Opinion
G031150.
7-29-2003
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL CARDENAS VASQUEZ, Defendant and Appellant.
Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court sentenced defendant Miguel Cardenas Vasquez to state prison after revoking his probation. Defendant appeals from the revocation order, challenging the sufficiency of the evidence to support the courts finding he violated the terms of his probation. Contrary to his claim, since the trial court suspended the imposition of sentence when it initially placed defendant on probation, the subsequent revocation order did not constitute an appealable order made after judgment under Penal Code section 1237, subdivision (b). (People v. Delles (1968) 69 Cal.2d 906, 908-909, 73 Cal. Rptr. 389, 447 P.2d 629; People v. Robinson (1954) 43 Cal.2d 143, 145, 271 P.2d 872.) Nonetheless, we liberally construe the notice of appeal to apply to the subsequently entered judgment. (Cal. Rules of Court, rule 31(b); People v. Delles, supra, 69 Cal.2d at p. 909; People v. Robinson, supra, 43 Cal.2d at pp. 145-146.) On the merits, because the Attorney General concedes the evidence fails to support the trial courts probation violation finding, we reverse the judgment and remand the matter for a new hearing on the alleged violation of probation.
FACTS
In September 1998, defendant pleaded guilty to conspiracy to commit a robbery. The trial court suspended imposition of sentence and placed defendant on three years probation, the conditions of which included serving 180 days in county jail and reporting to his probation officer within 72 hours after his release from custody. Upon his release, defendant lived at several local residences. His probation was summarily revoked in February 1999 and a warrant issued for his arrest solely on the basis that he failed to timely report to his probation officer. In November 1999, defendant moved to Mexico and did not return to the United States until early 2001.
The police arrested defendant in June 2001 and charged him with three new offenses based on an incident that occurred in August 1999. A jury trial on the new charges began in June 2002, and defendant agreed the court could consider the evidence presented during trial in determining the probation violation allegation. The court eventually dismissed one of the new charges for insufficiency of the evidence and declared a mistrial on the remaining counts when the jury failed to reach a verdict.
Thereafter, the court considered the probation violation petition. In part, the prosecutor argued the evidence established defendant had transgressed the condition that he not violate any other laws. The trial judge refused to consider this claim, noting the petition only alleged a failure to timely report to the probation officer, and consideration of an uncharged ground would constitute "a due process violation." Nonetheless, the court found defendant violated his probation by "failing to report . . . as directed" and subsequently sentenced him to five years in state prison.
DISCUSSION
Defendant contends "at no time during his testimony at trial [on the new charges] did [he] admit that he . . . failed to report to probation," and the prosecution never presented "evidence . . . about . . . his failure to report to the probation officer." The Attorney General concedes defendants claim "is correct" and that the judgment must be reversed. We find nothing in the record to contradict the parties assertions. As the Attorney General suggests, the trial court probably relied on defense counsels statement during argument on the probation violation petition that "defendant has admitted the failure to report" as the basis for its decision.
The Attorney General asks us to remand the case for a new probation violation hearing. Since this proceeding will not constitute a criminal trial on a new offense that could result in a conviction authorizing the imposition of punishment, the reversal of a probation revocation order based on insufficiency of the evidence to support a finding the defendant violated probation is not precluded by the constitutional guarantee against double jeopardy. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 343, fn. 5, 272 Cal. Rptr. 767, 795 P.2d 1223; In re Coughlin (1976) 16 Cal.3d 52, 60-61, 127 Cal. Rptr. 337, 545 P.2d 249.)
However, the reversal is limited to granting defendant a new hearing on the probation violation petition. The prior order placing him on probation constituted an appealable order. (Pen. Code, § 1237, subd. (a).) Since no appeal was taken at that time, defendant is now estopped from claiming error with respect to matters occurring before the court granted probation. (People v. Vest (1974) 43 Cal. App. 3d 728, 731, 118 Cal. Rptr. 84; People v. Howard (1965) 239 Cal. App. 2d 75, 76-77, 48 Cal. Rptr. 443.)
DISPOSITION
The judgment is reversed and the matter remanded matter to the superior court for a new hearing on the petition to revoke probation.
WE CONCUR: SILLS, P. J., IKOLA, J.