P. v. Elliott
Filed 3/7/07 P. v. Elliott CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. TYRONE MARCEL ELLIOTT, Defendant and Appellant. | D049660 (Super. Ct. No. SCS199379) |
APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Trentacosta and Alvin E. Green, Judges. Affirmed.
Tyrone Marcel Elliott's appellate counsel filed this appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. With this court's approval, defendant filed a brief on his own behalf, asserting the trial court made certain errors in revoking probation granted in a previous case and in instructing the jury. We find no error and affirm.
FACTUAL AND PROCEDURAL HISTORY
On March 16, 2006, Elliott entered a negotiated guilty plea to petty theft of a purse (Pen. Code, 484)[1]and admitted a prior theft conviction ( 666) in the Superior Court of San Diego County case No. SCS199379 (case SCS199379). The court suspended imposition of sentence and placed Elliott on probation for three years, including a condition that he obey all laws.
On May 3, Elliott was arraigned on a charge of petty theft in the Superior Court of San Diego County case No. CS201976 (case CS201976). The information provided written notification that the offense was a violation of the probation condition that defendant obey all laws. On September 13, a jury convicted Elliott of petty theft, after the People presented evidence that he took a watch from a drug store without paying for the item.
After the conviction, the court held a probation revocation evidentiary hearing in case SCS199379 and revoked probation. The court sentenced Elliott to the two-year middle term for petty theft with a prior theft conviction. The court denied a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b), former rule 30(b).)
DISCUSSION
Appointed appellate counsel filed a brief setting forth the evidence presented 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.
We granted Elliott permission to file a brief on his own behalf. He has responded. Elliott contends: (1) the trial court prematurely revoked his probation for failing to remain law abiding; (2) he was denied due process in the probation revocation proceeding; and (3) the court erred by failing to sua sponte instruct the jury on specific intent in case CS201976, where Elliot was charged with petty theft. We address each of these contentions below.
A. Revocation of Elliott's Probation
Relying on People v. Coleman (1975) 13 Cal.3d 867 (Coleman) and People v. Jasper (1985) 33 Cal.3d 931 (Jasper), Elliott asserts the trial court prematurely revoked his probation in case SCS199379, as his conviction for petty theft in case CS201976 was not final at the time of the probation revocation proceeding.
In Coleman, the defendant's probation was revoked before trial was conducted on charges alleging violation of a probation condition to obey all laws. Faced with a claim of conflict between a defendant's constitutional rights to testify at an evidentiary hearing on an alleged probation violation and his right to remain silent at trial, the Supreme Court determined testimony given by a defendant at a probation revocation hearing is inadmissible at a later trial, except to impeach. In dicta, the Supreme Court stated: "Finally, we wish to note that the most desirable method of handling the problems of concurrent criminal and probation revocation proceedings may well be for revocation proceedings not even to be initiated until after disposition of the related criminal proceedings." (Coleman, supra, 13 Cal.3d at p. 896.) However, in Jasper,the Supreme Court held that "[w]hether a revocation hearing should be held before trial rests in the reasonable discretion of the trial court." (Jasper, supra,33 Cal.3d at p. 935.) Section 1203.2, subdivision (a) authorizes courts to revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation." (Italics added.)
Here the trial court conducted Elliott's probation revocation hearing for failure to comply with his probation condition to remain law abiding after the jury convicted Elliott of petty theft of a watch in case CS201976. Based upon the evidence presented in that case, the trial court found that Elliott failed to obey all laws while on probation in case SCS199379.
A probation violation must be proven by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441; People v. Kurey (2001) 88 Cal.App.4th 840, 849.) In reviewing the sufficiency of the evidence, " '[t]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the trial court's findings." (Estate of Leslie (1984) 37 Cal.3d 186, 201.) Here, the trial court heard evidence that Elliott took a watch from a store without paying for it. That constitutes sufficient evidence, under the applicable standard, to support Elliott's probation revocation. No error occurred.
B. There Was No Deprivation of Due Process in Elliott's Probation Revocation Proceeding
A trial court may revoke probation if it provides the defendant with his due process right to a formal hearing. (People v. Vickers (1972) 8 Cal.3d 451, 458-461 (Vickers).) The purpose of the formal hearing is to give the probationer an opportunity to explain or deny the allegations of the violation petition or show that revocation is not warranted due to mitigating circumstances. (People v. Perez (1994) 30 Cal.App.4th 900, 907.)
A probation revocation hearing is not a criminal prosecution and thus does not invoke the full panoply of constitutional rights ordinarily due a defendant in a criminal prosecution. (Morrissey v. Brewer (1972) 408 U.S. 471, 480; Vickers, supra,8 Cal.3d at p. 458.) The minimum due process requirements at a formal probation revocation hearing include written notice of the claimed violations, disclosure of evidence against the probationer, an opportunity for the defendant to be heard and to present evidence, and the right to confront and cross‑examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation. (People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153.)
Here, the information in case CS201976 provided Elliott with written notice of his alleged probation violation in case SCS199379. On September 13, after a jury convicted Elliott of petty theft in case CS201976, there was a formal evidentiary hearing in case SCS199379 on the alleged probation violation. At the evidentiary hearing, the court found Elliott had been convicted of petty theft while on probation, a clear violation of the conditions of his previous probation. Elliot was given the chance to confront and cross-examine witnesses at the jury trial. Even if Elliott was not given a written statement of the facts underlying the probation revocation, applying the stringent harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24, the trial court's failure to provide a written statement was harmless beyond a reasonable doubt.
C. On This Record We Cannot Determine if Instructional Error Occurred
The record in case SCS201976 is not before this court. When reviewing an appeal, we are limited to the record before us. (People v. Jackson (1964) 230 Cal.App.2d 485, 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) If Elliott wishes to rely on facts outside the record to pursue a challenge to the order revoking probation, he must do so by a habeas corpus petition filed in the trial court.
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Elliott on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.
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[1] All statutory references are to the Penal Code unless otherwise indicated.
