P. v. Gomez
Filed 4/3/07 P. v. Gomez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ARMANDO GOMEZ, JR., Defendant and Appellant. | D049521 (Super. Ct. No. SCD176226) |
APPEAL from an order of the Superior Court of San Diego County, David. J. Danielsen, Judge. Affirmed.
In superior court case No. SCD176226 (SCD176226), on October 20, 2003, Armando Gomez, Jr., entered a negotiated guilty plea to burglary. (Pen. Code, 459.)[1]He admitted having served two prior prison terms. ( 667.5, subd. (b), 668).) The court suspended imposition of sentence and placed Gomez on probation for three years including a condition that he obey all laws. On April 18, 2006, the court held an evidentiary hearing on an alleged probation violation in SCD176226, simultaneously with the preliminary hearing on a new charge in case No. SCD197985 (SCD197985). The trial court revoked probation in SCD176226 and sentenced Gomez to prison for three years: the two-year middle term for burglary, enhanced one year for a prior prison term. The court struck the second prior prison term enhancement. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)
FACTS
Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. In SCD176226, on July 21, 2003, Gomez entered a Long's Drug Store with the intent to obtain prescription drugs with a false prescription. In SCD197985, on March 31, 2006, he took a cellular telephone and charger from a Target Store and exited the store without paying for the items. The cellular telephone and charger cost more than $100, and Gomez had only $4 cash and no credit cards in his possession at the time.
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.
We granted Gomez permission to file a brief on his own behalf. He has responded. Gomez contends that the trial court erred in failing to hold a preliminary hearing on the new charges in SCD197985, and a separate evidentiary hearing on the alleged probation violation in SCD176226.
A court may revoke probation "if the interests of justice so require and the court . . . has reason to believe from the report of the probation officer or otherwise" that grounds for revocation exist. ( 1203.2, subd. (a).) Before a court may formally revoke probation, the defendant must be provided a hearing in conformance with due process. (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 to 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. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782 (Gagnon); Morrissey v. Brewer (1972) 408 U.S. 471, 480 (Morrissey); Vickers, at p. 458.) The minimum due process requirements at a formal probation revocation hearing include written notice of the claimed violations, disclosure of the 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.)
In the context of discussing a parole revocation, in Gagnon, supra, 411 U.S. 778, the United States Supreme Court said that a parolee is entitled to "two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of parole and the other a somewhat more comprehensive hearing prior to the making of a final revocation decision." (Id. at p. 782.) The court noted that this rule applies to revocation of probation as well as revocation of parole. (Ibid., fn. 3.) However, nothing in Gagnon or Morrissey states nor implies that a court may not conduct a preliminary hearing on new charges at the same time as an evidentiary hearing on an alleged probation violation for failure to remain law abiding.
Arguing that a hearing on an alleged probation violation and a preliminary hearing on a new charge may not be held in a single proceeding, Gomez cites Valdivia v. Davis (E.D. Cal. 2002) 206 F.Supp.2d 1068. In Valdivia, the court considered whether a defendant was denied due process when a preliminary hearing in which the court decided whether there was probable cause to believe he had violated parole could be joined with a formal parole revocation hearing to determine whether the defendant had actually violated parole. The court said that it need not resolve whether a prompt unitary hearing would be constitutional, because the procedure adopted in California that permitted incarceration of an alleged parole violator for a lengthy period before the preliminary hearing was held violated due process. The court did not state nor imply that due process prohibits the holding of a preliminary hearing on a new charge at the same time as an evidentiary hearing on an alleged probation violation.
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the issues Gomez's raises, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Gomez on this appeal.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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[1] All statutory references are to the Penal Code.
