Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF26596. Eleanor Provost, Judge.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, R. Todd Marshall and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Hill, J., and Poochigian, J.
Appellant, Armando Ramirez Quezada, pled guilty to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted a prior conviction enhancement (Health & Saf. Code, § 11370.2, subd. (c)) in the instant case.
On September 23, 2008, the court placed Quezada on Proposition 36 probation.
On March 6, 2009, the court revoked Quezada’s probation.
On June 17, 2009, the court sentenced appellant to an aggregate 11-year term in the instant case and a second unrelated case (case No. CRF29205).
On appeal, Quezada contends: 1) the court erred when it revoked his probation; 2) the court imposed an unauthorized restitution fine in the instant case; and 3) he is entitled to additional presentence conduct credit. We will find merit to his second contention and modify the judgment accordingly. In all other respects, we will affirm.
FACTS
On March 14, 2008, Quezada was a passenger in a car that was stopped by a Tuolumne County Sheriff’s deputy. Quezada was arrested after a check disclosed a warrant for his arrest. A station house search of Quezada uncovered two plastic baggies containing methamphetamine in one of Quezada’s socks. A third baggie containing methamphetamine was found in the backseat area of the patrol car in which Quezada was transported to the station.
On April 2, 2008, the district attorney filed an amended information in the instant case charging Quezada with transportation of methamphetamine (count 1/Health & Saf. Code, § 11379, subd. (a)), possession for sale of methamphetamine (count 2/Health & Saf. Code, § 11378), a prior conviction enhancement (Health & Saf. Code, § 11370.2, subd. (c)), and a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
Unless otherwise indicated, all further statutory references are to the Penal Code.
On September 15, 2008, Quezada pled guilty to count 1 and admitted the prior conviction enhancement in exchange for the dismissal of the remaining count and enhancement and a grant of Proposition 36 probation.
On September 23, 2008, the court suspended imposition of sentence, placed Quezada on Proposition 36 probation as per his plea agreement, and ordered the matter transferred to Stanislaus County, Quezada’s county of residence. The court also ordered Quezada to enroll in the Proposition 36 program in Stanislaus County and to report back to the court on November 4, 2008.
On October 30, 2008, the probation department issued a supplemental probation report which stated that Tuolumne County Jail records indicated that Quezada had been picked up from the jail on September 26, 2008, by the Immigration and Customs Enforcement Agency.
On November 4, 2008, Quezada failed to appear at a court hearing.
On November 7, 2008, the court signed a no bail arrest warrant and an order revoking Quezada’s probation based on his failure to appear at the November 4, 2008, hearing.
On March 4, 2009, Quezada was a passenger in a car that was stopped by a Tuolumne County Sheriff’s deputy. Quezada initially gave a false name and birth date to the deputy. Quezada was arrested after admitting he had a small quantity of methamphetamine in a baggie in his sock. A glass pipe was found on the passenger side floorboard of the vehicle (case No. CRF29205). Also, the order revoking probation was served on Quezada on that date.
On March 6, 2009, the order revoking probation was filed.
On March 20, 2009, Quezada appeared in court and waived his right to a preliminary hearing in case No. CRF29205. Additionally, his defense counsel stated that Quezada was going to participate in Proposition 36 probation but had been deported to Mexico and that they needed to work out a global settlement of the two cases.
On May 21, 2009, prior to a jury trial commencing in case No. CRF29205, defense counsel admitted that Quezada had not been able to enroll for Proposition 36 probation because he had been deported to Mexico. He also discussed with the court the possibility of filing a motion to withdraw plea on Quezada’s behalf because Quezada did not get the benefit of Proposition 36 probation.
On May 21, 2009, a jury convicted Quezada in case No. CRF29205 of transportation of methamphetamine (count 1), misdemeanor possession of a smoking device (count 2/Health & Saf. Code, § 11364), and misdemeanor providing false information to a police officer (count 3/§ 148.9). In a separate proceeding, the jury also found true a prior conviction enhancement (Health & Saf. Code, § 11370.2, subd. (c)) and a prior prison term enhancement (§ 667.5, subd. (d)).
Quezada’s probation report indicated that in a probation interview, Quezada stated he was deported to Mexico following his grant of Proposition 36 probation. He returned from Mexico three days before his arrest on March 4, 2009, in case No. CRF29205, and knew he had a warrant for his arrest based on his failure to follow the conditions of his probation in the instant case. The report recommended the imposition of an aggregate 11-year term.
On June 17, 2009, at Quezada’s sentencing hearing, defense counsel challenged some of the aggravating circumstances cited by the probation officer. He also noted that Quezada pled guilty to transportation of methamphetamine hoping to get Proposition 36 probation but was deported before he could take advantage of that probation. He thus urged the court to strike one or both of Quezada’s prior conviction enhancements. The court was unmoved and sentenced Quezada to the aggregate 11-year term recommended by the probation officer: the midterm of 3 years on Quezada’s transportation offense in case No. CRF29205, concurrent 1-year terms on his convictions in counts 2 and 3 of that case, a 3-year prior conviction enhancement in that case, a 1-year term on his transportation conviction in the instant case (one-third the middle term of 3 years), a 3-year prior conviction enhancement in the instant case, and a 1-year prior prison term enhancement.
DISCUSSION
Quezada contends the court impliedly revoked his probation when it sentenced him to prison. He further contends that his implied revocation of probation violated his federal constitutional right to due process to written notice and a hearing. Thus, according to Quezada, the court’s implied revocation of his probation and his sentence must be reversed and the matter remanded to the trial court for further proceedings. We disagree.
“‘Before probation can be finally and formally revoked written notice of the claimed violation must be given to the probationer, the evidence against him must be disclosed, he must be given an opportunity to be heard in person and to present witnesses and documentary evidence, he must be able to confront and cross-examine adverse witnesses, a neutral and detached hearing body must consider the matter, and a written statement of the fact finder must be prepared as to the evidence relied upon and the reasons for revocation.’ [Citation.] ‘[E]ven when a probationer has been duly convicted of a new crime, he is entitled to a formal revocation hearing before his probation is revoked and sentence is imposed on the prior offense.’” (People v. Martin (1992) 3 Cal.App.4th 482, 486 (Martin).)
However, a defendant may waive these rights through his conduct or that of his counsel. In Martin, the defendant pled no contest on November 30, 1990, to residential burglary and was placed on probation on the condition that he participate in a treatment program. On May 6, 1991, after being notified the defendant had left the program, the court revoked probation and issued a warrant for the defendant’s arrest.
The defendant subsequently pled guilty to several felony counts in two separate cases that arose from incidents that occurred after he left the treatment program.
On July 5, 1991, the court sentenced the defendant on all three cases to an aggregate term of seven years eight months. (Id. at p. 485-486.)
On appeal, the defendant claimed he was denied due process because no hearing was held before formal revocation of probation and the imposition of sentence in that case. The Martin court rejected this contention finding that defendant waived his right to a hearing and that, in any event, the error was harmless. In so finding, the court stated:
“The record in the present case discloses neither a formal probation revocation hearing nor an express waiver by appellant of his right to such a hearing. As respondent urges, however, it would appear appellant in fact waived his right to insist on a revocation hearing by filing a statement in mitigation which acknowledged that he would be sentenced on all three cases and failing to object at the sentencing hearing either to the sentencing procedure or to the grounds for revocation. Moreover, even if we were to conclude it was error to sentence appellant without a prior hearing, remand would be a meaningless gesture. Appellant admitted the fact of the probation violation in his statement to the probation officer. Since the offense in No. A054371 presumptively precluded probation, probation was granted in the first place only upon the court’s finding that unusual circumstances existed such that a grant of probation would serve the interests of justice. (§ 462.) The trial court’s statement at the time of sentencing that no unusual circumstances existed to permit a grant of probation and decision to sentence appellant to the middle term on this count make clear that probation would have been revoked if a formal hearing had been held.” (Martin, supra, at pp. 486-487.)
Here, Quezada and his defense counsel admitted that Quezada was undocumented and had not enrolled in a treatment program or appeared at the November 4, 2008, court hearing because he had been deported. Further, neither of them objected when the court sentenced Quezada without holding a revocation hearing. Thus, in accord with Martin, we conclude that through his actions and those of his defense counsel, Quezada waived a formal probation revocation hearing.
In People v. Espinoza (2003) 107 Cal.App.4th 1069, the court stated, “once a nonviolent drug possession offender has been deported from the United States, the premises, requirements, and objectives of Proposition 36 can no longer be satisfied. Accordingly, where the defendant faces a substantial likelihood of imminent deportation, such that his probation cannot effectively be conditioned on completion of a drug treatment program, we hold that that section 1210.1 does not preclude the trial court from exercising its discretion to deny probation.” (Id. at p. 1076.)
Here, Quezada had already shown he was unable to comply with the requirements of a grant of Proposition 36 probation by virtue of his undocumented status, which created “a substantial likelihood of imminent deportation[.]” Thus, it is extremely unlikely that even if Quezada had not committed any additional offenses and the court had held a revocation hearing, that the court would have reinstated Proposition 36 probation. Further, the court’s imposition of a prison sentence in case No. CRF29205 made Quezada ineligible for Proposition 36 probation. (People v. Esparza (2003) 107 Cal.App.4th 691, 698.) Given these circumstances, we further conclude that any error in failing to hold a revocation hearing was harmless beyond a reasonable doubt and remand would be a “meaningless gesture.” (Martin, supra, 3 Cal.App.4th at p. 486.)
The Restitution Fine
When the court initially placed Quezada on probation in the instant case, it ordered him to pay a restitution fine of $200. However, when it sentenced Quezada to prison, it ordered him to pay a restitution fine in the instant case of $800. Quezada contends the second restitution fine was unauthorized. Respondent concedes and we agree.
A restitution fine survives the termination of probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 822.) Thus, the court did not have the statutory authority to impose a second restitution fine because the first one was still in force and the second fine in the amount of $800 must be stricken. (Id. at p. 823.)
The Presentence Conduct Credits Issue
On October 11, 2009, the California Legislature amended section 4019 effective on January 25, 2010, to increase the number of presentence days of conduct credit certain defendants can earn. (Stats. 2009-2010, 3d Ex. Sess. (S.B. 28), § 50, eff. Jan. 25, 2010.) On February 10, 2010, Quezada’s appellate counsel filed a supplemental brief contending that Quezada is entitled to the retroactive application of the amendment to 4019 and the additional credits it provides because denying him these credits would deny him his right to equal protection and conflict with the legislative’s intent that the amendment apply retroactively in order to reduce California’s prison population. We disagree.
We explained in the recent case of People v. Rodriguez (2010) 183 Cal.App.4th 1, that the January 25, 2010, amendment of section 4019 is not presumed to operate retroactively and does not violate equal protection under law. Quezada is, therefore, not entitled to additional conduct credit under the amendment to section 4019.
DISPOSITION
The judgment in the instant case is modified by striking the $800 restitution fine imposed by the trial court. The $200 restitution fine remains in force. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment in the instant case is affirmed.
Quesada also filed an appeal in case No. CRF29205. In that case, this court, in pertinent part, reversed the jury’s true finding on the prior conviction enhancement alleged in that case, vacated the sentence, which was imposed in both cases, and remanded the matter to the trial court for further proceedings. The court should wait until it resolves the prior conviction issue in case No. CRF29205 before issuing an abstract of judgment in both cases.