People v. Felix

California Court of Appeal Mar 20, 1986 No. A030447Published

Before: White

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Holding. The court held that a probationer's due process rights were not violated by the admission of evidence regarding uncharged probation violations because the trial court offered to grant a continuance to allow the defense to prepare a response.

Issues

Whether a probationer is denied due process when the court considers evidence of probation violations not specified in the revocation petition.
Whether a trial court's offer of a continuance provides sufficient due process safeguards when new allegations are introduced during a revocation hearing.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We hold that in the present case appellant was not denied due process.”

“The court in Vickers made it clear that while revocation can be had only with due process protections, the precise nature of the proceedings need not be identical as long as they assure “equivalent due process safeguards.””

“We hold, however, that the court provided a constitutionally sufficient safeguard of appellant’s due process rights and preserved the fundamental fairness of the proceedings when it offered to consider a motion for a continuance.”

Opinion

WHITE, P. J.

On September 8, 1982, in the Municipal Court of the City and County of San Francisco, appellant was charged by complaint with one count of felony attempted burglary (Pen. Code, §§ 664 and 459), and one count of possession of burglars’ tools (Pen. Code, § 466). The complaint also included an allegation of a prior conviction (Pen. Code, §§ 667 and 1192.7, a serious felony). On October 22, 1982, in superior court, appellant pleaded guilty to one count of attempted burglary (Pen. Code, §§ 664 and 459). On the same day appellant was sentenced to three-years probation subject to serving a 90-day term in county jail, with 46 days credit, and was ordered to pay restitution as directed by the adult probation department.

On February 16, 1983, the district attorney’s office filed a notice of motion to revoke probation, alleging that appellant violated Health and Safety Code section 11378 (possession of a controlled substance for sale). On March 21, 1983, the court denied the revocation motion. However, the court modified appellant’s probation to include participation in an alcohol rehabilitation program.

On April 23, 1984, the adult probation department filed, and was granted, a motion to revoke appellant’s probation on grounds that appellant failed to

[1170]

complete an in-patient alcohol treatment program and failed to leave a forwarding address. At a hearing held on June 13, 1984, the superior court set aside the motion to revoke probation, restored probation to the original terms and conditions, and ordered appellant to participate in the sheriff’s work alternative program for four weekends.

On August 9, 1984, appellant was charged in the City and County of San Francisco with attempted grand theft (Pen. Code, §§ 664 and 487, subd. 2) and unauthorized possession of a controlled substance (Health & Saf. Code, § 11377). Based on this complaint, the district attorney’s office filed a notice of petition and petition to revoke probation on September 27, 1984, alleging that appellant violated the condition of probation not to engage in criminal practices. The motion was heard concurrent with trial on November 9, 1984, and continued to November 20, 1984. Appellant was found in violation of his probation and probation was revoked. On December 4, 1984, appellant was sentenced to serve one year in state prison with credit for time served. On January 17, 1985, appellant filed timely notice of appeal.

People v. Felix

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WHITE, P. J.

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