Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR30228
GEMELLO, J.
Douglas Kalane Raposa appeals the revocation of his probation and execution of a suspended 16-year prison sentence. Raposa’s claims challenging the validity of his admission of a probation violation must be dismissed because he failed to obtain a certificate of probable cause. We reject Raposa’s further challenges to the court’s decision to revoke probation and execute the suspended sentence. The judgment is affirmed.
Background
Sonoma County Conviction and Sentence
On about October 24, 2000, Mrs. Burrows allowed her handyman Douglas Kalane Raposa to spend the night on her kitchen floor. About five days later, she discovered that her son’s guitars, guitar cases and “pre-amp” were missing from the house. Over the next two days, Raposa sold or attempted to sell the items to a music store in Petaluma.
Raposa was charged in Sonoma County with two counts of receiving stolen property (Pen. Code, § 496, subd. (a) ; counts I & II), and one count of residential burglary (§ 459; count III). It was alleged as to all counts that Raposa had two prior strike convictions for first degree burglary (§ 1170.12) and that he had served a prior prison term for one of those convictions (§ 667.5, subd. (b)). As to count III, it was alleged that the prior convictions were serious felony convictions within the meaning of section 667, subdivision (a)(1).
All statutory references are to the Penal Code unless otherwise indicated.
Pursuant to a negotiated plea agreement, Raposa pled guilty to count III and admitted the section 667, subdivision (a) and section 667.5, subdivision (b) allegations. The remaining counts were dismissed. The trial court imposed the upper term of six years for the burglary conviction and imposed two five-year enhancements under section 667, subdivision (a), for a total term of 16 years. The court found unusual circumstances warranting a grant of probation because Raposa had never had the opportunity to complete a residential treatment program. (See § 462.) The court suspended execution of the prison sentence and placed Raposa on five years’ probation on the condition he complete the residential drug treatment program at Delancey Street. Raposa did not appeal his conviction or sentence.
Modification of Sonoma County Probation
Delancey Street quickly determined that Raposa was not suitable for treatment in its program because he suffered from major depression. Raposa underwent a psychological evaluation and was diagnosed with severe drug and alcohol addiction and probable bipolar affective disorder. He had not been treated for bipolar disorder since his teenage years (he was then 36 years old) and the psychologist warned that he might not do well in a substance abuse treatment program unless his mental illness was properly treated. The court modified the terms of probation to require participation in an appropriate treatment program.
Raposa entered Henry Ohlhoff House on July 12, 2001. After completing five months of the six-month program, Raposa was discharged for lying to staff. The program staff nevertheless reported that Raposa had been doing good work and had laid a foundation for his recovery. The court again modified Raposa’s probation to require completion of an outpatient rather than a residential treatment program.
Raposa entered Marin Services for Men in February 2002 and transferred to Center Point in July 2002. He was successfully released from Center Point in November 2002 and he reentered Marin Services for Men.
Marin County Burglaries
In late November 2002, Raposa left Marin Services for Men and relapsed. In January and February 2003, he committed four residential burglaries and a commercial burglary in order to obtain money to buy drugs. After the first burglary, Raposa carried a loaded handgun with him at all times. He intended to use the gun if the police came after him, either to shoot himself or to “shoot it out with the cops” in the hopes that the police would kill him. On February 26, 2003, Raposa attempted suicide. He was hospitalized and then booked in Marin County on burglary charges. The Sonoma County court summarily revoked Raposa’s probation.
In February 2004, Raposa was convicted in Marin County of all five burglary counts. Imposition of sentence was suspended and Raposa was placed on five years’ probation on the condition he serve two consecutive one year jail terms and successfully complete a residential treatment program. The court granted his Romero motion to dismiss his prior strike convictions and found unusual circumstances warranting a grant of probation. The court acknowledged that Raposa’s criminal history was “absolutely atrocious”; nevertheless, it found that the pending charges against Raposa were all nonviolent property crimes; Raposa had suffered severe physical abuse in childhood; he suffered from treatable drug addiction and a treatable mental illness for which he was receiving appropriate medication; dual diagnosis treatment facilities were available for treatment; and Raposa had never been treated for both his addiction and mental illness. The court added that a psychologist who evaluated Raposa opined that it was not surprising Raposa had failed in treatment because he had been misdiagnosed and treated for the wrong conditions. With his current proper diagnosis, the psychologist considered his prognosis to be excellent. The court observed that Raposa had assumed responsibility as a jail facilitator and demonstrated significant progress while in jail; he seemed genuinely remorseful; he was intelligent and artistically talented; and he had positively impacted the lives of others in the jail.
People v. Superior Court ex rel. Romero (1996) 13 Cal.4th 497, 529-530.
With credit for time served, Raposa completed his Marin County jail terms in July 2004 and was transported to Sonoma County. Raposa admitted violating the terms of his Sonoma County probation and the matter was put over for sentencing, which occurred in December after several continuances.
Raposa submitted a statement in mitigation with supporting exhibits: descriptions of a history of childhood abuse, neglect by adoptive parents, suicide attempts and repeated institutionalization; letters by two therapists who testified on his behalf at the Marin County sentencing hearing; transcripts of the therapists’ testimony; a transcript of the Marin County court’s explanation of its reasons for granting probation; and information about bipolar disorder and dual diagnosis treatment. Raposa argued that his failure on probation was inevitable because his mental health problems were never addressed.
In a response to the statement in mitigation, the prosecutor characterized Raposa as a “master manipulator” who “supplies whatever false information that he believes will curry favor with a particular audience. As a result, nothing he says—including his remorse for crimes committed or desire or ability to alter his behavior [—] can be relied on.” The prosecutor cited numerous inconsistencies in Raposa’s accounts of his personal history at various stages of his criminal proceedings. In 1992, he had denied any problems growing up and said he graduated form Mill Valley High School. In 1995, he claimed a different family background and said he left Tamalpais High School in the tenth grade. In 2001, he said he had lived through the Wounded Knee standoff on Pine Ridge Reservation as a child, which caused him post traumatic stress disorder. The prosecutor agreed to Raposa’s initial grant of probation in the Sonoma County case largely because of the alleged Wounded Knee experience. In the 2003 Marin County probation report, Raposa reported recurring childhood abuse by adoptive parents. The prosecutor questioned Raposa’s commitment to recovery, reporting that Raposa had stopped working as a jail facilitator after he was granted probation in Marin County. Both the prosecutor and the probation officer asked the court to execute the suspended 16-year sentence.
Raposa’s statement in mitigation included a therapist’s testimony that the inconsistencies in Raposa’s accounts of his personal history is typical of a person with severe mental illness and drug addiction. For a person suffering from bipolar disorder, “the person’s subjective reality has very little to do with what’s happening in the objective world as you and I are experiencing it.”
At the sentencing hearing, the Sonoma County court said, “I was trying to figure out what was going on in the judge’s mind in Marin County. . . . The circumstances of those offenses in Marin County are absolutely frightening and serious . . . [I]t’s the Court’s opinion that if the Marin County judge and that jurisdiction feels that Mr. Raposa needs to have another opportunity to, so-called, get the treatment that he needs[,] [t]hen my position is that Mr. Raposa utterly failed on his grant of probation out of Sonoma County and that numerous opportunities were provided to him. . . . [I]f Mr. Raposa wishes to get another opportunity out of the Sonoma County commitment then he will have to give something up in exchange for that.” The court reinstated Raposa on probation on the condition he waive 1,047 days of credits for time he had served in jail and in programs. He was ordered to report to Marin Services for Men.
A couple weeks later, Raposa left treatment at the direction of his Marin County probation officer so that he could establish homeless status for the purpose of getting accepted to a dual diagnosis program at Walden House. Sonoma County probation petitioned for summary revocation of probation, alleging he was residing in Santa Rosa and had failed to report the change, and asked the court to order Raposa remanded into custody until bed space became available at Walden House. After receiving information about his current living situation, the court declined to find a probation violation and allowed Raposa to stay there pending placement at Walden House. “It is highly unusual. I don’t think I’ve ever allowed this.” The court warned Raposa that he must complete the Walden House program regardless of any dissatisfaction he might have with the program.
2005 Sonoma County Probation Violations
Raposa entered Walden House on January 31, 2005. He left on a day pass on April 25 and did not return. On May 3, he called his Marin County probation officer to report that he had relapsed on May 2. He then voluntarily reported to a detox center. Marin County probation informed Sonoma County of the development and the Sonoma County court summarily revoked Raposa’s probation and issued a bench warrant for his arrest.
On May 17, 2005, Raposa’s treating psychologist at Walden House, Dr. Eugene Hightower, informed the Marin County probation officer that Raposa had done well in their program and they were willing to have him return once he stabilized on medication. Walden House readmitted Raposa on May 20. He left the program again around May 27. He had taken an overdose of medication and was admitted to the psychiatric ward of a hospital. Raposa contacted Marin County probation and cooperated with his return to custody.
Raposa admitted a violation of probation in Marin County. Probation recommended that no jail sanction be imposed and that Raposa be released to a treatment program if a placement could be found and if the Sonoma County matter was addressed. “It is a fact that Mr. Raposa did relapse, however this officer believes that his relapse was the result of his lack of needed medical maintenance.” The Marin County prosecutor argued for a prison sentence.
At a June 2005 sentencing hearing in Marin County, Dr. Hightower testified it was his opinion, based on an interview with Raposa after his return to Walden House, that Raposa had gone into a total manic state when he left the program. He stayed awake for several days, suffered crying spells, bought 30 bars of soap and 15 notebooks, and planned to write a novel in two days. Dr. Soloman, the chief psychiatrist of Walden House, concluded that the episode was caused by a change in Raposa’s medication due to a misdiagnosis by an outside medical clinic. Walden House sent Raposa to San Francisco General Hospital to change his medications. When Raposa received the new medication at the hospital, he was still quite depressed and he attempted suicide by overdosing. He was admitted to the psychiatric emergency unit. Hightower opined that these incidents “probably would not have happened if the medications had not been changed.”
The Marin County court reinstated Raposa on probation and ordered him to serve 120 days in jail. The transcript of the hearing during which the court presumably explained its reasoning is not in the record. Raposa was transported to Sonoma County in August 2005. On August 30, 2005, Raposa admitted violating the conditions of his probation because he did not successfully complete the Walden House program. The court found Raposa in violation of probation and referred the matter to probation for a sentencing report.
The Sonoma County probation sentencing report quotes Raposa as describing his departures from Walden House in this manner: “ ‘I could feel the mania cycling up and I started to manage my own mood swings. I became really depressed and suicidal. I got loaded as soon as I left treatment, relapsed, then went to detox at the Helen Vine Center. I tried to go back to Walden House, but my medications got screwed up and I became suicidal again so I went to Marin General to their short-term psych ward and was then discharged. I’d like a chance to . . . get back into a dual diagnosis program first at Walden House until I stabilize and then I’d go to Baker Place in San Francisco.” The probation officer reported that Raposa had not made any recent contact with Walden House and was not on their waiting list.
The Sonoma County probation officer recommended execution of the suspended 16-year sentence. “This is the defendant’s fourth failed attempt at treatment on this grant of probation. [¶] Defendant Raposa continues to minimize his conduct/performance on this grant of probation projecting blame for his failure at treatment on a lack of proper mental health support. He easily slips into the role of a victim to a mental health system that has failed him. He takes little responsibility for his actions that may lead to his own decompensation such as self-medication with illicit substances. . . . [¶] Given that the defendant has been on this grant of probation since 2001, has been unsuccessful in four residential treatment programs, has continued to commit serious felonies while on probation, and has continued to self-medicate with illicit substances . . . [i]t is . . . recommended that probation be revoked and that the defendant be sentenced to the California Department of Corrections for the previously suspended 16-year term.”
Raposa filed a statement in mitigation. In personal letters to the court, he denied committing any theft crimes while at large and said he had no memory of using street drugs. He specifically denied telling probation that he got loaded when he left Walden House and criticized the probation officer for distorting his history and ignoring mitigating evidence presented in the Marin County proceedings. He said he checked himself into a detox center because historically the bad manic episodes had been accompanied by severe and continued drug abuse. When Raposa realized he was withdrawing from his psychiatric medications rather than street drugs, he left the detox center and checked himself into the psychiatric unit at Marin General Hospital. In a second letter, he said he was admitted to the psychiatric unit after he picked up new medications at San Francisco General Hospital and immediately consumed them all at once. According to Dr. Hightower, this overdose and hospital admission occurred after he had been readmitted to Walden House in May 2005.
Raposa urged the court to follow the lead of the Marin County probation department and court and reinstate him on probation so he could continue to pursue treatment. “[T]hrough absolutely no fault of his own, at a time when he was doing everything that was being asked of him, and apparently doing it extremely well, something beyond his control came into this situation and destroyed what was a very, very positive situation. . . . [¶] . . . This is not a situation where Mr. Raposa has been lax about the requirements of his probation. This is not a situation where he has stepped out of line in the slightest under the circumstances where he had control of himself. [¶] That’s supported by the testimony of an expert. That’s supported by the report of the probation officer in Marin County.” The prosecutor insisted that Raposa had in fact used illicit drugs during his time out of the program. The prosecutor also questioned the reliability of Dr. Hightower’s testimony, noting that the prosecutor who was present at that Marin County hearing was unfamiliar with the case and thus unable to subject Dr. Hightower to appreciable cross-examination.
On November 18, 2005, the court revoked probation and ordered the suspended sentence executed. The court faulted Raposa for shifting the blame to his probation officer and to the psychiatrist who made the prescription error. Moreover, “It was tenuous at best[] when the Court went along with Marin County on disposition. And at this particular point, I believe that the Court has given Mr. Raposa every possible opportunity, and it is not in the interests of justice to continue him again on probation.”
Discussion
I. Challenges to the Validity of Raposa’s Admission of a Probation Violation
Respondent argues that the appeal should be dismissed because Raposa challenges the validity of his admission of the probation violation without a certificate of probable cause.
Section 1237.5 provides, “No appeal shall be taken by the defendant from . . . a revocation of probation following an admission of violation, except where both of the following are met: (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings[; and] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” (See also Cal. Rules of Court, rule 8.304(a)(1); see former rule 30(a)(1) [adopted effective January 1, 2004].)
All rule references are to the California Rules of Court.
Rule 8.304 provides that a certificate of probable cause is not required if an appeal is based on grounds “that arose after entry of the plea and do not affect the plea’s validity.” (Rule 8.304(b)(4)(B); see former rule 30(b)(4)(B) [adopted effective January 1, 2004].) Case law has not interpreted the rule to encompass an appeal that challenges the validity of an admission of a probation violation after a guilty plea. Rather, the same principles that apply to appeals following entry of a plea also apply to appeals following an admission of a probation violation. “Where a defendant is attacking the validity of that admission, a certificate of probable cause is required under the express terms of section 1237.5. Where, however, he contends . . . that the sentence imposed following the finding that defendant was in violation of probation was illegal” or where the appeal is based on other grounds arising after the admission of the violation and not affecting the validity of the admission, no certificate of probable cause is required. (People v. Billetts (1979) 89 Cal.App.3d 302, 307.)
Here, Raposa raises several challenges to the validity of his admission of the violation. He argues he did not receive written notice of the alleged violation; the prosecutor did not disclose the evidence against him before he admitted the violation; substantial evidence did not support the court’s finding of a violation; the violation was not willful; and Raposa did not knowingly and voluntarily waive his constitutional rights before admitting the violation. None of these arguments is cognizable in this appeal because Raposa did not obtain a certificate of probable cause.
Raposa argues he was misled by the standard Judicial Council notice of appeal form for felony defendants. (See Judicial Council form CR-120 [Rev. July 1, 2005].) Because he completed the form appropriately, he argues, it would offend due process to dismiss his appeal for failure to obtain a certificate of probable cause. Raposa did not complete the form properly. Raposa checked box (c) to indicate he was appealing from a “guilty (or no-contest) plea or an admitted probation violation.” He was then directed to “check all boxes that apply,” referring to three subsidiary boxes (1, 2 and 3) of box (c). (Emphasis added.) Raposa checked box (c)(1) to indicate that his appeal was “based on the sentence or other matters occurring after the plea.” He did not check box (c)(3), which indicates that an appeal challenges “the validity of the plea or admission.” Box (c)(3) included an advisement, “You must complete the Request for Certificate of Probable Cause on the other side of this form.” Thus, if he had acknowledged he was challenging the validity of his admission, he would have been directed to request a certificate of probable cause. Raposa inaccurately states that nothing on the form admonishes a defendant to request a certificate of probable cause if his or her appeal challenges the validity of an admission of a probation violation. He cites a “NOTICE” at the top of the form that warns defendants they must request a certificate of probable cause if they challenge the validity of a plea, but does not explain that the same requirement applies if defendants challenge the validity of an admission of probation. However, he ignores the admonishment that appears in box (c)(3).
Any confusion caused by ambiguities in the Judicial Council form did not rise to the level of a due process violation, particularly in this case. Raposa was represented by counsel and the alleged ambiguities in the form would easily have been clarified by a competent attorney. The notice at the top of the form cites section 1237.5, which expressly requires a certificate of probable cause in appeals challenging admissions of probation violations. Box (c)(3) also expressly sets forth the certificate requirement for appeals that challenge “the validity of the plea or admission,” a reference back to box (c), which indicates the appeal follows a plea or “an admitted probation violation.” Raposa cites no case law to support his novel due process arguments.
Raposa also argues that his due process rights were violated because the superior court clerk failed to notify him of his error. Rule 8.304(b)(3) provides, “If the defendant does not file the statement required by [subdivision] (1) or if the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal ‘Inoperative,’ notify the defendant, and send a copy of the marked notice of appeal to the district appellate project.” (See former rule 30(b)(3).) Raposa was not notified. However, subdivision (b)(1) requires a statement requesting a certificate of probable cause “[e]xcept as provided in (4).” (Rule 8.304(b)(1).) Subdivision (b)(4) provides that a defendant need not comply with subdivision (b)(1) if the notice of appeal states that the appeal is based on “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Rule 8.304(b)(4); see former rule 30(b)(1), (4).) Because Raposa’s notice of appeal stated that his appeal was based on grounds that arose after entry of the plea and did not affect the plea’s validity, subdivision (b)(1) did not apply and subdivision (b)(3) was never triggered. That is, the superior court clerk was not required to notify him the appeal was inoperative.
Raposa’s challenges to the validity of his admission of the probation violation are dismissed due to his failure to obtain a certificate of probable cause.
II. Challenges to Revocation of Probation and Execution of Prison Sentence
Liberally construed, some of Raposa’s claims could be understood as challenges to the trial court’s decision to revoke probation and execute the suspended prison sentence, rather than challenges to the validity of his admission of the violation. A challenge to this sentencing decision, if it does not call into question the validity of the probationer’s admission of a violation, is cognizable on appeal without a certificate of probable cause. (People v. Billetts, supra, 89 Cal.App.3d at p. 307.) Although respondent argues we have the discretion to dismiss the entire appeal because of Raposa’s failure to obtain a certificate of probable cause as to certain of his claims, we will decide the noncertificate issues on the merits to forestall a later claim of ineffective assistance of counsel. (People v. Mendez (1999) 19 Cal.4th 1084, 1099; see People v. Norman (2003) 109 Cal.App.4th 221, 230.)
A. Revocation of Probation
Raposa argues there was insufficient evidence that his violation of probation was willful. He argues revocation of probation for a nonwillful violation offends due process, and he argues (without elaboration or citation to the record or legal authority) that revocation of his probation was an abuse of discretion.
Probation is an act of clemency that may be withdrawn if the privilege is abused. (People v. Smith (1970) 12 Cal.App.3d 621, 626.) A court may revoke probation “if the interests of justice so require” and the court, in its judgment, has reason to believe that the probationer has violated any of the conditions of his or her probation, has committed a criminal offense since being placed on probation, or “has become abandoned to improper associates or a vicious life.” (§ 1203.2, subd. (a).) The facts supporting revocation of probation must be proven by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 439.) Revocation of probation rests entirely in the sound discretion of the trial court. (Smith, at p. 626.)
A probationer has a due process right to present evidence of a justifiable excuse for a probation violation before the court makes a discretionary decision whether to revoke his or her probation. (Black v. Romano (1985) 471 U.S. 606, 612.) If the violation was nonwillful, the court must have discretion to consider alternatives to incarceration as a sanction for the violation. (Id. at p. 614, citing Bearden v. Georgia (1983) 461 U.S. 660, 668-669, 672.) Revocation of probation for a nonwillful violation is not necessarily an abuse of discretion because the purpose of the revocation proceeding is not to assess guilt or culpability, but to determine whether the interests of society are best served by continuing the defendant on probation as a means of rehabilitation. (People v. Breaux (1980) 101 Cal.App.3d 468, 472-474.) In Breaux, the court found that the probationer’s insanity was not a bar to revocation of probation where the court heard and considered evidence of the probationer’s mental illness. (Id. at p. 474.)
Here, the Sonoma County court heard and considered evidence of Raposa’s mental illness and the effect of the medication error. The court could reasonably conclude from that evidence that Raposa’s violations of probation were not completely beyond his control. Dr. Hightower testified that the incidents “probably would not have happened” if the medication error had not occurred; he did not testify that the incidents were beyond Raposa’s control. Raposa is quoted in the Sonoma County sentencing report as describing the gradual onset of his manic state while he was still at Walden House. This description suggests he was not powerless to anticipate and seek help for the oncoming mania without abandoning the treatment program. Indeed, Raposa draws attention to many responsible acts he performed to deal with his mania, including voluntarily reporting to his probation officer and checking himself into a detox center. The court had grounds to be skeptical. Nearly all of the information about Raposa’s conduct came from Raposa himself and he had proven himself to be an unreliable reporter of his personal history. In his letters to the Sonoma County court, Raposa denied using illicit drugs or committing theft crimes while at large, but both of Raposa’s probation officers said Raposa admitted relapsing after he left the program.
The court did not abuse its discretion in revoking Raposa’s probation. Raposa had participated in four treatment programs during the probation period—Henry Ohlhoff, Center Point, Marin Service for Men, and Walden House—and had not achieved stability or recovery. While Raposa may not have found a program exactly suited for his combination of mental illness and drug addiction, the court had no obligation to continue to reinstate him on probation until such a program could be found. The court needed to balance Raposa’s need for treatment against the danger he would pose to the community if he once again relapsed while on probation. Raposa had committed serious armed crimes during his first relapse, when he admitted he had intended to use the gun if police tried to apprehend him. There was evidence he relapsed into illegal drug use in both 2002-2003 and 2005. The court also had reason to question Raposa’s remorse for his crimes and his commitment to turning his life around, in light of his inconsistent statements to the court, his repeated failures in treatment, his abandonment of his jail facilitator role after gaining probation in Marin County, and his failure to pursue a placement in Walden House in late 2005. Raposa’s original crime was a residential burglary for which probation is usually prohibited. (§ 462.) He had a significant criminal history, which had only grown worse during the probationary period. The court acted within its discretion in deciding it was time Raposa served a prison sentence as a punishment for his crimes.
B. Cunningham v. California
In supplemental briefing, Raposa challenges the validity of his 16-year sentence under Cunningham v. California (2007) 127 S.Ct. 856. He argues the trial court violated his Sixth Amendment rights when it executed the suspended 16-year sentence in 2005, because in 2001 the sentence was imposed based on facts found true by the sentencing judge rather than by a jury. Specifically, the sentencing judge imposed the upper term for the burglary conviction based on findings that Raposa’s prior convictions were numerous, he served a prior prison term, and his prior performance on parole and probation had been unsatisfactory. Cunningham does not apply retroactively to a final sentence where execution of sentence was suspended during the probationary period. (See People v. Amons (2005) 125 Cal.App.4th 855, 860.) Raposa’s sentence became final at the expiration of the appeal period following imposition of the sentence in 2001. (Id. at pp. 868-869.) When the trial court revoked Raposa’s probation in 2005, it had no discretion as to the prison sentence Raposa would be ordered to serve. (Id. at p. 869.) The court was required to order execution of the suspended sentence. (Ibid.) Cunningham does not apply retroactively to sentences that had already become final at the time Cunningham or its predecessor, Blakely v. Washington (2004) 542 U.S. 296, was decided. (Ibid.) Raposa’s Cunningham claim is not cognizable in this appeal.
Disposition
The judgment is affirmed.
We concur. JONES, P.J., NEEDHAM, J.