Opinion
NOT TO BE PUBLISHED
Superior Court of Santa Barbara County No. 1145658 James F. Iwasko, Judge
Barbara O'Neill Ferris, 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.
YEGAN, J.
Sally Ann Vaughn appeals a December 9, 2009 order extending probation after she was convicted by plea of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and violated probation. The trial court summarily revoked probation, declared appellant mentally incompetent, and committed appellant to Patton State Hospital for treatment. (§§ 1368, 1370.) After appellant's mental competency was restored and appellant admitted the probation violation, the trial court reinstated probation, extending the five-year probation expiration date from April 25, 2012 to December 4, 2013. (§ 1203.2, subd. (c).) We affirm.
All statutory references are to the Penal Code.
Procedural History
Appellant, age 70, has a long history of criminal activity and mental illness. In 2005, appellant accidentally hit a bicyclist with her car, became angry, hit the bicyclist again, and fled the scene. Appellant pled no contest to assault with a deadly weapon (§ 245, subd. (a)) and felony hit and run (Veh. Code, § 20001, subd. (a)).
Appellant's criminal record dates back to 1965 and includes arrests for hit and run with injury, driving under the influence driving without a license, disobeying a court order, inflicting injury upon a child, willful cruelty to a child, battery on a peace officer, battery, tampering with a vehicle, purchasing arms while on a restraining order, trespass, defrauding an innkeeper, assault with a deadly weapon, and disturbing the peace.
While criminal charges were pending, appellant was declared mentally incompetent and transferred to Patton for mental health treatment. (§ 1368.) After appellant's mental competency was restored, the trial court dismissed the hit and run count, suspended imposition of sentence on April 25, 2007, and granted five years probation. Appellant was ordered, as a term and condition of probation, to take her prescribed medication and not molest, annoy, threaten or harm anyone.
We affirmed the judgment of conviction in an unpublished opinion on January 29, 2008. (B200092).
Beginning in November 2007, appellant left angry and threatening messages with her probation officer. Appellant was not taking her medication and was arrested March 5, 2008.
The trial court summarily revoked probation, and referred appellant to mental health services. On April 16, 2008, appellant was released on her own recognizance subject to the condition that appellant take her medication, regularly report to court and mental health, and not threaten anyone.
On June 18, 2008, appellant was remanded to custody. After appellant's trial attorney and two doctors declared a doubt as to appellant's competency, the trial court suspended criminal proceedings and committed appellant to Patton for treatment.
On August 7, 2009, the trial court found that appellant's competence had been restored and reinstated criminal proceedings. Appellant admitted violating probation and the trial court reinstated probation, extending the probation termination date from April 25, 2012 to December 4, 2013.
Equal Protection
Probation revocations involve a two-step process: a preliminary, summary revocation based on a finding of probable cause and then a formal revocation hearing. (People v. Coleman (1975) 13 Cal.3d 867, 894; see Cal. Criminal Law and Procedure (Cont.Ed.Bar 2010) § 46.3, p. 1449.) Summary revocation suspends the running of the probationary period until the probationer's status is resolved. (§ 1203.2, subd. (a); People v. Mosley (1988) 198 Cal.App.3d 1167, 1174; People v. DePaul (1982) 137 Cal.App.3d 409, 412-413.) If probation is reinstated, the trial court may extend the probationary period by the number of days probation was summarily revoked. (Id., at p. 415.)
Appellant claims that section 1203.2, subdivision (a) violates her equal protection rights because the probation period was tolled based on appellant's mental illness. The hospital commitment, however, was to restore appellant's competency, not punishment or criminal rehabilitation. (People v. Mord (1988) 197 Cal.App.3d 1090, 1104.) Until appellant's mental competency was restored, the probation violation could not be tried. (§ 1367, subd. (a); see e.g., People v. Hays (1976) 54 Cal.App.3d 755, 759-760.)
In People v. Waterman (1986) 42 Cal.3d 565, our Supreme Court held that criminal defendants confined for treatment as mentally incompetent to stand trial are not denied equal protection to the extent they cannot earn conduct credits against subsequent prison sentences. (Id., at pp. 570-571.) The same principle applies to felony probationers who become mentally incompetent after probation is summarily revoked.
" 'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that two or more similarly situated groups in an unequal manner.' [Citations.]" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Appellant makes no showing that section 1203.2, subdivision (a) treats mentally ill probationers differently from other persons subject to summary revocation of probation. Nor has appellant cited authority that a felony probationer who becomes mentally incompetent after probation is summarily revoked is exempt from section 1203.2, subdivision (a)'s tolling provisions.
Appellant asserts that probation was revoked due to her long-term mental condition. The probation violation, however, was for annoying and threatening others and failing to take medication as prescribed. Having admitted the probation violation, appellant is precluded from arguing that probation was revoked based solely on her mental illness.
Abuse of Discretion
Appellant contends that the trial court erred in extending her probation term because appellant was released on her own recognizance (OR) before the hospital commitment. Appellant claims that the OR release was a de facto reinstatement of probation.
After a trial court summarily revokes probation, it may set bail or release the probationer on his or her own recognizance but is not required to do so. (§ 1272(3);; Cal. Judges Benchguides 84, Probation Revocation (CJER Revised 2009) § 84.14, pp. 84.10 to 84.11.) Appellant agreed, as a condition of OR, to take to her medication and regularly report to court and mental health. The trial court admonished appellant "to be here every day, and you need to be taking your medicine, and you cannot act in a threatening manner towards anybody." Appellant suffered a relapse and was remanded to custody after several hearings.
The trial court did not abuse its discretion in finding that the probation period was tolled. Unlike In re Wagner (2005) 127 Cal.App.4th 138, appellant received notice of the alleged probation violation and afforded the due process right to a hearing.
The judgment (order reinstating and extending probation) is affirmed.
We concur: GILBERT, P.J., PERREN, J.