P. v. Sabouri

Filed 9/14/06 P. v. Sabouri CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

Following a contested probation revocation hearing, the trial court found appellant in violation of his probation and sentenced him to two years in state prison. Appellant contends that the trial court lacked jurisdiction to revoke probation, that he did not willfully violate the terms of his probation because he was never informed of them, and that a federal immigration removal order vitiated his obligations with regard to his probation. We reverse.

Background

In November 1999, appellant was charged by complaint with eight counts of passing insufficient funds checks in December 1997 and March 1998. (Pen. Code, § 476a.) On June 1, 2001, pursuant to a negotiated disposition, appellant pleaded guilty to three counts and the remaining counts were dismissed with the understanding that they could be considered by the court at sentencing. During the plea advisement, the court told appellant, "you will be on two years formal probation just so there could be some supervision with respect to the restitution issue." The trial court sentenced appellant immediately after taking the plea. The court suspended imposition of sentence and placed appellant on probation for two years. The court gave appellant a sentence of 60 days in jail which was deemed satisfied and entered "a general order of restitution." The court said, "The matter will be referred to adult probation for victim contact and determination of restitution only. Mr. Sabouri, that is technically a further sentencing proceeding. If you waive your right to be present, your attorney will appear for you, and you can then go back to State prison to serve the last 20 days of your sentence if you waive the restitution portion of sentencing." At the time, appellant was in the custody of the Department of Corrections on another matter with a "release date" of June 20 and the court and counsel wanted to be sure that appellant was returned to prison rather than remaining in the local jail pending the restitution determination. The court continued the matter to June 15, 2001, for a restitution hearing.

The restitution hearing was continued many times until finally being held on March 7, 2002. Although appellant was not present, an attorney from the Public Defender's Office appeared on his behalf. The court said that appellant was "a parolee at large in Mexico." The court ordered over $4,000 in restitution to four companies with the understanding that "should the defendant, during the period of probation, come to court, he can have his restitution -- it's subject to challenge."

On December 19, 2002, the probation department requested that the court revoke appellant's probation for "fail[ing] to provide a current address to the Probation Dept." and "willfully fail[ing] to make any payments towards Victim Restitution and Dept of Revenue." The court summarily revoked probation and issued a no-bail bench warrant. On September 1, 2005, appellant was arraigned on the probation violation petition.

The court held the contested probation revocation hearing on October 24, 2005. Santa Clara County Probation Officer Bryant Page testified that appellant was in custody at the time of his plea. The usual procedure is for a probationer to come to the probation office upon his or her release to be informed of the terms and conditions of his or her probation. Page testified that the court snapout for the June 1, 2001 proceedings has "a box that is checked indicating that the defendant is required to report to probation within three days of his release." Appellant was to be released from prison June 20, 2001. Upon his release, he was transported to Maryland for state criminal proceedings. He was released on bail in Maryland on July 9, 2001, and those charges were dismissed on November 10, 2001. In July 2002, a letter with an appointment to come to the probation office was sent to appellant's last known California address but the letter was returned as undeliverable. Page called Lompoc federal prison and the California Department of Corrections, but was unable to locate appellant. Page testified that in November 2002 he determined that, although there was no Immigration and Naturalization Service hold on appellant, appellant had gone through "some proceeding" but Page was "unaware if there is any INS proceeding or anything of that . . . sort." According to Page's information, deportation proceedings were initiated in March 2001 and the "CI&I" contained an entry "2001/07/19, administrative removal, I-851." Page testified that his file did not indicate any contact from appellant and that if appellant had contacted the probation department at any time, a notation documenting that would have been placed in the file.

Appellant testified that after finishing his federal prison sentence in California he was transported to Maryland. When he was released from state charges in Maryland, the "federal court" told him to leave the United States. He went to Mexico, got married, started a business, and became a citizen of Mexico. He was arrested by Mexican authorities and flown to the United States. Between June 1, 2001, and August 2005, he contacted his federal parole officer on a weekly basis. Appellant testified, "His first name was Ron. That's all I remember. It was a long time ago." Appellant testified that he did not remember pleading guilty to any crimes in this case, or being placed on probation, or being ordered to pay restitution to anyone.

According to documents attached to the probation report prepared for the revocation hearing, appellant was born in Iran and entered the United States in 1992 on a student visa. Because of his felony convictions, he became deportable. On July 19, 2001, the Immigration and Naturalization Service issued appellant a Final Administrative Removal Order.

At the conclusion of the probation revocation hearing, the prosecutor argued, "I may not be able to prove he knew the exact dollar amount, as of June 1st he knew there was a general order for restitution and made no attempt ever to contact the probation department." Defense counsel argued, "The only amount that appears on the snapout sheet which we have taken judicial notice of are the fines and fees. And they are to run concurrent with jail time. So in fact just a simple reading shows that at least that the $200 amount, there is an arrow that points down to the box and then it's circled 'concurrent to jail.' So as a lay person looking at this, Mr. Sabouri reasonably could infer that he had no restitution due and as of the date of June 1st of 2001, his only appearance where the issue of restitution was discussed, I believe only a general order was issued." Counsel argued that because appellant left the country because of deportation proceedings, his failure to report to the probation department was not willful.

The court said that, based on the court records, the court did not believe appellant's testimony that he did not plead guilty or waive his appearance at the restitution hearing. The court said, "by defendant's own testimony defendant was not ordered by any federal court to leave the United States. Defendant fled charges pending against him when he knew he had charges, when he knew that he was on probation in the State of California. [¶] . . . He could either come back to California and face the music or he could look for better days in Mexico. He chose the latter. . . . Those days came in and now he's back. Now he pays the penalty for having made that choice." The court found that appellant had violated the terms and conditions of probation by "failing to report and provide a current address to the probation department" and by "failing to make payments towards victim restitution." The court sentenced appellant to two years in state prison.

Discussion

Penal Code section 1203.2 provides that the court may revoke probation if it has reason to believe that the probationer has violated any of the terms and conditions of probation. A trial court has broad discretion in determining whether to revoke probation, and the court's decision will be upheld whenever it is supported by substantial evidence that a condition of probation has been violated. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) Violation of a reporting condition will support the revocation of probation only if the violation is willful. (People v. Buford (1974) 42 Cal.App.3d 975, 985; see also People v. Zaring (1992) 8 Cal.App.4th 362, 375, 378-379.) Where the court's findings that the defendant is in violation of probation are not supported by the evidence, the probation revocation order must be reversed. (People v. Buford, supra, 42 Cal.App.3d at pp. 985-987.)

Appellant contends, "The revocation here, based on failure to fulfill obligations of which appellant was never informed and had no opportunity to fulfill, violated appellant's federal constitutional right to due process." He argues, "Appellant did not willfully violate the terms of his probation because he was never informed of the probation conditions nor of the amount of restitution, and could not comply due to having been deported from the United States."

At the beginning of the probation violation hearing, the court took judicial notice of its file including the terms and conditions of appellant's probation, recognizing, "I understand the issue of whether or not they were communicated to the defendant." Probation Officer Page testified "the procedure for informing a probationer about their individual terms and conditions of probation when they are in custody at the time they are initially sentenced . . . would be once he got out of custody, come back to the office and be assessed at that time." Page testified that "The probation department did not provide any written notice or verbal notice to the defendant" of the amount of restitution due. The record here contains no evidence that appellant was ever notified of the two conditions of probation that provided the basis for the December 2002 summary revocation of probation for "fail[ing] to provide a current address to the Probation Dept" and "willfully fail[ing] to make any payments towards Victim Restitution and Dept of Revenue."

One may not be found in violation of a probation condition that had not been clearly explained to him or her. (See United States v. Tham (9th Cir. 1989) 884 F.2d 1262, 1265.) At the revocation hearing, the prosecutor argued that the snapout of the plea proceedings in June 2001, with the snapout of the March 2002 restitution hearing, sufficed to provide notice of the conditions. Respondent, too, argues that the court snapout of the proceedings at which appellant entered his guilty plea supports the finding that appellant willfully failed to report to the probation department. Citing Evidence Code section 664, the presumption that an official duty has been regularly performed, respondent argues, "Absent any evidence to the contrary, we must presume that the judge, the clerk, the probation officer, or appellant's attorney, gave that snapout to appellant at the conclusion of the proceedings."

Respondent's argument fails for two reasons. First, there is no evidence that the snapout was given to appellant. Respondent's litany of the various parties whom respondent speculates may have done so serves to illustrate that the "duty" of delivering a snapout to a defendant is not regularly performed by anyone in particular.[1] Second, even if appellant had received the snapout, the checked box concerning "report to APO" is not easily understood as creating a probation condition. The court snapout which the probation officer described as having "a box that is checked indicating that the defendant is required to report to probation within three days of his release" is a document that, under the heading "Probation" has a box checked indicating that formal probation was granted for two years and the line "report to APO within 3 days" with a box checked "upon release." Under the "fines/fees" heading, it indicates that no money is due and that any sums assessed will run concurrently with the 60 day jail sentence imposed. Thus, the part of the snapout that respondent argues informed appellant of a probation condition conflicts not only with other information on the snapout concerning fines and fees but also what the court told appellant at sentencing, that is, that "The matter will be referred to adult probation for victim contact and determination of restitution only."

Appellant contends, "The trial court lacked jurisdiction to revoke probation in 2005, because the 2002 summary revocation was illegal; therefore the case must be dismissed." Summary revocation of probation tolls the running of the probationary period and preserves the trial court's jurisdiction over the defendant. (People v. Tapia (2001) 91 Cal.App.4th 738, 741.) In order for the summary revocation of probation to toll the running of the probationary period, the violation underlying the summary revocation must be supported by substantial evidence. (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066.)

Here, the court summarily revoked probation for failing to provide a current address to the probation department and willfully failing to make any restitution payments. Because the record is devoid of evidence that appellant was ever notified that his probation was conditioned on these acts, there was no substantial evidence that any violation of probation was willful. The ground for summary revocation was not upheld at the October 2005 hearing so the statute (Pen. Code, § 1203.2, subd. (a)) was not tolled. The formal hearing was beyond the jurisdiction of the court and the judgment must be reversed.[2]

Disposition

The judgment is reversed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] Respondent notes that at the conclusion of the restitution hearing in March 2002 "another snapout was prepared memorializing the restitution amount." Acknowledging that appellant was not present, respondent argues, "we must presume the snapout was given to appellant's attorney." We are not prepared to presume that this second snapout was delivered to appellant who was not present and whose whereabouts were apparently unknown.

The bottom of the snapout gives a distribution key for copies of the minute order based on color but in no way indicates whose responsibility it is to distribute the copies. In practice, the snapout is typically given to the attorney of a represented defendant. The attorney may give it to an out-of-custody defendant as a reminder of his or her next court appearance date, however, in the case of an in-custody defendant, particularly one who will not be making further appearances, the attorney is far more likely to place the snapout in the attorney's file.

[2] In light of this, we do not reach appellant's contention that "The removal order vitiated appellant's obligations with regard to his local probation."