P. v. Patterson

Filed 9/27/06 P. v. Patterson CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Patrick Eddie Patterson appeals from an order revoking his probation and imposing a suspended eight-year prison sentence. He contends that the court violated his right to due process by relying on unreliable reports at the sentencing hearing. We affirm.

Factual and Procedural History

On August 1, 2003, defendant pled no contest to two counts of gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (a).) The court imposed a suspended eight-year prison sentence and placed defendant on probation, conditioned on a one-year term in county jail, submission to drug testing, and a prohibition of driving a car for three years.

On February 24, 2004, defendant admitted violating the terms of his probation by smuggling tobacco into jail. The court revoked and reinstated probation and imposed an additional 45-day jail term.

On January 10, 2005, defendant was again charged with violating his probation. Defendant admitted violating its terms by testing positive for methamphetamine on November 9, 2004; being unable to provide a urine sample for purposes of drug testing on November 19, 2004; and driving a truck on November 22, 2004. On May 20, 2005, the court held the first of two sentencing hearings on the probation violations. The court stated that it had read and reviewed the probation officer’s second supplemental report as well as a declaration filed by defendant controverting some of the statements made in the probation report. At the conclusion of the hearing, the trial court stated, “This is a difficult case, as has been noted by all parties. I do note that it is a very serious case, because of the reasons stated, two people were killed. At the time of sentencing, I also note that the court imposed a state prison sentence, execution of that sentence was suspended. That generally means, and is a statement to an individual, that the case is extremely serious and should there be a violation of probation, you will go to prison. The court further, at the time of sentencing, took the unusual steps of reviewing, in open court, the terms and conditions of probation. The defendant stated, at that time, that he understood. The court gave him an opportunity to rehabilitate himself and placed him on probation. Initially, he violated that trust by bringing contraband into the jail after he was given further consideration by the court to see his own doctor outside the jail facility. The court, after considering those circumstances, again decided it was appropriate not to impose the execution of sentence, but to give him yet another chance on probation. He’s now before the court for a violation of that probation for the following reasons: He tested positive for methamphetamine; . . . he admitted to not providing the test when requested; and for driving. The defense has presented to the court psychological reports that tend to support the unusual circumstances of this particular case and have argued concerns about the defendant’s ability, both mentally and physically, to survive in prison. The court has taken all this information into account. This is the type of case the court wants as much information available to it as can possibly be provided.” So, having concluded that it could benefit from a further evaluation, the court ordered the California Department of Corrections (CDC) to prepare a diagnostic report and examination under Penal Code section 1203.03.[1]

The sentencing hearing continued on September 9, 2005. The court again stated that it had read and reviewed all reports and documents, including the CDC’s diagnostic report, the probation officer’s third supplemental report and defendant’s comprehensive statement in mitigation. Defense counsel indicated that she had filed a further statement in mitigation in response to the probation officer’s third report and the trial court took a brief recess to review that document. After hearing argument from both sides, the court revoked defendant’s probation and imposed the suspended eight-year sentence. The court explained, “These cases are never easy. They’re always difficult. They’re difficult because of the serious consequences to the person before the court. They’re difficult because of the serious consequences of the action taken by the person before the court. I do want to make note that there is a difference in sentencing when you sentence someone to state prison, execution suspended. It is a statement by the court that this is a serious offense that deserves state prison, but because of some unusual circumstances you will be given a chance on probation. But beware, if you violate the terms and conditions of probation, you will go to state prison. There was a violation. The court took into account the circumstances, found exception and reinstated him on probation. Then we’re looking at a second violation. I can’t say that I’m convinced that he wasn’t informed by the court, by probation on a number of occasions what the terms and conditions of his release were. He signed the order. Perhaps there was some confusion, but I’m not seeing anything that suggests that he doesn’t have the type of understanding necessary to understand--regardless of the issue of whether he feels he’s guilty or not guilty of this particular, quote/unquote “accident,” he understands that he’s being placed on probation and that there are certain things he has to comply with.” Defendant filed a timely notice of appeal. Discussion

Defendant contends the sentencing hearing was fundamentally unfair and that the trial court violated his right to due process by relying on an inaccurate and biased probation report. He asserts that the report incorrectly states that he failed to show remorse and to accept responsibility for the death of two people; that he suppressed information about his convictions at a Department of Motor Vehicles (DMV) hearing and that he refused, rather than was unable due to health reasons, to provide a urine sample on November 19. Defendant also claims that the probation officer erroneously and with bias suggested in her reports and at the hearing that the conduct on which the probation violations were based--using methamphetamine and driving a car--was the same conduct as involved in the original offense--reckless driving while under the influence of methamphetamine. [2]

“[F]undamental fairness demands that [presentence probation] reports be founded on accurate and reliable information” (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 719), but the mere existence of inaccurate information in the probation report does not necessarily violate the defendant’s rights. “If the defendant feels the probation report is insufficient or inaccurate, or is based upon unreliable information, he or she may present witnesses to counteract or correct any portion of the report.” (People v. Bloom (1983) 142 Cal.App.3d 310, 320; People v. Cross (1963) 213 Cal.App.2d 678, 683-684; People v. Valdivia (1960) 182 Cal.App.2d 145, 148.) Moreover, reversal is not ordinarily required unless the trial court has relied on the inaccurate information. (People v. Phillips (1977) 76 Cal.App.3d 207, 215.)

Here, it is not clear that the probation reports were inaccurate in all respects suggested by defendant. For example, the probation officer’s conclusion that defendant was in denial about his responsibility for the accident was presented as her opinion and was based on her interview with defendant. In that regard, it is not inaccurate. The report did, however, fail to identify or discuss other evidence that might support a contrary conclusion, such as defendant’s statements at the original sentencing hearing in which he expressed his “deepest sympathy towards the family.” In any event, each of the alleged inaccuracies in the reports was raised and vigorously argued before the trial court.

Defendant’s attorney wrote in the comprehensive statement in mitigation that in 18 years, “he has never seen a case with probation reports so profoundly flawed by a collection of improper aggravating factors, improper omissions of mitigating factors, improper analyses of factors affecting probation, undisguised agendas, prejudgments, snideness, overt disrespect for the court’s sentencing choice, suffocating sanctimony, statements contravening the law, and--most pervasively--statements betraying an unawareness of what a probation officer is and is not.” In the following 30 pages, each assertedly incorrect or biased statement is addressed in detail, often with reference to exhibits containing documents in support of defendant’s contentions. Defendant’s supplemental statement in mitigation takes a similarly detailed approach to challenging the probation officer’s third report. From these documents and the extended argument at the hearings, any factual disagreement or potential bias was clearly presented to the court, so that the court was able to make a reasoned decision based on all of the relevant information. [3]

In People v. Peterson (1973) 9 Cal.3d 717, cited by defendant, the court explained that “an applicant for probation is . . . entitled to relief on due process grounds if the hearing procedures are fundamentally unfair“ and that the reliability of the information available to the sentencing judge factors into the fairness of the process. (Id. at p. 726.) The court concluded that in that case the reliability of the information provided by a police officer at the probation hearing was sufficiently demonstrated where defendant had challenged the officer’s testimony and provided a rebuttal witness in support of his position. (Id. at p. 727.) The court stated, “It is further clear from the record that the court carefully considered and weighed the conflicting evidence and made findings, as it had the right to do, consistent with the officer’s testimony. There was a substantial basis for believing [the officer’s] account and . . . the record here demonstrates a proper concern for the accuracy of the informational inputs . . . .” (Id. at p. 728.)

Likewise, in this case the conflicting evidence with regard to defendant’s acceptance of responsibility, remorse, and the DMV proceedings was all carefully considered by the court. The court had before it defendant’s letter of apology and the probation officer’s description of her conversation with defendant in which she felt he was not taking responsibility for the accident. As noted above, the court received a declaration from defendant’s attorney regarding what took place at the DMV hearings and the probation officer’s account of her conversation with the DMV hearing officers. To the extent the information was in conflict, the court could and did evaluate its respective reliability. The trial court’s statements at the sentencing hearings demonstrate that it understood the complexities of the case and that it did not rely on the information challenged by defendant. Although the judge stated that he was “not convinced that [defendant] really realizes in his own heart and soul that he is responsible for the death of these two people,” the court’s primary justification for revoking defendant’s probation appears to have been that defendant had been warned repeatedly that a failure on probation would result in the execution of the suspended sentence and that defendant had failed to heed the warning. To the extent that the probation officer’s report contained inaccuracies or failed to identify and fully discuss factors in mitigation, those shortcomings had no effect on the court’s ruling. The trial court conscientiously protected defendant’s right to a fair hearing and reached its determination only after thorough consideration of all of the reasons for which defendant challenged the probation officer’s factual assertions, inferences and conclusions.

Disposition

The judgment is affirmed.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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[1] Penal Code section 1203.03, subdivision (a), provides, “In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90-day period.”

[2] Defendant also argues that the CDC diagnostic report was also inaccurate insofar as it relied in large part on facts and conclusions contained in the probation report. While we disagree with the defendant’s characterization of the CDC report, we need not address defendant’s concerns in detail because as discussed below, we have concluded that the trial court did not rely on any of the allegedly erroneous information.

[3] For example, any disagreement regarding defendant’s alleged suppression of information at the hearing before the Department of Motor Vehicles (the DMV) was clearly identified before the trial court ruled. The probation report initially stated that the DMV “was not aware of [defendant’s] requirements to complete an alcohol program and also were not clear his vehicular manslaughter convictions involved substance use.” In response, defendant’s attorney submitted a declaration stating that she represented defendant at the hearing and that “it was apparent that [the] DMV was well aware of the facts and circumstances surrounding the accident, including the substance abuse issues, having the complete accident report in its own files.” At the hearing, the probation officer clarified that she had personally spoken to the DMV hearing officers and that, while they knew of defendant’s convictions, they were not aware that two people had been killed in the accident. They also were not aware that the court had revoked defendant’s license as a condition of his probation. Likewise, the trial court’s statements indicate that it understood precisely what probation violations defendant had admitted, i.e., that he was unable to give a urine sample, rather than had refused to do so, and that he had tested positive for drugs and had driven on different days, not that he had driven while intoxicated.