P. v. Firebaugh











Filed 3/27/17 P. v. Firebaugh CA3






NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

LARRY FIREBAUGH,

Defendant and Appellant.

C077076

(Super. Ct. Nos. 13F00577 & 13F02143)




Defendant Larry Firebaugh’s probation was revoked after he failed to complete a drug rehabilitation program ordered by the court. The previously imposed sentence of eight years eight months in state prison was then ordered executed. Defendant appeals that order, arguing that he “was denied his 14th Amendment due process protections when his probation was revoked without written notice of the claimed violation and a timely formal hearing providing him with the opportunity to present evidence in mitigation and in support of reinstatement and/or modification of the plea agreement.” We shall conclude that defendant forfeited his claims on appeal by failing to raise them below. Accordingly, we shall affirm the judgment.
FACTUAL AND PROCEDUAL BACKGROUND
On January 30, 2013, in Sacramento County Superior Court case No. 13F00577, defendant entered a negotiated plea of no contest to one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) on the condition that he would be placed on five years’ formal probation pursuant to Proposition 36 (Gen. Elec. (Nov. 6, 2012)). The trial court suspended imposition of sentence and placed defendant on five years’ formal probation subject to various conditions, including that he attend a drug rehabilitation program and obey all laws.
On August 7, 2013, in Sacramento County Superior Court case No. 13F02143, defendant entered a negotiated plea of no contest to four counts of second degree burglary (Pen. Code, § 459), three counts of grand theft (id. § 487, subd. (a)), and three counts of receiving stolen property (id. § 496, subd. (a)), and admitted the truth of one prior prison term allegation (id. § 667.5, subd. (a)) on the condition that he would receive an eight-year prison term, execution of which would be suspended, and that he would be placed on five years’ formal probation provided that he successfully complete the Delancey Street Foundation drug treatment program (Delancey Street program). The trial court sentenced defendant to the eight years in state prison on case No. 12F02143, plus a consecutive eight months on case No. 13F00577, suspended execution of sentence, and placed defendant on five years’ formal probation subject to various conditions, including that he successfully complete the Delancey Street program.
On or about August 15, 2013, defendant’s probation officer advised the trial court in writing that defendant voluntarily left the Delancey Street program on August 13, 2013, five days after he entered. Defendant reported in person to the probation officer on August 15, 2013, and advised the officer that “he left because he was required to be on his feet several hours a day, but has pins in his ankle that caused him to limp.”
On August 21, 2013, the trial court found defendant violated the terms of his plea agreement by failing to attend and complete the Delancey Street Program, remanded him into the custody of the Sacramento County jail, and set a hearing to “revisit the issue” on September 20, 2013. In doing so, the court advised defendant, “I’m making no promises. You entered into a contract as far [as] I’m concerned agreeing to serve eight years in state prison or agreeing to complete Delancey Street. I told [defense counsel] I would keep an open mind about the possibility of reconfiguring that contract, but until and unless I’m convinced that that’s an appropriate remedy and that there is a program that hypothetically meets the needs that Delancey was to have filled, I’m not in a position to make an agreement today which direction I will go.”
Over the next few months, defendant’s trial counsel attempted to find an alternative program that would accept defendant and was acceptable to the prosecution. On December 19, 2013, defendant requested a continuance to allow him “a little bit more time” to find such a program. The trial court agreed to give defendant “one last . . . continuance to either bring a motion to set aside the plea, or alternatively bring a program that’s acceptable to both sides . . . .” With the agreement of the parties, the trial court continued the matter to January 22, 2014 “for submission . . . of an acceptable program replacing Delancey Street, . . . or alternatively for the filing of a motion to withdraw the plea.”
After numerous continuances, on June 13, 2014, defendant filed a motion to withdraw his plea on the ground that the trial court failed to advise him of the direct consequences of his plea. The trial court denied the motion, finding that defendant “knew exactly what [he] was getting into . . . .” Accordingly, the court executed the previously imposed sentence.
DISCUSSION
Defendant claims that his due process rights were violated because he was not given written notice of the claimed violation of probation or a timely formal hearing at which he could “present evidence in mitigation and in support of reinstatement and/or modification of the plea agreement.” As we shall explain, defendant forfeited these claims on appeal by failing to raise them below.
“ ‘ “An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ ” [Citation.] ‘ “The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .” ’ [Citation.]
“ ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation.]
“ ‘The rationale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal.App. 603 at page 610 . . . : “ ‘In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.’ ” ’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 589-590, fn. omitted.)
The minimum due process requirements at a formal probation revocation hearing include written notice of the claimed violations of probation and the opportunity to be heard in person and to present witnesses and documentary evidence. (Jones v. Superior Court (2004) 115 Cal. App. 4th 48, 62.) Although it appears from the record before us that defendant was well aware of the claimed probation violation, i.e. his failure to complete the Delancey Street Program, and presented evidence in mitigation and in support of reinstatement and/or modification of the plea agreement at the hearing on the motion to withdraw his plea, we need not determine whether such notice and opportunity to be heard was sufficient for due process purposes because defendant failed to raise his due process claims below. A defendant may not complain on appeal of a departure from these procedural requirements unless the error has been brought to the attention of the trial court by means of a timely and specific objection. Defendant failed to bring the alleged omissions to the attention of the trial court despite having ample opportunity to do so. Accordingly, he forfeited his arguments on appeal.
DISPOSITION
The judgment revoking defendant’s probation and executing the previously imposed sentence is affirmed.



/s/
Blease, Acting P. J.


We concur:



/s/
Nicholson, J.



/s/
Robie, J.

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