Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC457067
McAdams, J.
Defendant Jagdip Singh appeals from an order revoking probation and committing him to state prison. In May 2005, defendant was convicted by jury of one count of first degree burglary (Pen. Code, §§ 459/460, sub. (a)) and sentenced to four years in prison. The court suspended execution of his sentence and granted defendant three years probation on various terms and conditions, including that he serve one year in county jail and not possess illegal drugs. In February 2008, defendant was arrested for possessing methamphetamine. In September 2008, defendant pleaded no contest to one count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Based on this offense, the probation department petitioned the court to modify the terms of defendant’s probation. In a subsequent hearing, the court denied defendant’s request to reinstate probation and ordered that defendant complete the previously imposed prison sentence.
All further statutory references are to the Penal Code, unless otherwise stated.
On appeal, defendant contends that he was deprived of his Fourteenth Amendment right to due process because he did not receive a hearing on the alleged violation of probation, was not informed of his right to a hearing, and was not advised of the evidence against him or given the opportunity to be heard or present witnesses or evidence. He asserts (1) that the court failed to specifically state that it had found defendant in violation of probation; (2) that the court failed to state the evidence that it relied on or its reasons for revoking probation; and (3) that although defendant pleaded no contest to possession of methamphetamine in another case, nothing in the record indicates that he ever admitted a probation violation in this case. Defendant also argues that if the issues have been forfeited, then his counsel was ineffective for failing to object to the prison commitment.
We conclude that the trial court erred in failing to make a finding that defendant had violated his probation, but that the error was harmless.
Factual and Procedural History
Criminal History Prior to Burglary
At the time of the underlying burglary offense, defendant had already received two grants of probation for prior misdemeanor offenses, which occurred in May 2002 and July 2003.
In May 2002, defendant was arrested for driving under the influence. He was subsequently convicted of misdemeanor reckless driving (Veh. Code, § 23103, subd. (a)) in case no. CC251963. Imposition of sentence was suspended and he was granted two years court probation.
All case number references beginning with “CC” are to criminal cases before the Santa Clara County Superior Court.
In July 2003, defendant was stopped for a taillight violation and arrested for driving on a suspended license. In March 2004, shortly after his arrest for the instant burglary, defendant was convicted by plea of misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a)) in case no. CC322511. Imposition of sentence was suspended and defendant was granted 18 months probation.
Underlying Burglary Offense (Case No. CC457067)
Around December 25, 2003, Maria Fernandez and Jose Rodriguez, a married couple, (hereafter Victims) rented a room in their home to defendant. On January 1, 2004, Fernandez and Rodriguez went on a trip to Los Angeles; defendant stayed in their home. Before leaving, Victims locked their bedroom door. When they returned, they noticed that the door handle had been tampered with. Several days later, Victims began receiving telephone calls from their bank advising them of activity on their credit cards. They subsequently discovered that four credit cards and a checkbook were missing from a dresser drawer in their bedroom.
When Victims confronted defendant, he denied entering their room. When they asked him to move out, defendant left abruptly. When Victims went inside defendant’s bedroom to remove his things, they found Fernandez’s checkbook inside a plastic bag and a bag of receipts. They also found one of Fernandez’s checks, her Social Security card, and a Social Security card belonging to Rosa Pena under the mattress. The bank told Victims that someone had used their credit cards at restaurants and the Vagabond Motel in San Jose. A clerk at the Vagabond Motel identified defendant from a photo line-up as the person who used one of Victims’ credit cards to rent a room.
At one point, the record identifies Pena as Rodriguez’s sister; at another point, it identifies her as Fernandez’s sister and a joint holder of one of the credit cards.
Defendant was charged with one count of first degree burglary in case no. CC457067 (hereafter Burglary Case). Defendant denied the burglary charge and argued that Victims had falsely accused him.
2005 Theft and Drug Offenses (Case No. CC582386)
On February 17, 2005, while out of custody, awaiting trial in the Burglary Case, defendant went to a Macy’s store with two women and stole a make-up compact valued at $19.50. Store security personnel saw defendant conceal the compact in his pants pocket and detained him. In the search incident to his arrest, the police determined that defendant was under the influence of methamphetamine. They found a pipe, 1.25 grams of methamphetamine, and a set of wire cutters. Defendant told his probation officer this was the first time he smoked methamphetamine.
Defendant was charged with petty theft (§ 666), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possession of paraphernalia (Health & Saf. Code, § 11364), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) in case no. CC582386 (hereafter Theft/Drug Case) The information also alleged an “out-on-bail” enhancement (§ 12022.1, subd. (b)).
Disposition and Sentencing in Underlying Burglary Case (Case No. CC457067)
On May 3, 2005, a jury found defendant guilty of first degree burglary in the Burglary Case.
On June 6, 2005, the court sentenced defendant in the Burglary Case to the midterm of four years in state prison, with execution of the sentence suspended. The court granted three years probation, subject to various terms and conditions, including that defendant serve 12 months in county jail, complete a drug treatment program, and not possess illegal drugs. The court found that this was an “unusual case” for the purpose of section 462, subdivision (a), “where the interests [of justice] would best be served by an additional grant of probation.” At the hearing, the court asked defendant, “[D]o you understand what will happen to you if you violate your probation?” Defendant responded, “Yes. [¶]... [¶] That I’ll have to be in prison for four years.” The court ordered that jurisdiction remain with Judge Lee, who had presided over the trial and sentencing.
Section 462, subdivision (a) provides in relevant part: “Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house or... the inhabited portion of any other building.”
Disposition and Sentencing in Theft/Drug Case (Case No. CC582386)
In the same proceeding on June 6, 2005, defendant pleaded no contest to the charges and admitted the enhancement allegation in the Theft/Drug Case pursuant to a plea agreement in which it was agreed that defendant would serve no time in state prison. The court continued the Theft/Drug Case for sentencing.
On July 5, 2005, the court suspended sentence and granted defendant three years probation in the Theft/Drug Case on the condition that he serve nine months in county jail, concurrent to his sentence in the Burglary Case.
2008 Drug Offense (Case No. CC895543)
On February 10, 2008, approximately five months before his probation was due to expire, defendant was arrested for possession of methamphetamine. He was charged with possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in case no. CC895543 (hereafter Second Drug Case).
Violation of Probation Based on Second Drug Case
On May 20, 2008, defendant’s probation officer sent him a letter that stated in part: “You are presently in violation of your Probation Order for the following reasons: [¶] -Failure to make payment on your financial obligation. [¶] -Arrest and/or conviction on a new charge. [¶] A violation of Probation Hearing has therefore been scheduled for Thursday, May 29, 2008 at 8:30 AM in the Court, 24, Superior. [¶] Your presence at this hearing is mandatory. Failure to appear will result in your probation being revoked....”
The probation department prepared a Petition for Modification of Terms of Probation in the Burglary Case and in the Theft/Drug Case and had the matter placed on calendar for May 29, 2008, “to revoke probation to retain jurisdiction” since defendant’s probation was scheduled to expire on June 6, 2008, in the Burglary Case and on July 5, 2008, in the Theft/Drug Case.
Defendant appeared for the “arraignment [on his] violation of probation” before Judge Barnum on May 29, 2008, and was represented by counsel. Defense counsel stated, “The circumstances of violation is a new case that’s on tomorrow morning in Department 63” and asked that “probation be revoked on this case at this time so he can try to resolve this matter in Department 63.” The prosecution concurred in the request. The court revoked defendant’s probation, denied his request to remain out of custody, and continued the matter to July 11, 2008, for a hearing before Judge Lee.
On July 11, 2008, Judge Lee ordered that probation remain revoked and continued the case for further hearing on the petition to modify probation. The matter was continued again on September 8, 2008, and September 22, 2008. We do not have reporter’s transcripts for these three hearings.
On September 24, 2008, the court conducted a “Change of Plea” hearing in the Second Drug Case before Judge Del Pozzo. The court noted that the two other cases were still pending before Judge Lee and stated “We don’t have to do anything [with] those cases.” Defendant pleaded “no contest” to possession of methamphetamine in the Second Drug Case. Before taking the plea, the court told defendant, “[Y]ou could end up in State prison on the other case as well, the case that Judge Lee... suspended the sentence on, that’s very likely.” The court also explained, “[I]f you are currently on probation for some other offense, a plea of guilty or no contest may result in that probation being revoked and you going to prison. In fact, that’s what might very well happen in the other case. Do you understand that?” Defendant responded, “Yes, sir.”
The court conducted additional hearings on the probation violation on October 6, 2008, and November 3, 2008. We do not have reporter’s transcripts for either hearing.
On November 3, 2008, defendant filed a “Brief on Court’s Discretion to Reinstate Probation” in the Burglary Case. In that brief, defendant advised the court that he had “changed his plea” in the Second Drug Case, reminded the court that it had the discretion to reinstate probation, and asked the court to “exercise its discretion to reinstate probation with modified terms to include a further jail sentence.” Defendant also asked the court to “continue sentencing on the violation of probation until December 5, 2008,” the day of his Romero hearing in the Second Drug Case. The court granted defendant’s request to continue the hearing on the probation violation.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On December 2, 2008, the prosecution filed a “Sentencing Memorandum” regarding defendant’s violation of his probation in the Burglary Case and the Theft/Drug Case. The memorandum advised the court that defendant had “pleaded guilty” to possession of a controlled substance in the Second Drug Case and that the probation grants in the Burglary Case and the Theft/Drug Case had “been revoked for the new crime violation and failure to pay fines, fees and/or restitution.” The prosecution asked the court to deny defendant’s request to reinstate probation and to sentence defendant to five years eight months in prison (four years for the Burglary case plus additional time for the Theft/Drug Case).
At a hearing on December 5, 2008, the parties discussed sentencing on the violation of probation. Defense counsel asked the court to reinstate probation, arguing that defendant was addicted to drugs and had had a relapse. Defense counsel argued that during the majority of the time defendant was on probation, he maintained regular employment, took a management course, helped his family financially, and had several years of negative drug tests, and that after he returned to jail in 2008, defendant was enrolled in the “RCP” (Regimented Corrections Program) and got “glowing reviews.” He received awards for helping others in jail and was a “house trustee” through RCP. Defense counsel told the court that if defendant is granted probation, he will be accepted into a residential drug treatment program. Defendant’s parents told the court that they would “protect him, make sure he doesn’t do anything wrong” and asked the court to give him one more chance. They told the court that they would “bring him back into custody in front of [the court]” themselves if defendant did anything wrong.
The RCP is a voluntary, military-style boot camp experience in jail. ( [p. 4, as of Sept. 29, 2009].)
The court reminded defendant of what it had said when he was sentenced in 2005. The court ordered that probation remain revoked in the Burglary Case and ordered execution of the previously suspended four-year sentence with credit for time served. The court reinstated and terminated probation in the Theft/Drug Case with “no further penalties.”
Discussion
Contentions on Appeal
Defendant contends that he was deprived of his Fourteenth Amendment right to due process because he did not receive a hearing on the alleged violation of probation, he was not informed of his right to a hearing, and he was not advised of the evidence against him or given the opportunity to be heard or present witnesses or documentary evidence. Defendant argues that he was deprived of due process because (1) although he pleaded no contest to possession of methamphetamine in another case, nothing in the record indicates that he ever admitted the alleged probation violation in this case; (2) the court failed to specifically state that it had found a violation of probation; (3) the court failed to state the evidence that it relied on or its reasons for revoking probation. Defendant also argues that if the issues have been forfeited, then his counsel was ineffective for failing to object to the prison commitment.
The Attorney General argues that defendant’s claims should be rejected because he fails to support them with any citation to the reporter’s transcript. Defendant responds that it is impossible to cite to the record of a proceeding that never occurred. The Attorney General also argues that defendant’s claims fail on the merits because defendant’s “two probation revocation hearings provided him with the full panoply of rights accorded to probationers before their probation is revoked.”
Principles Governing Revocation Hearings
Section 1203.2, subdivision (a) allows for revocation of probation “if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation....”
“The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation.” (Black v. Romano (1985) 471 U.S. 606, 610.) “[T]he final revocation of probation must be preceded by a hearing,... The probationer is entitled to written notice of the claimed violations of his probation; disclosure of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; a neutral hearing body; and a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation. [Citation.] The probationer is also entitled to cross-examine adverse witnesses, unless the hearing body specifically finds good cause for not allowing confrontation. Finally, the probationer has a right to the assistance of counsel in some circumstances.” (Id. at pp. 611-612, citing Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey) [sets forth minimal procedural requirements for parole revocation hearings] and Gagnon v. Scarpelli (1973) 411 U.S. 778 [applies Morrissey’s procedures to probation revocation]; see also People v.Rodriguez (1990) 51 Cal.3d 437, 441 (Rodriguez).) The defendant has a right to counsel at “formal proceedings for the revocation of probation.” (People v.Vickers (1972) 8 Cal.3d 451, 461-462 (Vickers).)
The standard of proof that the prosecution must meet in a probation revocation hearing is less than in a criminal trial. “[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.” (Rodriguez, supra, 51 Cal.3d at p. 439.) “However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation.” (People v. Galvan (2007) 155 Cal.App.4th 978, 982, citing People v. Zaring (1992) 8 Cal.App.4th 362, 378-379 [trial court abused its discretion by revoking probation for a tardy court appearance caused by circumstances beyond probationer’s control].) A reporter’s transcript of the hearing containing the court’s oral statements of the evidence and reasons relied on may serve as a substitute for a written statement. (People v.Moss (1989) 213 Cal.App.3d 532, 534.)
“[A] grant of probation is not a matter of right but an act of clemency, and a decision to revoke probation when the defendant fails to comply with its terms rests within the broad discretion of the trial court.” (People v. Covington (2000) 82 Cal.App.4th 1263, 1267; In re Coughlin (1976) 16 Cal.3d 52, 56 [“the determination whether to grant or revoke probation is largely discretionary”].) Generally, we review the trial court’s order revoking probation for an abuse of discretion. (People v. Giminez (1975) 14 Cal.3d 68, 72.) However, we independently review defendant’s constitutional claim that he was deprived of his due process right to a hearing on the probation violation. (People v. Leyba (1981) 29 Cal.3d 591, 596-597 [standard of review for constitutional challenge in search and seizure case is de novo], superseded by statute on other grounds as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224.)
“A probation revocation hearing assesses whether conditions relating to punishment for a prior crime have been violated so that probation should be modified or revoked;... [Citation.] If the People prevail at the hearing, the result is not a new felony conviction (as it would be were they to prevail at trial [of defendant’s new drug offense]). Rather, if they prevail, the court’s discretion is limited to modifying a previously imposed sentence or imposing a new sentence for an earlier conviction. [Citations.] A revocation hearing arises as a continuing consequence of the probationer’s original conviction; any sanction imposed at the hearing follows from that crime, not from the substance of new criminal allegations against the probationer.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 347-348.) “The fundamental role and responsibility of the hearing judge in a revocation proceeding is not to determine whether the probationer is guilty or innocent of a crime, but whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain his conditional liberty.” (Id. at p. 348.)
In most, but not all, cases, probation revocation involves a two-step process. The first step is “a judicial determination of probable cause[, which] precedes the arrest of the probationer for violations of the conditions of his probation....” (People v.Coleman (1975) 13 Cal.3d 867, 894 (Coleman).) The Coleman court referred to this initial step as a “ ‘prerevocation’... or ‘probable cause’ hearing.” (Ibid.) It also used the terms “preliminary... revocation hearing” and “preliminary ‘prerevocation’ hearing.” (Id. at p. 895.) We shall use the term “preliminary revocation hearing.” The second step is a “formal revocation hearing with its full panoply of Morrissey procedural rights,” which “occurs relatively soon after the probationer has been deprived of his conditional liberty.” But “a unitary hearing will suffice in probation revocation cases to serve the purposes of the separate preliminary and formal revocation hearings outlined in Morrissey.” (Id. at p. 895.)
Analysis
Notice of Hearing
Turning to defendant’s contentions, the record reflects that he was informed of his right to a hearing. He received written notice of the preliminary revocation hearing from the probation department. The notice advised him that he was in violation of his probation because of the arrest on a new charge. Defendant appeared at the preliminary revocation hearing on May 29, 2008, and each of the subsequent revocation hearings. Each time, he was represented by counsel. Thus, there is no merit to defendant’s contention that he was not informed of his right to a hearing.
Summary Revocation
The record also reflects that defendant received two hearings on the alleged violation of probation, both a preliminary revocation hearing and a formal revocation hearing. Defendant’s probation in the Burglary Case was scheduled to expire on June 6, 2008. The court summarily revoked defendant’s probation to preserve its jurisdiction at the preliminary revocation hearing before Judge Barnum on May 29, 2008, and conducted a formal, dispositive revocation hearing before Judge Lee on December 5, 2008, at which time it revoked probation. Defendant does not challenge the court’s ruling at the preliminary revocation hearing. Moreover, summary revocation, which tolls the probationary period and by which the court obtains jurisdiction over and physical custody of the defendant, comports with due process. (Vickers, supra, 8 Cal.3d at pp. 458-461; People v. Youngs (1972) 23 Cal.App.3d 180, 184, disapproved of on other grounds in Vickers, at p. 453, fn. 2.)
Formal Hearing on Violation of Probation
But “after a summary revocation of probation and before sentencing a hearing is required at which the defendant is entitled to be represented by counsel, to be advised of the alleged violation and given an opportunity to deny or explain it, and if necessary present witness on his [or her] own behalf.” (Vickers, supra, 8 Cal.3d at pp. 459-460.) Thus, after defendant’s probation was summarily revoked at the preliminary revocation hearing, there were still two issues before the court: (1) whether defendant had violated the terms of his probation and, if so, (2) the appropriate penalty for the violation.
In Coleman, the California Supreme Court stated: “Trial courts should bear in mind that even 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.... [¶] It is true that a conviction conclusively establishes the fact of a certain course of conduct by the person convicted. [Citation.] All that need be demonstrated to establish that a violation of probation has occurred is the fact of a new, post-probation conviction, the fact that such conviction or the conduct necessarily involved therein violated a condition of probation, and the further fact that such conviction was suffered by the particular probationer in question. [Citation.] It does not follow, however, that these facts will necessarily be undisputed by a probationer alleged to have been convicted of a new offense. [Citation.] Moreover, when a court passes on the ultimate issue of whether probation is to be revoked, the court must decide more than merely whether, in light of an alleged conviction for a new offense, a violation of probation has occurred. If such be the case, the court must go on to decide whether under all the circumstances this violation of probation warrants revocation. [Citation.] A probationer has a right to be heard and to present evidence on this issue as well as on the threshold issue of whether his probation has in fact been violated, and a probationer thus has a right to a formal revocation hearing notwithstanding his prior conviction of a new offense. The fact of the new conviction does not ipso facto render ‘the attending circumstances... factually undisputed’ or leave as ‘the only matter in issue... the legal consequences of an undisputed course of conduct’ such that the court may ‘without hearing any witness, rule on the matter’ of the revocation of probation. [Citation.] Thus, ‘summary resolution of the issue of revocation’ [citation] is not appropriate following a probationer’s conviction of a new offense unless the probationer waives his right to a formal revocation hearing.” (Coleman, supra, 13 Cal.3d at p. 895, fn. 22.)
In this case, defendant had a formal revocation hearing. Although the formal revocation hearing addressed the penalty issue, nothing in the record indicates that the court ever adjudicated the question whether defendant had violated the terms of his probation. As defendant notes, although he pleaded no contest to possession of methamphetamine in the Second Drug case, nothing in the record indicates that defendant ever admitted the alleged probation violation or that the court made a finding that defendant had violated his probation in the Burglary Case or the Theft/Drug Case.
The Attorney General argues that defendant’s claim should be rejected because he fails to support the claim with any citation to the record, in particular the reporter’s transcript. Defendant responds that it is impossible to cite to the record of a proceeding that did not occur. We have combed the record on appeal and do not find any record that defendant admitted a violation of probation or that the court made such a finding. As noted in our statement of facts, there were several hearings on the alleged violation of probation for which we do not have a reporter’s transcript, which raises the possibility that the record is incomplete. But we do have the minute orders for those hearings. The form minute order for Santa Clara County contains a section under the heading “VOP” (which we conclude means “Violation of Probation”) for the clerk to use to indicate whether the defendant “Admits/Denies Viol[ation]” and whether the “Court Finds VOP/No VOP.” None of the minute orders indicate that defendant ever admitted a violation of probation or that the court made such a finding. For these reasons, we reject the Attorney General’s contention that defendant has failed to support his claim with proper references to the record.
On this record, we conclude that the trial court erred when it failed to make finding that defendant had violated his probation by committing a new drug offense.
Prejudice
We turn next to the question whether that error was prejudicial. Neither party addresses the question of prejudice or which prejudice standard applies. When the error is one of state law, the judgment will be affirmed unless the appellate court concludes there is a reasonable probability that a result more favorable to the defendant would have been reached in the absence of the error. (Peoplev.Watson (1956) 46 Cal.2d 818, 836.) An error of constitutional dimension requires reversal unless the appellate court concludes beyond a reasonable doubt that the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24.)
As noted previously, to establish a violation of probation based on a new conviction, all the prosecution need show is: (1) “a new, post-probation conviction,” (2) “that such conviction or the conduct necessarily involved therein violated a condition of probation,” and (3) “that such conviction was suffered by the particular probationer in question.” (Coleman, supra, 13 Cal.3d at p. 895, fn. 22.) The probationer cannot relitigate the factual issues resolved in the earlier criminal proceedings, whether that conviction was the result of a trial or a guilty plea. (Morrissey, supra, 408 U.S. at p. 490; People v.Sturgeon (1975) 53 Cal.App.3d 711, 713.) But the probationer may present evidence that (1) he or she is not the person who was convicted, (2) the offense of which the probationer was convicted was other than the one specified as a probation violation, or (3) the petition to revoke probation or the probation officer’s report is inaccurate. (In re Edge (1973) 33 Cal.App.3d 149, 157.) In addition, the probationer has a due process right to explain mitigating circumstances and to argue that the violation does not warrant revocation. (Morrissey, at p. 488; Coleman, at p. 873.)
In the proceedings below, there was no dispute that defendant had suffered a post-probation criminal conviction, that the conviction violated the conditions of his probation, and that defendant was the person convicted. Although the record does not contain an express admission of a probation violation, defendant acknowledged that he had been convicted of a post-probation offense that resulted in a violation of his probation. In his written submission to the trial court on the probation violation, defendant advised the court that he had “changed his plea” in the Second Drug Case. At the formal probation revocation hearing, defense counsel argued that “a relapse is... what happened in... these circumstances of violation.” In addition, defendant did not challenge the factual assertions in the prosecution’s sentencing memorandum, which advised the court that defendant had been convicted of possession of a controlled substance in the Second Drug Case.
On appeal, defendant does not deny that he suffered a post-probation conviction or that the conduct at issue violated the terms of his probation. Defendant does not contend that he was not the person convicted, that the offense for which he was convicted is not the one that was specified as a probation violation, or that the petition to modify the terms of his probation was inaccurate. His complaint is simply that the court did not make a formal finding of a violation of probation.
The focus of the proceedings below was the penalty issue. The record indicates that defendant took full advantage of his due process right to explain mitigating circumstances and to argue that the probation violation did not warrant revocation. Defendant was represented by counsel at all stages of the revocation proceeding. Defense counsel filed a brief reminding the court that it had the discretion to reinstate probation and urging the court to reinstate probation with an additional jail term. At the formal revocation hearing, defense counsel argued vigorously against the revocation of probation, highlighting defendant’s success during the first two and one half years of his probationary period, as well as his exemplary conduct in jail. Defendant or his counsel arranged for defendant to be admitted into a drug treatment program and for defendant’s parents to appear at the hearing and testify on his behalf. Contrary to defendant’s assertion, the trial court stated its reasons for revoking probation on the record, indicating that defendant had had sufficient opportunity to succeed on probation.
For all these reasons, we hold that any error in failing to make a finding that defendant had violated his probation was harmless under any standard. In light of our conclusion, we do not reach defendant’s assertion that his counsel was ineffective.
Disposition
The judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., Duffy, J.