P. v. Crouse

Filed 8/18/06 P. v. Crouse 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, David M. Gill, Judge. Affirmed.

Loren Crouse entered a negotiated guilty plea to rape of an intoxicated victim. (Pen. Code, § 261, subd. (a)(3).)^[1] He waived his right to appeal denial of a motion to suppress evidence (§ 1538.5), issues related to prior convictions, and an agreed sentence. On July 15, 2005, the court denied a request to withdraw the guilty plea and sentenced him to prison for the six-year middle term, stayed execution of sentence and placed him on six years' probation, including conditions he serve 365 days in custody, pay a $239 fine, pay a restitution fine and victim restitution, obey all laws, report to the probation department as directed and report to the probation department within 72 hours of release from custody, report law enforcement contacts to the probation department, obtain consent from the probation department before leaving San Diego, not possess a controlled substance, seek and maintain employment, register as a sex offender, and complete a sex offender counseling program. The probation department subsequently filed a supplemental report alleging Crouse violated all of the listed probation conditions. On November 29, the court held a hearing and formally revoked probation, and executed the six-year prison term. The court denied a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)^[2]

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 possible but not arguable issues: (1) whether Crouse's waiver of his right to appeal was valid; (2) whether Crouse's guilty plea was constitutionally valid; (3) whether there was a sufficient factual basis for the guilty plea; (4) whether the trial court abused its discretion in denying Crouse's motion to withdraw the guilt plea; (5) whether Crouse was denied due process through failure of the court to advise him of the procedural safeguards expressed in People v. Vickers (1972) 8 Cal.3d 451, and obtain a waiver from Crouse of these rights; (6) whether there was sufficient evidence that Crouse violated probation; (7) whether the trial court abused its discretion in denying probation; (8) whether Crouse's credit for time served was correctly calculated; and (9) whether Crouse's trial counsel provided effective assistance of counsel when he did not produce witnesses at the probation revocation hearing.

We granted Crouse permission to file a brief on his own behalf. He has responded. Crouse contends: (1) his motion to withdraw the guilty plea nullified waiver of his right to appeal; (2) his guilty plea was not constitutionally valid and was not supported by a factual basis; (3) the trial court abused its discretion in denying his motion to withdraw the guilty plea; (4) the trial court erred in failing to advise him of his procedural rights under People v. Vickers, supra, 8 Cal.3d 451, (5) there was insufficient evidence to support the finding he violated probation conditions; (6) the trial court abused its discretion in denying probation after revoking probation; and (7) he was denied effective assistance of counsel.

Motion to Withdraw the Guilty Plea Did Not Nullify Waiver of Right to Appeal

Crouse cites no authority supporting his claim that filing a motion to withdraw a guilty plea nullifies the guilty plea. In People v. McCrory (1871) 41 Cal. 458, 462 the Supreme Court stated "when there is reason to believe that the plea has been entered through inadvertence, and without due deliberation . . . the Court should be indulgent in permitting the plea to be withdrawn." However, the Supreme Court also noted, a "party should not be allowed to trifle with the Court by deliberately entering a plea of 'guilty' one day and capriciously withdrawing it the next," and concluded that the decision to allow withdrawal of a guilty plea rests in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion that is clearly demonstrated. (Ibid.) Only if the court sustains the motion to withdraw a guilty plea are the terms of the guilty plea nullified.

Validity of the Guilty Plea

Absent a certificate of probable cause, a defendant cannot challenge the validity of a guilty plea on appeal. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Whether there was an adequate factual basis for the guilty plea is relevant only to the validity of the plea. (See People v. Pinon (1979) 96 Cal.App.3d 904, 910.)

Motion to Withdraw the Guilty Plea

Crouse cannot challenge on appeal the denial of his motion to withdraw the guilty plea absent a certificate of probable cause. (§ 1237.5; In re Chavez (2003) 30 Cal.4th 643, 651; In re Brown (1973) 9 Cal.3d. 679, 683.) A certificate of probable cause has not been issued.

Advice of, and Waiver of Procedural Safeguards

Expressed in People v. Vickers, supra, 8 Cal.3d 451

In People v. Dale (1973) 36 Cal.App.3d 191, the appellant contended the trial court erred in revoking probation without a hearing, and did not inform him of "his 'due process rights' " and obtain a personal waiver of the rights. (Id. at p. 193.) The court said:

"In Morrissey v. Brewer [1972] 408 U.S. 471, the Supreme Court declared that due process of law requires that before parole may be revoked the parolee must, if he is arrested, be afforded an initial hearing at which a preliminary determination of the existence of reasonable grounds to revoke his parole is determined. The initial hearing must be followed by a revocation hearing unless the procedure is waived. At the revocation hearing, due process requires: '(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board . . . and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.' [Citation.] In People v. Vickers, supra, 8 Cal.3d 451, our Supreme Court held that the Morrissey declaration of due process requirements for revocation of parole is equally applicable to proceedings to revoke probation. It added the qualification, however, that no initial hearing need precede revocation of probation of one who has deserted his probation, and that therefore summary proceedings to revoke probation of an absconding probationer are proper. [Citation.]

"Here appellant had deserted his probation so that the trial court was empowered summarily to revoke his probation without an initial hearing to determine probable cause to do so. Here also appellant concedes that he was afforded an opportunity for a hearing on the merits of the revocation of his probation in the manner required, and that his counsel, by submitting the matter upon the supplemental probation report, waived the Morrissey-Vickers rights not asserted at the hearing. However, analogizing to the situation of a plea of guilty to a charged crime and to submission of the issue of guilt upon the transcript of a preliminary hearing where guilt is a foregone conclusion, appellant argues that he was denied due process of law because the trial judge did not specifically inform him of and he did not personally waive his right to present evidence and to confront witnesses against him. He cites in support of his contention In re Tahl [1969] 1 Cal.3d 122; In re Mosley [1970] 1 Cal.3d 913, and People v. Levey [1973] 8 Cal.3d 648.

In Tahl, Mosley, and Levey, our Supreme Court declared that due process of law requires that a plea of guilty to a crime or a submission on the transcript of a preliminary hearing which is its equivalent be preceded by a recitation that the plea involves a waiver of the privilege against self-incrimination, the right of confrontation, and the right to jury trial, and by the defendant's personal waiver of the privilege and rights. Nothing in the language of those cases or their rationale indicates that their rule should be extended to require a similar procedure of recitation of procedural rights and personal waiver in revocations of probation. Our Supreme Court reasoned that its decision in Tahl was compelled by that of the United States Supreme Court in Boykin v. Alabama [1969] 395 U.S. 238. There is no indication in Morrissey that the Boykin recitals and waivers are required in post-conviction proceedings as opposed to a trial. The trial involves 'the fundamental constitutional right of a person accused of crime to plead not guilty to the charge and have a trial by a jury of his peers wherein he can defend himself by confronting and cross-examining witnesses against him and by presenting witnesses in his own behalf.' [Citation.] It is the waiver of the full scope of those rights that must be made by a defendant personally, whereas he may waive part of them by acquiescing by silence in his counsel's conduct. [Citation.] A probation revocation hearing involves some, but by no means all, of the fundamental rights afforded a defendant at trial. Its purpose is not to determine guilt or innocence but is whether conditions attached to an act of clemency have been met. There is no right to a jury trial. Confrontation in the proceeding is not an absolute right. The United States Supreme Court states that it exists in a revocation hearing 'unless the hearing officer specifically finds good cause for not allowing confrontation.' [Citation.] Hearsay in the probation report may be considered.

"We thus conclude that the principles of Boykin, Tahl, and Mosley do not apply to proceedings to revoke probation where the matter is submitted on the report of the probation officer. Where, as here, Morrissey rights are waived by conduct of counsel in submitting an alleged violation of probation upon the probation report and the defendant acquiesces by his silence, the waiver is effective." (People v. Dale, supra, 36 Cal.App.3d at pp. 193-195.)

What the court said in People v. Dale, supra, 36 Cal.App.3d 191, applies here.

Sufficiency of the Evidence Crouse Violated Probation

"More lenient rules of evidence apply [at probation revocation proceedings] than at criminal trials [citation], and the facts supporting revocation need only be proved by a preponderance of the evidence . . . ." (People v. Monette (1994) 25 Cal.App.4th 1572, 1575.) Documentary evidence that would otherwise be inadmissible hearsay may be used in a revocation proceeding without offending the probationer's right to confrontation if accompanied by reasonable indicia of reliability. (People v. Maki (1985) 39 Cal.3d 707, 710, 714-715.) Here the record includes the probation department's supplemental report dated November 29, 2005, that expresses the facts underlying the claim that Crouse violated a number of probation conditions. Sufficient evidence supports the probation revocation.

Denial of Probation

When a defendant violates a condition of probation, the trial court has discretion to look at the situation anew. (People v. Bookasta (1982) 136 Cal.App.3d 296, 300.) Thus, the court may again consider whether to place the defendant on probation. However, probation is an act of leniency, not a matter of a right. (People v. Walmsley (1985) 168 Cal.App.3d 636, 638.) A trial court has broad discretion to grant or deny probation. (People v. Lafantasie (1986) 178 Cal.App.3d 758, 761.) The decision requires consideration of all the facts and circumstances of the case. (People v. Axtell (1981) 118 Cal.App.3d 246, 256.) Absent a clear showing the decision is arbitrary or irrational, it is presumed the court acted to achieve legitimate sentencing objectives. (People v. Giminez (1975) 14 Cal.3d 68, 72.)

Here, the jail accidentally released Crouse early from custody. Rather than contacting the probation department, he returned to his grandmother's home in Colorado and the evidence showed efforts on Crouse's part to evade law enforcement contact in Colorado. When ultimately contacted, he possessed marijuana. Based on this history, the trial court refused to reinstate probation because it found Crouse unable or unwilling to abide by the conditions of probation.

Sentencing courts have wide discretion in weighing the factors in favor of and opposition to granting probation. It may consider the quantity and the quality of the factors. (People v. Roe (1983) 148 Cal.App.3d 112, 120; People v. Evans (1983) 141 Cal.App.3d 1019, 1022.)

The trial court did not abuse its discretion in refusing to reinstate probation.

Effective Assistance

Crouse claims that failure to produce witnesses at the probation revocation hearing denied him effective assistance of counsel. Review of the record sheds no light on why Crouse's counsel chose not to present witnesses. "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

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, and the issues raised by Crouse, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Crouse on this appeal.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

IRION, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

^[1] All statutory references are to the Penal Code.

^[2] Because Crouse entered a guilty plea, he cannot challenge the facts underlying the conviction. (§ 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.