Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2008030257, Edward F. Brodie, Judge.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
John Michael Abraham appeals a judgment after the trial court revoked his probation following his guilty plea to two counts of petty theft with priors (Pen. Code, § 666) and his admission that he had eight prior prison terms (§ 667.5, subd. (b)). The court sentenced him to an aggregate five-year prison term. We conclude, among other things, that the court did not provide Abraham with a hearing complying with due process standards before it found that he had violated his probation conditions. We reverse and remand.
All statutory references are to the Penal Code.
FACTS
At a sentencing hearing on November 6, 2009, the trial court suspended execution of Abraham's five-year prison sentence and placed him on formal probation for 36 months. One of the terms of probation required Abraham to attend a residential drug treatment facility in Los Angeles County known as the Canoga Park Salvation Army program (CPSA). He was ordered to remain in the program until he was allowed to leave by the probation department. The court also ordered Abraham to serve 180 days in jail, but it stayed the jail sentence pending a review hearing scheduled for March 12, 2010.
On March 12, 2010, the probation department filed a memorandum reflecting that, "[t]he matter is before the Court for a Review of Jail and an updated progress report." In the memorandum, the probation officer stated: 1) on January 5, 2010, Brian Huffman, the CPSA intake coordinator, told the probation department that Abraham "was terminated from the program on 12-11-09, for theft"; 2) Abraham did not contact the probation department and his whereabouts were unknown; and 3) on January 20, 2010, the Arcadia Police Department arrested Abraham for petty theft (§ 666) and not giving his true name to a police officer (§ 148.9).
The trial court continued the matter and ultimately scheduled a hearing on April 28, 2010. At that hearing, Abraham appeared with his retained counsel David Lehr. Lehr told the court, "Mr. Abraham is filling out a green sheet to apply for the public defender. Would the Court like me to wait around for that to occur? I'll be happy to do so." The court responded, "Well, I'd like you to participate in this review hearing that I'm going to have."
The trial court stated to counsel that there would be no probation violation hearing on this matter. It said, "This doesn't take a violation of probation hearing. It was set back in my courtroom for a review to see how he was doing in a program that he got kicked out of a month after I sentenced him." (Italics added.)
Lehr told the trial court, "[Abraham] was kicked out of the [CPSA] because he had two pairs of tennis shoes instead of one. And [CPSA] invited [Abraham] back in 30 days to try again." Regarding the Arcadia arrest, Lehr said that the judge presiding over that case in Los Angeles County had determined that Abraham should be sent to a treatment program for his alcohol problem. Lehr said he had "paperwork" confirming that fact. He also noted that the probation officer in Los Angeles County had agreed with that disposition.
The prosecutor was present during this proceeding. She called no witnesses and introduced no exhibits. The trial court did not request counsel to provide the Los Angeles County court records and it did not review them. Abraham was asked no questions by the court or the prosecutor and he made no admissions. No evidence was presented. After Lehr made his opening argument, the court stated, "The review clearly is unfavorable. His grant of probation is revoked. He's sentenced to the term that I sentenced him before...."
DISCUSSION
Compliance with Due Process Hearing Procedures
Abraham contends the trial court found he violated his probation without allowing him an adequate hearing. He claims that because the proceeding did not comply with due process standards, the court was not in a position to make findings on probation violations and the judgment must be reversed. We agree.
"[P]robation revocation is not part of a criminal prosecution, and thus 'the full panoply of rights due a defendant in [a criminal] proceeding does not apply....'" (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1198.) "Nonetheless, '[i]t is fundamental that both the People and the probationer... have a continued post-conviction interest in accurate fact-finding and the informed use of discretion by the trial court.'" (Ibid.)
"To safeguard these fundamental interests, due process requires that a defendant at a probation revocation hearing be afforded, at a minimum, certain rights, including 'the right to confront and cross-examine adverse witnesses.'" (People v.Shepherd, supra, 151 Cal.App.4th at p. 1198.) The probationer also has the right to receive a "written notice of the claimed violations of probation, " disclosure of the evidence against him, the opportunity to be heard and present witnesses and documentary evidence, and "a written statement of the evidence relied on and the reasons for revoking probation." (Jones v. Superior Court (2004) 115 Cal.App.4th 48, 62.) The absence of these rights compromises the "ultimate integrity of the fact-finding process." (People v. Shepherd, supra, 151 Cal.App.4th at p. 1199.) "Before a defendant's probation may be revoked, a preponderance of the evidence must support a probation violation." (Id. at p. 1197.)
Proper Notice
Abraham claims the hearing was not properly noticed as a probation violation hearing. He notes that the record does not contain any written notice of the alleged probation violations that would be considered at the hearing. The Attorney General agrees, but claims this omission is inconsequential. It is most consequential.
Proper written notice of the claimed violations of probation is an essential element of a valid probation revocation hearing. (Jones v.Superior Court, supra, 115 Cal.App.4th at p. 62.) It allows the defendant the opportunity to prepare for the evidence that will be presented against him, and it defines the factual issues the trial court will have to resolve. The lack of such notice compromises the constitutional integrity of the proceedings for noncompliance with "the minimum requirements of due process." (Morrissey v. Brewer (1972) 408 U.S. 471, 488-489; Jones, at p. 62.)
Here the trial court said the hearing had been set "for a review to see how [Abraham] was doing in a [rehabilitation] program." But that is substantially different than a hearing on probation violations. The court may properly monitor the progress of a probationer and make findings on the success of the rehabilitation plans. But scheduling the hearing as a review, and then converting it into a probation violation hearing, without notice, is constitutionally impermissible. (Jones v. Superior Court, supra, 115 Cal.App.4th at p. 62; People v. Self (1991) 233 Cal.App.3d 414, 419; In re Ruffalo (1968) 390 U.S. 544, 551 ["'Such procedural violation of due process would never pass muster in any normal civil or criminal litigation'"].)
Adequate Hearing
The trial court determined it need not hold a probation violation hearing to find a probation violation. When the matter was called, the court said, "This doesn't take a violation of probation hearing." We agree with Abraham that it does.
"[T]he final revocation of probation must be preceded by a hearing...." (Black v. Romano (1985) 471 U.S. 606, 611, italics added.) Abraham was entitled to a hearing before the court could make the findings of fact necessary to support a ruling that there was a probation violation. (Ibid.; People v.Shepherd, supra, 151 Cal.App.4th at pp. 1198-1199.) The absence of proper notice and a hearing compromises the integrity of the fact finding process. (Shepherd, at p. 1199.) Moreover, the hearing is the forum where the prosecutor must meet the burden to persuade the court that the evidence supports a change in the probationer's status. Abraham was entitled "'to require the prosecution to establish that the alleged violation did in fact occur and to justify the revocation.'" (Lucido v. Superior Court (1990) 51 Cal.3d 335, 340, fn. 1.) But here the prosecutor presented no evidence and made no showing on revocation. There was no forum for such a showing because the court did not conduct a hearing. Even where a court determines there is a probation violation, the probationer still has a constitutional right to present mitigating evidence to oppose a revocation determination. (U.S. v. Diaz-Burgos (9th Cir. 1979) 601 F.2d 983, 985-986.) The absence of a hearing compromises that right. (Ibid.)
Citing People v. Robles (2007) 147 Cal.App.4th 1286, 1291, the Attorney General notes that where a defendant admits the probation violations, there is no necessity for an evidentiary hearing. True, but that is not what happened here. Abraham never admitted any violations at this "review" hearing. The trial court never asked him whether he admitted or denied any allegations. Consequently, there was no admission to substitute for the evidence that should have been presented, and findings of fact that should have been made, at the hearing.
Actions by Abraham's Counsel
The Attorney General claims that Abraham's counsel did not raise any procedural objections. He contends that consequently the procedural irregularities Abraham now is raising were waived. We disagree.
The Attorney General assumes this proceeding was a probation violation hearing and consequently the waivers that are applicable to those proceedings apply here. But when this matter was called, the trial court advised counsel that this was not a probation violation hearing; it was "a review hearing." Consequently, any alleged omission on counsel's part must be viewed in that context. Abraham's counsel was requesting the court to extend the review process and place Abraham into a rehabilitation facility. Any reasonable lawyer would be justifiably surprised when the court suddenly, without notice, decided to find a probation violation without first conducting a probation violation hearing.
The Attorney General claims Abraham is bound by the actions of his counsel. But there were serious unresolved issues regarding which counsel would represent him. At the beginning of the proceeding, Lehr advised the trial court that Abraham was changing counsel and seeking representation by the public defender. But the court did not hold a hearing on this matter. It made no inquiry of Lehr or Abraham about the reason for the change, nor did it seek the position of the public defender on representation. Instead, it simply told Lehr, "I'd like you to participate in this review hearing...." Consequently, Lehr represented Abraham, notwithstanding Abraham's choice of the public defender.
But "[a] defendant has a constitutional and statutory right to counsel of his choice." (People v. Stevens (1984) 156 Cal.App.3d 1119, 1127.) "'His right to decide for himself who best can conduct the case must be respected wherever feasible.'" (Id. at p. 1128.) The trial court made no finding that a change of counsel would unduly interfere with the proceedings. "Absent a proper finding of unwarranted disruption of the orderly processes of justice, a court may not force a defendant who timely requests substitution to go to trial represented by retained counsel he no longer trusts." (Ibid.)
The Attorney General claims that Lehr indirectly admitted the probation violations. We disagree. Because Lehr was not Abraham's counsel of choice, Lehr could not admit any alleged violations without Abraham's consent. (People v. Robles, supra, 147 Cal.App.4th at p. 1290.) There is nothing in the transcript of the April 28th hearing to reflect that Abraham ever authorized Lehr to make any admissions. The only reasonable inference from this record is that Lehr had no authority because Abraham wanted representation by other counsel. Lehr's remarks, taken in context, were essentially arguments for placing Abraham in another rehabilitation setting. He may have assumed certain facts for purposes of argument, but he could reasonably believe this was helpful in a hearing that only involved a review.
The Probation Report as a Substitute for Evidence
The Attorney General suggests that the trial court had sufficient reliable information before it with the combination of Lehr's arguments and the probation report allegations to properly find probation violations. He is essentially arguing that the court could make factual findings without any evidence before it. We disagree.
The trial court must base its findings on evidence. Where no evidence is presented, there can be no findings of probation violations. (Jones v. Superior Court, supra, 115 Cal.App.4th at p. 62.) Moreover, Lehr's version of facts was substantially different than the probation report. He told the court that Abraham was removed from the treatment facility because "he had two pairs of tennis shoes instead of one, " and the facility invited Abraham back into the program. By contrast, the probation report reflects that Huffman claimed that Abraham "was terminated from the program... for theft."
A probation report, by itself, is not a substitute for the evidence necessary to sustain a finding that the defendant violated probation. (People v. Winson (1981) 29 Cal.3d 711, 718.) Even so, here the report does not even indicate who allegedly witnessed the alleged theft. The probation officer and Huffman did not testify, and the probation report does not indicate whether Huffman or an unnamed third party was the source of the information. Because the report was very short and did not contain any factual summary, relying on its conclusory allegations did not give the court a factual basis to make findings.
In addition, there was no showing that the probation officer and Huffman were unavailable to testify or that the out-of-court statements in the report were reliable hearsay. Consequently, such hearsay could not be relied on without compromising Abraham's due process rights. (People v. Shepherd, supra, 151 Cal.App.4th at p. 1202; People v. Winson, supra, 29 Cal.3d at p. 718.) The trial court's ability to make findings of fact without evidence was also impeded because: 1) the probation report did not address several of the issues and factual areas Lehr raised, and 2) the prosecutor did not challenge any of Lehr's factual representations. Consequently, the only way to resolve the conflict between Lehr's version and the probation report was by presenting testimony. The procedure the court uses is critical to the integrity of the fact finding process. Given the number of procedural deficiencies, the errors cannot be deemed harmless.
The judgment is reversed. The matter is remanded to the trial court with instructions to hold a new hearing consistent with the due process protections set forth in this opinion.
We concur: COFFEE, J., ERREN, J., Edward F. Brodie, Judge