NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Bert L. Swift, Judge, Super.Ct.No. FMB008081
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, David Delgado-Rucci, Marvin E. Mizell, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant and appellant Thomas Edward Chenoweth appeals after his probation was revoked and he was sentenced to three years in state prison. He argues that the trial court improperly denied him a probation violation hearing in violation of his due process rights, abused its discretion in refusing to reinstate probation, and improperly imposed the aggravated term in sentencing him to state prison. We find no error and we affirm.
FACTS AND PROCEDURAL HISTORY
Police stopped defendant for a traffic violation. In the course of the traffic stop, the arresting officer noticed that defendant was clenching his fist. He asked defendant to open his hand; defendant was holding a plastic baggie containing methamphetamine. Defendant was charged with one count of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a).
Pursuant to a plea bargain, defendant pled no contest and admitted a prior prison term allegation. The court ordered defendant to report to the probation department for evaluation for drug treatment under Proposition 36, and ordered him to attend self-help meetings three times per week while awaiting his sentencing hearing.
Between the time of his plea and his sentencing hearing, defendant apparently was in compliance with his orders to attend meetings. At sentencing on March 9, 2006, the court granted three years’ probation under Proposition 36. (Pen. Code, § 1210.1.) Defendant was required by the conditions of his Proposition 36 probation to enroll in and complete a drug treatment program, to provide proof of enrollment within seven days, and to attend self-help meetings three times per week. Defendant was ordered to appear for a progress hearing on March 23, 2006.
On March 23, 2006, the court received a confidential drug court treatment report on defendant’s progress. Defendant, however, failed to appear at the hearing. The court revoked his probation and issued a bench warrant. On May 26, 2006, defendant appeared in court in custody. The court set a revocation of probation hearing for June 1, 2006.
The People filed a petition to revoke defendant’s probation on June 1, 2006. The petition alleged that defendant had violated term No. 2, reporting to the probation officer; term No. 3, cooperation with the probation officer; and term No. 20, enrollment in an approved drug program. The petition asserted that defendant had failed to appear for a scheduled visit at the probation office on April 12, 2006, that defendant had failed to appear for his court date on March 23, 2006, and that he had been terminated from his enrolled outpatient program on April 18, 2006, because of nonattendance. The same day, June 1, 2006, defendant appeared to answer the revocation petition. The court’s minutes recite that defendant “accepts 45 days county jail with credit for 8 days in lieu of violation of probation.”
The actual time defendant would spend in custody would result in his release in approximately three weeks. The court therefore ordered defendant to appear for a review hearing on June 22, 2006. In the meantime, defendant was also ordered to report to probation within 24 hours of his release from jail and to get on a waiting list for a drug treatment program within 24 hours of his release. Defendant was ordered to attend one self-help meeting per day between his release and his scheduled appearance on June 22, 2006. The court warned defendant explicitly, however, that, “[y]ou understand, if you run again there won’t be any opportunity. . . . [¶] That’s why you’re going to state prison -- I mean -- not state prison. But if you take off again, you will. . . . [¶] No matter what your work issue is, be here because next time there won’t be any choice.”
Defendant, still in custody, appeared in court as ordered on June 22, 2006. The court received another confidential drug court treatment report. Defendant was ordered to attend one self-help meeting per day after his release from jail. Defendant remained in custody as of the next hearing, on June 29, 2006, and the review hearing was continued to July 6, 2006. Defendant’s attorney appeared on July 6, 2006, and reported that defendant had apparently been sent to state prison. A further hearing was scheduled for July 17, 2006. On that date, defendant’s counsel was present; the court continued the hearing to July 24, and ordered defendant to be present.
On July 24, 2006, defendant appeared at the hearing with his counsel. The court received a confidential drug court treatment report. Defendant was ordered to appear at the next hearing date on August 7, 2006. Defendant was to attend four self-help meetings each week, and to provide proof of his attendance at the next hearing date.
On August 7, 2006, defendant appeared in court with counsel. Defendant provided proof of his attendance at meetings. The court again received a confidential drug court treatment report. Defendant was ordered to continue with his self-help meeting attendance and to appear at the next court date.
On August 21, 2006, defendant appeared as ordered. The court received another confidential drug court treatment report, and defendant submitted the records of his meeting attendance. Another hearing was scheduled for August 28, 2006, and defendant was ordered to be present. The court reduced the number of weekly self-help meetings to three, and ordered defendant to provide proof of his attendance.
At the next probation review hearing, however, on August 28, 2006, defendant failed to appear. The court reported his status as “fugitive” and revoked his probation. The court also issued a bench warrant for his arrest.
By October 13, 2006, defendant had apparently been arrested. He appeared in court in custody and was arraigned on the bench warrant. A probation review hearing was set for October 16, 2006.
For the hearing on October 16, 2006, the People filed a petition to revoke defendant’s probation. The petition alleged that defendant had violated conditions No. 3 (cooperate with the probation officer), No. 13 (participate in counseling program) and No. 20 (enroll in and complete a Proposition 36 drug treatment program), in that defendant had failed to appear in court on August 28, 2006, defendant had failed to submit proof that he had completed a 52-week domestic violence program, and he had failed to enter or complete a Proposition 36 drug treatment program. Also, on October 16, the court set a hearing for arraignment on the probation revocation petition. The arraignment hearing was scheduled for October 23, 2006.
On October 23, 2006, the court’s minutes reflect that defendant was present, in custody, and that defendant’s attorney was present. The reporter’s transcript for that date included in the record on appeal does not reflect the appearances of the parties. The court announced, “[defendant] is present in custody. There is a petition to revoke your probation based on the allegation that you failed to appear on 8/28/06. You were directed to enter a 52-week domestic violence class as ordered by parole [i.e., defendant was already on parole for a domestic violence offense at the time of the drug charge for which he was granted Proposition 36 probation]. You have not submitted proof of enrollment to Parole Agent Berry, . . . You were originally referred to the drug treatment program March 6th. As of October 12, 2006, you failed to enter and complete treatment. [¶] [W]e’re going to set your date for sentencing for the 6th of November.”
Defendant spoke up: “What am I being sentenced to?” The court replied, “To state prison for absconding.” Defendant appeared not to understand the term, “absconding.” The court explained, “Absconding means that you didn’t go to treatment and you didn’t come to court when you were supposed to.”
Defendant then attempted to proffer excuses on his own behalf: “I missed my court date, but I was going into treatment and I have been on Panorama Ranch list for over two months[,] on my own[,] calling in every morning trying to get into that.” The court replied, “The problem is you haven’t been here and you haven’t been to probation.” Defendant protested, “I have been to probation. One week after I missed my court I went into probation and I sat there over 45 minutes to an hour waiting, and I never did see anybody. I had to go to work.”
The prosecutor broke in, “The Court [sic] takes judicial notice of its own minutes that defendant failed to appear on 8/28 and was arraigned over a month later. Additionally, he was already advised on June 1st of this year, because he’d absconded in the past, that this was his last chance. If he ran again, he would be terminated.”
The statement here quoted is ascribed to Deputy District Attorney D. Henretty, although the remark in context appears to emanate from the court itself.
Defendant parried this thrust with a non sequitur: “Actually, your Honor, they told me if I messed up one more time, I would be placed in a 90-day treatment program.” The following then occurred:
“THE PROBATION [OFFICER]: So the defendant knows, I will be taking a statement for the supplemental report and at that time he will have the opportunity to provide whatever information he wants to the Court.
“THE COURT: You can give probation whatever information you want them to take into consideration. We will have you come back November 6th.
“THE DEFENDANT: How much am I going to be sentenced to, sir?
“THE COURT: Three years, less whatever credit for time served.
“THE [DEFENDANT]: The offer of 16 with half last week ran concurrent with my probation violation, and I ask my lawyer to
“THE COURT: Talk to probation and talk to your lawyer about that.”
Although defendant’s counsel was stated, according to the court’s minutes, to be present at the hearing, the attorney apparently said not a single word during the reported exchange. Those minutes reflected that the court made an express finding that defendant had absconded from his Proposition 36 probation, and set a sentencing hearing for November 6, 2006.
At the sentencing hearing on November 6, 2006, defendant was in court with his counsel. The court announced that it had read the probation report, and asked counsel, “do you want to be heard on this?”
“[DEFENSE COUNSEL]: I do, your Honor. First, I would indicate that it is still my position that the defendant would be an appropriate Proposition 36 candidate, and he is requesting reinstatement for that purpose for consideration for drug court.
“Next, with regards to the issue of sentencing, the defendant, if the Court decides to sentence [him] to state prison, I believe the mitigated term is the appropriate term. The offense in question involved a small amount of contraband and wouldn’t justify an aggravated term. In terms of the offense itself, it’s -- it would show [defendant] would be a danger to himself but not to any other person. One factor in aggravation that would apply is that he has prior convictions. However, there are factors in mitigation. [Defendant] does suffer from a significant mental or physical condition in that he is struggling with addiction. And this offense was a minor offense in terms of possession motivated by that. [¶] Also, [defendant] has been cooperative with law enforcement. If the Court recalls, there was a discussion about that a couple of weeks ago. [¶] Based upon those, it is my contention that the mitigated term would be the appropriate one, if the Court is going to impose a state prison sentence.”
The prosecutor pointed out that defendant had prior convictions and he was on a grant of parole at the time of the new offense. He argued that defendant’s conduct had rendered him ineligible for Proposition 36 probation, and that the middle term, not the mitigated term, was more appropriate.
The probation officer recommended the aggravated term, “given the numerous opportunities [defendant] has had, including his warning by this Court that if he failed to enter in a drug treatment, he would be found unamenable.” The prosecutor reiterated that theme, saying, “He was given 45 days county jail on the 1st of June in lieu of a [first] violation to give him one more chance before he failed to appear again this time . . . .”
The court stated, “Probation which was heretofore revoked will now remain revoked. Probation is now denied. And the Court will find that based upon the prior history of the defendant, his opportunity to avoid a state prison sentence, an unwillingness to take care of the problem, and the fact that he is no longer amenable to Proposition 36 and also cannot be offered the drug court program, the Court will sentence him to the aggravated term of three years state prison . . . .” The prison term was ordered to be served concurrently with any parole violation on defendant’s earlier offense. Defendant was given total custody credits of 99 days. The court imposed a $200 restitution fine; a $200 parole revocation fine was stayed pending successful completion of parole.
Defendant filed a timely notice of appeal.
ANALYSIS
I. Defendant Waived His Right to a Revocation Hearing
The constitutional guaranty of due process, in the context of probation revocation, generally requires a hearing, with (1) written notice of the claimed probation violation, (2) disclosure of the evidence against the probationer, (3) the opportunity to be heard in person and to present witnesses and evidence, (4) the right, normally, to confront and cross-examine adverse witnesses, (5) a neutral and detached hearing body, and (6) a written statement of evidence relied on and the reasons for revoking probation. (Morrissey v. Brewer (1972) 408 U.S. 471 [92 S.Ct. 2593, 33 L.Ed.2d 484] (Morrissey); People v. Vickers (1972) 8 Cal.3d 451, 458 (Vickers).)
Defendant here argues that he was not afforded a proper formal revocation hearing.
A. Due Process Rights to a Probation Revocation Hearing May Be Waived
In People v. Dale (1973) 36 Cal.App.3d 191, the defendant argued that the court erred in revoking his probation without a hearing, and in not obtaining a personal waiver of his due process rights. (Id. at pp. 192-193.) The defendant had been afforded the opportunity for a hearing on the merits of the revocation of his probation, but his counsel submitted on a supplemental probation report, thereby waiving his Morrissey and Vickers rights not asserted at the hearing. (Id. at p. 194.)
The court stated: “There is no indication in Morrissey that the Boykin [v. Alabama (1969) 395 U.S. 238 [89 S.Ct 1709, 23 L.Ed.2d 274]] recitals and waivers are required in post-conviction proceedings as opposed to a trial. The trial involves ‘the fundamental constitutional right of a person accused of crime to plead not guilty to the charge and have a trial by a jury of his peers wherein he can defend himself by confronting and cross-examining witnesses against him and by presenting witnesses in his own behalf.’ (In re Mosley [(1970)] 1 Cal.3d 913, 924.) It is the waiver of the full scope of those rights that must be made by a defendant personally, whereas he may waive part of them by acquiescing by silence in his counsel’s conduct. (In re Mosley, supra, 1 Cal.3d at p. 924.) A probation revocation hearing involves some, but by no means all, of the fundamental rights afforded a defendant at trial. Its purpose is not to determine guilt or innocence but is whether conditions attached to an act of clemency have been met. There is no right to a jury trial. Confrontation in the proceeding is not an absolute right. The United States Supreme Court states that it exists in a revocation hearing ‘unless the hearing officer specifically finds good cause for not allowing confrontation.’ (Morrissey v. Brewer, supra, 408 U.S. at p. 489.) Hearsay in the probation report may be considered.” (People v. Dale, supra, 36 Cal.App.3d 191, 194-195.) The court concluded, therefore, that the cases requiring personal waivers of rights do not apply to probation revocation proceedings, “where the matter is submitted on the report of the probation officer. Where, as here, Morrissey rights are waived by conduct of counsel in submitting an alleged violation of probation upon the probation report and the defendant acquiesces by his silence, the waiver is effective.” (Id. at p. 195.)
After defendant absconded from his parole a second time, he was apparently arrested on a bench warrant and appeared for arraignment on October 13, 2006. At that time, the minutes reflect that the court set a hearing for revocation of probation for October 16, 2006. Defendant’s counsel was not present in court at that time, but the minutes reflect that notice was given.
At the October 16, 2006, probation revocation hearing, both defendant and his attorney were present and the arraignment on the revocation petition was set for October 23, 2006. On that date, the minutes indicated that both defendant and his attorney were present. The reporter’s transcript of that hearing appears only partially complete, in that the appearances of the parties and counsel were not stated for the record. It is unclear whether any other unreported or untranscribed proceedings took place on that date before the proceedings commencing at 10:20 a.m., as described in detail above. In any case, during that portion of the hearing, defendant’s counsel did not request any further hearing on the matter of revocation, before the court set the sentencing hearing. Defendant himself did make some remarks that put his excuses for the alleged violations of probation on the record, although he plainly admitted that he had missed his court date in August.
At the sentencing hearing on November 6, 2006, the court particularly inquired of counsel: “do you want to be heard on this?” Counsel responded directly, “I do, your Honor,” and proceeded to restate his position that defendant remained amenable to Proposition 36 probation for his drug addiction. Counsel did not elaborate further and, as far as the record indicates, proffered no documentation or other evidence in support of that view.
Defendant urges that the court’s warning to him in June that it intended to revoke his probation and sentence him to state prison, and that there would be no more opportunities for probation if he again absconded, are not a substitute for the procedural revocation rights set forth in Morrissey and Vickers. The People argue, to the contrary, that counsel’s conduct paralleled that of the attorney in Dale, essentially submitting the matter on the court’s records and the probation report.
We agree with the People. In essence, defendant’s attorney, like the counsel in Dale, submitted on the probation report. Defendant was able to bring all of his concerns to the attention of the probation officer via the supplemental report, and counsel did not see fit to offer anything else. By the conduct of acquiescing in the court’s taking judicial notice, at the revocation hearing on October 23, 2006, of its records that defendant had failed to appear in August, and referring the matter to probation and sentencing, and in failing to bring any other matters to the court’s attention, upon further inquiry, at the November sentencing hearing, counsel waived defendant’s Morrissey and Vickers rights to more formal proceedings. Defendant personally raised no objection. “Where, as here, Morrissey rights are waived by conduct of counsel in submitting an alleged violation of probation upon the probation report and the defendant acquiesces by his silence, the waiver is effective.” (People v. Dale, supra, 36 Cal.App.3d 191, 195.)
B. Any Error in the Conduct of the Revocation Proceedings Was Harmless
Defendant asserts that the failure to afford him his constitutional due process rights under Morrissey and Vickers must be reviewed under the Chapman standard: harmless beyond a reasonable doubt. (Chapman v. California (1966) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].) He contends that the error cannot be deemed harmless because he might have been able to show, at a formal hearing, that he did not actually violate the conditions of probation, or that the circumstances surrounding the violations did not warrant revocation. (People v. Perez (1994) 30 Cal.App.4th 900, 907.) He argues that this court “cannot assume the probation officer’s testimony under oath and under cross-examination would have established the alleged violations.” In addition, he asserts that his own statements to the court are insufficient to establish the violations. Citing Vickers, supra, 8 Cal.3d 451, he asserts that nothing in the probation report can be relied upon because “[a] revocation of probation may not be based on statements in a probation officer’s report where the defendant is not provided a hearing satisfying due process requirements.”
We disagree with defendant’s assessment. His own statements to the court on the record frankly admitted that he had failed to appear at his August court hearing. As to the other bases for revocation, defendant proffered excuses for the alleged violations. Defendant also had the opportunity, via the probation report, to place before the court any and all reasons he had for failing to complete his required programs, failing to meet with his probation officer, and his failure to appear at court-ordered hearings. Defendant’s explanations did not deny or refute the essence of any of the alleged violations. On this record, we can confidently say beyond a reasonable doubt that, had a more formal hearing taken place, no different result would have been obtained.
II. The Court Did Not Abuse Its Discretion in Declining to Reinstate Probation
Defendant next contends that the trial court abused its discretion when it found that he had refused treatment and was therefore ineligible for Proposition 36 probation. We disagree. As the People point out, five categories of defendants are ineligible for treatment under Proposition 36, including: “(4) Any defendant who refuses drug treatment as a condition of probation.” (Pen. Code, § 1210.1, subd. (b)(4).) Although defendant here initially enrolled in a drug treatment program soon after he was admitted to probation in March 2006, he failed to attend the program and was terminated. Thereafter he failed to enroll in any other program and did not attend his meetings, did not meet with his probation officer, and did not appear in court at his appointed times. He remained at large from supervision for weeks at a time. This was not the conduct of a Proposition 36 probationer who “commences drug treatment and falters. . . . This is a case in which defendant, by his acts and omissions, evinced a complete and unequivocal refusal to undergo drug treatment.” (People v. Guzman (2003) 109 Cal.App.4th 341, 350, italics added; see also People v. Johnson (2003) 114 Cal.App.4th 284, 300.) Defendant’s violations of his probation were nondrug related. The court had discretion, after the first such violation, to sentence him to state prison. It did not abuse its discretion in affording defendant one more chance to comply, but then ordering defendant’s probation to remain revoked when defendant again violated non-drug-related terms.
III. Defendant’s Sentence Was Proper
A. The Court Did Not Improperly Rely on Matters Occurring After Defendant Had Been Placed on Probation
Defendant urges that the court improperly relied upon factors that occurred after he had originally been admitted to probation in imposing the aggravated term. The People argue that defendant waived the right to assert this ground of error.
Regardless of waiver, however, the court’s sentence was proper, as explained more fully below.
B. Defendant’s Aggravated Sentence Did Not Violate Cunningham or Blakely
Defendant claims that under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403], the trial court erred in imposing the upper term based on facts not found by a jury nor admitted by the defendant. Defendant is incorrect.
At the time of his plea, defendant admitted his prior felony conviction. Such an admission alone rendered him eligible for the aggravated term. (People v. Black (2007) 41 Cal.4th 799.) In addition to this recidivist factor, defendant also committed the instant offense while he was on parole for the prior felony conviction.
The trial court’s reference during sentencing to matters that had occurred after defendant was admitted to probation concerned its finding that defendant was no longer eligible for probation under Proposition 36: i.e., his prior history, his opportunity to avoid a state prison sentence, and his unwillingness to avail himself of that additional chance. Upon the finding of ineligibility for probation, the court then proceeded to sentence defendant to the aggravated term. As noted, defendant was eligible for the aggravated term as the statutory maximum by reason of his prior felony conviction, a matter which he admitted at the time of his plea.
Defendant’s sentence to the aggravated term was proper.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., RICHLI, J.
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