Filed 9/20/17 P. v. Baptista CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Glenn)

----

Under a plea agreement, defendant Matthew Baptista pleaded no contest to misdemeanor drug possession, and the superior court sent Baptista to drug treatment under Proposition 36. Over a year later, at a hearing that the district attorney did not attend, the superior court found that Baptista had successfully completed drug treatment, so it set aside his conviction and dismissed the information. The People appeal.

On appeal, the People contend we must reverse the setting aside of the conviction and dismissal of the information because the district attorney did not have notice of the hearing and motion to set aside the conviction and dismiss the information. Acknowledging that the superior court’s order states that the district attorney had notice, the People claim we should disregard that statement for various reasons. In response, Baptista argues that (1) the procedure leading to dismissal of the information was authorized by a memorandum of understanding for Proposition 36 cases, signed by the superior court, the district attorney, the public defender, and other stakeholders, and (2) the written order of the hearing showed that the district attorney received notice.

We conclude that the written order reflecting notice to the district attorney must be taken at face value because the People give us no legally sufficient reason to disregard it. We therefore affirm because the district attorney had notice.

BACKGROUND

By complaint, deemed an information, Baptista was charged with transporting Lorazepam and possessing it for sale. (Health & Saf. Code, §§ 11378; 11379, subd. (a).)

On June 22, 2013, under a plea agreement, the charges were reduced to one count of misdemeanor possession of benzodiazepines without a prescription. (Health & Saf. Code, § 11375.) The superior court suspended imposition of sentence and placed defendant on drug treatment probation under Proposition 36. (Pen. Code, § 1210 et seq.)

After several status hearings that the district attorney did not attend, the superior court, Judge Peter B. Twede presiding, held a hearing on September 11, 2013. As do the People in their opening brief, we provide the entire, though brief, reporter’s transcript record of the proceeding in which the superior court terminated Baptista’s probation, allowed him to withdraw his guilty plea, and dismissed the charged offenses:

“THE COURT: Baptista, Matthew.

“Okay. We’ll call this matter. This matter is before the Court, and Matthew is down in Orange County. He had a satisfactory review. And, in fact, he is on for the completion of the Proposition 36 drug treatment program.

“Mr. Moize, is that still the fact here?

“PROBATION OFFICER MOIZE: Yes, your Honor.

“THE COURT: So he has satisfactorily completed all requirements. And Treatment, same –

“MILES AMUNDSON: Yes, your Honor.

“THE COURT: All right. Counsel, do you have a motion to make?

“MR. HOWARD [defense counsel]: Yes, your Honor. Based -- And just for the court record, because Mr. Baptista is getting services down in Los Angeles, the Court had indicated that he did not have to be present today so long as he has satisfied all of his requirements, so that’s why he’s not personally present. And based on the situation, your Honor, we would ask that -- to the extent the Court can, we would ask to have any felonies reduced to misdemeanors and also to have the charges found to be removed -- removed based on his completion of the Prop 36 drug court.

“THE COURT: In this action he is on probation, Prop 36, for 11375 Health and Safety as a misdemeanor. Therefore, all charges are reinstated and he is dismissed -- the charges are dismissed; he’s successfully completed and is discharged from probation.

“MR. HOWARD: Thank you, your Honor.”

The minutes of the hearing indicated that the district attorney was not present and that defense counsel would prepare an order for the court’s signature.

The court issued a written order on October 28, 2013, over the signature of Judge Donald Cole Byrd. The order found Baptista eligible for relief by setting aside of the conviction and dismissal of the information because defendant successfully complied with the terms of probation and completed a drug treatment program. The written order contained the following statement: “The Court held a hearing on this matter on September 11, 2013. . . . Notice had been given to the District Attorney, the Probation Department, and Treatment of hearing and the opportunity to appear and provide information on this matter.”

The People filed a notice of appeal on November 26, 2013.

DISCUSSION

The People contend they were entitled to notice and an opportunity to be heard, as a matter of due process. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1297-1298.) We agree, but that does not resolve the matter because the written order includes a statement that the district attorney had notice.

The People contend we cannot take the superior court’s order at face value, as reflecting that the People had notice. The People argue (note the absence of cited authority):

“[The written order] does not state how notice was given and thus fails to show that the District Attorney was informed [Baptista] intended to make a motion to dismiss the case before the end of the probationary period under [Penal Code] section 1210.1[, subd.] (e) based on the completion of the terms of probation, or the showing on which the motion would be based. Further, the order did not state when the notice was given.

“Significantly, the order does not state that the District Attorney was given ‘the opportunity to appear and provide information on this matter;’ but only that the District Attorney was notified of an opportunity to appear and provide information. The order’s failure to state when or how notice was given, combined [with] its failure to set forth the information provided in the notice, make it impossible to determine whether it gave the District Attorney a fair opportunity to gather information and appear.” (Original italics.)

We need not consider a contention that is not supported by a citation to authority because it is the appellant’s burden to establish legal error. (In re S.C. (2006) 138 Cal.App.4th 396, 408.) The People provide no authority for the propositions stated. For example, must an order reflect how notice was given or when notice was given? The People argue that there is no indication that the notice was legally adequate. But, with a statement by the superior court that the district attorney received notice, we presume the notice was adequate. (See Evid. Code, § 664 [presumption that official duty done].) Raising questions about the notice, without providing authority that those questions go to the adequacy of notice, does not overcome the presumption the official duty was done—here, the presumption of adequacy.

Elsewhere in the opening brief, the People appear to argue that the order stating that the People had been given notice was inadequate because it did not reflect that the district attorney was given a two-day written notice, citing Penal Code section 1203.3, subdivision (b)(1) [prosecutor to be given two-day written notice and opportunity to be heard]. But, while that statute requires that the district attorney be given two-day notice, it does not require the superior court to include a statement in the order that two-day notice was given.

Having failed to establish, with citation to authority, why the superior court’s order did not establish that the district attorney was given adequate notice, the People attempt to call into question the accuracy of the court’s statement that the district attorney received notice.

The People list the following seven reasons to question the accuracy of the written order:

1. The record contains no proof of service.
2. There is no record of who gave notice or how and when it was given.
3. The written order was not signed by the judge who presided at the hearing.
4. The written order was signed 47 days after the hearing.
5. The written order incorrectly stated that Baptista completed probation, which was initially ordered for 36 months.
6. The written order referred to the wrong subdivision of Penal Code section 1210.1 (subdivision (d), instead of the correct subdivision (e)) and incorrectly stated that Baptista could not possess a firearm.
7. The written order referred to a “Complaint/Information,” even though an information had been filed.

The People argue that these circumstances show that the written order was prepared from boilerplate and suggest the judge did not review it. But the People provide no authority that these observations are relevant to whether the written order’s statement that the district attorney had received notice was adequate. And they do not call into serious question the accuracy of the superior court’s statement that the district attorney received notice. In other words, these circumstances do not require us to conclude the superior court was mistaken in its statement that the district attorney received notice.

Finally, the People claim that, because the reporter’s transcript reflects that the superior court asked counsel for Baptista whether he had a motion to make, the record establishes that there was no motion made in papers before the hearing and, therefore, the district attorney did not have adequate notice. We disagree. That the court asked counsel whether he had a motion to make does not establish that whatever notice was given to the district attorney did not contain the request for relief under the relevant statutes. To the contrary, the superior court opened the hearing by stating that the matter was “on for the completion of the Proposition 36 drug treatment program.”

The People therefore fail in their attempt to somehow impeach the written order’s statement that the district attorney received notice.

If, indeed, the record is wrong in that the written order misstates that the district attorney received notice, we note that, upon receiving the written order, the district attorney filed a notice of appeal rather than petitioning the superior court to correct the written order. Having instead filed a notice of appeal, the district attorney is left with the record as it is, including the order stating that the district attorney received notice.[1]

Because the written order, before stating the relief granted to Baptista, states that the district attorney received notice, the People’s argument that they were denied due process because the district attorney did not receive notice is without merit.

Having determined that the People’s complaint about notice is without foundation in the record, we need not determine whether, under the memorandum of understanding for Proposition 36 cases, the district attorney waived notice or the People should be estopped from arguing that he did not have notice.

DISPOSITION

The judgment is affirmed.

NICHOLSON , Acting P. J.

We concur:

HULL , J.

RENNER , J.