Opinion
A128587
11-09-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN OLLISON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. 207313)
The trial court revoked appellant John Ollison's probation and imposed a five-year prison sentence for an earlier conviction of selling narcotics. (Health & Saf. Code, § 11352, subd. (a).) During the pendency of the appeal, the parties were unable to locate a reporter's transcript of the probation revocation hearing and a settled statement of that hearing was created. (See Cal. Rules of Court, rules 8.137, 8.346.) On appeal, Ollison contends that the settled statement constitutes an inadequate substitute for a transcript, making its use a violation of his federal constitutional rights to due process and equal protection. He asks us to vacate the judgment and remand the matter for a new hearing on the motion to revoke his probation. We affirm the judgment.
All further references to rules are to the California Rules of Court.
I. FACTS
A. Initial Conviction
As this case turns on the adequacy of the settled statement, we recount the facts contained in the record on appeal before making any reference to that statement. According to the public defender's summary of the police report, on the evening of October 28, 2008, a San Francisco undercover police officer encountered appellant John Ollison on Hyde Street. The officer asked for a "solid"; Ollison asked for money and spit something into his hand. Ollison took $20 of marked money from the officer and threw him a white pill which was later found to contain 0.22 grams of codeine. After Ollison threatened the officer, he was arrested. When Ollison was searched, the marked money was found on his person but no narcotics were found.
A magistrate found sufficient probable cause to believe that Ollison committed felony transporting or selling of narcotics, warranting his detention. (Health & Saf. Code, § 11352, subd. (a).) He was charged by felony complaint with the sale of codeine. The complaint also alleged that Ollison had served prior prison terms for a 1989 second degree robbery conviction and a 1996 second degree commercial burglary conviction. (Pen. Code, §§ 212.5, subd. (c), 459, 667, subds. (d)-(e), 667.5, subd. (b), 1170.12, subds. (b)-(c).) A public defender was appointed to represent him. He pled not guilty to the charge and denied the allegations. Bail was set at $35,000.
All further statutory references are to the Penal Code unless otherwise specified.
On November 14, 2008, Ollison moved to withdraw his not guilty plea. He entered a guilty plea, which the trial court accepted. The trial court indicated a proposed disposition of three years' probation with a six-month jail term. On December 22, 2008, the trial court suspended imposition of sentence. Ollison was granted a three-year term of probation and ordered to serve six months in county jail, with credit for time served. He was released on his own recognizance to allow him to attend to personal matters and ordered to surrender on January 7, 2009, to serve the remainder of his jail term. B. Modification of Probation
Five days later—on December 27, 2008—Ollison was searched as a condition of his probation and was found to be in possession of what appeared to be crack cocaine. He was arrested for possession of cocaine. (Health & Saf. Code, § 11350, subd. (a).) On December 31, 2008, the prosecution moved to revoke Ollison's probation. (§ 1203.2.) Probation was administratively revoked and Ollison was returned to custody, without bail. On February 27, 2009, he admitted violating the terms of his probation. The revocation of probation was set aside and probation was reinstated, with modifications. He was ordered to serve a nine-month jail term with credit for time served, and his term of probation was extended until January 2012. C. Revocation of Probation
On December 24, 2009, Ollison was arrested and charged with vandalism, possession of a concealed weapon, drawing a deadly weapon, obstructing use of phone to contact law enforcement officials and making a criminal threat. (§§ 417, subd. (a), 422, 591, 591.5, 594, subd. (b), 12020, subd. (a).) This arrest prompted the prosecution to again move to revoke his probation. Again, probation was administratively revoked and Ollison was returned to custody, without bail.
A probation report on the motion to revoke probation cites the reasons for Ollison's arrest and references an attached police incident report. The police report is not part of the record on appeal.
On March 5, 2010, a probation revocation hearing was conducted. Two witnesses testified: a hotel clerk and a San Francisco police officer. A compact disc of the incident as recorded by the hotel's surveillance camera and photographs—of the knife taken from Ollison at the time of his arrest and of damage to the hotel's glass doors—were admitted into evidence. Ollison threatened to kill the clerk and waved a knife at her. Ollison was found to have violated the terms of his probation.
His probation was revoked and Ollison was sentenced to five years in state prison. He was given 448 days of credit for time spent in local custody—298 days of actual time and 150 days of conduct credit. (§ 4019.) Ollison appealed from this probation revocation order and prison sentence. D. Appeal and Settled Statement
1. Procedure
During the pendency of the appeal, the trial court was unable to locate a reporter's transcript of the March 5, 2010 probation revocation hearing. Ollison's appellate counsel sought a settled statement of that hearing in the trial court. (Rule 8.346.)
A defendant must seek alternative means of reconstructing the trial court record in order to pursue his or her appeal. (People v. Young (2005) 34 Cal.4th 1149, 1170 (Young); People v. Hawthorne (1992) 4 Cal.4th 43, 66; People v. Moore (1988) 201 Cal.App.3d 51, 56.)
2. Narrative
Ollison's trial counsel submitted a two-page condensed narrative of these proceedings. (See rule 8.137(b)(1).) This narrative recounted that the March 5, 2010 hearing was conducted to consider the prosecution's motion to revoke Ollison's probation, based on accusations of acts he allegedly committed on or about December 23, 2009. Specifically, the People accused Ollison of trespassing at San Francisco's Seneca Hotel; of threatening to kill Chlorisa McClain, the hotel's front desk clerk; of lunging at her with a knife; of taking a phone from her when she attempted to call the police; and of breaking glass in the front entry door of the hotel. McClain, San Francisco Police Inspector Stephen Smalley, and a second police officer who arrested Ollison were listed as witnesses for the prosecution.
The clerk's minutes of the March 5, 2010 proceeding do not list the arresting officer as a witness.
McClain's testimony about the night of December 23-24, 2009, was summarized. According to the narrative, she claimed that she knew Ollison before the incident and that he was not allowed on the hotel premises because of a problem he once had with a tenant. The hotel was only accessible to tenants and access was controlled by a sliding front door made of metal and glass. Ollison entered the hotel about 11:00 p.m. on December 23, as another tenant left. When McClain first told Ollison that he could not enter the hotel, he replied "I don't give a fuck what you're saying." When she left her desk and told Ollison again that he was not allowed in, McClain saw that he held a knife. Ollison told her, "I'm going to kill you." When she tried to phone the police, he took the phone from her. She testified that she feared he would kill her.
Police Inspector Smalley's testimony was also summarized. During his investigation, he collected a videotape of the incident from the hotel's security camera and photographs of the broken glass panels from the hotel's front door. Over the objection of Ollison's counsel, the trial court admitted the videotape into evidence. That videotape purported to show Ollison entering the hotel and interacting with McClain.(See Evid. Code, § 1553 [challenging accuracy of secondary evidence].)
We grant the Attorney General's request to amend its brief to reflect its summary of the contents of the surveillance videotape.
San Francisco Police Officer Palladino testified about Ollison's arrest, stating that a knife was recovered at that time. Defense counsel objected that the prosecution had failed to lay a foundation for admission of the knife, but the prosecution argued that the knife recovered from Ollison at the time of his arrest matched the one McClain had described. The trial court made an Evidence Code section 1553 finding and admitted the knife seized from Ollison's person into evidence. The trial court also overruled Ollison's objection and admitted the photographs of the hotel front door showing broken glass.
The prosecution argued that Ollison exhibited a disregard for human life, was a genuine public safety risk, has served numerous state prison sentences, and was not amenable to probation. For these reasons, it asked the trial court to impose the maximum sentence. Ollison asked for reinstatement of probation and immediate release. The trial court found Ollison in violation of his probation.
The trial court asked if Ollison was prepared to be sentenced and whether he wanted to present any evidence before sentencing. Ollison consulted with defense counsel about jail credits calculation. Subject to the admission of mitigating evidence, Ollison asked to be sentenced forthwith. The trial court sentenced Ollison to an aggravated term of five years in state prison.
The prosecutor was entitled to propose amendments to the narrative submitted by Ollison's trial counsel. (Rule 8.137(b)(4).) The record contains no evidence that the prosecutor did so.
3. Review of Narrative
In October 2010, the trial court reviewed this written narrative with the prosecutor who was at the probation revocation hearing and with Ollison's trial counsel. (Rule 8.137(c)(1).) At that hearing, the trial court stated that it had reviewed the file in this matter and had a general recollection of the March 5, 2010 hearing. The parties recalled that McClain was upset when she testified. The trial court noted that a Marsden issue arose at the hearing—something that was not reflected in the narrative. The trial court recalled that the issue arose after presentation of evidence had been concluded and probation had been revoked, as it was preparing to sentence Ollison. The prosecutor opined that the Marsden motion was prompted by Ollison's displeasure about his sentence rather than about defense counsel's representation of him. At first, the prosecutor was not certain if the motion came before or after sentence was imposed, although he was clear that it had been made after probation was revoked. Defense counsel recalled that the Marsden issue arose after Ollison had been sentenced. The prosecutor then agreed with defense counsel that Ollison's Marsden motion was likely made after sentence was imposed. He observed that Ollison had not been surprised to have had his probation revoked, but had been upset when committed to state prison for an aggravated term of five years.
People v. Marsden (1970) 2 Cal.3d 118.
The trial exhibits—including a DVD of the surveillance videotape—and a transcript of the October 2010 hearing were added to the settled statement. Defense counsel objected anew to the exhibits on the grounds of hearsay, lack of foundation and the reliability of the DVD as secondary evidence of the videotape. (See Evid. Code, § 1553.) The trial court acknowledged that it ruled on those objections at the probation revocation hearing. At the conclusion of the hearing, the trial court declared the statement settled and certified it to our court. (Rule 8.137(c)(2).)
II. DISCUSSION
A. Settled Statement
Ollison contends that the settled statement submitted in lieu of a reporter's transcript is facially inadequate. To prevent violation of his federal constitutional rights to due process and equal protection, he asks us to vacate his probation revocation and remand for a new probation revocation hearing. On appeal, a defendant is entitled to a trial court record that permits meaningful review. (Young, supra, 34 Cal.4th at p. 1170; People v. Howard (1992) 1 Cal.4th 1132, 1165; see Draper v. Washington (1963) 372 U.S. 487, 496 [indigent's right to appellate record]; see also U.S. Const., 8th & 14th Amends.) A record satisfies federal due process standards if it permits adequate, effective appellate review. (People v. Howard, supra, 1 Cal.4th at p. 1166.)
If a substantial part of a reporter's transcript is lost, a reviewing court may set aside the judgment and order a new trial. (§ 1181, subd. 9; People v. Pinholster (1992) 1 Cal.4th 865, 920-921, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Cervantes (2007) 150 Cal.App.4th 1117, 1121.) We are not required to order a new trial every time a reporter's transcript is unavailable, but will do so if justice requires it. (People v. Moore, supra, 201 Cal.App.3d at p. 56.) A new trial is warranted if, in light of all the circumstances, the loss of a substantial part of the record affects our ability to conduct a meaningful review and the defendant's ability to properly perfect his or her appeal. (People v. Cervantes, supra, 150 Cal.App.4th at p. 1121; People v. Pinholster, supra, 1 Cal.4th at p. 921; People v. Moore, supra, 201 Cal.App.3d at pp. 56-57.) A long series of appellate decisions establish that a settled statement may provide an adequate substitute for a missing transcript consistent with due process. (See People v. Bradford(1997) 15 Cal.4th 1229, 1382; People v. Hawthorne, supra, 4 Cal.4th at pp. 66-67; People v. Pinholster, supra, 1 Cal.4th at p. 921; People v. Holloway (1990) 50 Cal.3d 1098, 1116, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830 fn. 1; see also Griffin v. Illinois (1956) 351 U.S. 12, 20 [no requirement that reporter's transcript be provided for appeal, if adequate substitute provided]; People v. Howard, supra, 1 Cal.4th at p. 1166 [no federal constitutional requirement that proceedings be transcribed].)
The trial court also has this authority, but the record on appeal contains no motion made on this basis. (§ 1181, subd. 9.)
We presume that Ollison was afforded a fair trial and that the judgment against him was proper. (See People v. Chessman (1950) 35 Cal.2d 455, 462.) No presumption of prejudice arises from the absence of parts of the usual appellate record. (People v. Samayoa (1997) 15 Cal.4th 795, 820.) To be inadequate, an appellate record's deficiency must be prejudicial to the defendant's ability to prosecute his or her appeal. Inconsequential inaccuracies or omissions do not prejudice a party. (Young, supra, 34 Cal.4th at p. 1170; People v. Chessman, supra, 35 Cal.2d at p. 462; see § 1258.) Ollison bears the burden of proving that a deficiency exists in the record and that he was prejudiced by it. (See People v. Samayoa, supra, 15 Cal.4th at pp. 820-821; People v. Howard, supra, 1 Cal.4th at p. 1165; People v. Holloway, supra, 50 Cal.3d at p. 1116; People v. Chessman, supra, 35 Cal.2d at p. 462; People v. Moore, supra, 201 Cal.App.3d at p. 56; see also § 1404.) To argue that the missing transcript may have contained evidence of error is merely speculation—it does not demonstrate prejudice. (Young, supra, 34 Cal.4th at p. 1170.)
To determine if the settled statement was adequate, we consider the issues raised on appeal and the ability of the trial parties to reconstruct the record. In making this evaluation, we consider whether the trial court took detailed notes or was able to remember the missing parts of the record, and defense counsel's ability to assist in reconstructing the record. (People v. Cervantes, supra, 150 Cal.App.4th at p. 1121.) In the case before us, the trial court, the trial prosecutor and Ollison's trial counsel agreed that the settled statement reflected the substance of what occurred at the hearing for which we have no reporter's transcript. (Contrast id. at pp. 1120-1122 [settled statement vacated when trial court could not recall hearing and defense counsel was unavailable to review prosecutor's summary of trial].) Although there is no suggestion that the trial court took notes, it reviewed the court file and recalled enough of the proceedings to be able to make a significant addition to the settled statement proposed by Ollison's counsel. Trial counsel participated in the hearing to create the settled statement, both by providing the two-page summary and by stating his recollection of key events at the hearing. With these circumstances in mind, we turn to the specific claims of error that Ollison raises on appeal. B. Cross-examination of McClain
First, Ollison contends that the description of McClain's testimony is insufficient because it does not affirmatively state that she was cross-examined or that any objections were raised to her testimony. From this omission, he assumes that she was not cross-examined, that proper objections should have been made but were not, and that he was deprived of his constitutional right to confront witnesses against him. We disagree. The record does not state that McClain was not cross-examined. Trial counsel participating in the settled statement process did not indicate at any time that he was not permitted to cross-examine her. This is the type of error or omission that we would expect trial counsel to note if it had occurred. The fact that trial counsel noted objections to the physical evidence submitted but not to McClain's testimony suggests that no objections were raised to the witness testimony. There is no evidence that the complained-of errors actually occurred. We reject Ollison's claim of error as speculative rather than prejudicial. (See, e.g., Young, supra, 34 Cal.4th at p. 1170.) C. Foundational Testimony and Objections
Ollison also challenges the adequacy of the settled statement because it does not allow a proper review of the prosecution exhibits introduced into evidence. He urges us to conclude that the settled statement is deficient because it does not contain any foundational testimony from prosecution witnesses, cite the specific bases of trial counsel's evidentiary objections to the exhibits, or suggest what indicia of reliability might allow us to assess whether the evidence was properly admitted.
In his opening brief, Ollison argues generally that this physical evidence cannot be admitted at a probation revocation hearing unless it is accompanied by reasonable indicia of reliability. (See People v. Maki (1985) 39 Cal.3d 707, 716.) This claim of error ignores facts that are contained in the settled statement—one police witness who retrieved the surveillance camera videotape and the photographs of the broken glass panels in the hotel's front door; and a second police witness who recovered a knife from Ollison at the time of his arrest. The settled statement demonstrates that trial counsel actually made foundational objections to the admission of these items of evidence, which the trial court overruled. The trial court rejected the objection that the representation offered to the trial court was not a proper copy of the surveillance videotape. (Evid. Code, § 1553.) It also admitted the knife recovered from Ollison at the time of his arrest, accepting the prosecution argument that it matched the knife described by McClain. At the hearing on the settled statement, trial counsel renewed the objections and also raised a hearsay objection. The trial court admitted the three exhibits at the hearing on the settled statement, as it had at the probation revocation hearing. Our reading of the record satisfies us that the issue of the reliability of these items of evidence was before the trial court on trial counsel's objections at the probation revocation hearing, and that the trial court found that the necessary indicia of reliability was present.
In his reply brief, Ollison adds a further explanation of why he believes that the surveillance camera videotape was not properly authenticated. The settled statement states that the videotape purported to show Ollison entering the hotel and interacting with McClain. On appeal, Ollison argues that the videotape shows two different confrontations between a visitor and a hotel clerk—one in which a man confronts a woman and takes her cell phone, and a later encounter in which another person forces open the hotel door and has an exchange of words with another hotel clerk. He reasons that these two incidents create the potential for confusion about which one involved him, such that it is not clear what the evidence was at the hearing.
We are not persuaded by this argument. Having reviewed the surveillance footage, it is clear to us that the first encounter matches McClain's testimony and that the second does not. The earlier incident would provide evidence supporting the finding that Ollison violated the conditions of his probation, as would McClain's testimony about the incident she witnessed, even without the verification provided by the surveillance videotape. As the alleged deficiencies in the record were inconsequential, we see no prejudice resulting from them. (See § 1258; Young, supra, 34 Cal.4th at p. 1170; People v. Chessman, supra, 35 Cal.2d at p. 462.) D. Marsden Motion
Next, Ollison also contends that no record of his Marsden motion exists, such that we cannot determine whether that motion was properly denied on the basis of the settled statement. He reasons that the parties were unable to agree on the timing of the motion, the basis of it, or whether it was withdrawn. A criminal defendant is entitled to have appointed counsel discharged if counsel did not provide adequate representation or an irreconcilable conflict arose between them that makes effective representation unlikely. (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) According to the settled statement, Ollison made a Marsden motion. It is unclear whether the motion was made before or after sentencing. As we shall explain, in either case, the settled statement provides a sufficient record for determination of the issues posed on appeal.
The parties at the settled statement hearing agreed that the motion was made late in the probation revocation hearing—certainly after probation was revoked and perhaps after Ollison was sentenced to state prison. The trial court recalled that Ollison made his motion as it reached the sentencing stage of the probation revocation proceeding, but before sentencing. Concerned about the timing of the motion, the trial court asked Ollison about it. Ollison's response was to insist on being sentenced at that time and the trial court did so. We infer from these facts that the trial court would not sentence Ollison if the Marsden motion was still pending. After discussing the issue with the trial court, Ollison withdrew the Marsden motion in order to be sentenced. If we adopt the trial court's recollection of the timing of his motion, Ollison withdrew the motion and no inadequacy of the record could be prejudicial to him.
It is possible that, instead, Ollison's motion was denied after sentence was imposed, if we conclude that the timing was as his trial counsel and the prosecutor recalled. We review the denial of a Marsden motion for an abuse of discretion. (People v. Jones, supra, 29 Cal.4th at p. 1245.) A Marsden motion looks to whether a defense counsel to be substituted for appointed counsel would provide effective assistance of counsel in the future. (People v. Smith (1993) 6 Cal.4th 684, 695.) Once sentence had been imposed, there was little more for trial counsel to do but to timely file a notice of appeal, which he did. To find an abuse of discretion under these circumstances would be highly unlikely. (See ibid.) Whether he withdrew his motion before sentencing or the trial court denied it after sentencing, Ollison cannot show potential prejudice such that we would find that the settled statement provided an inadequate appellate record. E. Presentence Conduct Credits
1. Statutory Scheme
Finally, Ollison criticizes the settled statement for failing to indicate whether the trial court considered if he qualified for additional presentence conduct credits. The trial court awarded him 150 days of conduct credit and 298 days of custody credit. He contends that under the law in effect at the time of his sentencing, he was entitled to 298 days of conduct credit, or an additional 148 days of credit.
Before January 25, 2010, a defendant held in jail before sentencing would typically earn six days' credit for each four days actually served—four days of custody credit and two days of conduct credit—to be applied against his or her prison term. (Former § 4019, subds. (b), (c), (f) [Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) Beginning on January 25, 2010, the statute was amended to grant some jailed defendants eight days' credit for every four days served before sentencing—four days of custody credit and four days of conduct credit. (Former § 4019, subds. (b)(1), (c)(1), (f) [Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50].) Even under this more generous credit scheme, prisoners accrued only six days of total credits for each four days spent in presentence custody if the prisoner had suffered a prior serious felony conviction. (Former § 4019, subds. (b)(2), (c)(2); see § 1192.7.) This amended provision applied until September 28, 2010, when the earlier six-day credit system was restored for all prisoners. (§ 4019, subds. (b), (c), (f) [Stats. 2010, ch. 426, § 2].)
This most recent amendment to section 4019 does not apply to Ollison, who was jailed for offenses committed before its adoption. (§ 4019, subd. (g).)
2. Prior Conviction
Ollison was jailed from January 25 to March 5, 2010, during the period when it was possible to earn eight days of credit for four days of presentence jail time. The trial court awarded him only six days of credit for each four days served in jail, rather than eight days. On appeal, Ollison contends that the settled statement does not allow us to determine whether the trial court properly considered if he qualified for the greater presentence conduct credits. The eight-day credit system to which Ollison claims entitlement only applied to jailed defendants who had not suffered a prior serious felony conviction. (Former § 4019, subds. (b)(2), (c)(2) [Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50].) The probation report notes that records gleaned from the San Francisco Police Department, the Federal Bureau of Investigation, the state Department of Motor Vehicles and the state Criminal Identification Index reflect that Ollison had been imprisoned several times for various offenses, including second degree robbery. Robbery is a serious felony that precluded a jailed defendant from earning eight days of credit for every four days served before sentencing during the January 25-September 28, 2010 period when these additional credits were awarded to some defendants. (§ 1192.7, subd. (c)(19).) As a matter of law, it appears that Ollison was ineligible for the additional credits he claims. Thus, any deficiency on the settled statement was necessarily nonprejudicial. (See, e.g., Young, supra, 34 Cal.4th at p. 1170.)
3. Pleading and Proof Requirement
Ollison counters that his prior robbery conviction cannot be used against him in this manner because the prosecution failed to plead and prove the fact of his prior conviction in the probation revocation proceeding. Former section 4019 does not contain an express pleading and proof requirement to trigger its application. A pleading and proof requirement will be implied when the factual finding would make the defendant completely ineligible for probation, on the ground that the factual finding resulted in an increase in penalty. No implied pleading and proof requirement exists if the fact renders a defendant unfit for probation under one provision, but another provision might still allow a grant of probation. The latter circumstance is not the equivalent of an increase in penalty. (See In re Varnell (2003) 30 Cal.4th 1132, 1140-1141; People v. Lo Cicero (1969) 71 Cal.2d 1186, 1194.)
It is unclear how these probation cases apply in the context of accrual of presentence conduct credits. The People reason that a decrease in presentence conduct credits resulting from a defendant's prior conviction for a serious felony does not constitute an increase in penalty and thus, a pleading and proof requirement should not be implied. Some recent appellate decisions seem to agree. (See In re Pacheco (2007) 155 Cal.App.4th 1439, 1445; People v. Garcia (2004) 121 Cal.App.4th 271, 276-278.) However, other courts have found that limits on presentence conduct credits do constitute an increased punishment. Cases currently before the California Supreme Court on the issues relating to the interpretation and application of the January 25-September 28, 2010 amendment to former section 4019 are based, to some degree, on their conclusion that a decrease in credits operates to increase the underlying penalty. (People v. Lara (2011) 193 Cal.App.4th 1393, 1398-1399, review granted May 18, 2011, S192784; People v. Koontz (2011) 193 Cal.App.4th 151, 154-156, review granted May 18, 2011, S192116; People v. Brown (2010) 182 Cal.App.4th 1354, 1359-1365, review granted June 9, 2010, S181963.) One of these cases specifically requires that the prior conviction triggering application of the lesser presentence conduct credits formula be pled and proven before the defendant may be found ineligible for the greater amount of credits. (People v. Lara, supra, 193 Cal.App.4th at pp. 1400-1402, review granted May 18, 2011, S192784.) Thus, the question pending before the Supreme Court in Lara is the precise issue before us in Ollison's case.
The issue of whether this statute implies a pleading and proof requirement does not raise a concern about the adequacy of the settled statement, as the application of former section 4019 presents a question of law that we decide anew on appeal, regardless of the trial court's reasoning. (See People v. Shabazz (1985) 175 Cal.App.3d 468, 473.) Although we have—in unpublished decisions—agreed with the cases holding former section 4017 retroactive, we are not convinced that this holding necessarily compels the view that limiting a potential for greater sentencing credits constitutes an increased punishment. (See, e.g., People v. Fleischer (Dec. 16, 2010, A126078).) Former section 4019 did not contain a pleading and proof requirement and we do not imply one. We find Ollison statutorily ineligible to receive eight days of credit for every four days spent in presentence custody because of his prior robbery conviction. (Former § 4019, subds. (b)(2), (c)(2) [Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50].) Thus, we reject his claim that the trial court should have awarded him an additional 148 days of presentence conduct credit.
This issue will be resolved soon by the California Supreme Court. If our conclusion proves to be incorrect, Ollison would be entitled to obtain additional credits by administrative process or on a petition for habeas corpus.
--------
III. CONCLUSION
Proof that a probationer has violated the conditions of probation need only be shown by a preponderance of evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 440447.) A trial court's discretion to determine whether the probationer has actually violated the conditions of probation is very broad. (Id. at p. 443; see § 1203.2, subd. (a).) We reverse only if there is no reasonable basis for the trial court's exercise of its discretion. (People v. Jacobs (2007) 156 Cal.App.4th 728, 737.) Ollison's challenge to the adequacy of the settled statement does not establish any material omission or prejudice. (See, e.g., Young, supra, 34 Cal.4th at p. 1170.)
The judgment is affirmed.
Reardon, J. We concur: Ruvolo, P.J. Sepulveda, J.