P. v. Cadena

Filed 6/1/06 P. v. Cadena CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Yuba)

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Defendant Rafael Cadena had three prior convictions for driving under the influence of alcohol when he entered a plea of no contest for again driving under the influence on September 10, 2004. Misreading or misunderstanding the record, he contends his probation was revoked without due process and his lawyer was inadequate for failing to object to the revocation. We accept the Attorney General's concession to amend the abstract of judgment to differentiate the fine from the penalty assessment and, in all other respects, affirm the judgment.

Defendant's appeal is predicated on a false factual premise. He erroneously asserts he was placed on probation on November 19, 2004, the day he entered his plea. Not so. The record discloses that on November 19 he agreed to postpone sentencing for several months to afford him the opportunity to enroll in a residential treatment program. The prosecutor agreed that if defendant completed the six-month program offered by the Salvation Army, the six months would count as credit toward his eventual sentence. He was not placed on probation; rather, he was released on his own recognizance to enroll in the treatment program.

Defendant failed to appear at his scheduled hearings in March 2005 and again in May 2005. The bench warrant issued in March was stayed until May and then until August. By August, defendant had been expelled from the treatment program for stealing, tardiness, and failing to fully participate in the 12-step program. The court then referred the matter to the probation department for a full report. At his sentencing hearing in September, the court imposed the upper term of three years in state prison, as recommended in the probation report.

Defendant is right on the law and wrong on the pivotal fact. There is no question that a probationer is entitled to due process before his probation can be revoked. (People v. Mosley (1988) 198 Cal.App.3d 1167, 1173-1175.) But the court never revoked defendant's probation. He had been given the opportunity to complete a treatment plan before being sentenced, an opportunity he squandered by failing to complete the program. Thus, at his sentencing hearing, the court did not give defendant credit for the months he spent in treatment because he did not complete the program pursuant to the terms of the agreement with the prosecutor.

Because his factual premise is inaccurate, his legal arguments are without merit. Although defendant had not been placed on probation, he was afforded a sentencing hearing and provided the opportunity to present evidence and argue any mitigating factors. His lawyer did argue he should have been given credit for some of the time he spent in the program because he had remained sober since his last arrest. As a result, he was afforded due process and his lawyer cannot be faulted for failing to object to the manner in which his probation was revoked since factually his probation had not been revoked.

DISPOSITION

The trial court is directed to amend the abstract of judgment to differentiate the fine imposed from the penalty assessment, and if the fine is imposed pursuant to Vehicle Code section 23550, to indicate so under item 5. The court is further directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

RAYE , Acting P.J.

We concur:

MORRISON , J.

CANTIL-SAKAUYE , J.

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