P. v. Tiggs

Filed 7/25/07 P. v. Tiggs CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

After pleading guilty to a charge of makingcriminal threats, defendant was sentenced to five years in prison and placed on probation. Following his failure to appear at a court hearing scheduled to supervise his performance on probation, defendant was arrested on a bench warrant. At a subsequent hearing, he contended that he had received no written notice of the violations of probation alleged against him. The court directed that he be given a copy of the supplemental probation report prepared in connection with the hearing, which the court then deemed a motion to revoke probation. Finding the report to constitute adequate written notice, we affirm.

I. BACKGROUND

Defendant was charged in an information filed March 25, 2004, with one count of making criminal threats (Pen. Code,  422) and one count of attempting to dissuade a witness by force or threat of injury. (Pen. Code,  136.1, subd. (c)(1).) As to both counts, it was alleged that defendant personally used a deadly weapon. (Pen. Code,  12022, subd. (b)(1).) The information also alleged two prior serious felony convictions (Pen. Code,  667, subd. (a)) and five other prior convictions. (Pen. Code,  667.5, subd. (b).) On October 6, 2004, defendant entered a negotiated plea of guilty to the charge of making criminal threats and admitted two of the prior convictions, one of them a serious felony. The court suspended execution of the agreed-upon five-year term and placed defendant on probation for three years.

Over the next year, defendants probation was revoked and reinstated on two occasions. At the time of the second reinstatement, during a hearing on November 1, 2005, the trial court directed defendant to enroll in and attend the anger management and alcohol treatment programs that were already required as conditions of his probation. The court scheduled a follow-up hearing for November 29, at which time defendant was to present proof of his compliance. After defendant failed either to report for scheduled appointments with the probation department or to appear and provide proof of compliance on November 29, the court revoked his probation a third time and issued a bench warrant for his arrest. Defendant was arrested on December 8.

During an appearance before the court on December 22, 2005, it was established that defendant intended to represent himself in connection with the proceedings, although he continued to be assisted by advisory counsel. The court and counsel briefly discussed defendants failure to enroll in the required programs. On January 20, 2006, defendant appeared in court, accompanied by advisory counsel. The court told defendant that today we should set a hearing date on the motion to revoke and proceeded to schedule a hearing for February 2. Defendant then filed a motion, which he characterized as a motion to reinstate probation, that objected to the failure to provide him with written notice of the claimed violations of probation and argued that he had not violated the terms of his probation because he had been participating in an anger management program and was not required to enroll in a substance abuse treatment program until the end of November.

At the outset of the February 2 hearing, defendant again raised the objection that he had not been presented with written notice of his alleged violations of probation. The court directed that defendant be given a copy of the supplemental probation report prepared by defendants probation officer for the hearing; defendant acknowledged receiving earlier reports prepared on the prior occasions when his probation was revoked. The new supplemental report discussed defendants prior performance on probation, his apparent failure regularly to attend the anger management program, his failure to enroll in substance abuse treatment, and his failure to report to probation as scheduled on November 7, and included the names of persons contacted about these failures. The report concluded by recommending that defendants probation be revoked and his original sentence imposed. The hearing was adjourned for a time, during which defendant was able to review the report. After the adjournment, the court discussed with defendant the claimed violations of probation and stated that it would construe the most recent probation report as a motion to revoke probation.

At the February 2 hearing, which stretched into February 3, defendants probation officer testified that, although defendant was required to meet with him every Monday, defendant had only appeared for, at most, two recent appointments, the last on October 27. The officer also said that defendant had not enrolled in an alcohol treatment program and had a spotty record of attendance at the anger management program, with no attendance after August.

After the officers testimony, the hearing was adjourned to allow defendant to present as a witness the director of his anger management program. When the hearing resumed on February 28, the director testified that participants in the program are required to attend at least one session per week. In addition to attending three sessions in July and August, defendant had appeared on October 31, when he was directed to leave for medical reasons. Defendant did not attend any further sessions after that.

On March 3, 2006, the court ruled on the motion to revoke defendants probation. First addressing the issue of notice, the court reviewed the record discussed above. It then held that there was substantial compliance with Penal Code section 1203.2 and that there was sufficient and adequate written notice given to the defendant; and furthermore, that a continuance was granted. If one should have been granted per se as a matter of law, that the court did grant a continuance, a reasonable continuance from that date. The court then found defendant in violation of his probation, based on the findings that defendant neither attended his classes as required, nor did he show up [in court] on November 29th or provide factual justification, although it might have been within his power to do so, for a failure to appear on November 29th. Regarding the anger management classes, the court found that since defendants last release from custody he could have attended class on each of six weeks prior to his subsequent arrest but attended only one class. Regarding the substance abuse program, the court found that defendant was directed to provide proof of his having registered for a program by November 29, but no proof had been provided. Defendant also failed to maintain the required weekly contacts with his probation officer. On the basis of these probation violations, the court revoked probation and imposed the original prison sentence.

II. DISCUSSION

Defendant contends that the probation report did not give him adequate written notice of the claimed violations of probation and that there was insufficient evidence to support the courts factual finding that defendant violated his probation by willfully failing to appear for the hearing on November 29.

A. Adequate Written Notice

[A] probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer (1972) 408 U.S. 471 [(Morrissey)]. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782.) These conditions include (a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] 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, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. (Morrissey, at p. 489; In re Wagner (2005) 127 Cal.App.4th 138, 146.)

Defendant argues that the probation report, which the court deemed a motion to revoke probation, did not provide him with notice of the charges against him because the probation report is historical, not accusatory. It does not at any point state or allege[] any specific probation violation, nor does it state what evidence the state intends to offer in support of revoking probation. While it is true that the probation report is not written in the manner of an accusatory pleading, the Constitution does not require that a defendant be presented with written notice in any particular form, so long as the document adequately informs the defendant of the charges against which he or she must defend. (E.g., People v. Sandoval (2006) 140 Cal.App.4th 111, 132.)

A defendants probation can be revoked if he or she commits another offense or otherwise violates the terms of his or her probation. (Pen. Code,  1203.2, subd. (a); People v. Buford (1974) 42 Cal.App.3d 975, 985, disapproved on other grounds in People v. Rodriguez (1990) 51 Cal.3d 437, 444445 & fn. 3.) The purpose of the probation report was to describe the violations of the terms of probation that the officer believed to have occurred following the second reinstatement of defendants probation. Therefore, the report directly addressed the grounds for a revocation of defendants probation. When the court deemed the probation report to be a motion to revoke probation, the violations described in the report stated the charges defendant would face. Because violations of probation constitute a basis for revoking probation, the described violations did not need to be labeled charges in order to provide notice of the charges against which defendant could expect to defend at his probation revocation hearing.[1]

Defendant also claims that he was not provided disclosure of the evidence against him, as required in Morrissey. Although it is not wholly clear, Morrissey appears to require only that the probationer be made aware of the evidence against him at some point in the proceedings, not in a written disclosure provided in advance of the hearing.[2] Because defendant was present in court during the revocation hearings, he necessarily received disclosure of the evidence against him. We need not resolve this issue, however, because the probation report also details the evidence to be introduced against defendant: his conduct in failing to fulfill his obligation to report to the probation office, appear at a scheduled court hearing, provide proof of registration in a substance abuse program, and attend anger management sessions. The probation officers testimony with respect to these violationsessentially an oral repetition of the matter in his reportwas, in fact, the evidence ultimately introduced against defendant.

Before the court, defendant asserted that he was not given a fair opportunity to investigate and prepare to meet the allegations. This might have been true had the court proceeded to decision on February 2, when defendant was first provided a copy of the supplemental report.[3] The court adjourned the hearing for nearly a month, however, from February 3 to February 28. Because the only allegations against defendant concerned his own failures to act, there can be no claim that this delay did not provide sufficient time for him to prepare to meet the charges. Tellingly, defendant points to no information he might have submitted, witnesses he might have called, or arguments he might have made had he been provided more time.

Defendants contention that there was a shifting and changing landscape of allegations and evidence is not supported by the record. The supplemental probation report discussed defendants failure regularly to attend the anger management program, his failure to enroll in substance abuse treatment, his failure to report to probation as scheduled on November 7, and his failure to appear at the November 29 court hearing. When the probation officer testified at the hearing, these are the matters about which he testified, and these are the probation violations found by the trial court in revoking defendants probation. The alleged violations remained the same throughout the proceeding.

Unlike People v. Mosley (1988) 198 Cal.App.3d 1167, relied upon by defendant, this was not a situation in which the prosecution raised a new ground for revoking probation after the close of evidence, thereby denying defendant an opportunity to present evidence refuting the charge. The violations of probation raised against defendant are clearly set out in the probation report; those were the violations addressed by defendant and the prosecution at the hearing; and those were the grounds on which the court revoked probation.[4]

B. Sufficiency of the Evidence

Defendant contends that the trial court erred in finding that he violated his probation by not appearing in court on November 29 because the record demonstrates that he had a legitimate excuse for not being present that day.

The evidence was undisputed that defendant was hospitalized from a blow to the head from November 10 through November 16. In contending that he was unable to attend on November 29, two weeks after his discharge, defendant cites the written discharge instructions from the hospital, which indicate that he had further treatment scheduled to occur on November 29 at 8:30 a.m. As defendant concedes, however, there was no evidence that he actually made that medical appointment or that he was otherwise unable to attend the November 29 hearing. On the contrary, there was no evidence at all of defendants activities on November 29, other than that he was not in court.[5] In making its ruling, the court noted this evidentiary lapse, stating, Superficially, it would appear that he had a clear justification for not showing up. He had an 8:45, I believe, appointment with the neurosurgery clinic because of the assault he had received earlier in the month. I heard no testimony . . . regarding whether or not he actually made that appointment or not. . . . I didnt see any proof that he . . . was there at the appointment and was in the doctors office when he was supposed to be here at 9:00.

We find defendants argument unpersuasive for two reasons. First, as the court suggested, defendants failure to present evidence demonstrating that he was actually at the hospital on November 29 for the scheduled appointment left a glaring evidentiary hole. The fact that defendant had a scheduled medical appointment on November 29 certainly provides a basis for inferring that he was at the doctor on that date, but the lack of evidence that he actually made this appointment, when he had a clear opportunity and motive to present such evidence, undercuts the validity of such an inference.[6] It is simply not true that, as defendant insists, unrebutted evidence established that on November 29, 2005, appellant was undergoing neuro surgery and for that reason was unable to appear in court as ordered. On the contrary, as the trial court rightly noted, there was no direct evidence to establish defendants whereabouts that morning. Second, even if defendant was at the hospital when the hearing occurred, his failure to provide the court or his probation officer with advance notice of the appointment or afterwards to contact the court or the probation office regarding his absence support a conclusion that his failure to attend the hearing was willful. The mere fact that defendant was otherwise occupied on November 29, even by a medical appointment, did not give him a free pass to disregard the previously scheduled court hearing.

Douglas v. Buder (1973) 412 U.S. 430, relied on by defendant, is wholly distinguishable. In Douglas, the defendant was found to have violated a probation condition requiring him to report any arrest promptly to his probation officer when he did not report a traffic citation until 11 days after it occurred. (Id. at p. 431.) The Supreme Court held that, since a traffic citation was not considered an arrest under local law, the finding that defendant violated this term of his probation was without evidentiary support. (Id. at p. 432.) Here, of course, there was no dispute that defendant violated a condition of his probation by failing to attend the hearing. It may be true that, as defendant argues, proof that he was at the doctors office would have supported a finding that his failure to attend was not willful, but no such proof was presented.

Even if defendants absence on November 29 was excused, however, there was sufficient additional evidence of other probation violations to justify revocation of his probation. Defendants attempts to attend anger management courses were half-hearted. He never did register for a substance abuse program, and he made little effort to keep the weekly appointments with the probation office, which were designed to ensure that he was keeping the other two commitments. The trial courts discussion of these factors, which followed its discussion of the November 29 absence, makes clear that the revocation of probation did not rest solely, or even primarily, on the missed hearing. In light of this evidence and comment by the court, any fact-finding error with respect to the November 29 hearing was harmless. (See People v. Dobbins, supra, 127 Cal.App.4th at p. 182 [error in revocation of probation judged by prejudice standard of People v. Watson, supra, 46 Cal.2d at p. 836].)

III. DISPOSITION

The trial courts order is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Stein, J.

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[1] Although defendant complained in court that he was not aware of the nature of the charges of probation violation he was facing, it is clear from his motion to reinstate probation that as early as January 20, 2006, he knew exactly what the charges were, since he addressed those charges in the handwritten motion he filed that day. In addition, the trial court discussed the nature of the charges with him before the hearing began on February 2. There is no question that defendant was, in fact, well aware of the manner in which he was alleged to have violated the terms of his probation.

[2] In Morrissey, the defendants parole was revoked by an administrative board that conducted no public hearing, acting on the basis of a written report by law enforcement officers. (Morrisey, supra, 408 U.S. at pp. 472473.) As a result, it was possible for a defendants parole to be revoked without the defendant knowing why or on what evidence until after the revocation had occurred.

[3] We say might have been true because it was clear at the hearing in December that defendant and his then-counsel were already aware of the nature of the probation violations alleged against defendant, in spite of the lack of formal written notice. This awareness was confirmed by defendants motion to reinstate probation, filed in January.

[4] Defendant also appears to characterize the failure of the prosecution to file a formal motion to revoke as a violation of Penal Code section 1203.2, subdivision (b), which requires a probation officer or district attorney to give notice of a petition to revoke probation to the defendant. While we do not believe that section 1203.2 requires any particular form of notice or petition, we need not reach the issue. Any violation of subdivision (b) was plainly harmless in these circumstances. (See People v. Dobbins (2005) 127 Cal.App.4th 176, 182 [error in revocation of probation judged by prejudice standard of People v. Watson (1956) 46 Cal.2d 818, 836].)

[5] This evidentiary failure did not occur because defendant was unaware of the significance of this document. Defendant twice referred to this document during the proceedings as providing evidence that his failure to appear was excused.

[6] While no inference could be drawn from defendants failure to testify regarding this appointment, the court was permitted to draw an inference from defendants failure to introduce material evidence or call logical witnessesfor example, further hospital records or a treating doctor. (People v. Brown (2003) 31 Cal.4th 518, 554.)