P. v. Martinez

Filed 2/9/06 P. v. Martinez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977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

Appellant was sentenced to two years in state prison for a probation violation. He contends that he was denied due process and that the imposition of a probation revocation fine pursuant to Penal Code section 1202.44 violated the ex post facto clause. We reverse.

In March 2002, appellant pleaded no contest to possession of methamphetamine and admitted a prior prison term allegation. (Health & Saf. Code, § 11377; Pen. Code, § 667, subd. (b).) Two other prior prison term allegations were dismissed. The trial court suspended imposition of sentence and placed appellant on three years probation under Proposition 36. Appellant's probation was revoked and reinstated throughout the probationary period. In November 2004, appellant's probation was summarily revoked and he denied violating his probation. In January 2005, the court sentenced him to state prison for a two-year term.

Appellant contends that "the probation violation procedure was deficient in every conceivable way." Respondent concedes, "Appellant is correct in his assertion that the record fails to include any written notice of the probation violation, or any minute order or transcript of either a hearing on that violation or his admission of it. Appellant is also correct that these procedures, or their adequate equivalents, are required to satisfy the process due a probationer in a revocation proceeding. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, 786; People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153; People v. Mosley (1988) 198 Cal.App.3d 1167, 1173.)" We consider respondent's concession appropriate.[1]

Appellant contends that the imposition of a probation revocation fine under Penal Code section 1202.44 violated ex post facto principles because his underlying crime was committed in 2002, before the effective date of the statute. [2] In light of our disposition, this contention is moot.

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] We need not reach appellant's contention that "counsel's failure to object to appellant's prison commitment when he had not received even the minimal due process protections, and subsequently, his waiver of the issue for appeal, amounted to ineffective assistance of counsel."

[2] It is unclear from this record that such a fine was ever actually imposed.