P. v. Abbott

Filed 6/23/06 P. v. Abbott CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Marguerite L. Wagner and K. Michael Kirkman, Judges. Affirmed.

On June 11, 2003, Greggory Derek Abbott entered a negotiated guilty plea to elder abuse and vandalism causing $400 or more damage to property. (Pen. Code, §§ 368, subd. (b)(1), 594, subds. (a), (b)(1).) The court sentenced him to prison for three years eight months: the three-year middle term for elder abuse with a consecutive eight months for vandalism (one-third the middle term). It suspended execution of sentence and placed him on five years' probation, including a condition he abstain from alcohol use. In November 2003, the court revoked and reinstated probation. On July 19, 2005, the court again revoked probation after Abbott admitted using alcohol. In August 2005, the court executed the previously suspended three-year-eight-month sentence.^[1] The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible but not arguable issue whether the trial court abused its discretion in revoking probation. We granted Abbott permission to file a brief on his own behalf. He has not responded.

We requested additional briefing on the issue of whether the trial court erred in revoking probation on July 19, 2005, absent Abbott's personal admission of acting in violation of a probation condition or holding an evidentiary hearing. At the outset, we recognize that absent a certificate of probable cause, "[n]o appeal shall be taken [from] . . . a revocation of probation following an admission of violation." (Pen. Code, § 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) The viability of this appeal thus turns on whether the revocation of probation was based on substantial evidence of a valid admission by Abbott that he violated probation.

Here, at the July 19, 2005 hearing, Abbott's counsel told the court:

"He [Abbott] will admit the violation. He understands he has the right to an evidentiary hearing, he waives the right to an evidentiary hearing, admits being under the influence of alcohol and falling off the wagon. He clearly admits all that. When he and I spoke he -- we can request a supplemental report here and schedule a sentence after [the] revocation hearing, but what this calls for is loud and clear."

After the court mentioned Abbott's need for a program, Abbott told the court:

"May I say something on my behalf? I would just like maybe--I don't want to go to prison, Ma'am. I will work the steps, and it will work. I have a sponsor now, and I'm on the right track. Let me go. I'm going to be good, and this ain't going to happen again.

"I'm going to get right into the rehab."

The parties discussed possible disposition and the court set a sentencing hearing after revocation.

When a defendant in a criminal case enters a guilty plea, he must personally and affirmatively enter the guilty plea. (Pen. Code, § 1018.) However, in People v. Manriquez (1922) 188 Cal. 602, the California Supreme Court found valid a guilty plea by implication where the defendant's attorney announced that the defendant was pleading guilty, followed by the court's inquiry of the defendant into facts necessary to determine the degree of the crime. The court said, "The form of the plea is not of vital importance, provided the admission of guilt is clear, definite, and unconditional." (Id. at p. 605.) Reversal is not warranted unless it appears " 'that under no hypothesis whatever is there sufficient evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) Inferences may constitute substantial evidence but the inferences must be the product of logic and reason rather than speculation or conjecture. (Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal.App.3d 1574, 1584-1585.)

The record here supports a logical interpretation that Abbott admitted using alcohol in violation of a probation condition. Abbott's attorney's announcement that Abbott "will admit the violation," followed by Abbott saying, "This ain't going to happen again" and "I'm going to get right into the rehab," is a clear, definite and unconditional admission that Abbott admitted the probation violation.

In addition, a probation revocation hearing is substantially different than a criminal trial. (People v. Dale (1973) 36 Cal.App.3d 191, 194-195.) "The probation report alone, if not rebutted or impeached, is a sufficient showing to support a revocation" and here, the revocation of probation is supported by the facts contained in the unobjected to supplemental probation report. (See People v. Garcia (1977) 67 Cal.App.3d 134, 138.)

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Abbott on this appeal.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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^[1] Because Abbott entered a guilty plea, he cannot challenge the facts underlying the conviction. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.