California Court of Appeals, Fourth District, First Division
pub. order 6/3/13 (see end of opn.)
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD236538 Desiree Bruce-Lyle, Judge.
Law Office of Kurt David Hermansen, Kurt David Hermansen for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Laura A. Glennon, Deputy Attorneys General, for Plaintiff and Respondent.
HALLER, Acting P. J.
In this appeal Shawn Woodall challenges the trial court's order revoking his probation. He argues that the statute governing probation revocation proceedings (Pen. Code,  § 1203.2) violates the federal Constitution (both facially and as applied to him) because (1) it permits a warrant to be issued for a probationer's arrest unsupported by statements made by oath or affirmation, and (2) it does not require a preliminary probable cause hearing before a final revocation hearing as mandated by the United States Supreme Court in Morrissey v. Brewer (1972)408 U.S. 471 (Morrissey). We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Probation Grant
On September 29, 2011, defendant (representing himself) pled guilty to attempted possession of a controlled substance (Oxycodone) for sale, in exchange for a promise of a one-year sentence. At a sentencing hearing on December 12, 2011, the prosecutor told the court (Judge Melinda Lasater) that defendant had expressed an interest in participating in the reentry drug court program; the prosecutor believed defendant was eligible for the program; and defendant had been offered a one-year stayed sentence and probation grant conditioned on his participation in the program. Based on these representations, the court scheduled a sentencing hearing before Judge Desiree Bruce-Lyle, who was presiding over the reentry drug court program.
On January 3, 2012, the drug court suspended execution of a one-year prison sentence; placed defendant on three years' formal probation; and ordered him to complete a drug court program as a condition of probation. With defendant's agreement, counsel was appointed for purposes of representing him during his participation in drug court. The court scheduled a review hearing for January 9, 2012.
Defendant was released from jail on January 4 or 5, 2012, and he appeared at the January 9 review hearing accompanied by a drug court team member. Defendant told the drug court that he has a "life-threatening illness" and he was having trouble getting his medication. The court instructed the drug court team member to assist defendant with this matter, and told defendant to "lean on the folks at treatment" and "let them know what you need help with." The court set the next review hearing for January 17, 2012.
B. Initial Probation Revocation Proceedings
On January 11, 2012, two days after the January 9 review hearing, defendant left the drug court treatment program without letting anyone from the program know where he was going or where he was residing.
On January 12, 2012, the drug court issued an order finding that defendant was in violation of the reentry court participant contract because he had "failed to fulfill terms of the treatment program." The court summarily revoked his probation and issued a bench warrant for his arrest.
On February 18, 2012 (over one month after he had absconded), defendant was arrested. On February 27, 2012, he appeared in custody before the drug court represented by counsel. The court informed defendant that it and the drug treatment team had read a letter he had submitted and discussed whether he should be permitted to continue in the drug treatment program. The court told defendant he could personally address the court and say "everything that you want the court and the [treatment] team to consider."
Defendant told the court that he suffers from Parkinson's disease and a seizure disorder, and based on the court's earlier order the drug treatment team had given him advice on where to go to get the life-saving medications he needed for his terminal illness. Defendant described his repeated efforts to get his medications at various facilities, which proved fruitless due to a delay in getting his medical records. He also told the court his medications cost about $1, 000 monthly; he could not afford to pay for them; he was "just stressed out" and left the drug treatment program; and his girlfriend ultimately went across the border and obtained some medication for his illness.
The court responded that defendant had been in the program for three days; he then decided to "go do whatever it is [he] felt [he] needed to do"; he had been gone since January 11; and if he had intended to stay with the program he would have contacted someone in the program after he started getting his medication from across the border. The court concluded that defendant was not suitable for the reentry drug court program, terminated him from the program, and revoked his probation.
At the conclusion of the February 27 hearing, defendant (reinstated to pro. per. status) objected to the "summary revocation process" and requested an evidentiary hearing as required by Morrissey. The court set the matter for hearing on March 23, 2012.
C. Final Probation Revocation Proceedings
To assist the court at the upcoming evidentiary hearing, defendant's probation officer (Rico Boco) interviewed defendant at the jail on March 9, and interviewed defendant's drug court treatment counselor (Jack Boyce) on March 13. Defendant told Boco that he left the drug treatment program because he " 'panicked' " when he did not have his medications and felt he " 'could not get help anywhere' "; he went to Mexico about 10 times to get medication because the cost was lower; and he " 'had to do whatever it took to save [his] life.' " Drug counselor Boyce confirmed defendant's unsuccessful efforts to get his medications at two medical facilities. After these two failed attempts, on January 11, 2012 (the day defendant absconded from the program), Boyce suggested that defendant go to the University of California San Diego hospital emergency room; however, when Boyce later contacted the hospital he was told it had no record of defendant's arrival at the hospital.
After interviewing defendant and Boyce, Boco prepared a supplemental probation report setting forth the alleged probation violations. The report stated defendant had violated probation by absconding from the reentry drug court program on January 11, 2012, and by leaving San Diego ...