People v. Cano

California Court of Appeal Apr 24, 2002 No. B152598Published

Before: Miriam A. Vogel

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Holding. The court held that a defendant's probation may only be revoked for violations that are formally charged and either admitted or proven, and that the trial court erred by considering an uncharged, unproven conviction to deny the defendant eligibility for Proposition 36 drug treatment.

Issues

Whether a trial court may deny Proposition 36 eligibility based on a prior conviction that was never formally charged or admitted as a probation violation.
Whether the prosecution's failure to specify the nature of a probation violation requires the record to be construed against the People.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“probation may be revoked only for a violation that is either admitted or proved.”

“It is the prosecutor's responsibility to create a record in which a specific violation is charged and either proved or admitted. When that is not done, the record must be construed against the People.”

119 Cal.Rptr.2d 156 (2002) 97 Cal.App.4th 1216 The PEOPLE, Plaintiff and Respondent,

Anthony Chavez CANO, Defendant and Appellant.

No. B152598. Court of Appeal, Second District, Division One.

April 24, 2002. Review Denied July 10, 2002.[*] [157] Carol S. Boyk, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Marc J. Nolan, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

MIRIAM A. VOGEL, J.

In August 1998, Anthony Chavez Cano was convicted of one count of possession of cocaine. (Health & Saf.Code, § 11350, subd. (a).) In September, the proceedings were suspended and probation was granted for a period of three years and on the usual conditions, including that Cano submit to drug testing and obey all laws. On June 13, 1999, Cano was arrested and charged with driving under the influence at a speed exceeding 30 miles over the posted limit. Probation was summarily revoked. In July, Cano pled no contest to the new charges and admitted a probation violation. In the drug case, probation was reinstated on the same terms and conditions plus some additional jail time.

In October 1999, in Ventura County, Cano was convicted of battery upon a spouse and resisting arrest. In November and December 2000, Cano failed to appear for scheduled drug tests. On January 23, 2001, he tested positive for cocaine. On March 30, 2001, Cano's probation was summarily revoked but the minute order does not state the basis for the summary revocation and there is no reporter's transcript. On July 2, Cano waived his right to a formal probation hearing and admitted a violation (the nature of which was not stated on the record). At defense counsel's request, the matter was continued for sentencing. On August 13, defense counsel filed a "motion to apply Proposition 36" to any probation violation suffered after July l.[1] At the sentencing hearing (August [158]

People v. Cano

AI Brief

MIRIAM A. VOGEL, J.

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DISCUSSION

DISPOSITION

NOTES

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