's probation on the grounds that he violated the terms of his probation by possessing or transferring a narcotic, namely cocaine, pursuant to Health and Safety Code, sections 11352, subdivision (a) and 11351.5. The arrest report was incorporated by reference and provided a description of the crime, including Polk's attempt to flee when confronted by the police. At a probation revocation hearing, the district attorney presented testimony consistent with the arrest report as follows:
Officer Paul Valencia from the Los Angeles Police Department was monitoring the area around 6th Street and San Julian Street for narcotics activity on November 5, 2009, when he saw Polk talking with a woman in front of the Lamp Shelter Lodge. Using binoculars, Valencia saw Polk remove an off-white solid from a plastic container in his pocket and hand it to the woman. Valencia did not see any money exchanged and acknowledged that was unusual for a drug transaction.
Officer Arthur Gamboa was a member of Officer Valencia's "chase team" that day. He received a call from Valencia after Polk's transaction with the woman. Valencia described Polk's blue puffy jacket and general appearance to Gamboa. When Gamboa and his team went to intercept Polk, Gamboa identified himself as a policeman. Polk immediately ran through the front door of the Lamp Shelter Lodge and threw off his jacket. Polk then locked himself in the restroom and refused to surrender. Meanwhile, Gamboa's supervisor recovered the blue jacket and found what turned out to be rock cocaine inside. Polk was arrested after the lodge manager provided the officers with the key to the bathroom. As Gamboa was strip-searching him at the police station, Polk spontaneously told Gamboa that the jacket and the drugs were his. He also told Gamboa "he was selling because he had to eat or starv[e] something to that effect. And also said that he had something like six years looming over his head on this one, as if to explain why he was running."
After testimony was concluded, the trial court asked counsel to address the following issue: "in addition to the condition of probation that Mr. Polk obey all laws, which would include any violation involving rock cocaine, he was also ordered to, as a condition of probation, to submit his person and property to search and seizure at any time of the day or night by any probation officer or other peace officer with or without a warrant, probable cause, or reasonable suspicion. [¶] So there appears to be an additional ground, that they told him to stop. They told him to come out of the bathroom, and he refused to submit to a detention, which would be a seizure. So there's a second ground here, if you want to address both of them."
Defense counsel presented argument on both grounds as requested and did not object that he received no notice of the second ground for revocation. After argument, the trial court found "the evidence is clear that he's in violation of probation. There's more than sufficient, circumstantially, to prove, including his admission, that he transferred rock cocaine. I think no other conclusion is really reasonable, which would be one violation. [¶] The second is that it's clear he saw the police and knew they were the police and took off running and locked himself in the bathroom and they were trying to detain him and refused to submit to a seizure, which would be a detention by the police. So I find him in violation for both reasons." The court lifted the suspension of the execution of sentence and committed Polk to serve six years in state prison as previously imposed with 386 days credit. Polk appealed.
DISCUSSION
Polk contends that his right to due process was denied when the trial court sua sponte found an additional ground for revoking probation. Because the request for revocation filed by the district attorney only listed narcotics violations as the basis to revoke probation, he was not afforded the opportunity to address whether he also violated probation by failing to submit to a search or seizure. Polk argues remand for resentencing is required because the record does not disclose whether the trial court would have revoked probation based only on the narcotics violation.
The Attorney General's argument is threefold. First, she argues that the issue is forfeited because Polk never objected to lack of notice during the revocation hearing. Second, the Attorney General urges that the proceedings complied with due process requirements because Polk was notified of the additional violation from the attached arrest report and the probation officer's report, which noted that he failed to "obey all laws and orders of the court; obey all rules and regulations of the probation department; and report to probation within 48 hours after release from custody." Third, the Attorney General argues that the court expressly found Polk committed the crime of transferring rock cocaine and therefore, "any error by the trial court in finding a violation on the additional ground is inconsequential"; it is not reasonably likely Polk would achieve a different result upon remand. We address each of the Attorney General's arguments in turn.
I. Waiver
The Attorney General contends Polk forfeited his due process claim by failing to object below when the trial court brought up the additional ground for revocation. We are not persuaded by the case law cited by the Attorney General to support her waiver argument. Both cases involve situations supported by long-established case law in which a failure to object results in a waiver of the issue on appeal. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1155 [prosecutorial misconduct]; People v. Wader (1993) 5 Cal.4th 610, 635-636 [admission of evidence].) Indeed, the Attorney General concedes Rodrigues and Wader do not provide direct support for her argument by citing to them with the introductory signal "see." (Cal. Style Manual (4th ed. 2000) § 1:4.)
Neither is the Attorney General's reliance on People v. Martin (1992) 3 Cal.App.4th 482, 484-487 convincing. In Martin, the defendant waived his right to a probation revocation hearing by filing a statement in mitigation which acknowledged that the sentencing on two criminal cases would be consolidated with sentencing for the separate probation violation. At the sentencing hearing, he failed to object. (Id. at pp. 486-487.) It is apparent from the facts in Martin that the defendant knew that he would be sentenced for the probation violation at the consolidated sentencing hearing and thus knowingly waived his right to a separate probation revocation hearing. He also had notice of and opportunity to prepare any defenses available to him concerning the probation violation. That is not the case here. Polk did not knowingly waive notice of the second ground for revocation. He also did not waive his right to a revocation hearing. He did not know that the trial court would base its ruling, in part, on a failure to submit to search and seizure until after the parties had rested.
We are, instead, guided by People v. Mosley (1988) 198 Cal.App.3d 1167 (Mosley), a more analogous case. There, defense counsel did not object when the district attorney asked the trial court to consider an additional ground to revoke probation not referenced in his petition. Although the Mosley court did not specifically address the issue of waiver, it nonetheless reached the merits of the due process claim. In doing so, it relied on People v. Felix (1986) 178 Cal.App.3d 1168 (Felix), a case we also find instructive.
In Felix, the district attorney filed a motion to revoke probation on allegations that the defendant committed new crimes (attempted grand theft and unauthorized possession of a controlled substance) in violation of his probation. (Felix, supra, 178 Cal.App.3d at p. 1169.) During the course of the revocation hearing, the defendant's probation officer testified that the defendant failed to complete any of the alcohol treatment programs he had been ordered to enter as a condition to his probation and he had also been previously arrested for possession of drugs while on probation. (Id. at pp. 1170-1171.) When the defendant objected to this testimony, the trial court overruled the objection but offered the defendant additional time to prepare.
On appeal, the defendant argued that he had inadequate notice of the additional basis for revoking his probation. The court found the issue had been waived because the trial court had offered the defendant an opportunity for a continuance to prepare a defense to the additional allegations. When the defendant refused the court's offer he also waived an opportunity to assert the additional evidence as error on appeal. (Felix, supra, 178 Cal.App.3d at p. 1172.) "[W]hile revocation can be had only with due process protections, the precise nature of the proceedings need not be identical as long as they assure 'equivalent due process safeguards.' [Citation.]" (Ibid.) The offer for a continuance ensured an equivalent due process safeguard. (See also People v. Baker (1974) 38 Cal.App.3d 625, 629 [counsel requested and was given a brief recess to read a supplemental probation report to the defendant].) Unlike Felix, this case involves no offers of time to prepare a defense to the additional ground raised by the trial court after the parties had rested. That defense counsel did not object or request a continuance under these circumstances does not bar his request for appellate review of this issue.
We also note that we retain discretion to address constitutional issues raised on appeal, even those that "may be waived either directly or by inaction." (People v. Workman (1953) 121 Cal.App.2d 533, 535; Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1103, overruled on other grounds by Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1225, fn. 4.) This is particularly true where the issue presented is "purely a question of law" turning on undisputed facts. (In re Samuel V. (1990) 225 Cal.App.3d 511, 515.) We are aware, too, that if we fail to address this issue now, it may return as a habeas corpus petition alleging ineffective assistance of counsel. We therefore exercise our discretion to consider the merits of Polk's contention.
II. Due Process
The California Supreme Court has held that fundamental principles of due process demand a probationer is entitled to be represented by counsel, to be advised in writing of the alleged violation and given an opportunity to deny or explain it, and, if necessary, present evidence on his own behalf. (People v. Vickers (1972) 8 Cal.3d 451, 459; People v. Self (1991) 233 Cal.App.3d 414, 419.) In deciding the merits of this matter, we again rely on the analysis in Mosley. There, the defendant was on probation when he was charged with two counts of rape. (Mosley, supra, 198 Cal.App.3d at p. 1170.) The parties stipulated that the probation hearing would be conducted in conjunction with the trial. The sole basis for the petition to revoke probation was the rape charge. Evidence at trial, however, revealed that defendant had been consuming alcoholic beverages in violation of a probation condition that he abstain from alcohol. (Id. at p. 1172.) While the jury deliberated, the district attorney asked the trial court to consider whether the defendant had violated a condition of his probation when he consumed alcohol. Neither the trial court nor defense counsel was aware that was a condition of probation until the district attorney's request. Defense counsel failed to object to the request. (Id. at pp. 1170-1173.)
After the jury returned a not guilty verdict on the rape charge, the trial court declared that it was not convinced by clear and convincing evidence of the rape but found that the defendant had violated his probation by consuming alcohol. (Mosley, supra, 198 Cal.App.3d at p. 1171.) On appeal, the court reversed, noting, "Here, the record does not disclose that Mosley was offered additional time to answer the unnoticed allegation on which his revocation was based. The evidentiary phase of the hearing was completed before either he or the court was aware of the charge which ultimately constituted the basis for revocation. Mosley had no opportunity to prepare and defend against that allegation. . . . Because the trial court failed to provide 'a constitutionally sufficient safeguard of appellant's due process rights and [preserve] the fundamental fairness of the proceedings,' Mosley was denied due process." (Id. at p. 1174.)
We similarly find that Polk was denied due process. As in Mosley, the evidentiary phase of the hearing was completed before Polk was advised of the additional ground for revocation. The Attorney General disagrees and contends that Polk received written notice of the additional ground much earlier, in the request for revocation: "Although neither the district attorney's request for probation revocation nor the probation report specifically refers to appellant's failure to submit to a police search or seizure, the facts underlying the additional ground were alleged in the notice provided to appellant, and he had a meaningful opportunity to prepare for the hearing and be heard. (Cf. [Mosley, supra,] 198 Cal.App.3d [at p. 1174].)" Here, a declaration supporting the request for revocation is signed by a deputy district attorney and states, "Subsequent to the defendant's grant of probation, undersigned was informed by way of the attached reports, incorporated herein by reference, that the defendant violated his probation by committing the following crime(s): HS 11352(a); HS 11351.5." The arrest report describing the events leading to Polk's arrest is attached to the request, including his flight from the police and locking himself in the bathroom.
We do not find the factual recitation in the arrest report sufficient to provide notice to Polk that his probation could be revoked on the grounds he failed to submit to a search or seizure. The district attorney plainly based his request on two violations of the Health and Safety Code involving transfer or possession of narcotics. That the arrest report is attached and "incorporated herein by reference" does not give notice that there are any other grounds for revocation with which a probationer such as Polk should be concerned. Probationers should not be expected to sift through the facts of an arrest to find any and all grounds for revocation of probation.
III. Harmless Error
Notwithstanding the failure to accord Polk his due process rights, the Attorney General contends that "any error by the trial court in finding a violation on the additional ground is inconsequential" because the evidence against Polk on the narcotics charges was so strong. We disagree. The trial court expressly based its revocation order on both the narcotics violations and the failure to submit to a search or seizure. There is nothing in the record to indicate that the trial court would have revoked probation based solely on the violations of the Health and Safety Code identified in the district attorney's request. That the trial court sua sponte included the additional ground to support its decision to revoke probation is significant. We decline to speculate what the trial court would have done in the absence of its finding that Polk violated a condition of probation by failing to submit to a search and seizure. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1089-1090; People v. Self, supra, 233 Cal.App.3d at p. 419.) Accordingly, we remand this case to the trial court with directions that it either indicate it would have revoked probation solely on the basis of the Health and Safety Code violations or, if not, to hold a new probation violation hearing.
DISPOSITION
The judgment revoking probation is reversed and the cause is remanded for further proceedings consistent with the views expressed in this opinion.
BIGELOW, P. J.
We concur:
FLIER, J.
GRIMES, J.