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The People v. Hector Pizano


July 19, 2011


(Super. Ct. No. 08-CR-13491)

The opinion of the court was delivered by: Nicholson ,j.

P. v. Pizano



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Hector Pizano, Jr., appeals from the order revoking, and then reinstating, his probation following a conviction for possession of methamphetamine. He contends the "highly irregular conduct" of the proceedings conducted on the violation of probation petition violated his due process rights. Alternatively, he contends defense counsel's acquiescence in those proceedings constituted ineffective assistance. We disagree with both contentions and affirm the judgment.


Defendant pled guilty in January 2008 to felony possession of methamphetamine, and was placed on five years' formal probation. Among the terms and conditions of his probation, defendant was required to serve 90 days in jail, and 90 days in an alternative sentencing work program; report to Amador County probation authorities; consent to testing for controlled substances (with the understanding that "fail[ing] to submit to testing or a positive test shall constitute a violation of probation"; and abstain from possessing or using any controlled substance.

A petition to revoke defendant's probation and supporting declaration were filed in March 2009.*fn1 The probation officer declarant stated (on information and belief) that defendant had violated his probation in that "he failed to observe good conduct and to obey all laws, he failed to report to the Probation Department, he failed to serve a jail sentence, he failed to complete the Alternative Sentence Program in lieu of jail, he possessed a controlled substance, he failed to consent to testing for controlled substances . . . ."

Specifically, the petition alleged that on February 22, 2008, defendant was ordered to complete the Alternative Sentence Program "in lieu of 90 days in jail. The defendant was ordered to complete the days at any non-profit organization and submit proof of completion to the Probation Department by January 5, 2009. [¶] To date, no proof of completion has been received. The defendant has completed zero hours of work."

The petition further alleged that on January 17, 2009, defendant (among other crimes) possessed a controlled substance and refused to provide a urinalysis test.

A jury trial was held on the drug possession charge; after the jury hung in favor of acquittal, the prosecution moved to dismiss the criminal charges that underlay the drug possession grounds for revoking defendant's probation and a hearing was set on the balance of defendant's alleged violations of probation.

In view of defendant's challenge to the probation revocation proceedings, we quote from them at some length. At the first hearing, defense counsel spoke first, announcing that he had reviewed documents with the prosecution, and stating that "we deem the probation violation hearing to have commenced. We've already addressed some of the issues. I'd like to go through those and see which ones we addressed that require no further -- the first allegation is the violation of all those Health and Safety Codes. That was the trial we did. I don't know what I could possibly add, other than an argument that you can anticipate, so I think that one we can skip . . . . That's done.

"THE COURT: All right.

"[DEFENSE COUNSEL]: You're perfectly well able to decide that on what's before the Court.

"THE COURT: I heard the trial.

"[DEFENSE COUNSEL]: Yes, your Honor. On the second issue that my client did not provide a urinalysis, I would concede that's true, but we offered some explanation in mitigation. And, so, insofar as that issue in the petition, we're done with that one. The Court's in a position where you can rule on that allegation, also.

"THE COURT: Okay[.]"

On the issue of whether defendant had performed under the work program, defense counsel indicated, "I would like to at least check" the facts on that allegation because defendant might have been in custody in San Joaquin County at the time.

"THE COURT: The issue is, he was given a completion date, and that's the issue here. Did he complete the 90 days, which is 720 hours, by 1-5-90? If he didn't, he's in violation.

"[DEFENSE COUNSEL]: The short answer is, from where I'm sitting right now, it doesn't look like it. However, before I tell you he didn't, I want to make sure he didn't.

"THE COURT: All right.

"[DEFENSE COUNSEL]: And, then, the next issue is that he didn't report. We've shown the Court some documents that he did go to probation in early March 2008, and it's not -- I wish I had a little bit more evidence, but there is at least some evidence before the Court to indicate that he did go to probation. He had that one document for his work program dated March 6th, and he had picked up a blank reporting form. [¶] . . . [¶]

"The last issue is whether he enrolled in and completed the drug program. We're checking on that. So, most of the issues, by either offers of proof or informally looking at the documents presented at bench, have been addressed. We still need to check on the drug program completion, and I'd like to check on if he even signed up for work program. [¶] And what I'd like to do, then, is say that we've commenced the contested hearing. The issues have been adjudicated, as I've recited. I'd like to continue it for a short time so we can follow-up on one or two issues that are left."

When the prosecutor asked whether defendant "is admitting" he did not submit to urinalysis, defense counsel responded: "It's more a situation where I'm submitting that [defendant] didn't admit the allegation, but I'm willing to submit it. I concede that the evidence is that he did not submit to it, but we've offered some argument in mitigation. So, I'm prepared to submit that, also.

"[THE PROSECUTOR]: I guess where I'm going with this is I need to know who and what I need to bring in here to nail that down.

"[DEFENSE COUNSEL]: That issue is done.

"[THE PROSECUTOR]: So, I don't need to bring the officer in here?

"[DEFENSE COUNSEL]: No. He did not submit a urinalysis test. That's a fact. The question is whether he had any kind of excuse or explanation, and I've made whatever he had. So, that issue is submitted."

The second hearing focused on whether defendant had participated in the alternative sentencing work program in lieu of 90 days' jail time, as contemplated by his conditions of probation, with the court questioning when defendant was in custody in San Joaquin County and whether he was thereby prevented from reporting to the alternative sentencing work program in Amador County.

"THE COURT: . . . [L]et's cut to the chase. Was he in custody from February 22nd, 2008 until --

"[DEFENSE COUNSEL]: Not the whole time. He may have been in and out, but he was not continuously in custody in San Joaquin.

"THE DEFENDANT: I agreed to go every day to this court, which was four days later. They were not supposed to release me, sir.

"[DEFENSE COUNSEL]: So, that's the evidence we would offer to show on that. Otherwise, I think we're done.

"THE COURT: Do you want to be heard?

"[THE PROSECUTOR]: No. I think the Court understands.

"THE COURT: The Court finds beyond a reasonable doubt that the defendant, who was required to submit a urinalysis test and did not do that by refusing on 1-17-09. The Court also finds beyond a reasonable doubt that he was ordered to serve . . . 180 days [in] jail with 78 days credit, do alternative sentencing in lieu of jail, complete those, and submit proof of completion by 1-5-09. He did not do that.

"The Court also finds that he has not completed any hours of work. There's no proof that he did that. The Court also finds beyond a reasonable doubt that he was ordered to report when he was released from custody. He was released on 2-27 and did not report. The Court does not find a violation based upon the 1-17-09 charges that resulted in a jury trial, nor the not providing proof of completion."

The court revoked and reinstated probation and ordered defendant to serve additional jail time.



Defendant Acquiesced in the Revocation Proceedings

Defendant contends the conduct of the probation revocation hearing deprived him of his constitutional due process rights because the court effectively "reversed the burden of proof" and ordered him to produce evidence of compliance with the conditions of probation,*fn2 conducted a hearing without evidence, and revoked his probation in the absence of any evidence to support a finding that he volitionally failed to comply with the terms of his probation.

Penal Code section 1203.2, subdivision (a) provides that a trial court may revoke probation where the "court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation . . . ." That provision prescribes few procedural guidelines governing probation revocation proceedings.*fn3 (People v. Arreola (1994) 7 Cal.4th 1144, 1152.)

But the due process clause of the Fourteenth Amendment has been found to impose procedural and substantive limits on the revocation of the conditional liberty created by probation. (Black v. Romano (1985) 471 U.S. 606, 610 [85 L.Ed.2d 636, 642]; see Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484]; Gagnon v. Scarpelli (1973) 411 U.S. 778 [36 L.Ed.2d 656]; People v. Arreola, supra, 7 Cal.4th at pp. 1152-1153.) It requires that a probationer be given "written notice of the claimed violations of his probation; disclosure of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; a neutral hearing body; and a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation. [Citation.]" (Black v. Romano, supra, 471 U.S. at p. 612.)

Due process does not require a complete recitation of procedural rights and a personal waiver of those rights in the context of a probation revocation. (People v. Dale (1973) 36 Cal.App.3d 191, 194-195.) Rather, a defendant can waive the formal requirements of notice and a hearing and admit a probation violation through the conduct of the defendant's attorney and the defendant's own silent acquiescence therein. (Ibid.; People v. Baker (1974) 38 Cal.App.3d 625, 629; People v. Martin (1992) 3 Cal.App.4th 482, 486.) The defendant in People v. Dale, supra, for example, complained of due process violations when the trial court revoked his probation without a hearing and without obtaining a personal waiver of his right to present evidence and confront witnesses. (People v. Dale, supra, at p. 194.) The appellate court concluded 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. Martin, supra, 3 Cal.App.4th 482, the defendant's probation was revoked without a formal probation revocation hearing or an express waiver of his right to such a hearing. Martin concluded the defendant waived the right to a formal probation revocation hearing "by filing a statement in mitigation which acknowledged that he 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 People assert, and we agree, that under the circumstances here, defendant effectively waived or forfeited his right to complain that the court deprived him of due process. There is no indication that defendant lacked adequate notice and an opportunity to be heard on any issue material to the disposition of the revocation petition. Indeed, defendant appeared at both hearings conducted on the probation revocation petition; through counsel, he effectively waived his right to an evidentiary hearing, and admitted both that he had refused to submit to urinalysis and failed to comply with the work furlough requirement. He made no objection to the procedures and, in fact, addressed the court on the issue of his work furlough performance, admitting he was in San Joaquin County on other cases when he should have been completing his work furlough obligation.

There was no due process violation.


There Was No Ineffective Assistance of Counsel

Alternatively, defendant contends the trial counsel rendered ineffective assistance of counsel by participating in the procedural errors and "abandoning and arguing against [him]."

A cognizable claim of ineffective assistance of counsel requires a showing "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland)). "[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." (Id. at p. 688.) To prevail on an ineffective assistance of counsel claim, a defendant must also establish counsel's performance prejudiced his or her defense. (Id. at p. 687.) To establish prejudice, a defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)

Because a defendant must prove both elements of the Strickland test in order to prevail, courts may reject an ineffective assistance of counsel claim if it finds the claimed error was not prejudicial. (Strickland, supra, 466 U.S. at p. 687.)

Assuming counsel was deficient in failing to object when the court did not hold a formal probation revocation hearing, defendant cannot show he was prejudiced by counsel's actions. Defendant's own statements to the court on the record frankly admitted his failure to comply with the probation term that required his participation in a work furlough, and as to the failure to submit to urinalysis, defendant proffered an excuse, but did not deny, the alleged violation. Defendant had the opportunity to place before the court any and all reasons he had for failing to complete his required work furlough and refusing to submit to drug testing.

And, after the trial court revoked defendant's probation, it reinstated him on probation, and added an additional 60-day jail term. We discern no basis for concluding the trial court would have imposed a more lenient sentence if (as defendant argues) defense counsel had "reached an agreement with the prosecutor as to the documents on which the submission would be based," or required the prosecution to place on the record its evidence defendant refused to submit to urinalysis and failed to complete his work furlough. On this record, we can confidently say beyond a reasonable doubt that, had a more formal hearing taken place, no different result would have been obtained.


The judgment is affirmed.

We concur:

RAYE , P. J. BUTZ , J.

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