Opinion
F072840
05-24-2017
THE PEOPLE, Plaintiff and Respondent, v. NASEER HAMID ZAHIR, Defendant and Appellant.
C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F14911044)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Appellant Nasser Hamid Zahir appeals from the order revoking and terminating his probation. The trial court executed appellant's suspended four-year prison sentence for carrying a concealed dirk or dagger (Pen. Code, § 21310), which included two enhancements for serving prior prison terms (§ 667.5, subd. (b)). On appeal, appellant contends: (1) he was denied his due process right to adequate notice to prepare a proper defense when the court found him in violation of probation on a ground not included in the probation department's report; and (2) there was insufficient evidence to support the court's finding he violated his probation. We affirm.
Further statutory references are to the Penal Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL BACKGROUND
On April 24, 2015, appellant pled no contest to the aforementioned offense and admitted the prison priors, as well as a prior strike conviction, which the trial court indicated it would strike under section 1385. The court further indicated it would place appellant on probation with release to an inpatient drug treatment program.
On May 22, 2015, the trial court suspended execution of sentence and placed appellant on felony probation for three years under certain terms and conditions, including that he complete the "Fresno Rescue Mission inpatient drug treatment program" (FRM inpatient program) and to inform the probation department immediately if he left the program for any reason.
On August 5, 2015, appellant admitted his first violation of probation for failing to complete the FRM inpatient program. The court placed appellant on probation with the same terms and conditions as before, and ordered him released back to the FRM inpatient program.
On October 2, 2015, the probation department filed a report alleging appellant committed a second violation of probation by (1) failing to complete the FRM inpatient program due to his termination from the program on September 18, 2015, for leaving without permission; and (2) failing to report to the probation department within two days of leaving the program.
Attached to the probation department's October 2, 2015, report was a copy of the termination letter signed by Frank Vasquez, the FRM inpatient program's assessment coordinator. The letter included the following details concerning appellant's termination from the program: "On September 18, 2015, [appellant] walked away from the program and then attempted to return. Our rules stipulate that if any individual is to leave Fresno Rescue Mission property without expressed permission from staff they are to be terminated."
At the probation revocation hearing on December 1, 2015, the trial court granted the People's request to admit into evidence the termination letter as "Exhibit 1" for purposes of documenting appellant's failure to complete the FRM inpatient program.
The defense then called Johnny Saldate to testify. Saldate testified he was an administrative assistant and counselor with the Fresno Rescue Mission, and that his day-to-day work included processing clients who came into the facility. Asked to describe how a client would get permission to leave the grounds, Saldate testified that the client would submit a paper requesting a pass. If a pass were granted, Saldate explained, "[t]he client is requested to ... check out at the time of leaving, and check in at the time you come back." Saldate confirmed that this was a "computerized process" and the client's departure and return times would be logged into a computer.
Saldate confirmed that appellant received a three-hour pass (from 3:30 p.m. to 6:30 p.m.) to attend religious services on September 18, 2015. Saldate checked appellant out at 3:30 p.m., but appellant failed to return before 6:30 p.m., and was, therefore, not allowed to reenter or be processed back in to the facility. Appellant also "came back with some property that wasn't allowed." When the trial court followed up by asking what appellant "came back with ... that wasn't allowed," Saldate responded that, "[i]t was a suitcase of clothing." Saldate did not have any knowledge as to why appellant returned late.
Appellant testified on his own behalf against the advice of his counsel. Appellant claimed the timeframe covered by his pass was "[a]ctually ... scheduled from 12:30 to 3:30 [p.m.] because my religious services started at 1:45 [p.m.]" Appellant testified he left at 12:30 p.m. and returned at "roughly" the time the pass expired and "went straight to ... the reception office" but did not see any staff members upon his return. When asked whether anything happened that could have made him late, appellant responded, "I could have slowed down a little bit from bringing of my personal property that was stored at the religious services."
After listening to the arguments of counsel, the trial court ordered appellant's probation revoked and imposed the four-year prison term mentioned above. In ruling, the court stated: "Based on Exhibit 1 as well as the testimony presented by Mr. Saldate, the Court does find that [appellant] was in violation of probation for failing to complete the Fresno Rescue Mission program."
DISCUSSION
Appellant initially claims he was denied due process because he was not provided with written notice that he faced revocation of his probation for failing to return on time to the FRM inpatient program, which was the underlying factual basis for the trial court's finding that he failed to complete the program and was thus in violation of his probation. Assuming appellant did not forfeit his claim, the record establishes he had adequate notice of this basis for probation revocation.
Due process requires that a revocation of probation be accompanied by written notice to the probationer explaining the alleged violations, disclosure of the evidence against him, and an opportunity to be heard and to present evidence in his favor before a neutral hearing body. (Black v. Romano (1985) 471 U.S. 606, 611-612; People v. Rodriguez (1990) 51 Cal.3d 437, 445 (Rodriguez).) Thus, the court may not revoke probation if the defendant was not informed prior to his hearing of the basis for revocation and afforded an opportunity to prepare for and defend against the allegations. (People v. Self (1991) 233 Cal.App.3d 414, 417 (Self) [violation of due process to grant permission to amend petition to add violation of condition that the defendant not possess a checking account based upon facts arising only during revocation hearing on allegation she had willfully failed to make restitution payments]; People v. Mosley (1988) 198 Cal.App.3d 1167, 1172, 1174 [revocation of parole for consumption of alcohol based upon facts arising only during hearing on alleged rape violated due process].)
The record establishes appellant had adequate notice of the alleged grounds for revoking his probation, including the one on which the trial court based its finding he violated his probation, namely, appellant's failure to complete the FRM inpatient program. Appellant received notice of this ground through the probation department's report filed on October 2, 2015. The report also notified appellant that the factual basis for his alleged failure to complete the program was his September 18, 2015, termination from the program. The report thus provided sufficient written notice to afford appellant the opportunity to investigate and prepare a proper defense regarding the circumstances leading to his termination on September 18, 2015, even though the report did not specifically mention, as a factor leading to his termination, his late return after receiving a three-hour pass to leave the program. Appellant clearly was aware of this factor and presented evidence addressing it at the probation hearing, at which he tried to suggest he returned within the time the pass allotted and therefore did not absent himself from the program without permission before attempting to return. Appellant's claim he received inadequate notice of this factual basis for the alleged probation violation is simply unsupported by the record before us.
Appellant also claims that insufficient evidence supports the trial court's finding that he violated probation. We disagree and conclude the record supports the court's determination that appellant violated his probation by failing to complete the required FRM inpatient program.
The level of certainty required to support a probation revocation is less than that required to support a criminal conviction. Section 1203.2, subdivision (a) authorizes probation revocation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation ... officer ... that the person has violated any of the conditions of his or her [probation] ...." (§ 1203.2, subd. (a).) Our Supreme Court has interpreted "reason to believe" under section 1203.2, subdivision (a) to impose a "preponderance-of-the-evidence" standard. (Rodriguez, supra, 51 Cal.3d at p. 446.) A lower threshold is appropriate because "[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions." (People v. Coleman (1975) 13 Cal.3d 867, 876-877, fn. 8.) Evidence that would not be admissible at a criminal trial may be admitted under the more lenient scheme of a probation hearing. (People v. Monette (1994) 25 Cal.App.4th 1572, 1575.) An appellate court will not disturb the revocation of probation unless it finds that the trial court abused its discretion, that is, acted arbitrarily or capriciously and failed to base its determination on the relevant facts. (Self, supra, 233 Cal.App.3d at p. 417; People v. Buford (1974) 42 Cal.App.3d 975, 985.)
The preponderance of the evidence supported the conclusion that appellant violated his probation by failing to complete the FRM inpatient program and therefore the trial court properly exercised its discretion in terminating probation. As the court correctly observed, appellant's failure to complete the treatment was demonstrated both by the letter formally terminating appellant from the program on September 18, 2015, for leaving without permission, and by Saldate's testimony establishing appellant failed to return within the time he was given permission to be absent under the pass he received on the same date.
DISPOSITION
The order revoking probation is affirmed.