Opinion
2d Crim. No. B298863
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY WAYNE SCHRICHTEN, Defendant and Appellant.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Ryan M. Smith, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2014038176)
(Ventura County)
Timothy Wayne Schrichten appeals the trial court's order revoking his probation and sentencing him to two years and eight months in county jail for his underlying convictions on three counts of unlawfully driving or taking a vehicle (Veh. Code, § 10851). Appellant contends the court violated his due process rights by failing to hold a full revocation hearing. We affirm.
FACTS AND PROCEDURAL HISTORY
In 2012, appellant and two codefendants participated in a scheme of burglarizing, stealing, and reselling vehicles. In 2017, appellant pleaded guilty to three counts of unlawfully driving or taking a vehicle (counts 3, 7, and 9). In exchange for his plea, 12 additional counts were dismissed. The trial court suspended imposition of sentence and placed appellant on three years of formal probation with terms and conditions including that he serve 240 days in county jail.
In June 2018, appellant was charged with violating his probation by bringing drugs into the jail, failing to report, and failing to complete drug tests. Appellant was found in violation of probation, probation was revoked and reinstated, and he was ordered to serve 45 days in county jail. In August 2018, appellant was charged with violating his probation by, among other things, failing to report, using drugs and drinking alcohol, and failing to take drug tests. After appellant admitted the violations, probation was revoked and reinstated and he was ordered to serve an additional 60 days in county jail.
In February 2019, appellant was charged with violating his probation by testing positive for methamphetamine, failing to report to probation, failing to report for drug testing, and failing to make restitution payments. In an April 2019 amended notice of charged violations, the probation officer stated: "This is the . . . third violation proceeding before the Court. [Appellant] has been out of custody for approximately six months and has unfortunately reverted back to his old behaviors. He was warned multiple times that his current behavior would result in him being returned back to Court; however, he continues to provide excuses for missing his scheduled office appointments and [random drug testing] dates. Additionally, [appellant] tested positive for controlled substances and claims that his current medications are showing a false positive for methamphetamine, despite his history of using methamphetamine in the past. This officer also finds it convenient that [appellant] reports he was discharged from the hospital the day he had Court; however, he continues to provide excuses as to why he is unable to report to Probation and the RRC [Reporting and Resource Center]."
The probation officer continued: "[Appellant's] continued hostility has made it difficult to address his apparent drug addiction. He even went so far as to tell this officer to 'kiss his mother fucking ass' as this officer attempted to discuss his violations with him over the phone on 3-20-19. During his last appointment with this officer on 3-22-19, [appellant] displayed a hostile attitude and was unable to provide a urine sample. This officer attempted to work with [appellant] by allowing him to perform a swab test. During this time, he reported that he wanted to stick the end of the drug testing swab up this officer's 'ass.' Despite [appellant's] continued resistance, Probation has attempted to accommodate [his] apparent medical issues; however, he continues to be resistive towards Probation's directives. Unfortunately, due to [appellant's] constant resistance towards [the] Court ordered terms and conditions of Probation and treatment at the RRC, it appears Probation has exhausted all of its resources available for [appellant]. With the aforementioned in mind, it is respectfully recommended that [appellant] be ordered [sic] felony jail."
At the conclusion of the June 5, 2019 revocation hearing, appellant's attorney argued that appellant should not be found in violation of probation or, alternatively, that probation should be revoked and reinstated. After finding that appellant had violated probation by failing to report, failing to submit to drug testing, and failing to participate in counseling and the adult program at the RRC, the court invited additional arguments on sentencing. Defense counsel urged the court to reinstate probation, and the prosecution argued that the court should follow the probation department's recommendation by terminating probation as unsuccessful and sentencing appellant to county jail.
The court ruled: "With regards to the sentence, [appellant's] request for another opportunity on probation is denied. I looked at his previous violations [of probation], and I've read the current one, which I found him in violation of. [Appellant] appears to engage in a consistent pattern of just not complying with the terms of probation, and I have no confidence that if he were to have another opportunity, that he would comply. So his request for an additional opportunity on probation is denied. Probation is revoked and terminated unsuccessfully." The court sentenced appellant to two years and eight months in county jail, consisting of the low term of sixteen months on count 3, plus consecutive eight-month terms (one-third the midterm) on counts 7 and 9.
DISCUSSION
For the first time on appeal, appellant contends the trial court violated his due process rights by "fail[ing] to provide appellant the full revocation hearing required by the constitution." Specifically, he claims that "[n]either counsel discussed the merits of rejecting revocation" and that "[t]here was no serious consideration by the court as to the relevant factors and the court referred to only one reason to revoke - appellant's probation violations."
As the People correctly point out, appellant made no objection at the sentencing hearing. Although defense counsel argued that appellant should be reinstated on probation, counsel never objected on the ground that the court failed to adequately state its reasons for refusing to reinstate probation or imposing a county jail term. Appellant's claim is thus forfeited. (People v. Scott (1994) 9 Cal.4th 331, 353-357.) Appellant effectively concedes the point by failing to address the People's forfeiture argument in his reply brief. (See Campbell v. Ingram (1918) 37 Cal.App. 728, 732 ["Since appellant has not deigned to reply to the argument of respondent, we have a right to assume that the former deems the argument of the latter unanswerable"].)
In any event, the claim lacks merit. People v. Hawthorne (1991) 226 Cal.App.3d 789 (Hawthorne), upon which appellant relies, is plainly inapposite. In that case, the court recognized that "a violation of the terms of probation does not automatically trigger both revocation of probation and imprisonment. It may well be in most cases that a trial court's decision on both scores is motivated by the defendant's poor performance on probation. But the record must clearly reflect the trial court understands that two separate and distinct decisions are involved: (1) to revoke; and (2) to sentence to state prison rather than to place on probation on new or modified conditions. [Citation.] A record like this one wherein the court's statement focuses directly and exclusively upon the decision to revoke, does not satisfy the court's obligation to give a statement of reasons for choosing state prison over probation." (Id. at p. 795, italics added.)
Here, unlike as in Hawthorne, the trial court did not focus exclusively upon the decision to revoke probation in deciding to terminate probation as unsuccessful and sentence appellant to county jail. Instead, the court made clear that its decision was based upon appellant's repeated violations of probation. Appellant's prior performance on probation and his willingness (or lack thereof) to comply with the terms of his probation were two of the primary factors for the court to consider in making its decision. (Cal. Rules of Court, rule 4.414(b)(2) & (3).) In any event, appellant makes no arguments on the issue of prejudice, even after the People raised the issue in their respondent's brief. We construe this omission as a concession that no prejudice can be established, i.e., that the result of the proceedings would have been different absent the alleged error of which appellant complains. (See People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18 .)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P. J.
YEGAN, J.
Gilbert A. Romero, Judge
Superior Court County of Ventura
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.