California Court of Appeal Apr 30, 2013 No. E052552Unpublished
Filed 4/30/13 P. v. Sharrieff CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E052552
v. (Super.Ct.No. FMB1000315)
NAIM ANWAR SHARRIEFF, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Rodney A.
Cortez, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr. and
Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Naim Anwar Sharrieff pled guilty to offering to sell a controlled
substance (Health & Saf. Code, § 11379, subd. (a)) in exchange for being placed on
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drug court probation. Subsequently, probation was revoked and defendant was
sentenced to the upper term of four years in prison. Defendant contends the manner in
to be heard?” Defense counsel replied, “Yes, your Honor. Mr. Shar[r]ieff still states
that it was not him and that he has abided by all other terms. I would ask the Court to
give consideration for at least mid term for him since he has not been convicted in any
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other matters, including the one alleged.” With that, defense counsel submitted. The
People asked “the Court to sentence him to the aggravated term.”
The trial court stated, “You know, Mr. Shar[r]ieff, the DA objected to you
coming into this program, and this is an example as to why they had the foresight to
think and believe that you wouldn‟t be successful in this program. It was conveyed to
me that you‟re a drug dealer, not a user. And you have show[n] that . . . you are. You
might not use, but you are a drug dealer. I gave you one shot. You didn‟t succeed with
that shot. You can put your hands down because I‟m not going to be calling upon you.
So when you finish serving your time, perhaps you‟ll turn your life around or you‟ll go
back to dealing drugs. I don‟t know. I prefer that you not go back again in drugs.”
Defendant interjected, “Can I please - -.”
The trial court continued, “But if that‟s what you choose, then I‟ll be here, and
the DA will be here, and the attorneys will be here to represent you, and law
enforcement will be out there watching as well.” The trial court then imposed the
aggravated term, stated the credits and fines, the reasons for the aggravated term, and, at
the request of defendant‟s trial counsel, stated that it would refer defendant to a
correctional drug treatment program.
Defendant then stated, “Can I say something?”
The trial court responded, “No. You‟re done.”
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DISCUSSION
Appellant contends that the trial court denied appellant‟s right to due process by
not providing written notice of the claimed probation violations and by not holding an
evidentiary hearing as to whether the violations occurred. We disagree.
Trial courts are afforded broad discretion in deciding whether to revoke
probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) An appellate court will
not disturb the trial court‟s decision absent an abuse of discretion. (People v. Self
(1991) 233 Cal.App.3d 414, 417.) As defendant contends, probationers are entitled to
due process protections prior to revocation and termination of probation, including
notice and an opportunity to be heard. (People v. Vickers (1972) 8 Cal.3d 451, 458-460
(Vickers).)
A probation revocation proceeding violates due process if it is fundamentally
unfair. (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080.) “[S]ome flexibility in
the manner in which due process guarantees are met is acceptable.” (People v. Felix
(1986) 178 Cal.App.3d 1168, 1171.) In the context of a revocation of probation, due
process does not require a complete “recitation of procedural rights” and a personal
waiver of those rights. (People v. Dale (1973) 36 Cal.App.3d 191, 194-195 (Dale).)
Rather, a defendant can waive the formal requirements of notice and a hearing and
admit a probation violation through the conduct of his attorney and his own silence.
(Ibid.) The appellant in Dale complained of due process violations when the trial court
revoked probation without a hearing and without obtaining a personal waiver of his
right to present evidence and confront witnesses. (Ibid.) The appellate court concluded
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there was an effective waiver of those rights based on “conduct of counsel in submitting
an alleged violation of probation upon the probation report” and defendant‟s
acquiescence by his silence. (Id. at p. 195.)
Similarly, in People v. Baker (1974) 38 Cal.App.3d 625, the appellant argued his
right to due process was violated because he was not given prior written notice of the
probation violations charged against him. (Id. at p. 629.) However, during the
sentencing hearing, defense counsel requested and was given a brief recess to read the
contents of a supplemental probation report to appellant to be certain he understood the
purpose of the hearing. (Id. at p. 628.) The supplemental probation report charged the
appellant with violating his probation by escaping probationary custody. (Ibid.) The
hearing resumed immediately following the brief recess, and appellant was sent to
prison despite his counsel's request for reinstatement of probation and a presentation of
mitigating circumstances related to the probation violation. (Id. at pp. 628-629.) The
appellate court rejected defendant‟s due process argument because prior notice could be
implied from the record and because appellant‟s attorney did not object to inadequate
notice of the charges during the sentencing hearing. (Id. at p. 629.) In this regard, the
appellate court stated as follows: “Absent objection, we will not imply inadequate
notice from a record which is silent as to exactly how [the appellant] was given notice
of the charges.” (Ibid.) Likewise, in People v. Martin (1992) 3 Cal.App.4th 482, 486,
the appellate court concluded defendant waived his right to a formal probation
revocation hearing “by filing a statement in mitigation which acknowledged that he
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would be sentenced” and by failing “to object at the sentencing hearing either to the
sentencing procedure or to the grounds for revocation.” (Id. at p. 486.)
“The high court stated that the hearing must be made available „if it is desired by
the parolee.‟ [Citation.] There is nothing in the opinion which forecloses a summary
resolution of the issue of revocation if an undisputed course of conduct constitutes, as a
matter of law, a violation of one or more conditions of parole. Whether a course of
conduct and the attending circumstances are factually undisputed thus leaving open only
questions of law is a matter as to which the hearing officer may make inquiry. If it
appears, for instance, that upon a request by the hearing officer for a preliminary
statement in the nature of an offer of proof by the parties the only matter in issue is the
legal consequences of an undisputed course of conduct, the hearing officer may, without
hearing any witness, rule on the matter. Such summary proceedings could not be used
to shift the burden or degree of proof of factual matters if they remain in issue.”
(Vickers, supra, 8 Cal. 3d at p. 457, fn. 6.)
The record in this case shows that defendant had actual notice of the probation
violation alleged, that defendant had an opportunity to respond, and that he waived a
more formal notice or hearing by his counsel‟s submission without objection and
defendant‟s silence. The trial court‟s opening comments, including that defendant‟s
flight from an attempted contact by law enforcement “was explained to the court, as
well as your attorney”, and that the court did not believe defendant‟s answer that it was
not him but his brother, imply that defendant had both notice and an opportunity to be
heard. Although not stated, the flight from an attempted law enforcement contact
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implies that the probation condition was defendant‟s agreement in his drug court
application to “submit to a search of my person . . . and/or any other property under my
control, without the necessity of a search warrant, at any time of the day or night,
without reasonable cause by any law enforcement officer . . . .” Defendant and his
attorney were silent during the court‟s comments and pronouncement that defendant “is
in violation and he is terminated” thereby acquiescing in the summary character of the
court‟s resolution of the probation violation and waiving any right to a more formal
process. The only statements or gestures by either defendant or his counsel were during
the sentencing portion of the hearing. Thus, in the words of Vickers, the “course of
conduct and the attending circumstances [we]re factually undisputed” as revealed by “a
preliminary statement in the nature of an offer of proof by the parties” leaving only the
question of “the legal consequences” of a “course of conduct” that was indisputable if
not “undisputed.” (Vickers, supra, 8 Cal. 3d at p. 457, fn. 6.) Therefore, the trial court
was entitled to proceed summarily as it did, and there was no violation of defendant‟s
rights to notice or a hearing.
This Court asked the parties to brief the issue of whether the Vickers waiver
contained in the Agreement is valid. After reviewing the parties‟ well-written letter
briefs, we can only conclude that the waiver is valid.
A probationer may waive his Vickers rights. (In re Moss (1985)175 Cal.App.3d
913, 930.) Here, defendant executed the Agreement, similar to a plea bargain, by which
he waived his rights to a Vickers hearing. The Agreement was acknowledged by
defendant and all relevant terms and waivers were initialed by the defendant. In return
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for the relinquishment of the procedural rights relating to probation revocation
proceedings, defendant garnered the opportunity to rehabilitate himself, and dismissal of
all charges if successful. Defendant does not assert that he did not understand its terms.
His argument that the agreement was an adhesion contract is contradicted by statements
in the Agreement that he freely and voluntarily entered into it.
The Agreement is a negotiated contract between the prosecution and the
defendant. (See People v. Segura (2008) 44 Cal.4th 921, 930-931 [re contract
principles applicable to plea agreements].) Acceptance into the drug court program was
an integral part of the plea agreement, having been specifically included as a term on the
change of plea form. The Agreement constitutes a valid waiver of the procedural rights
relating to probation revocation proceedings.1 The Agreement and the plea agreement
provided a valuable benefit to defendant which justified the procedural waivers.
In addition, because drug court was an integral part of the plea bargain, any
challenge to the validity of the drug court agreement is tantamount to a challenge to the
validity of the plea, requiring a certificate of probable cause. (See People v. Panizzon,
supra, 13 Cal.4th at p. 79 [challenge to stipulated sentence constitutes a challenge to the
guilty plea itself].) Without a certificate of probable cause, we cannot review the
1 We disagree with defendant‟s assertion in his letter brief that he “could not have given a knowing and intelligent waiver of his right to a Vickers hearing because there was no way for [defendant] to assess what that waiver entailed at the time he gave it.” This could be similarly said of the waiver of the right to appeal approved in People v. Panizzon (1996) 13 Cal.4th 68.
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validity of the agreement by which defendant waived his Vickers rights and his conduct
credit rights.
By virtue of the drug court agreement, defendant validly waived his rights under
Vickers. There was no error, constitutional or procedural.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
HOLLENHORST J.
RICHLI J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant may validly waive the right to a formal probation revocation hearing (Vickers hearing) as part of a negotiated drug court agreement, and that the defendant in this case effectively waived those rights through his conduct and the express terms of his signed agreement.
Issues
Whether the trial court violated the defendant's due process rights by revoking probation without formal written notice or an evidentiary hearing.
Whether the waiver of Vickers hearing rights contained in the defendant's drug court agreement is valid.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The Agreement constitutes a valid waiver of the procedural rights relating to probation revocation proceedings.”