P. v. Alvarez

Filed 1/30/07 P. v. Alvarez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from judgments of the Superior Court of Los Angeles County,

Ruffo Espinosa, Jr., Judge. Affirmed.

H. Clay Jacke, II for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant, Jorge Lopez Alvarez, originally pled guilty to two counts of selling cocaine (Health & Saf. Code,  11352). Execution of the imposed sentence of six years, four months, was suspended and he was granted probation. Subsequently, Alvarez was arrested on a new drug charge which led both to his conviction for possessing cocaine (Health & Saf. Code,  11350) and to the revocation of his probation. Alvarez now appeals from both the new conviction and the revocation of his probation.

The judgments are affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.    

On April 6, 2005, Los Angeles police detectives, working in plain clothes, were at a Jack in the Box restaurant in response to complaints about drug dealing at an adjacent apartment complex. The detectives observed a man in the restaurant parking lot who was wearing shabby clothes and looked like a transient. He appeared to be trying to make eye contact with people as they drove into the parking lot. Then he sat down on the curb with his head between his legs.

Defendant Alvarez drove up in a gray Cadillac and honked his horn. The transient jumped up, walked to the Cadillac and got in. The detectives followed Alvarezs car. Alvarez drove around the block and then stopped in front of the Jack in the Box parking lot. The transient got out, put an object into his front pants pocket and walked away. Believing a drug transaction had just taken place, the detectives followed Alvarez as he drove off.

Alvarez drove onto a freeway, got off and parked across the street from his house. One of the detectives approached and asked to see Alvarezs drivers license. Alvarez was the only person in the car. Searching the Cadillac, the detectives found a black pouch between the drivers seat and the armrest. The pouch contained 15 off-white solid objects later determined to consist of 3.26 grams of rock cocaine. The 15 objects were individually wrapped and appeared to be $20 rocks with a street value of $300.

Alvarez did not appear to be under the influence of narcotics. He had $391 on his person. No paraphernalia for using narcotics was found in the Cadillac. A subsequent search of Alvarezs house found nothing related to drug use or trafficking.

Testifying as a narcotics expert, one of the detectives opined the cocaine found in Alvarezs car had been possessed for sale. The main reasons for this opinion were: the total amount of cocaine recovered; the fact there were 15 individually wrapped rocks of approximately the same size and weight; and the fact Alvarez was keeping the cocaine inside a pouch rather than in his hand, pocket or mouth like an everyday street user.

Alvarez did not testify or present any evidence.

Alvarez had been charged with possessing a controlled substance for sale. The jury acquitted him of that offense, but convicted him of the lesser included offense of possession of a controlled substance. Having held the probation revocation hearing concurrently with the jury trial, the trial court determined Alvarezs possession of cocaine constituted a violation of his probationary terms. The trial court revoked probation and imposed the sentence that had been suspended when probation was granted.

CONTENTIONS

1. The trial court violated Alvarezs due process rights by holding the jury trial and the probation revocation hearing concurrently.

2. The trial court erred by failing to consider reinstating probation.

DISCUSSION

1. Alvarezs due process rights were not violated.

Alvarez contends the trial court violated his due process rights by holding the probation revocation proceeding and the criminal trial at the same time. This claim is meritless.

In People v. Coleman (1975) 13 Cal.3d 867, our Supreme Court expressed a preference for completing criminal proceedings before holding probation revocation proceedings. Alvarez argues that, [a]lthough Coleman . . . condemned the practice wherein the probation revocation hearing is held before trial, due process is no less a concern where the revocation hearing is held concurrent with the criminal trial. But Alvarez is forgetting that Coleman also concluded the timing of a probation revocation proceeding would not constitute a violation of the defendants due process rights. [A]s Coleman makes clear . . . , a probationers rights are not impaired by reason of the timing of his revocation hearing. [Citations.] (People v. Jasper (1983) 33 Cal.3d 931, 935.)

What Coleman did do was to declare as a judicial rule of evidence that henceforth upon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges, save for purposes of impeachment or rebuttal where the probationers revocation hearing testimony or evidence derived therefrom and his testimony on direct examination at the criminal proceeding are so clearly inconsistent as to warrant the trial courts admission of the revocation hearing testimony or its fruits in order to reveal to the trier of fact the probability that the probationer has committed perjury at either the trial or the revocation hearing. [] This exclusionary rule allows the state to continue to press for revocation of probation either before or after a probationers trial on related charges, but insures that this scheduling discretion will not be influenced by the illegitimate desire to gain an unfair advantage at trial. (People v. Coleman, supra, 13 Cal.3d at p. 889.)

[T]he limited exclusionary rule fashioned by us in [Coleman] affords ample protection to a probationer who is fearful that the People will make improper use of the evidence elicited at the revocation hearing. Indeed, the People bear a heavy burden of proving a lack of relationship between the defense testimony at the revocation hearing and the prosecutions evidence later offered at the criminal trial. (People v. Jasper, supra, 33 Cal.App.3d at pp. 934-935.) Whether a revocation hearing should be held before trial rests in the reasonable discretion of the trial court. (Ibid.)

Here, Alvarez did not object to having the two matters heard concurrently. Indeed, at the outset of the jury trial, defense counsel told the trial court, I understand the court is going to be hearing the [probation revocation] concurrent with this case, which I have no objection to . . . . In any event, Alvarezs claim he was prejudiced by this procedure is not persuasive. He argues that, if he did not have to be concerned about making a harmful admission in the probation revocation proceeding, he could have taken the stand in the criminal case and either denied the cocaine belonged to him, or testified it was for his personal use rather than for sale.

But even without his testimony, the jury acquitted Alvarez of selling cocaine and only convicted him on the lesser included charge of simple possession. Given the circumstances in which the cocaine was found in Alvarezs car, there was no chance the jury would find it did not belong to him. Alvarez argues that if he were only facing the probation revocation case, he could have testified the drugs were not possessed for sale, explained the circumstances of his possession and use and asked the court for help by way of a drug program . . . . But, as explained more fully in the discussion of Issue No. 2, below, it is clear from the record the trial court was not going to reinstate probation.

Alvarezs due process rights were not violated by the timing of the probation revocation hearing.

2. Trial court did not abuse its discretion by refusing to reinstate probation.

Alvarez contends the trial court abused its discretion by not giving fair consideration to reinstating probation instead of revoking it. This claim is meritless.

Pursuant to Penal Code section 1203.2, subdivision (a) . . . , a court is authorized to revoke probation if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . .  (People v. Rodriguez (1990) 51 Cal.3d 437, 440, fn. omitted.) Considerations of both law and policy dictate that the facts in a probation revocation hearing be provable by a preponderance of the evidence. (Id. at p. 441.)

Although section 1203.2 does not expressly state that a defendant may be reinstated on probation, numerous cases have recognized that the courts authority to modify probation necessarily presumes the power to reinstate it. [Citations.] The issue presented in this appeal is whether this discretionary power to reinstate probation is lost where probation was originally granted after imposition of sentence. We conclude it was not. (People v. Medina (2001) 89 Cal.App.4th, 318, 321.) Sentencing choices such as the one at issue here, whether to reinstate probation or sentence a defendant to prison, are reviewed for abuse of discretion. A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. [Citation.] A court abuses its discretion whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.] We will not interfere with the trial courts exercise of discretion when it has considered all facts bearing on the offense and the defendant to be sentenced. [Citation.] (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)

Alvarez argues the trial court found a probation violation only because it believed, despite the jury verdict, that he had been selling drugs. Not so. The trial court made it clear at sentencing that, regardless of its personal view of the evidence, it would have found Alvarez in violation of probation for the crime of possessing cocaine: [H]es obviously in violation of probation, even just the jury having found him guilty of [Health and Safety Code section] 11350. Frankly this jury may well have found him not guilty [of possession for sale]. Another jury would find him guilty, but nevertheless, even assuming that he had it for personal consumption, hes still in violation of probation . . . .

In any event, the trial court would not have erred had it relied exclusively on its view of the evidence due to the differing burdens of proof. [P]robation may be revoked despite the fact that the evidence of the probationers guilt may be insufficient to convict him of the new offense. (In re Coughlin (1976) 16 Cal.3d 52, 56.) [E]vidence which is insufficient or inadmissible to prove guilt at trial nevertheless may be considered in determining whether probation should be revoked. (Id. at p. 58.)

Alvarez argues the trial court erred by assuming the original case resulting in probation arose out of a big drug operation because he had only pled guilty to selling cocaine on two occasions. But Alvarezs own summation of the facts surrounding the first case acknowledges the following: [I]n 2002 . . . undercover officers . . . purchased cocaine base on three occasions from Appellant. Three transactions occurred in the summer months of 2002. Appellant was accused of selling two separate ounces of cocaine at $300.00 apiece on different dates. On a third occasion, the informant made a buy from Appellant of an ounce for $600.00. When Appellant was arrested for those sales, officers found more narcotics. This included cocaine, in both rock and powder form, methamphetamine and marijuana. The officers also found scales for weighing, drug packaging material, three handguns and money. The trial court was warranted in concluding Alvarez had a real operation going there.

Alvarez argues it was improper for the trial court to revoke his probation without considering the original sentencing judges intention that the suspended prison term would be put into effect only if Alvarez continued selling drugs. This misrepresents what the original sentencing judge said, which was:

The Court: . . .  [] Dont forget that you have six years and four months in state prison suspended. That means if you continue to sell drugs, youre going to go to state prison for six years and four months on a probation violation. [] Is that understood?

The Defendant: Yes.

The Court: You must obey all the other terms and conditions of your probation or you face the same sentence. Good luck.^[1] (Italics added.)

Alvarez argues the trial court failed to consider the relevant mitigating factors before revoking probation. However, the record demonstrates that after hearing defense counsels argument regarding mitigating factors, the trial court pointed out Alvarezs probation had already been revoked and reinstated several times, and concluded, His prospects for continuation of probation under any circumstances are bleak. I dont think hes a good candidate to have him continue on probation. After further argument from defense counsel, the trial court reiterated that, in view of this very serious violation of the terms and conditions of probation, and his [poor] prospects for doing well on probation, the appropriate order would be to revoke Alvarezs probation. This was not an abuse of discretion. (See People v. Downey,supra, 82 Cal.App.4th at pp. 909-910.)

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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^[1] As the Attorney General points out, among all the other terms and conditions of Alvarezs probation was the requirement that he obey all laws and not use, own, possess [or] buy any illegal drugs.