United States District Court, E.D. California
ORDER DENYING DEFENDANT'S MOTION TO DISMISS THE
PROBATION VIOLATION (ECF NO. 28)
25, 2017, Angel L. Bernabe (“Defendant”) was
cited for improper food storage in violation of 36 C.F.R.
§ 210(d). On June 26, 2017, Defendant was cited for
exceeding the posted speed limit in violation of 36 C.F.R.
§ 4.21(c); driving without a license in violation of 36
C.F.R. § 4.2 and Cal. Veh. Code § 12500(a); and
failing to obey a lawful order in violation of 36 C.F.R.
§ 2.32(a)(2). The violations occurred in Kings Canyon
September 6, 2017, there were two actions filed, United
States v. Angel L. Bernabe, 18-po-00202-SAB, and the
instant action. Defendant made an initial appearance on
September 21, 2017. After being advised of his rights,
Defendant pled guilty to driving without a license in
violation of 36 C.F.R. § 4.2 and Cal. Veh. Code §
12500(a) pursuant to a plea agreement. The remaining counts
were dismissed without prejudice. Due to Defendant's
criminal history and his initial failure to comply with the
officer by providing identifying information, the Court
declined to accept the plea agreement the parties had
proposed, and Defendant was sentenced to a fine and
assessments of $540.00; 24 months of unsupervised probation
to expire on September 23, 2019; Defendant was to reinstate
his driver's license by December 21, 2017; complete 150
hours of community service; and obey all federal, state, and
28, 2019 a petition for violation of probation was filed.
According to the petition, Defendant's driver's
license expired on February 27, 2019 and on June 8, 2019, he
was cited for various traffic violations, including driving
without a license, failure to provide financial
responsibility, and no vehicle registration. A warrant was
issued but was held until July 18, 2019.
made an initial appearance on the probation violation on July
18, 2019. Discovery was ordered and a briefing schedule was
set. After an extension of the briefing schedule was granted,
Defendant filed a motion to dismiss on August 1, 2019. The
Government did not file an opposition to the motion.
hearing on Defendant's motion was held on August 27,
2019. Defendant was present with counsel Matthew Lemke.
Counsel Jeffrey Spivak appeared for the Government.
moves to dismiss the violation of probation presenting
evidence that on February 27, 2018, the California Department
of Motor Vehicles issued a letter setting aside the
suspension of Defendant's license. Defendant moves to
have the violation of probation dismissed in the interest of
justice arguing that he is serving a sentence for an offense
that he did not commit and it would be a substantial
injustice to impose an additional sentence for the current
is not seeking to challenge the conviction in this action,
nor can he. A defendant can not collaterally attack the
underlying conviction at a probation revocation hearing.
United States v. Torrez-Flores, 624 F.2d 776, 778-79
(7th Cir. 1980); see also United States v. Warren,
335 F.3d 76, 78 (2d Cir. 2003) (underlying sentence or
conviction cannot be challenged in a supervised release
revocation hearing). The validity of a conviction cannot be
asserted as a defense in a probation revocation proceeding,
and the “district court has jurisdiction to consider a
petition for revocation of probation as if the underlying
conviction were unquestioned, until such time as the
conviction has been judicially set aside.”
Torrez-Flores, 624 F.2d at 780 (quoting United
States v. Francischine, 512 F.2d 827, 828 (5th Cir.),
cert. denied, 423 U.S. 931 (1975)). To attack the underlying
conviction, Defendant must file a separate proceeding under
28 U.S.C. § 2255. Francischine, 512 F.2d at
828. The sentence is presumed valid until it has been vacated
on direct appeal or in an appropriate collateral proceeding.
United States v. Almand, 992 F.2d 316, 317 (11th
Cir. 1993); United States v. Hofierka, 83 F.3d 357,
364 (11th Cir.), opinion modified on denial of reh'g, 92
F.3d 1108 (11th Cir. 1996). During the probation revocation
hearing the Court's inquiry is not the guilt or innocence
of the defendant on the underlying conviction, but whether
there was a violation of his terms of probation.
Torrez-Flores, 624 F.2d at 780;
Francischine, 512 F.2d at 829. “[A] court
should consider the petition for probation revocation as if
the underlying conviction was unquestioned.” United
States v. Simmons, 812 F.2d 561, 563 (9th Cir. 1987).
seeks to have the probation violation dismissed in the
interest of justice arguing that he is serving a sentence for
a conviction for which he is innocent. However, the Court
notes that the driving without a valid license conviction was
not the only charge against Defendant when he appeared on the
citations issued. Defendant was also charged with exceeding
the posted speed limit, failing to obey a lawful order, and
improper food storage. In disposing of these charges,
Defendant entered into a plea agreement with the Government
in which these charges were dismissed in exchange for his
guilty plea on the driving without a valid license.
agreements are typically governed according to the principles
of contract law. United States v. Johnston, 199 F.3d
1015, 1020 (9th Cir. 1999); United States v. Lewis,
979 F.2d 1372, 1375 (9th Cir. 1992). For the most part, plea
agreements are interpreted “using the ordinary rules of
contract interpretation.” United States v.
Cope, 527 F.3d 944, 949-50 (9th Cir. 2008) (quoting
United States v. Transfiguracion, 442 F.3d 1222,
1228 (9th Cir.2006) and Brown v. Poole, 337
F.3d 1155, 1159 (9th Cir.2003)). Courts draw upon contract
law in interpreting plea agreements “to ensure that
each party receives the benefit of the bargain, and to that
end, we enforce a plea agreement's plain language in its
ordinary sense.” United States v. Under Seal,
902 F.3d 412, 417 (4th Cir. 2018) (quoting United States
v. Warner, 820 F.3d 678, 683 (4th Cir. 2016)).
the Government adhered to its commitment under the plea
agreement by dismissing the other charges and Defendant
received the benefit of the bargain. See Lewis, 979
F.2d at 1375. The Court is unpersuaded by Defendant's
argument that he is serving a ...