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The People v. Kirkland Delano Oard


December 10, 2010


APPEAL from the Superior Court of San Bernardino County. Margaret A. Powers, Judge. Affirmed. Super.Ct.No. FVI702706 Stephen S. Buckley,

The opinion of the court was delivered by: Hollenhorst Acting P.J.

P. v.

Oard CA4/2


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Defendant and appellant Kirkland Delano Oard pled nolo contendere to one count of possession of marijuana for sale (Health & Saf. Code, § 11359, count 1) and one count of child endangerment (Pen. Code, § 273a, subd. (a), count 2).*fn1 In return, a street terrorism count and gang enhancement allegation were dismissed. Defendant was sentenced to 48 months' probation under certain conditions. He was subsequently arrested and charged with transportation of marijuana (Health & Saf. Code, § 11359) and possession of marijuana for sale (Health & Saf. Code, § 11360, subd. (a)). A petition to revoke his probation was filed, alleging that he had violated two of his probation terms. Defendant admitted that he violated his probation. The court dismissed the charges underlying the new arrest and sentenced him to two years in state prison on the initial convictions.

On appeal, defendant contends that: 1) his admission to violating his probation was not knowing, intelligent, or competent, and he should be able to withdraw it; and 2) he is entitled to a recalculation of his presentence work and conduct credits under the recent amendment of section 4019. We affirm.


On March 18, 2008, defendant pled no contest and was placed on probation for 48 months, in case No. FVI702706. His probation conditions included the terms that he violate no law (term 2) and neither use nor possess any controlled substance without medical prescription (term 9).

On October 13, 2009, the probation office filed a petition to revoke defendant's probation, alleging that he violated terms 2 and 9 when he was arrested two days earlier on charges of possession of marijuana for sale (Health & Saf. Code, § 11359) and transportation of a controlled substance (Health & Saf. Code, § 11360, subd. (a)) (case No. FBA900614).

On October 15, 2009, defendant denied the allegations in the petition to revoke his probation.

On December 1, 2009, the court held a hearing on the violation of probation. Defense counsel stated that, pursuant to an in-chambers agreement, in return for defendant's admission to the probation violation, the court would impose a term of two years in state prison, instead of following the probation officer's recommendation of four years. The prosecution added that the new charges in case No. FBA900614 would be dismissed as a separate case but used only for purposes of the probation violation. Defense counsel agreed. The court then asked defense counsel to take the waiver and admission. Defense counsel addressed defendant as follows: "You understand, sir, that as to a violation of probation, you have a right to have a hearing in this matter. At that hearing you have the right to be represented by an attorney. You have a right to present evidence and testimony on your own behalf. You have a right to use the subpoena power of the court to have evidence and persons brought in to court to testify for you. You have a right to either cross-exam yourself or through your attorney. You have a right to either testify or remain silent. [¶] Do you understand those rights?" Defendant replied, "Yes." Defense counsel asked, "Do you waive and give them up and admit that you violated your terms and conditions of probation by violating Term Number 2, violate no law?" Defendant said yes and his counsel joined. The court then revoked defendant's probation and sentenced him to two years in state prison. It awarded him a total of 282 days of custody credits, consisting of 188 days of actual days in custody and 94 days for good conduct.


I. Defendant Is Not Entitled to Withdraw His Admission to the Probation Violation

Defendant claims that, prior to his probation violation admission, the trial court failed in its duty to advise him of his constitutional rights "in a way that ensured that the entry of his plea and admission was knowingly, intelligently, properly, and competently made." Consequently, he misunderstood the "content and consequences" of his admission. He now wants to proceed with a hearing on the probation violation. We reject defendant's claim.

Defendant relies on section 1018 and cases such as People v. Ribero (1971) 4 Cal.3d 55 and People v. Howard (1992) 1 Cal.4th 1132 in support of his argument. Section 1018 and the cases cited by defendant either involve the acceptance of a guilty plea on a criminal charge or an admission of a prior conviction, while the instant case involves defendant's admission to a violation of probation. In essence, he argues he should have been admonished as though he were entering a guilty plea. We reject this argument and find no error. (People v. Clark (1996) 51 Cal.App.4th 575, 582, overruled on other grounds as stated in People v. Mendez (1999) 19 Cal.4th 1084, 1098.) What defendant's argument fails to recognize is that "a formal probation revocation hearing is substantially different from a criminal prosecution. [Citation.]" (Clark, at p. 582.) "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." (People v. Dale (1973) 36 Cal.App.3d 191, 195.)

Furthermore, there is no evidence to support defendant's contention that, at the time he admitted the probation violation, he misunderstood the content and consequences of his admission. He merely points to his statement in his request for certificate of probable cause, which asserts: "Defendant believes he was unjustifiably sent to prison. He believes he should not have been sent to state prison because the charges in FBA900614 were dismissed. He does not understand why dismissal of those charges can lead to imprisonment on the probation violation in this case. To the extent he is in prison because of an agreement to dismiss FBA900614, defendant would request a [certificate of probable cause] in order to challenge admission of the probation violation in this case." We note that, at the probation violation hearing, defendant was competently represented by counsel. His counsel reached an agreement with the prosecution in chambers. Defendant was expressly informed of, and waived, his rights to have a hearing on the violation, to present evidence, to cross-examine witnesses, and to testify or remain silent. He admitted that he violated term No. 2 of his probation. His counsel joined in his admission. Neither defendant nor his attorney ever suggested to the court that defendant was uninformed or confused in any way.

To the extent defendant "believes he should not have been sent to state prison because the charges in FBA900614 were dismissed," we point out that "probation may be revoked upon evidence that the probationer has committed another crime, despite the fact that he has been acquitted of the new criminal charge." (People v. Garcia (1977) 67 Cal.App.3d 134, 138.) Moreover, "at a probation revocation hearing the violation is ordinarily established by the probation officer's report. [Citation.] A plea of guilty relieves the prosecution of the need to prove its case, but at a probation revocation hearing it is usually inconsequential whether the defendant admits his violation or stands mute. The probation report alone, if not rebutted or impeached, is a sufficient showing to support a revocation and sentence." (Ibid.) The probation report here was not rebutted or impeached.

In sum, the record establishes that defendant had adequate notice of the probation violation, the opportunity to be heard, and the assistance of counsel. Furthermore, he admitted the violation. His admission may not be withdrawn simply because he has changed his mind. (See People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)

II. Defendant Is Not Entitled to Additional Credits

Defendant was sentenced on December 1, 2009. The court awarded him 94 days of conduct credits under section 4019, based on 188 actual days in custody. He now claims he is entitled to 94 more days of conduct credits under the amended version of section 4019, which went into effect on January 25, 2010.*fn2 He argues the 2010 amendment is retroactive, i.e., it applies to persons who were sentenced before the amendment's effective date but whose cases are not final as of that date. We disagree.

When defendant was sentenced in December 2009, under the version of section 4019 then in effect, conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) However, the Legislature amended section 4019 effective January 25, 2010, to provide for the accrual of two days of conduct credit for every two days of presentence custody (§ 4019, subd. (f)) for any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c). The statute does not contain a saving clause, i.e., a clause stating that the amendment shall have prospective application only. (§ 4019.)

Defendant contends that he is entitled to 188 conduct credits, rather than the 94 that were awarded him. In support of his claim that the 2010 amendment should be applied retroactively, he cites People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963, which concluded that the 2010 amendment to section 4019 should be applied retroactively. The People contend the amendment does not apply retroactively. As defendant and the People point out, there is a split of authority as to whether the amendment applies retroactively. The issue is currently before the California Supreme Court.*fn3 As that court will have the last word on the subject, we discuss the issue only summarily.

As an amendment to the Penal Code, the amendment of section 4019 "'is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753.) Neither the bill that amended section 4019 nor the legislative history contains any such clear and unavoidable implication.

We recognize that, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (In re Estrada (1965) 63 Cal.2d 740, 748.) However, presentence conduct credits are not a mitigation of punishment. They are a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405.)

Whatever conclusion we reach in the instant case will eventually be approved of, or rejected by, the California Supreme Court. Until our high court provides otherwise, we hold that the 2010 amendment to section 4019 does not apply retroactively. Accordingly, defendant is not entitled to additional custody credits.


The judgment is affirmed.


We concur:





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