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People v. Minor

September 8, 2010


APPEAL from a judgment (order extending probation) of the Superior Court of Butte County, James F. Reilley, Judge. Affirmed. (Super. Ct. No. CM020547).

The opinion of the court was delivered by: Raye, J.


In this appeal, we consider the question of how much process is due a probationer in a probation extension proceeding. Defendant appeals an order granting a probation officer's request to extend by two years a three-year period of probation imposed following defendant's no contest plea to unlawful sexual intercourse with a minor. (Pen. Code, § 261.5, subd. (c).)*fn1 The request was made in a probation progress report to the court, which detailed defendant's failure to make progress in a sex offender therapy program mandated as a condition of probation. Defendant argues that a probationer in an extension proceeding is entitled to the same rights that obtain in a probation revocation proceeding and asserts that his federal due process rights of notice, confrontation, and factual findings were violated. We disagree with his initial premise and shall conclude that defendant was provided adequate notice and an opportunity to be heard prior to the extension of his probation, and that his rights of procedural due process were not violated in any respect. We also find adequate support in the record for the court's order extending probation. We affirm.

I. Factual background

The underlying facts of the offense are only marginally relevant to the issues on appeal. Suffice it to say that based on his interactions with a female acquaintance, defendant was charged with forcible rape (§ 261, subd. (a)(2)), penetration by foreign object by the use of force and violence (§ 289, subd. (a)(1)), and sexual penetration by a foreign object of a victim under the age of 18 years (§ 289, subd. (h)). In August 2004 defendant entered a no contest plea to unlawful sexual intercourse with a minor (§ 261.5, subd. (c)) and was placed on formal probation for 36 months. A condition of his probation required him to "[e]nroll in, pay for and successfully participate in a program of Sex Offender Specific Therapy, including an AIDS education program, as directed by the probation officer, and not terminate participation in said program without the permission of the Court or probation officer." For a variety of reasons, including the inadequacy of one program, a job relocation, and the cancellation or termination of another program, defendant eventually enrolled at various times in four separate programs.

In June 2007 defendant petitioned the court to allow him to attend out-of-state job training and to visit his father. Defendant and his counsel appeared at the hearing on the motion. A probation officer also appeared in court and indicated the probation office had "several objections." The officer reported that "we are having a really difficult time with this defendant getting him to cooperate with probation" and referred to a report prepared by the supervising probation officer, which indicated that defendant had been in three different sex offender treatment groups and would be unable to complete the program before his probation ended in November 2007. The probation officer offered additional information regarding defendant's lack of cooperation in providing information and his progress in his sex offender group, but the court declined to consider it.*fn2 The court permitted defendant to leave the state but, in light of the information regarding defendant's progress in completing the sex offender program, requested the probation officer to prepare a brief report for review and suggested that probation might need to recommend either that probation be extended a year or two to complete sex offender training or revocation of probation.

Thereafter, the probation officer filed a probation progress report requesting the court to extend defendant's probation for two years. The request was not served on defendant prior to an August 29, 2007, hearing. Defendant's counsel objected and the court continued the hearing until September 5, 2007.

Defendant filed a memorandum of points and authorities in opposition to the request to extend the term of his probation in which he denied that he had failed to satisfy all of the court-ordered terms and conditions of his probation. Defendant argued there had been no factual allegations of proof of changed circumstances to justify an extension, and consequently he had been given no notice of the allegations against him. He argued that the probation condition only required him to successfully participate in a program, not complete it, and asserted: "There is also no allegation that the defendant is not successfully participating in the program he is attending or that he cannot continue to do so until November 17, 2007. Thus, there are no factual allegations that, even if proven, would support a finding that the defendant will not be able to comply with his probation obligations until they expire on November 17, 2007." Defendant maintained that he had not violated any of the terms and conditions of his probation, and there were no allegations that he did.

The matter was continued until October 17, 2007, to permit counsel and the court an opportunity to review the progress report and defendant's opposition, and to permit counsel to file further papers with the court. At the October 17 hearing, the probation officer appeared and asked the court to extend probation to the maximum term of five years. She was not sworn as a witness but made the following statement to the court: "Basically because he has failed to get his act together early on. . . . [¶] He's only recently come into compliance with his counseling program and [the] most recent quarterly report that we just received on October 15 says that he is doing well in the program, finally, except for the fact that he, for someone who's been nearly three years into a therapy program, he doesn't have any of the concepts down, he doesn't have any of the skills he should have and he needs time to get this together. So it's basically that he didn't get on it early and we are faced with an untreated sex offender if he doesn't get it situated."

The probation officer's report, dated August 23, 2007, and filed with the court on August 29, 2007, indicates that "the defendant has been enrolled in four separate sex offender treatment programs. After failing to benefit in Dawn Horowitz-Persons [sic] Sex Offender Treatment Program he enrolled in Karen Knights Sex Offender Treatment Program on May 18, 2005. Within the first six (6) months of treatment he came dangerously close to termination due to poor attendance and failing to complete assignments. A progress report dated November 23, 2006, indicated the defendant was struggling in the program. Since August 17, 2006, he failed to turn in eight (8) assignments which significantly delayed his progress." The report notes that on January 24, 2007, the court permitted defendant to relocate, and he later attended treatment for three weeks at the Counseling and Psychotherapy Center in Palmdale, California, before returning to Butte County and enrolling in New Beginnings on March 8, 2007. His initial progress report on April 10, 2007, indicated he was attending treatment unprepared and needed to improve his level of personal responsibility. However, by July 2, 2007, defendant's progress was considered "satisfactory"; "his level of participation had increased and he seemed to be putting more effort into his group." But staff noted "it was unusual for someone who had reportedly been in a treatment program for almost three (3) years to still be at a 'low' level of self discovery and improvement." The report concluded with an expression of concern "that he is still in the beginning stages of his sex offender treatment. The defendant is scheduled to terminate probation on November 17, 2007. He will have only had eight (8) months of treatment, three (3) months of which he lacked participation. The sex offender treatment program could be completed in thirty-six (36) months if the defendant was actively engaged and dedicated to treatment. Upon termination of probation in November the defendant will not have completed his treatment program as ordered by the Court."

Attached to the probation officer's report were three quarterly progress reports reflecting "marginal" assessments on November 23, 2006, and April 10, 2007, followed by apparent improvement in the July 2, 2007, report.

When asked if he wished to be heard, defendant's counsel submitted on his earlier filed memorandum of points and authorities, whereupon the trial court granted the extension "based on everything that's been presented," without further elaboration.

II. Discussion

Probation is the "suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer." (§ 1203, subd. (a).) A court may grant probation "for a period of time not exceeding the maximum possible term of the sentence." (§ 1203.1, subd. (a).) "'Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.] The primary goal of probation is to ensure "[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation." (Pen. Code, § 1202.7.)' (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 . . . .) Accordingly, the Legislature has empowered the court, in making a probation determination, to impose any 'reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . .' (Pen. Code, § 1203.1, subd. (j).)" (People v. Olguin (2008) 45 Cal.4th 375, 379.)

The parties agree that a court may modify conditions of probation during the probationary period. Section 1203.2 provides, in pertinent part:

"(b) Upon its own motion or upon the petition of the probationer, probation officer or the district attorney of the county in which the probationer is supervised, the court may modify, revoke, or terminate the probation of the probationer pursuant to this subdivision. The court shall give notice of its motion, and the probation officer or the district attorney shall give notice of his or her petition to the probationer, his or her attorney of record, and the district attorney or the probation officer, as the case may be. The probationer shall give notice of his or her petition to the probation officer and notice of any motion or petition shall be given to the district attorney in all cases. The court shall refer its motion or the petition to the probation officer. After the receipt of a written report from the probation officer, the court shall read and consider the report and either its motion or the petition and may modify, revoke, or terminate the probation of the probationer upon the grounds set forth in subdivision (a) if the interests of justice so require.

"The notice required by this subdivision may be given to the probationer upon his or her first court appearance in the proceeding. Upon the agreement by the probationer in writing to the specific terms of a modification or termination of a specific term of probation, any requirement that the probationer make a personal appearance in court for the purpose of a modification or termination shall be waived. Prior to the modification or termination and waiver of appearance, the probationer shall be informed of his or her right to consult with counsel, and if indigent the right to secure court appointed counsel. If the probationer waives his or her right to counsel a written waiver shall be required. If probationer consults with counsel and thereafter agrees to a modification or termination of the term of probation and waiver of personal appearance, the agreement shall be signed by counsel showing approval for the modification or termination and waiver."

Further, section 1203.3 provides, in pertinent part:

"(b) The exercise of the court's authority in subdivision (a) to revoke, modify, change, or terminate probation is subject to the following:

"(1) Before any sentence or term or condition of probation is modified, a hearing shall be held in open court before the judge. The prosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter . . . .

"(A) If the sentence or term or condition of probation is modified pursuant to this section, the judge shall state the reasons ...

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