Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super.Ct.No. CC472703
Duffy, J.
After defendant John Anthony Romayor pleaded guilty to one count of second degree burglary (Pen. Code, §§ 459-460, subd. (b)), the court in February 2005 suspended imposition of sentence and ordered probation for three years. After defendant was arrested on a shoplifting charge and fell behind on his restitution payments, the court in August 2006 modified the prior probation order by requiring that defendant reside in a 24-hour care facility as designated by the regional center and approved by his probation officer. The court did so without having first given notice that it was contemplating a modification of the terms of defendant’s probation.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant filed an appeal from this order. He argues that his due process rights were violated because there was no petition to revoke or modify probation filed and there was no formal hearing thereon before the court issued its order. We conclude that the order modifying the terms of defendant’s probation was made in derogation of his constitutional and statutory rights; under the federal Constitution and under the statute governing the revocation or modification of probation (§ 1203.2, subd. (b)), defendant was entitled to advance notice of any proposed modification of the terms of his probation and an opportunity to be heard on the matter. We therefore reverse the order.
PROCEDURAL BACKGROUND
On February 18, 2005, the court suspended imposition of its sentence for defendant’s conviction of second degree burglary (§§ 459-460, subd. (b)) and placed defendant on probation for three years. The grant of probation was made subject to a number of terms and conditions, including serving 37 days in county jail (against which he received 37 days of custody credits); payment of $600 in restitution to the victim, the Muslim Community Association (Association); staying away from the Association; completing a psychological treatment program; participating in a day or work program; and taking all medication prescribed by his physician. He was placed on the mental health caseload.
Defendant filed an appeal from this probation order, challenging the lawfulness of the condition that he take psychotropic medications. We affirmed the judgment in an unpublished opinion of which we take judicial notice pursuant to Evidence Code sections 452, subdivision (d) and 459, subdivision (a). (See People v. Romayor (Dec. 14, 2005, H028599) [nonpub. opn.], review denied Mar. 1, 2006.)
The court monitored defendant’s progress on probation by conducting regular hearings. The five hearings conducted between April 28, 2005 and September 1, 2005 were characterized in the court’s minutes as “review hearings.” Thereafter, the minutes reflected that the 13 hearings between September 15, 2005 and September 21, 2006 were conducted on the court’s “mental health treatment” calendar.
During one such hearing on the mental health treatment calendar on June 15, 2006, the court, the Honorable Stephen V. Manley, acknowledged that he had received favorable reports concerning volunteer work defendant was performing with the Salvation Army. The court admonished defendant that he needed to pay his rent. There was also some discussion concerning whether he was permitted to have free time; the case manager suggested that defendant be accompanied by staff to his volunteer work, and the court advised defendant that he would have free time as directed by the San Andreas Regional Center.
Under the Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4500 et seq.), care for the developmentally disabled is provided by “private nonprofit community agencies” known as “regional centers.” (Welf. & Inst. Code, § 4620, subd. (b).)
During another hearing on the mental health treatment calendar on July 20, 2006, Judge Manley noted that he had received a report that defendant had been arrested for shoplifting on June 17, 2006. He again acknowledged that defendant had been doing good volunteer work but that he was not pleased with defendant’s recent arrest. The court advised defendant that he was not to go anywhere without the permission of his program.
Nothing of substance transpired at the next regularly scheduled hearing on the mental health treatment calendar on August 17, 2006. There was a brief discussion about defendant having an appointment with the spine center and concerning the scheduling of another hearing for September 7, 2006. The court closed with the admonition, “Don’t get in any trouble, John.”
On August 25, 2006, the court issued its “Modification and Order” (the order) in which it modified defendant’s probation. The order by Judge Manley required that defendant “reside in a twenty-four hour care facility as designated by the San Andreas Center and approved by his Probation Officer.” The record contains no petition to revoke or modify probation.
The order reads in its entirety as follows: “IT IS HEREBY ORDERED for good cause based on the concern of the Court that the defendant is not adequately supervised during the evenings, and has suffered a new arrest, the terms and condition [sic] of the Defendant’s release on Probation are modified as follows: [defendant] shall reside in a twenty-four hour care facility as designated by the San Andreas Center and approved by his Probation Officer. All other terms and Conditions of Probation remain as previously set.”
The augmented clerk’s transcript includes a certificate of the clerk indicating that after conducting a diligent search, she was unable to locate in the file a petition to revoke or modify probation.
At the next hearing on September 7, 2006, Judge Manley advised defendant: “John, Mr. Ching recommended a new place for you. That’s what I want you to do. I made an order, we want you to go to a 24-hour care facility.” The court repeated itself after defense counsel advised the court that defendant was having trouble hearing. Defendant inquired, “Can I have one chance to stay?” Judge Manley responded, “No, John, you can’t have one more chance. I gave you chance after chance. I told you you have to follow through and you didn’t do it. You were arrested again, John. I told you this has got to stop.” After defendant requested permission to speak, the court responded, “No, this is over. I have gone through this. I thought about it. I made a decision. I issued a written order. I’m not changing it. If you don’t do it, John, you’ll go to jail, that’s it. So don’t give up, do what I ask you to do. I make it simple. If you argue with me you tell me you can’t do it, you’ll see what happens when people want to argue about it, they go back to jail. . . . Okay, John, you got it, what are you supposed to do?” Defendant responded: “I’ll be in a 24-hour care.” Judge Manley replied, “Right. Okay, that’s what we’re going to do, okay. Good. I wanted to tell you that in person. I’m sure you understand we have an order that we made here in the file. Please make a copy of it, madam clerk or deputy, give that to John so he can have it to read carefully.”
John Ching was the probation officer assigned to defendant’s case. While the record reflects three status reports from Ching to the court for the court dates of October 6, 2005, May 18, 2006, and July 20, 2006, none of the reports contains a recommendation that defendant be transferred to a 24-hour care facility.
Defendant filed a timely notice of appeal. The appeal is proper as an appeal from an “order made after judgment, affecting the substantial rights of the party.” (§ 1237, subd. (b); see also People v. Coleman (1975) 13 Cal.3d 867, 871, fn. 1 [order revoking probation appealable]; People v. Zimmerman (1979) 100 Cal.App.3d 673, 674, fn. * [order modifying probation appealable].)
DISCUSSION
I. Modification of Terms of Probation
Defendant’s challenge on appeal is that the trial court’s order was unlawful because it was given without prior notice that a modification of probation was contemplated and was made without an opportunity for defendant to be heard on the matter. The Attorney General responds that defendant forfeited any appellate challenge to the order and that in any event “the trial court’s actions comported with due process requirements.” We address the forfeiture contention before discussing the merits of defendant’s challenge of the order.
A. Forfeiture
The Attorney General contends that defendant failed to assert a due process objection below that his liberty interests were being abridged by the order without prior notice or hearing. He cites four cases in support of his claim that defendant waived his appellate challenge, namely, People v. Simon (2001) 25 Cal.4th 1082, 1103 (Simon), People v. Toro (1989) 47 Cal.3d 966, 975-976 (Toro), disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3, People v. Rudd (1998) 63 Cal.App.4th 620, 628 (Rudd), and People v. Birmingham 1990) 217 Cal.App.3d 180, 183 (Birmingham). None of these cases supports the Attorney General’s position.
While “waiver” is the term commonly used to describe a party’s loss of the right to assert an appellate challenge based upon the failure to raise an objection below, “forfeiture” is the more technically accurate term. As our Supreme Court has explained: “Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a ‘waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is ‘forfeiture,’ because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the ‘ “intentional relinquishment or abandonment of a known right.” ’ [Citations.]” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
In Simon, the California Supreme Court held that a criminal defendant must make a timely challenge to venue or otherwise forfeit the right to object. (Simon, supra, 25 Cal.4th at p. 1104.) It concluded that absent an express statutory provision calling for an earlier time, a challenge to venue in a felony proceeding must be made, at the latest, prior to the commencement of the trial. (Id. at p. 1107.) Simon did not concern the claimed forfeiture of a challenge (based on noncompliance with notice and hearing requirements) to the modification of a probation order. Moreover, the circumstances in Simon that caused the court to conclude that the defendant had forfeited his challenge to venue—namely, defendant’s failure to raise the issue until the close of evidence, when he moved for acquittal (pursuant to § 1118.1) because the county in which he was being prosecuted was improper (Simon, supra, at p. 1090)—are far different from those here.
The Supreme Court in Toro, supra, 47 Cal.3d at page 976, held that where an information is amended at trial to charge an additional offense and the defendant neither objects nor moves for a continuance, but instead permits the case to be submitted to the jury, the amendment cannot be challenged for the first time on appeal. And there the court noted that the defendant not only failed to object to the amendment, but also acquiesced in the court’s addition of instructions concerning a lesser-related offense, thereby impliedly consenting to the inclusion of the lesser-related offense. (Id. at p. 977.) Unlike Toro, here there was no acquiescence or implied consent to the procedure by which the court, without notice or hearing, modified the terms of defendant’s probation.
In Rudd, supra, 63 Cal.App.4th at pages 624-625, the appellate court reviewed a trial court’s order revoking a criminal defendant’s pro per status on the day of trial, where the court, three days earlier, had allowed the defendant to discharge his attorney and represent himself on the express condition that he not claim that he was not ready to proceed. Because neither the defendant nor his reappointed counsel objected at the time to the order revoking the defendant’s pro per status (id. at p. 625), the court held that any appellate challenge to the order was forfeited. (Id. at pp. 628-630.) The circumstances here are very different. Unlike the case in Rudd, defendant did not acquiesce in probation modification proceedings by participating in them; rather, the modification order took place without a hearing at all and without any participation by defendant.
Likewise, the forfeiture issue in Birmingham, supra, 217 Cal.App.3d 180, was very different from the one claimed here. In Birmingham, the defendant pleaded guilty to two counts of lewd and lascivious conduct with a child (§ 288a) (Birmingham, supra, at p. 182), and the court permitted the mothers of the two victims to speak at the time of sentencing to advocate the imposition of a harsh sentence. (Ibid.) The defendant challenged this procedure on appeal, claiming that it violated his due process rights. (Id. at p. 183.) The court rejected the claim, concluding that the defendant had forfeited any objection by failing either to object to the mothers’ statements at the time or to request a continuance. (Ibid.) Birmingham—like Simon, Toro, and Rudd—involved the application of forfeiture principles to a circumstance in which the defendant actively participated in the trial proceeding which he later claimed to be objectionable. As such, Birmingham does not offer support for the Attorney General’s claim of forfeiture here.
In this instance, defendant was not even made aware of the possibility that the terms of his probation would be modified until after the modification had already taken place. Thus, the situation here was not one where the forfeiture doctrine is applicable, such as where the defendant participates in the proceeding without objecting to venue (Simon, supra, 25 Cal.4th at p. 1107); fails to object to the discharge of the jury and permits the court to try the issue of a prior prison term allegation despite the absence of an express jury waiver (People v. Vera (1997) 15 Cal.4th 269, 274-277); allows inadmissible evidence to be admitted (People v. Chain (1971) 22 Cal.App.3d 493, 497); fails to object to the presence at trial of improper physical restraints (People v. Alvarez (1996) 14 Cal.4th 155, 192, fn. 7); stands silent during improper argument or voir dire by the prosecution (People v. Montiel (1993) 5 Cal.4th 877, 914); or fails to make a timely challenge of a probation condition on reasonableness grounds (People v. Welch (1993) 5 Cal.4th 228, 237). Defendant’s challenge here was not forfeited.
B. Merits of Challenge to Modification of Terms of Probation
The California Supreme Court acknowledged the right of a probationer to due process in connection with probation revocation proceedings in People v. Vickers (1972) 8 Cal.3d 451 (Vickers). There, the court discussed at length the then-recent decision of Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey), in which the United States Supreme Court held that the federal Constitution required certain procedural safeguards prior to the court making a decision impacting the liberty of a criminal defendant by revoking parole. As the Vickers court explained: “The minimum requirements of due process at the revocation hearing were stated in Morrissey to be: ‘(a) written notice of the claimed violations of parole; (b) disclosure to the parolee 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 (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement of the factfinders as to the evidence relied on and reasons for revoking parole.’ ” (Vickers, supra, at pp. 457, quoting Morrissey, supra, at p. 489.)
The Supreme Court in Vickers, supra, 8 Cal.3d at p. 458, acknowledged that it was bound by Morrissey with regard to parole revocation proceedings and specifically held that the same procedural safeguards that Morrissey held applicable to parole revocations applied to probation revocations as well: “[W]e cannot distinguish such proceedings in principle insofar as the demands of due process are concerned. The recognition that aside from an act of clemency a grant of parole is an integral part of the penological system intended to help those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities, is equally applicable in the case of a grant of probation. The characterization of a grant of probation as a privilege rather than a right is also, as in the case of a grant of parole, no longer of significance. Certainly the nature of a probationer’s interest in his liberty, not necessarily ever having been an inmate of a prison or a jail, is at least as great as that of a parolee and is entitled to at least the same due process safeguards before it is terminated. Morrissey is thus equally applicable in the case of a revocation of probation insofar as it assures that revocation can be had only with due process protections.” (Vickers, supra, at p. 458.) The next year, the United States Supreme Court specifically held that the Morrissey due process safeguards applied to probationers at preliminary and final revocation hearings. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782 (Gagnon).)
The Vickers court went on to explain that California’s statutory scheme for probation revocation proceedings under section 1203.2 as then written did not conform to the minimum due process requirements identified in Morrissey; specifically, the court held that the statute “makes no provision for a preliminary determination of probable cause to believe that a violation of probation has occurred in order to warrant the detention of a probationer until a more formal hearing is had. Nor does it appear in connection with or at the formal hearing pursuant to proceedings under [section 1203.2,] subdivision (a) that the probationer is assured of written notice of the claimed violations or, pursuant to proceedings under either subdivision (a) or (b), disclosure of the evidence against him, an opportunity to be heard in person and to present witnesses and documentary evidence, or the right to confront and examine adverse witnesses (except where the court finds good cause for not allowing confrontation).” (Vickers, supra, 8 Cal.3d at pp. 458-459.)
Section 1203.2 currently provides in relevant part: “(a) At any time during the probationary period of a person released on probation under the care of a probation officer pursuant to this chapter, or of a person released on conditional sentence or summary probation not under the care of a probation officer, if any probation officer or peace officer has probable cause to believe that the probationer is violating any term or condition of his or her probation or conditional sentence, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the person and bring him or her before the court or the court may, in its discretion, issue a warrant for his or her rearrest. Upon such rearrest, or upon the issuance of a warrant for rearrest the court may revoke and terminate such probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses. . . . [¶] (b) Upon its own motion or upon the petition of the probationer, probation officer or the district attorney of the county in which the probationer is supervised, the court may modify, revoke, or terminate the probation of the probationer pursuant to this subdivision. The court shall give notice of its motion, and the probation officer or the district attorney shall give notice of his or her petition to the probationer, his or her attorney of record, and the district attorney or the probation officer, as the case may be. The probationer shall give notice of his or her petition to the probation officer and notice of any motion or petition shall be given to the district attorney in all cases. The court shall refer its motion or the petition to the probation officer. After the receipt of a written report from the probation officer, the court shall read and consider the report and either its motion or the petition and may modify, revoke, or terminate the probation of the probationer upon the grounds set forth in subdivision (a) if the interests of justice so require. [¶] The notice required by this subdivision may be given to the probationer upon his or her first court appearance in the proceeding. Upon the agreement by the probationer in writing to the specific terms of a modification or termination of a specific term of probation, any requirement that the probationer make a personal appearance in court for the purpose of a modification or termination shall be waived. Prior to the modification or termination and waiver of appearance, the probationer shall be informed of his or her right to consult with counsel, and if indigent the right to secure court appointed counsel. If the probationer waives his or her right to counsel a written waiver shall be required. If probationer consults with counsel and thereafter agrees to a modification or termination of the term of probation and waiver of personal appearance, the agreement shall be signed by counsel showing approval for the modification or termination and waiver.”
The standard of proof at a revocation hearing for establishing the facts justifying revocation is proof by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 446-447.) In addition to notice and hearing requirements, the probationer is also generally afforded the right to confront adverse witnesses. (People v. Winson (1981) 29 Cal.3d 711, 716-717 [use of preliminary hearing transcript in lieu of live testimony at probation revocation hearing permitted only on showing of good cause].) The probationer may give testimony at the revocation hearing without fear of incriminating himself or herself in a subsequent prosecution where the alleged grounds for revocation are also the basis for other criminal charges. (People v. Coleman (1975) 13 Cal.3d 867, 889.) And the Vickers court held, “as a judicially declared rule of criminal procedure,” that a probationer is entitled to counsel at formal revocation proceedings. (Vickers, supra, 8 Cal.3d at pp. 461-462.)
It is evident from our recital of the procedural history of this case, ante, that the order modifying probation was not preceded by the procedural safeguards of notice and hearing required by Morrissey, supra, 408 U.S. 471, Gagnon, supra, 411 U.S. 778, and Vickers, supra, 8 Cal.3d 451. Prior to the court issuing its order, defendant was not given notice that a modification of the terms of his probation was being contemplated; nor was he apprised of the specific grounds upon which a proposed modification of probation was to be based, as is constitutionally required. (Black v. Romano (1985) 471 U.S. 606, 611-612; People v. Mosley (1988) 198 Cal.App.3d 1167, 1173-1174.) Likewise, defendant was not afforded an opportunity to be heard prior to issuance of the modification order. And we specifically reject the Attorney General’s claim that “at the proceedings on September 7, 2006, the trial court provided [defendant] with the requisite opportunity to be heard.” Even were we to ignore the noncompliance with due process—i.e., the absence of either notice or an opportunity to be heard prior to the modification order—defendant was not given an opportunity to be heard on September 7. Rather, he was simply informed by the court of the prior issuance of the order, that the court would not reconsider it, and that the order was apparently based upon a recommendation of defendant’s probation officer (a recommendation that defendant apparently never saw and which is not part of the record). (See 5 LaFave et al., Criminal Procedure (2d ed. 1999) § 26.10(c), p. 855: “[I]t is impermissible for the judge to receive and consider information not even brought to the attention of the defendant at the [probation revocation] hearing, such as a written report from the probation officer . . . .” Fn. omitted.) This after-the-fact status hearing did not comply with the due process requirements of Morrissey, Gagnon, and Vickers.
Indeed, at the last review hearing before the filing of the order in which anything of substance was discussed (i.e., the hearing on July 20, 2006), the court concluded by saying, “Let’s give [defendant] a nice hand.” This hardly would suggest to defendant that the court was considering modifying the terms of his probation to materially change his living arrangements.
As our high court has explained, “[t]he principal policy underlying a probationer’s right to an opportunity to be heard at a revocation hearing, as well as the other procedural protections mandated by Morrissey, is to assure informed, intelligent and just revocation decisions. [Citation.]” (People v. Coleman, supra, 13 Cal.3d at p. 873; see also People v. Winson, supra, 29 Cal.3d at p. 715: “[B]oth the People and the probationer or parolee have a continued post-conviction interest in accurate fact-finding and the informed use of discretion by the trial court.”) Defendant here was not afforded notice or the opportunity to be heard before the terms of his probation were modified as is required both as a matter of constitutional law and under section 1203.2, subdivision (b). Accordingly, the order must be reversed.
DISPOSITION
The order modifying the terms of defendant’s probation is reversed.
WE CONCUR:
Rushing, P.J., Premo, J.