Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 137960
SIMONS, J.
Melvin Lee Morris, Sr., appeals from a judgment committing him to prison after probation was revoked. He contends the trial court’s action violated his federal due process rights.
Historical and Procedural Facts
In the year 2000, Morris entered a negotiated plea of no contest to the offense of transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and admitted two prior convictions. The trial court suspended imposition of sentence and placed him on five years’ probation with, inter alia, the standard obey-all-laws condition.
On October 1, 2004, a complaint and petition to revoke probation were filed, alleging the commission of six new offenses on September 29. At the preliminary hearing, the trial court announced that Morris’s probation revocation hearing would “go on the same date” as the trial. Three of the six counts were dismissed during trial. A jury found Morris guilty of unlawful use of a license (Veh. Code, § 14610, subd. (a)(1)) and not guilty on the two remaining counts.
The documents are file-stamped September 1, but dated October 1, which would appear to be the correct date, given that they allege offenses committed on September 29.
After excusing the jurors, the trial court announced “further proceedings on the probation violation petition.” When asked if, in regard to that matter, there was “[a]nything further from the defense, ” counsel replied that he was “assuming” the trial court was going to find Morris in violation. After discussion about a sentencing date, the trial court asked, “Was there anything further in terms of evidence or argument on the probation violation?” to which defense counsel answered, “No.”
The trial court then stated that the probation violation hearing was held at the same time as the jury trial. It found that Morris had violated the Vehicle Code, as found by the jury. It further found, by a preponderance of the evidence (People v. Rodriguez (1990) 51 Cal.3d 437, 442), that he violated Penal Code sections 530.5, subdivision (d) (fraudulent possession of personal information) as alleged in count 5, of which the jury found him not guilty, and 12021, subdivision (a)(1) (possession of firearm by felon—priors) as alleged in dismissed count 1. Finally, the court found Morris in violation of a probation condition imposed after a previous revocation petition that he not possess anyone else’s identification. Probation was revoked, and Morris was sentenced to 10 years in prison. Morris filed a timely notice of appeal.
Discussion
“Revocation of probation lies within the broad discretion of the trial court. [Citation.] Absent abuse of that discretion, an appellate court will not disturb the trial court’s findings.” (People v. Self (1991) 233 Cal.App.3d 414, 417.) That discretion is limited, however, by the due process requirements enunciated in Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey). (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782.) Those requirements include: “(a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses . . .; (e) a ‘neutral and detached’ hearing body . . .; and (f) a written statement by the factfinder[] as to the evidence relied on and the reasons for revoking [probation].” (Morrissey, at p. 489.)
Morris contends he was denied due process because the trial court failed to advise him of his right to a hearing, issued no notice of claimed violations and evidence, and offered him no opportunity to be heard or to present evidence. Even if he has not, as the Attorney General asserts, waived his due process claims by failing to object below, those claims must fail.
I. Advisement of Right to Hearing
The thrust of Morris’s first contention is not entirely clear. It seems to be that the trial court failed to advise him of his right to a formal or final revocation hearing on the alleged probation violations (In re Wagner (2005) 127 Cal.App.4th 138, 146 [Morrissey “conditions include that probationers be advised of their right to a formal hearing on the alleged probation violations”]) or of the specific rights he would have at such a hearing, and that he never waived those rights. But the trial court advised Morris that he would have a probation revocation hearing in conjunction with the trial. Morris participated in that hearing, represented by counsel; neither of them objected that there had been inadequate notice. “A probation revocation hearing involves some, but by no means all, of the fundamental rights afforded a defendant at trial.” (People v. Dale (1973) 36 Cal.App.3d 191, 195.) In particular, there is no indication in Morrissey that the Boykin-Tahl rule (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122) “should be extended to require a similar procedure of recitation of procedural rights and personal waiver in revocations of probation.” (Dale, at p. 194.)
In his reply brief, Morris says the issue is not whether he was given appropriate or formal notice, but that he had a constitutional right to a probation revocation hearing, which he did not waive. He then repeats that “there was a failure to inform” him of his right to a hearing and to obtain a waiver of that right “before dispensing with such a hearing.” But the trial court did not dispense with a hearing.
Finally, Morris says “the issue is simply whether the probation revocation hearing met the basic constitutional requirements.” He contends two of those requirements were not met.
II. Notice of Claimed Violations and Evidence
Morris’s contention that he was not provided with notice of the claimed probation violations and the evidence against him is belied by the petition to revoke probation, which lists the six offenses allegedly committed on September 29, 2004, and the attached multi-page police report detailing the relevant evidence. It is not clear why Morris repeatedly asserts that there was no petition to revoke. In response to the Attorney General’s correction of this factual error, Morris simply replies, “The issue is not whether the prosecution filed a proper notice to revoke probation on September 1 [see, ante, fn. 1], 2004.”
In any event, Morris asserts that the April 20, 2005 information (essentially the same allegations as the petition to revoke) “did not and could not provide notice . . . of the grounds of probation violation and the evidence that would be used against him” at the posttrial probation revocation proceeding, because of the dismissals and acquittals during and after trial. But the case on which he relies for this proposition, People v. Mosley (1988) 198 Cal.App.3d 1167, is distinguishable. There, the petition to revoke was based on one specific ground, an alleged rape. After the defendant was found not guilty of rape, his probation was revoked on the basis of testimony that he had consumed alcohol, which, the prosecutor informed the court during jury deliberations, violated a condition of his probation. (Id. at pp. 1172-1173.) The court held the defendant was denied due process because his probation was revoked on a ground as to which he had no notice or opportunity to defend. (Id. at p. 1174.) By contrast, there was no “substitution-without-notice” in this case. Morris’s probation was revoked on the ground of a Vehicle Code violation, which was alleged in both the petition to revoke and the information, and of which he was convicted.
Morris complains that additional grounds for revocation were based on “resurrected” evidence underlying one dismissed count and one count on which he was acquitted. He recognizes that “evidence [that] is insufficient or inadmissible to prove guilt at trial nevertheless may be considered in determining whether probation should be revoked” (In re Coughlin (1976) 16 Cal.3d 52, 58), but claims he had no notice these two counts would be used. This claim is based on the false assertion that no probation revocation petition was ever filed. Morris does not challenge the sufficiency of the evidence that he committed these offenses, nor does he argue that his misdemeanor conviction alone is an insufficient basis for probation revocation.
III. Opportunity to be Heard and to Present Evidence
Finally, Morris contends he was not given an opportunity to be heard and to present evidence on the alleged probation violations. Morris repeatedly characterizes the trial and probation revocation hearing as having been held “simultaneously, ” and contends that exercise of his trial rights necessarily resulted in denial of his Morrissey rights. Specifically, he argues that the trial court’s rulings on three motions in limine precluded him from testifying at trial. First, the court ruled he could be impeached with three of his four alleged prior felony convictions, second, it ruled that one of two statements to police that Morris challenged under Miranda v. Arizona (1966) 384 U.S. 436, would be “excluded but possibly admitted later depending on how the case developed, ” and third, it denied Morris’s motion to sever his trial from that of his son and codefendant.
Morris argues that if he had testified, statements made to arresting officers “but temporarily excluded under Miranda” might have been admitted at trial. But the cited portion of the reporter’s transcript hardly supports Morris’s assertion that the court “invited” the prosecution to revisit its ruling later. Rather, the court said the excluded statement was “not admissible because the district attorney is not moving to admit it. And so it should not be referred to during the opening statements to the jury unless for some reason counsel wishes to revisit this issue out of the presence of the jury. [¶] So the only evidence admitted is the second statement[, ] which appears on audio and videotape. But not the statement made to Detective Schutz alone the previous day.”
Elsewhere in his brief, however, Morris says the probation revocation hearing was conducted after the trial verdicts were returned. In view of the fact that during those “further proceedings, ” the court expressly asked if the defense wished to offer any further evidence or argument, it is hard to see how the impact of its in limine rulings on Morris’s trial strategy in any way affected his Morrissey right to be heard and to present evidence at his probation revocation hearing. Moreover, he personally addressed the court at sentencing, where he had ample opportunity to show “that there was a justifiable excuse for any violation or that revocation [was] not the appropriate disposition” (Black v. Romano (1985) 471 U.S. 606, 612).
Disposition
The judgment is affirmed.
We concur. JONES, P.J., NEEDHAM, J.