P. v. Hood

Filed 9/20/07 P. v. Hood CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan Conklin and W. Kent Hamlin, Judges.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

FACTS AND PROCEEDINGS

Appellant, Leslie Hood III, was charged in a consolidated second amended information with transportation of a controlled substance (Health & Saf. Code,  11379, subd. (a), count one), possession of a smoking device (Health & Saf. Code, 11364, count two), giving false information to a peace officer (Pen. Code, 148.9, subd. (a)^[1], count three), false personation ( 529, count four), and transportation for sale of a controlled substance (Health & Saf. Code, 11352, subd. (a), count five). The complaint alleged an enhancement for prior narcotics convictions (Health & Saf. Code,  11370.2, subd. (a)), three prior prison term enhancements ( 667.5, subd. (b)), and an on-bail enhancement ( 12022.1).^[2]

On January 12, 2004, count one was amended to allege simple possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)). After this amendment, Hood pled no contest to counts one and five.^[3] Hood also admitted the enhancement allegations. On February 23, 2004, the trial court sentenced Hood to a prison term of nine years eight months, suspended imposition of sentence, and placed Hood on felony probation for three years.^[4] One condition of Hoods probation was that he serve 365 days in jail.

Hood was arrested on September 11, 2004 under case No. F04906197-9. According to the probation report, this action was later dismissed and refiled as case No. F05900665-1. Hood was rearrested in April 2005 for a new narcotics violation filed as case No. F05902825-9. There was also a hold on Hood for violation of his probation in the instant action.

On June 9, 2005, the trial court granted Hoods motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). On July 14, 2005, Hood waived his right to a formal hearing and admitted he violated the conditions of his probation by his arrest for being in possession of a controlled substance. Hood waived custody credits for purposes of local incarceration. The court imposed a jail term of 365 days, with some custody credits granted from the most recent arrest, and reinstated probation.

On December 30, 2005, at about 12:40 a.m., Hood was arrested for a new narcotics offense. New criminal charges were filed against Hood in case No. F06900007-6. Probation revocation proceedings were initiated in the instant action. Hood represented himself in the violation of probation action and was represented by counsel in the new criminal action. In case No. F06900007-6, Hoods counsel filed a suppression motion.

An evidentiary hearing was conducted on April 19, 2006. On December 30, 2005, at about 12:40 in the middle of the night, Fresno Police Officers Bunch and Martin were on North Weber Street near the Sahara Motel. The area is known for loitering, prostitution, drug activity, and its many parolees. After driving into the motel parking lot, the officers saw Hood run around the officers vehicle. Hood was out of breath, was not wearing a shirt, and appeared to have injuries to his arm and torso. Suspecting Hood had been involved in a fight, the officers exited their car and followed Hood. Martin ordered Hood to stop and instructed him to sit down and wait.

Martin testified that it looked as though Hood and another man were actually fighting when he entered the parking lot. The two split apart as soon as they saw the police car. Martin had contacted Hood in the prior two weeks and Hoods name had arisen as a briefing item. Martin knew Hood was on probation. Hood told the officers he was on felony probation. Hood appeared to be under the influence of a stimulant. He was nervous and fidgety.^[5] Suspecting Hood was under the influence of a stimulant, the officers patted him down and found .2 grams of rock cocaine. At the conclusion of the hearing, Judge Conklin denied the suppression motion.

The prosecutor dismissed the new criminal action. On June 23, 2006, Hood waived his right to a full hearing and admitted he violated the terms and conditions of his probation. Hood did so with the understanding that his custody credits would not be counted for purposes of local incarceration and the court was going to extend his probation another three years. The court revoked Hoods probation. The court suspended imposition of Hoods prison term, placed him back on probation for three years, and ordered him to serve 360 days in jail with credit for 120 days of custody credit.

Hoods appointed appellate counsel filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Hood was advised he could file his own brief with this court. By letter on April 16, 2007, we invited Hood to submit additional briefing. To date he has not done so.

DISCUSSION

We initially note that Hood failed to appeal from the trial courts original sentencing hearing on February 23, 2004, and that he has not secured a certificate of probable cause. Any issue concerning the validity of his plea is barred by the fact that Hood failed to appeal from the order granting probation. The order granting probation was a final order for purposes of appeal. ( 1237, subd. (a); Peoplev. Martinez (2000) 22 Cal.4th 750, 757; People v. Douglas (1999) 20 Cal.4th 85, 91.) Hoods failure to file a timely appeal after he was sentenced and placed on probation bars review of the earlier proceedings.

Furthermore, Hood failed to obtain a certificate of probable cause from the trial courts initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea on January 12, 2004. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) We note, however, that we find no obvious errors in Hoods change of plea hearing or in the earlier violation of probation hearings. We also note that Hood failed to file a timely appeal from other earlier proceedings in 2004 or 2005.

Hoods appeal is effective, however, for our review of the most recent violation of probation proceedings. Turning first to the validity of Hoods detention on December 30, 2005, there was uncontradicted evidence that appellant was a parolee and that Officer Martin was aware of Hoods status as a probationer. Hood also told the officers he was on probation. The significance of the officers knowledge of the search condition was established in People v. Sanders (2003) 31 Cal.4th 318 (Sanders). In Sanders, the court concluded that a warrantless and otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted. (Id. at p. 335.)

By accepting probation, a probationer consents to the waiver of Fourth Amendment rights in order to avoid incarceration. (People v. Ramos (2004) 34 Cal.4th 494, 506.) [A] probationer who has been granted the privilege of probation on condition that he submit at any time to a warrantless search may have no reasonable expectation of traditional Fourth Amendment protection. (People v. Mason (1971) 5 Cal.3d 759, 765.) As a known probationer, appellant was subject to a probation search condition that permitted searches at any time, with or without cause. (Sanders, supra, 31 Cal.4th 318, 329-331 [for probationers reduced expectation of privacy to apply, investigators must be aware of probationers status prior to search].) Martin was aware of Hoods probationary status, and Hood admitted he was on probation, prior to the officers search of Hood.

Hood was not wearing a shirt on a winter evening, at a late hour, running away from an altercation, with injuries or wounds to his arm and torso. Given the late hour and the fact the area was known for narcotics transactions, the officers had reasonable suspicion to briefly detain Hood. This was especially true after Martin recognized Hood as a probationer. Once the officers detained Hood, they detected signs that he was under the influence of a stimulant. Under these circumstances, there was no evidence to suggest the initial detention and search of appellant was arbitrary or capricious. The trial court did not err in denying Hoods suppression motion.

Representing himself, Hood waived his right to a full hearing on the violation of probation. The prosecutor dismissed case No. F06900007-6 in exchange for Hoods admission that he violated the terms and conditions of probation. The trial court advised Hood of his rights prior to taking his admission of the allegations. The court revoked Hoods probation, imposed a new term of probation for three years, and ordered Hood to a term in jail with custody credits for time he served after his most recent incarceration.

We find no error in the trial courts revocation of probation or in its extension of Hoods term of probation. The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence, except as hereinafter set forth, and upon those terms and conditions as it shall determine. ( 1203.1, subd. (a).) In the case of felony convictions, the defendant cannot consent to, and cannot be ordered, to serve a period of probation longer than the maximum possible prison term.^[6] (Ibid., In re Hamm (1982) 133 Cal.App.3d 60, 66; In re Bolley (1982) 129 Cal.App.3d 555, 557-558.)

Hoods maximum possible term for his sentence was one year longer than his sentence of nine years eight months.^[7] When Hood reoffended, the trial court summarily revoked his probation on January 4, 2006. This was prior to the expiration of Hoods three-year probation on February 23, 2007. The court thus retained jurisdiction over Hood because the instant violation of probation proceedings occurred well within the initial three-year period of probation.^[8]

When the trial court revoked probation and reinstated it with an additional probation term of three years on June 23, 2006, it had the authority to do so pursuant to section 1203.2, subdivision (e). Because the additional three-year term of probation was well within the maximum possible term of the sentence set forth in section 1203.1.^[9] We find that Hood could consent to an increased period of probation that did not exceed the maximum possible term of the sentence, and that the trial court had jurisdiction to increase the period of Hoods probation three years from the date of the latest probation revocation hearing.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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Before Vartabedian, Acting P.J., Harris, J., Kane, J.

Judge Conklin heard appellants suppression motion. Judge Hamlin presided over appellants violation of probation hearing.

^[1] All further statutory references are to the Penal Code, unless otherwise indicated.

^[2] Counts one through four were from superior court case No. F00658311-6 which was consolidated with count five, superior court case No. F00670374-8. The allegations in the former action arose from a traffic stop on October 12, 2000, in which Hood gave the officer a false name. The officer searched the car and found a crack pipe and an off-white substance, which the officer believed to be rock cocaine. The officer found more suspected rock cocaine in a heat-sealed baggie located in a box of cigarettes in the console area of the car. Because the stereo was missing, the cigarette box was in plain view. Laboratory tests confirmed that Hood was in possession of .03 grams of methamphetamine. The latter action arose from Hoods arrest on August 28, 2001, for transportation of cocaine base. The record on appeal does not include the preliminary hearing from case No. F00670374-8.

^[3] The trial courts advisements to Hood included Hoods constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122, which Hood waived. The court carefully advised Hood of the consequences of his plea and found a factual basis for the plea.

^[4] The court imposed the suspended prison term as the midterm of four years for count five, consecutive terms of three years for the prior drug conviction enhancement and two years for the on-bail enhancement, and a consecutive term of eight months for count one.

^[5] In the police report, the officers noted that Hood was fidgety and his pupils were dilated in reaction to light.

^[6] Section 1203.1 notes that one exception to this rule is where the maximum possible term of the sentence is five years or less, then the period of suspension of imposition or execution of sentence may, in the discretion of the court, continue for not over five years. Hoods suspended sentence was longer than five years.

^[7] The upper term for Health and Safety Code section 11352, subdivision (a) is five years. Hood received the midterm of four years.

^[8] Indeed, had the summary revocation of Hoods probation occurred prior to February 23, 2007, and the violation of probation hearing occurred after that date, the trial court would still have retained jurisdiction to extend Hoods probation under the circumstances of his case. (People v. Barkins (1978) 81 Cal.App.3d 30, 32-33 [summary revocation of probation when the probationer is at liberty is a device by which the defendant may be brought before the court through its process (People v. Vickers (1972) 8 Cal.3d 451, 460-461) and the courts jurisdiction over the defendant retained in situations where probation may end before formal revocation proceedings commence].)

^[9] Hoods initial probation term was three years beginning February 23, 2004. The trial court increased his probation another three years, with Hoods consent, on June 23, 2006. This extended the end of Hoods probation from February 2007 to June 2009, a total probationary term of about five years four months.