Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA297303, Carol H. Rehm, Jr., Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohn, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Appellant Manuel Ramirez Maldonado challenges an order revoking his probation and imposing a suspended sentence, contending that he was denied his rights to representation by counsel and to due process during the revocation proceedings. We affirm.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
In early 2006, appellant was arrested for selling Vicodin and Codeine pills. As a result, he was charged with transporting and offering controlled substances for sale (Los Angeles Superior Court Case No. BA297303) (first case). Prior to the preliminary hearing, he asserted his right to self-representation under Faretta v. California (1975) 422 U.S. 806 (Faretta), and was permitted to represent himself.
On March 2, 2006, following the preliminary hearing, an information was filed charging appellant with one count of transporting and offering to sell a controlled substance (Health & Saf. Code, § 11352, sub. (a)), and two counts of possession of a controlled substance for sale (Health & Saf. Code, § 11351). Accompanying the counts were allegations that appellant had suffered prior convictions (Health & Saf. Code, § 11370.2, sub. (a); Pen. Code, § 667.5 subd. (b)). Appellant pleaded not guilty and denied the special allegations.
On April 28, 2006, appellant pled guilty to the charges and admitted the special allegations. As the factual basis for his plea, he admitted that he had furnished Vicodin pills to another person. In exchange for appellant’s plea and admissions, the trial court imposed and suspended a seven-year sentence, and placed appellant on formal probation for 36 months.
On May 15, 2006, the trial court found that appellant had violated his probation conditions by failing to report to a substance abuse program, and revoked appellant’s probation. At appellant’s request, the trial court terminated his self-representation and appointed counsel to represent him. On June 14, 2006, appellant admitted the violation, and the trial court reinstated probation under its original terms and conditions. On August 24, 2006, the trial court again revoked appellant’s probation for failing to enroll in a substance abuse program. On December 21, 2006, it reinstated probation after appellant admitted the violation.
On September 12, 2007, appellant was arrested for selling Vicodin pills and other drugs to Jeffrey Dalrymple in exchange for an EBT card (a welfare ATM card) worth $46.00. Appellant was charged with transporting and possessing controlled substances for sale (Health & Saf. Code, §§ 11351, 11352, 11375, subd. (b)(i)) (Los Angeles Superior Court Case No. BA328968) (second case). On September 14, 2007, the prosecutor filed a request that appellant’s probation be revoked in the first case. The request was granted, pending further hearings in the second case.
On September 26, 2007, appellant submitted a form waiver of his right to representation by counsel. After making inquiries, the trial court relieved appellant’s counsel and permitted appellant to proceed in propria persona. On December 13, 2007, appellant represented himself at the formal probation revocation hearing in the first case. Following the hearing, the trial court found that appellant had violated the conditions of his probation, ordered the execution of the suspended sentence, and dismissed the charges against appellant in the second case. On December 17, 2007, the trial court granted appellant’s request for representation by counsel. On January 31, 2008, appellant was sentenced to five years in prison in the first case. This appeal followed.
DISCUSSION
Appellant contends that he was denied (1) the right to counsel and (2) due process at the formal probation revocation hearing in December 2007. We disagree.
A. Governing Principles
Penal Code section 1203.2 governs the revocation of probation, which is ordinarily “different from a criminal prosecution.” (People v. Clark (1996) 51 Cal.App.4th 575, 581-582, disapproved on another ground in People v. Mendez (1999) 19 Cal.4th 1084, 1098) “Under section 1203.2, the court is authorized to revoke a defendant’s probation upon his rearrest... ‘if the interests of justice so require and the court... has reason to believe from the report of the probation officer or otherwise’ that grounds for revocation exist. (§ 1203.2, subd. (a).) Such summary revocation gives the court jurisdiction over and physical custody of the defendant and is proper if the defendant is accorded a subsequent formal hearing in conformance with due process. [Citation.] [¶] Therefore, after the summary revocation, the defendant is entitled to formal proceedings for probation revocation. The purpose of the formal proceedings is not to revoke probation, as the revocation has occurred as a matter of law; rather, the purpose is to give the defendant an opportunity to require the prosecution to prove the alleged violation occurred and justifie[d the] revocation. [Citation.]” (People v. Clark, supra, 51 Cal.App.4th at p. 581.)
All further statutory citations are to the Penal Code.
Section 1203.2 provides in pertinent part: “(a) At any time during the probationary period of a person released on probation under the care of a probation officer pursuant to this chapter, or of a person released on conditional sentence or summary probation not under the care of a probation officer, if any probation officer or peace officer has probable cause to believe that the probationer is violating any term or condition of his or her probation or conditional sentence, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the person and bring him or her before the court or the court may, in its discretion, issue a warrant for his or her rearrest. Upon such rearrest, or upon the issuance of a warrant for rearrest the court may revoke and terminate such probation if the interests of justice so require and 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, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses.... [¶]
Section 1203.2 specifies few guidelines for such proceedings. (People v. Arreola (1994) 7 Cal.4th 1144, 1152.) In Mempa v. Rhay (1967) 389 U.S. 128, (Mempa), Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey) and Gagnon v. Scarpelli (1973) 411 U.S. 778 (Gagnon), the United States Supreme Court set forth the applicable procedural safeguards required by the federal Constitution.
Generally, “‘[a] probationer... is entitled to a preliminary and a final revocation hearing, under the conditions specified in [Morrissey].’ [Citation.] These conditions include that probationers be advised of their right to a formal hearing on the alleged probation violations [citations], of their right to counsel [citation], their right to present evidence [citation], their right to confront and cross-examine witnesses [citation], and their right to disclosure of the evidence to be presented against them [citation]. Unless waived, probationers are also entitled to receive a written statement of the reasons for and evidence supporting the revocation of probation. [Citation.]” (In re Wagner (2005) 127 Cal.App.4th 138, 146.)
The basis for the right to counsel under the United States Constitution hinges on whether the probation revocation proceeding also constitutes a stage of a criminal proceeding where substantial rights of a criminal accused may be affected. (Mempa, supra, 389 U.S. at pp. 134-137; Gagnon, supra, 411 U.S. at p. 781.) If the trial court, in ordering probation, deferred sentencing to a future probation revocation proceeding, the proceeding constitutes such a stage in the criminal action, and triggers the right to counsel under the Sixth Amendment of the United States Constitution. (Mempa, supra, 389 U.S. at pp. 134-137; Gagnon, supra, 411 U.S. at p. 781; People v. Hall (1990) 218 Cal.App.3d 1102, 1105-1106 (Hall).) In contrast, if the probationer’s sentence was imposed prior to the probation revocation proceeding, the right to counsel arises from the Due Process Clauses of the Fifth and Fourteenth Amendments of the United States Constitution (Gagnon, supra, 411 U.S. at p. 778).
The right to counsel in probation revocation proceedings also arises from another source. In People v. Vickers (1972) 8 Cal.3d 451, 461 (Vickers), the California Supreme Court held that probationers are entitled to representation by counsel “at all revocation proceedings other than at summary proceedings had while the probationer remains at liberty after absconding.” (Ibid.) This “judicially declared rule of criminal procedure” rests on considerations regarding “the efficient administration of justice,” rather than constitutional mandates. (Ibid.)
B. No Denial of Right to Counsel
Appellant contends that he was denied the right to counsel in the probation revocation proceedings arising from the first case. Pointing to Faretta, he argues that at the September 26, 2007 hearing, he received inadequate advisements regarding his right to counsel, and that he did not, in fact, waive this right with respect to the probation revocation.
1. Waiver of the Right to Counsel
At the outset of our inquiry, we establish the limits of our discussion and identify the standard for waivers of the right to counsel that we shall apply. In Faretta, the United States Supreme Court held that a defendant in a criminal case has a constitutional right under the Sixth Amendment “to proceed without counsel when he voluntarily and intelligently elects to do so.” (Faretta, supra, 422 U.S. at p. 807, italics deleted.) Defendants thus possess two mutually exclusive constitutional rights under the Sixth Amendment regarding representation: the right to be represented by counsel at all critical stages of a criminal prosecution, and the right to represent themselves. (People v. Marshall (1997) 15 Cal.4th 1, 20.)
As we have explained (see pt. A., ante), the right to counsel in probation revocation proceedings may arise under the Sixth Amendment or the Due Process Clauses. However, it is unnecessary for us to identify the constitutional basis of appellant’s right, as waivers of the right to counsel are generally held to the same standards, regardless of the basis of the right. (Patterson v. Illinois (1988) 487 U.S. 285, 297-298.) In Johnson v. Zerbst (1938) 304 U.S. 458, 464, the United States Supreme Court explained: “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” The Court also stated: “It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’” (Ibid, fn. deleted.) These principles govern waivers of the right to counsel under the Fifth and Sixth Amendments. (Edwards v. Arizona (1981) 451 U.S. 477, 482-483 [Fifth Amendment]; Faretta, supra, 422 U.S. at p. 835 [Sixth Amendment]).
The crucial factor regarding the adequacy of a waiver is not the source of the right, but the stage of the proceeding at which the right is waived. (Patterson v. Illinois, supra, 487 U.S. at p. 298.) The stage of the proceeding determines the assistance that counsel could provide, and thus establishes “the type of warnings and procedures that should be required before a waiver of that right will be recognized.” (Ibid.) For the reasons explained below (see pt. B.2., post), we conclude that appellant’s contentions fail, regardless of the basis of his right to counsel, as his waiver meets the exacting standards governing Faretta waivers of counsel in a criminal action.
This conclusion encompasses appellant’s right to counsel under the rule of criminal procedure established in Vickers (see fn. 3, ante), as that right is also relinquished by such a waiver. (Hall, supra, 218 Cal.App.3d at p. 1105.)
Generally, the requirements for a valid Faretta waiver “are (1) a determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understands the significance and consequences of the decision and makes it without coercion.” (People v. Koontz (2002) 27 Cal.4th 1041, 1069.) When confronted with a request for self-representation, “‘“a trial court must make the defendant ‘aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”’ [Citation.]...” [Citation.]’” (People v. Sullivan (2007) 151 Cal.App.4th 524, 545 (Sullivan), quoting People v. Stanley (2006) 39 Cal.4th 913, 932.) Generally, the trial court is obliged to ensure that the defendant understands the charges against him, the possible penalties, and the hazards of self representation (including fact that he will be subject to the rules and standards governing attorneys).
“‘In order to deem a defendant’s Faretta waiver knowing and intelligent,’ the trial court ‘must insure that he understands 1) the nature of the charges against him, 2) the possible penalties, and 3) the “dangers and disadvantages of self-representation.” [Citation.]’ [Citation.] The admonishments must also ‘include the defendant’s inability to rely upon the trial court to give personal instruction on courtroom procedure or to provide the assistance that otherwise would have been rendered by counsel. Thus, a defendant who chooses to represent himself or herself after knowingly, intelligently, and voluntarily forgoing the assistance of counsel assumes the risk of his or her own ignorance, and cannot compel the trial court to make up for counsel’s absence.’ [Citation.] The defendant ‘should at least be advised that: self-representation is almost always unwise and that the defense he conducts might be to his detriment; he will have to follow the same rules that govern attorneys; the prosecution will be represented by experienced, professional counsel who will have a significant advantage over him in terms of skill, training, education, experience, and ability; the court may terminate his right to represent himself if he engages in disruptive conduct; and he will lose the right to appeal his case on the grounds of ineffective assistance of counsel. [Citation.] In addition, he should also be told he will receive no help or special treatment from the court and that he does not have a right to standby, advisory, or cocounsel. [Citation.] [¶] While this list of issues is not exhaustive, it demonstrates that there are a number of matters the court must ask about and consider before ruling on a defendant's request to represent himself.’ [Citation.]” (Sullivan, supra, 151 Cal.App.4th at pp. 545-546.)
No particular form of words is required in the admonishments to the defendant to establish that the defendant, in fact, voluntarily and knowingly relinquished his right to counsel. (People v. Lawley (2002) 27 Cal.4th 102, 140.) “The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” (People v. Bloom (1989) 48 Cal.3d 1194, 1225.) On appeal, we “review the entire record -- including proceedings after the purported invocation of the right of self-representation -- and determine de novo whether the defendant’s invocation was knowing and voluntary.” (People v. Marshall, supra, 15 Cal.4th at p. 24.) Even when the trial court has not conducted “a full and complete inquiry” into the defendant’s invocation of his Faretta rights, we may properly determine that the record, viewed as a whole, establishes that his waiver of the right to counsel was knowing and voluntary. (People v. Marshall, at p. 24.)
2. Relevant Underlying Proceedings
In requesting self-representation in the first case, appellant submitted a form waiver dated February 3, 2006. The form contained descriptions of a defendant’s constitutional rights and the dangers and disadvantages of self-representation. To acknowledge his understanding of these matters, appellant placed his initials in a sequence of boxes and signed the waiver.
Appellant represented himself at the April 2006 hearing on the plea agreement in the first case. In describing the offer of probation to appellant, the prosecutor explained that if appellant failed to follow the terms and conditions imposed by the court, appellant would be “looking at seven years [in] state prison.” Among the conditions imposed by Judge Carol H. Rehm were that he “obey all laws,” “not own, use, possess, buy or sell any controlled substances... except with a valid prescription,” and “stay away from places where users or sellers congregate.” Appellant acknowledged that he understood these conditions.
During the probation revocation proceedings in May 2006, Judge Rehm terminated appellant’s self-representation at appellant’s request and appointed counsel to represent him. Appellant appeared with court-appointed counsel at the remaining probation revocation hearings in 2006, which ultimately resulted in the reinstatement of appellant’s probation.
After appellant’s arrest on September 12, 2007, the prosecutor filed a written request that appellant’s probation be revoked due to the charges in the second case. The request was granted, pending a formal revocation hearing, which trailed the proceedings in the second case.
Also trailing the second case was a third case involving another alleged probation violation. Following the formal revocation hearing in the second case, appellant admitted the probation violation in the third case, and his probation was reinstated (with conditions). Appellant raises no contentions of error regarding the third case.
On September 21, 2007, appellant, represented by his court-appointed attorney, Earl E. Evans, appeared at a hearing in the first case, which was continued to September 26, 2007. On the latter date, appellant and Evans appeared before Judge Lawrence H. Cho at a combined hearing in the first and second cases. Appellant gave Judge Cho a form waiver of the right to counsel -- identical in its printed terms to the waiver he had submitted in the first case -- which appellant had completed with Evans’s assistance. The waiver displayed the second case’s number in its caption; in addition, in a section entitled “Charges and Consequences,” it listed the charges against appellant in the second case. In the waiver, appellant indicated that he understood his constitutional rights in “the above-entitled case”; identified the first case as one in which he had previously represented himself; and indicated that he understood the rights and duties of pro per litigants, and the disadvantages of self-representation.
The reporter’s transcript of the hearing discloses that Judge Cho called the numbers for the first and second cases at the beginning of the hearing.
When Judge Cho examined appellant regarding his request, appellant stated that he had represented himself “several times,” and affirmed that he knew that he would be acting in “all the further proceedings... without counsel.” No express reference to the first case occurred during Judge Cho’s examination. Judge Cho granted the request for self-representation and relieved Evans as appellant’s counsel.
Judge Cho then conducted the preliminary hearing in the second case, at which appellant represented himself. At the conclusion of the preliminary hearing, Judge Cho found there was sufficient evidence to support five counts of possession and sale of controlled substances against appellant, as well as several charges against Dalrymple, his co-defendant. Judge Cho also continued appellant’s probation revocation hearing in the first case, which thereafter trailed the proceedings in the second case. When Judge Cho briefly addressed the bail set in the probation revocation proceeding, appellant discussed the matter with Judge Cho. Thereafter, appellant represented himself at hearings involving the probation revocation.
On December 10, 2007, appellant announced that he was ready for trial in the second case, and rejected a plea offer. On December 12, 2007, the date set for trial in the second case, appellant and Dalrymple appeared before Judge Steven Van Sicklen. Appellant reaffirmed his readiness for trial, and objected to a request from Dalrymple’s counsel for a continuance of the trial.
In discussing appellant’s objection, Judge Van Sicklen remarked to appellant: “[W]hat I’m balancing is the fact that there was a holding order which bound you over for trial which in my mind is enough evidence to find you in violation of your probation. So you more than likely would be found in violation of your probation and potentially would be doing prison time in any event.” After appellant asserted that he would win the trial and not be sent to prison for a probation violation, the following exchange occurred:
“The Court: There is a different standard of proof on a probation violation than there is a trial.
Proof of the facts supporting the revocation of probation may be made by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447; People v. Abrams (2007) 158 Cal.App.4th 396, 400.)
“[Appellant]: I understand that, your honor, I’ve been through a probation violation. I understand that....”
Judge Van Sicklen granted Dalrymple a one-day continuance.
The following day, December 13, 2007, Judge Van Sicklen told appellant that Dalrymple had decided to change his plea, and that appellant would be transferred to another courtroom for a probation revocation hearing before Judge Bob. S. Bowers, Jr. Appellant responded “Okay,” and, remarked, “ I’d like to present witnesses on the probation violation; so I guess we would be doing a setting, right?” When Judge Van Sicklen told him to raise the matter with Judge Bowers, appellant answered, “Well, I’ll take care of it then, I guess.”
At the inception of the revocation hearing, Judge Bowers stated: “[Y]ou have requested a formal probation violation hearing. Is that still your wish, sir?” Appellant responded: “Well actually, yes, I guess we can go on and continue the probation violation hearing.” After the prosecution presented testimony from the officer who had arrested appellant in the second case, appellant cross-examined the officer, and also testified on his own behalf. Although Judge Bowers noted that appellant was representing himself, appellant raised no objection to his status as a pro per litigant during the hearing.
Judge Bowers found that appellant had violated his probation conditions, ordered the execution of his suspended sentence, and imposed a sentence of six years in prison. In addition, at the prosecution’s request, Judge Bowers dismissed the charges against appellant in the second case. Judge Bowers transferred the first case to Judge Rehm for a final determination of appellant’s sentence under section 654.
Judge Bowers concluded that a six-year sentence -- rather than the seven-year sentence originally imposed -- was proper under section 654.
On December 17, 2007, four days after the probation revocation hearing, appellant appeared before Judge Rehm and contended for the first time that Judge Bowers had improperly failed to advise him about his right to representation by counsel at the hearing. Judge Rehm concluded that the contention was one “for the Court of Appeal.” At appellant’s request, Judge Rehm terminated his self-representation and appointed counsel for him. On January 31, 2008, Judge Rehm sentenced appellant to five years in prison.
3. Analysis
Appellant contends that he was denied the right to counsel during the probation revocation proceedings in the first case following the September 26, 2007 hearing. He argues that his waiver at the September 26, 2007 hearing did not encompass his right to counsel in the first case, as Judge Cho never expressly mentioned the probation revocation proceeding when he admonished appellant, and appellant’s form waiver referred solely to the second case. We conclude that the record, viewed as a whole, establishes that appellant voluntarily and knowingly waived his right to counsel in both cases at the September 26, 2007 hearing.
At the beginning of the hearing, Judge Cho called both cases, and expressly told Evans -- who been representing appellant in the probation revocation proceeding -- that the hearing encompassed the first case. In examining appellant on his waiver, Judge Cho asked appellant: “Do you understand that you have the right... to have an attorney... to assist you at all stages of the proceedings[,] including this proceeding which is the time for the preliminary hearing? (Italics added.) Appellant answered affirmatively. Judge Cho also asked: “Do you understand if I allow you to exercise this right to represent yourself, that you will proceed on with all the further proceedings without the assistance of the law or the court, that you will [be] proceeding on your own without counsel[?]” Appellant again answered affirmatively. When Judge Cho relieved Evans as appellant’s counsel, appellant made no comment.
Appellant’s subsequent remarks and conduct demonstrate that he intended to relinquish his right to counsel in the first case, and knew that he had done so. (Sullivan, supra, 151 Cal.App.4th at p. 552.) Whenever issues pertaining to the probation revocation arose at hearings, appellant acted as his own counsel. On December 13, 2007, after Judge Van Sicklen directed appellant to Judge Bowers’s courtroom for the formal revocation hearing, appellant remarked, “I’d like to present witnesses to the probation violation; so I guess we would be doing a setting, right?” When Judge Van Sicklen explained that the hearing would begin immediately, appellant answered, “Okay. Well, I’ll take care of it then, I guess.” Later, when Judge Bowers asked appellant whether he wished to proceed with the hearing, appellant responded, “Well actually, yes, I guess we can go on....”
The record also demonstrates that on September 26, 2007, appellant knew about “the dangers and disadvantages of self-representation” in the probation revocation proceeding (Faretta, supra, 422 U.S. at p. 835). To establish that appellant possessed this knowledge, we may examine the record of the hearing on that date, as well as his conduct before and after the hearing. (Sullivan, supra, 151 Cal.App.4th at pp. 550-553.)
Appellant’s understanding of the specific hazards in the probation revocation proceeding is shown by his conduct in the first case, including the hearing on September 26, 2007. In April 2006, when Judge Rehm imposed sentence in the first case, appellant -- who was then representing himself -- affirmed his awareness that he would be “looking at seven years [in] state prison” if he sold or possessed controlled substances without a valid prescription, violated any laws, or otherwise violated his probation conditions. Appellant later requested and obtained counsel in the probation revocation proceedings in 2006. On September 26, 2007, when appellant again sought self-representation, he told Judge Cho that he knew that he was charged with the illegal sale and transportation of controlled substances in the second case. Although Judge Cho did not give express advisements about the probation revocation proceeding, Judge Cho and appellant’s form waiver provided detailed warnings about the hazards of self- representation in any proceeding. Later, in December 2007, prior to the formal revocation hearing, appellant told Judge Van Sicklen that he knew about the reduced burden of proof in probation revocation hearings.
The record thus establishes that appellant possessed a general awareness of the hazards of self-representation, and knew that the misconduct charged in the second case potentially violated his probation conditions. He also knew that the evidentiary burden in showing the probation violations was modest, and that he faced the possible execution of a seven-year sentence. Accordingly, appellant waived his right to counsel in the probation revocation proceeding with a full understanding of “the disadvantages of self-representation, including the risks and complexities of the particular case” (People v. Bloom, supra, 48 Cal.3d at p. 1225).
Appellant contends that his September 26, 2007 waiver did not encompass the probation revocation proceeding in the first case because his form waiver referred solely to the second case. However, the form waiver itself is merely “a means by which the judge and the defendant seeking self-representation may have a meaningful dialogue concerning the dangers and responsibilities of self-representation.” (People v. Silfa (2001) 88 Cal.App.4th 1311, 1322.) To determine whether appellant waived representation by counsel in the first case, we examine the entire record (People v. Marshall, supra, 15 Cal.4th at p. 24), which establishes that he did, in fact, do so.
We recognize that section 1203.2 states that in specified circumstances, waivers of the right to counsel in probation revocation proceedings must be in writing. Subdivision (b) of that provision states: “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.” (Italics added.)
Pointing to Hall, supra, 218 Cal.App.3d 1102, appellant also suggests that Judge Bowers was obliged to advise appellant regarding his right to counsel at the formal revocation hearing, notwithstanding appellant’s waiver on September 26, 2007. He is mistaken. Under the federal Constitution, “once a defendant gives a valid waiver, it continues through the duration of the proceedings unless it is withdrawn or is limited to a particular phase of the case.” (People v. Crayton, supra, 28 Cal.4th at p. 362.) Because appellant’s waiver of counsel was neither withdrawn nor limited in duration, it remained in force before Judge Bowers.
Appellant’s reliance on Hall is misplaced. There, the defendant asked to represent himself prior to trial, and following advisements, was permitted to do so. (Hall, supra, 218 Cal.App.3d at p. 1104.) When a jury found him guilty, the trial court suspended the imposition of sentence and placed him on probation for three years. (Ibid.) Two years later, the defendant represented himself in a probation revocation proceeding, at which the trial court terminated his probation and imposed a four-year sentence. (Ibid.) The appellate court reversed on the ground that the defendant had not been advised expressly about his right to counsel at the probation revocation proceeding. (Id. at pp. 1104-1105.) In holding that due process mandated the advisement, the court rejected “the proposition of a single-all purpose Faretta hearing,” and concluded that the pre-trial waiver was inadequate for purposes of the probation revocation proceeding. (Hall, at p. 1106.) Here, unlike Hall, the record establishes that appellant knowingly waived his right to counsel in the probation revocation proceeding. In sum, appellant was not denied the right to counsel.
C. No Denial of Due Process
Appellant contends that he was denied due process at the formal probation revocation hearing on December 13, 2007. Generally, at a formal revocation hearing, due process under the federal and state Constitutions entitles the probationer to several procedural safeguards, including “‘(a) written notice of the claimed violations...; (b) disclosure... of evidence against him; [and] (c) [an] opportunity to be heard in person and to present witnesses and documentary evidence.’” (People v. Arreola, supra, 7 Cal.4th at pp. 1152-1153, quoting Morrissey, supra, 408 U.S. at p. 489; see Vickers, supra, 8 Cal.3d at p. 457.) Appellant argues that these safeguards were contravened at the December 13, 2007 hearing. In addition, appellant contends that the holding of the formal revocation hearing before his trial denied him due process. As explained below, appellant has failed to establish his contentions.
1. Relevant Underlying Proceedings
The prosecution filed a written request for revocation of appellant’s probation on September 14, 2007. The request sought the revocation of his probation on the basis of the charges asserted against him in the second case. Attached to the request were copies of the pertinent police report of his arrest, laboratory reports confirming that pills seized from him upon arrest contained controlled substances, and other evidentiary exhibits. According to the police report, Los Angeles County Sheriff’s Department Detective Frank Richter saw appellant pour pills into Dalrymple’s hands in a commuter train station. When Detective Richter searched appellant, he found three pill bottles, several hundred pills (including 406 Vicodin pills and 412 valium pills), and Dalrymple’s EBT card.
The preliminary revocation hearing also occurred on September 14, 2007. Represented by counsel, appellant appeared and denied the probation violations.
The trial court ordered a hearing to set the date for the formal revocation hearing.
On September 26, 2007, after appellant waived his right to counsel, Judge Cho began the preliminary hearing in the second case, at which Detective Richter testified. At the close of the preliminary hearing, appellant contended that he possessed valid prescriptions for the pills he possessed, and denied that he gave any pills to Dalrymple. Appellant argued: “The defendant [referring to himself] is on probation in another court.... The defendant was asked by his probation officer to bring those [prescription medications] into the probation department, which he did. That was the purpose of the prescription medication[s] being on him.”
During later hearings before Judge Van Sicklen in the second case, appellant reaffirmed this defense to the charges. As we have previously explained (see pt. B.2., ante), when Judge Van Sicklen remarked that the showing at the preliminary hearing in the second case was “enough evidence to find [appellant] in violation of [his] probation,” appellant said that he was aware of the reduced burden of proof in revocation proceedings.
On December 13, 2007, the date on which Dalrymple changed his plea, Judge Van Sicklen said to appellant: “So you will get a trial today or the People may decide to do your probation violation hearing first.” Appellant responded, “Okay.” Judge Van Sicklen added that appellant would learn about the prosecution’s decision in approximately 30 minutes, after he took Dalrymple’s plea. Appellant answered, “All right.”
After an interval, Judge Van Sicklen told appellant that he would be transferred immediately to another courtroom for a probation revocation hearing before Judge Bowers. As noted above (see pt. B.2., ante), appellant responded “Okay,” and said: “I’d like to present witnesses to the probation violation; so I guess we would be doing a setting, right?” The following dialogue occurred:
“The Court: No, it’s going to go today. You’ve answered ready for trial; so I assume your witnesses are ready to go.
“[Appellant]: Well, I’m ready for trial on the matter. But you’re talking about a probation violation, that is totally different issues.
“The Court: So you can deal with this in front of Judge Bowers.
“[Appellant]: Okay.
“The Court: The [probation violation] was set today to go today also. Both cases were on calendar.
“[Appellant]: Well, I wasn’t aware of the P.V. violation today -- setting as of today. We spoke about a jury trial.
“The Court: The probation violation has always been trailing the open case.
“[Appellant]: Okay. Well, I’ll take care of it then, I guess.”
At the inception of the formal revocation hearing, Judge Bowers stated that the proceeding was a “probation violation matter,” described the charges in the second case, and stated the conditions of appellant’s probation. When Judge Bowers asked whether appellant requested a formal revocation hearing, appellant answered, “I guess we can go on and continue the probation violation hearing.” On direct examination, Detective Richter testified in accordance with the police report and his prior testimony.
Shortly after appellant began cross-examining Detective Richter, appellant -- who had been referring to himself as “the defendant” -- said to Judge Bowers: “I don’t have to be so formal since this is a probation violation hearing. Is it okay to just say me?” Judge Bowers answered, “Sure.” When Judge Bowers noted that many of appellant’s questions were improperly framed, appellant stated: “You have to understand, actually I was prepared to go to trial. So I’m kind of in that mode. And this is a little bit different. And we are a little more open here, but I’m not trying to give up everything in case we proceed to trial, which I’m still prepared for []. I don’t want to put everything out there....”
As appellant conducted the cross-examination, he repeatedly returned to these themes. After a recess in the cross-examination, he stated: “I understand now that these proceedings [are] for a probation violation under the condition[s] of the probation. [¶] So I would like to apologize for some of the questioning because we are just addressing the issue of the probation violation itself. It is not a trial.” Later, when Judge Bowers again criticized the form of appellant’s cross-examination, the following exchange occurred:
“[Appellant]: I keep thinking of trial.
“The Court: I want to disabuse you of trial. This is a probation violation matter.
“[Appellant]: I don’t want to say too much, and I’m still going to trial. And then my questions for trial would be kind of like invalidated because I have been through it, and I would have to approach it in another way.”
Appellant testified on his own behalf. He stated that he had obtained prescriptions for Codeine and other drugs because he suffered from severe pain. After appellant tested “dirty” and his probation officer learned that appellant had prescriptions for drugs to which he was addicted, the officer directed appellant to bring the drugs to the probation office. When appellant complied, the officer told him that he was too busy to talk to appellant, and asked him to return another day. On his way home, he encountered Dalrymple, who had loaned him an EBT card. As appellant was putting Vicodin pills into his own hands to ingest them, Detective Richter arrested him. Appellant denied that he gave Dalrymple any pills. On cross-examination, appellant acknowledged that his arrest had occurred in the same location as his arrest in the first case, and that the offenses alleged against him in the second case were similar to the offenses to which he had pled guilty in the first case.
In closing argument, appellant stated: “All the conditions... that I heard you read, I haven’t violated not one of them.” In addition, he said: “There are a lot of things that I can say but because I don’t know where we are going from here, whether there will be a trial or not, I can’t express everything that happened that day and maybe I should. I don’t know. I’m not a lawyer.” Following the final arguments, appellant affirmed that Judge Bowers had accorded him a full opportunity to speak and had not “cut [him] off in any way.”
Judge Bowers rejected appellant’s contention that it was improper to hold the final revocation hearing before the trial. Turning to the probation violations, he concluded that the People’s evidence was more credible than appellant’s testimony, and that appellant’s argument was not persuasive in light of the evidence. He found it “somewhat unreasonable” and “not credible” that a person taking drugs as medication would be carrying the drugs in such quantity “in a mobile situation.”
2. Analysis
Appellant’s primary contention is that he never received written notice of the alleged probation condition violations before the formal revocation hearing. He argues that the record lacks an affirmative indication that he was served with the revocation request or an equivalent form of written notice. As explained, this contention fails on the record before us.
Because “some flexibility” is acceptable “in the manner in which [the] due process guarantees are met” in revocation hearings (People v. Felix (1986) 178 Cal.App.3d 1168, 1171), courts will not imply inadequate notice from a record that does not show the source of a probationer’s knowledge of the alleged violations, absent an objection to the adequacy of notice. In People v. Hawkins (1975) 44 Cal.App.3d 958, 961 (Hawkins), the defendant was convicted of selling a controlled substance and placed on probation. Among his probation conditions was a requirement that he not possess drugs. (Ibid.) After the defendant was arrested for selling cocaine, his probation was revoked at an initial hearing on the basis of a written probation report, which was placed in the record. (Id. at p. 962.) Although neither the probationer nor his counsel attended the initial hearing, they participated in the following revocation hearings, including the final hearing. (Id. at pp. 962-963.) In rejecting the defendant’s contention that he was denied due process at the final revocation hearing, the appellate court stated: “Neither the defendant nor his counsel objected that they had inadequate notice of the charges and thus, absent objection, we will not imply inadequate notice from a record which is silent as to exactly how the defendant was given notice of the charges.” (Id. at p. 967; see also People v. Baker (1974) 38 Cal.App.3d 625, 629 [same].)
Here, the written revocation request -- which sought the revocation of appellant’s probation on the basis of the charges asserted against him in the second case and provided a full account of the underlying evidence -- was filed the same date as appellant’s preliminary revocation hearing. Although the record does not affirmatively show that appellant received a copy of the revocation request, he never suggested that notice was defective, and he otherwise manifested a full understanding of the alleged probation violations. At the final revocation hearing, appellant conceded that the offenses alleged in the second case were similar to those to which he had pled guilty in the first case. He advanced the defense he had raised in the preliminary hearing in the second case, namely, that he had valid prescriptions for the drugs in his possession, and that he had not given drugs to Dalrymple. And he denied that he had violated his probation conditions. Appellant raised no objection to the adequacy of notice; on the contrary, he told Judge Bowers that he had received a full opportunity to speak. In light of a record clearly demonstrating that appellant was aware of the basis for revoking his probation, his contention fails under Hawkins.
Appellant also asserts a related contention, namely, that he received insufficient notice that the final revocation hearing would occur on December 13, 2007, in lieu of his trial. He argues that the change in the sequence of the proceedings denied him the opportunity to present his witnesses, and created confusion regarding whether Judge Bowers was conducting a probation hearing or a trial. As evidence of his confusion, he points to his remark to Judge Bowers at the inception of the hearing, “I guess we can go on and continue the probation violation hearing,” and his later remark, “I understand now that these proceedings [are] for a probation violation....” According to appellant, this remark shows that he mistakenly believed that Judge Bowers had continued the probation hearing in favor of a trial until Judge Bowers dispelled this misapprehension.
Appellant has failed to preserve his contention that he was denied an adequate opportunity to present his defense. “An appellate court may not reverse a judgment because of the erroneous exclusion of evidence unless the ‘substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.’” (People v. Livaditis (1992) 2 Cal.4th 759, 778, quoting Evid. Code, § 354, subd. (a).) Generally, a defendant’s failure to so object forfeits the contention that he was deprived of the right to present a defense under the federal Constitution or California law. (People v. Holloway (2004) 33 Cal.4th 96, 129-130.)
Here, appellant announced that he was ready for trial. After Judge Van Sicklen told appellant that the prosecution intended to proceed with the formal probation hearing, which had been trailing the trial, appellant said that he wanted to present witnesses at the hearing, and explained that although he was ready for trial, the hearing involved “totally different issues.” When Judge Van Sicklen directed appellant to “deal with this in front of Judge Bowers,” appellant answered, “Okay. Well, I’ll take care of it then, I guess.” Nonetheless, after the transfer to Judge Bowers’s courtroom, appellant did not do so: he raised no pertinent objection, sought no continuance, and made no argument that there were witnesses he been unable to call. Appellant has therefore forfeited his contention.
We recognize that at one point appellant remarked to Judge Bowers that his probation officer had agreed to provide testimony at trial. However, appellant -- who had announced that he was ready for trial -- did not explain why the officer was not ready to testify at the hearing before Judge Bowers, and did not request a continuance to obtain the officer’s presence.
Nor does the record support appellant’s contention that he was confused regarding the nature of the proceeding before Judge Bowers. Viewed in context, the remarks to which appellant points as evidence of his confusion do not, in fact, support his contention. Shortly after the inception of the hearing, appellant observed that he was participating in “a probation violation hearing,” and he repeatedly affirmed his awareness that Judge Bowers was not conducting the trial.
Appellant contends that the holding of the final revocation hearing before his trial contravened his rights to due process. In People v. Coleman (1975) 13 Cal.3d 867, 873-896, our Supreme Court recognized that a probationer may be deterred from testifying at his or her formal revocation hearing when a trial is pending, and announced a judicial rule of evidence that permits probationers, upon objection, to bar the admission of their revocation hearing testimony at trial. In view of this rule, the court held that the trial court has the discretion to conduct the formal revocation hearing before the trial, but cautioned that the opposite sequence of proceedings is ordinarily preferable. (Id. at pp. 888, 897.) The Supreme Court reaffirmed these conclusions in People v. Jasper (1983) 33 Cal.3d 931, 932-935.
Appellant contends that Judge Van Sicklen and Judge Bowers abused their discretion in permitting the formal revocation hearing to occur before the trial. He argues that the change in the sequence of the proceedings on December 13, 2007 impaired his ability to present his defense against the alleged probation violations. In support of this contention, he points to his remarks to Judge Bowers manifesting his uncertainty about how to frame his questions without “giv[ing] up everything in case [the parties] proceed[ed] to trial.”
It is unnecessary for us to examine whether Judge Van Sicklen and Judge Bowers erred, as appellant has not established that their decision was prejudicial. Generally, holding the final probation hearing before the trial in a related criminal case provides no basis for reversal when the probationer had a full opportunity to present a defense at the hearing, and the pending criminal case was later dismissed. (People v. Preyer (1985) 164 Cal.App.3d 568, 575.) Appellant testified on his own behalf at the final revocation hearing, and otherwise has not shown any impairment of his right to present a defense. Before Judge Bowers, appellant attributed his uncertainties regarding the presentation of his defense to his self-representation, stating: “There are a lot of things that I can say but because I don’t know where we are going from here, whether there will be a trial or not, I can’t express everything that happened that day and maybe I should. I don’t know. I’m not a lawyer.” (Italics added.) Because appellant chose to represent himself, he may not rely on his deficiencies as an attorney -- including his apparent lack of awareness of the exclusionary rule stated in Coleman -- to challenge the quality of his defense. (People v. Mendoza (2000) 24 Cal.4th 130, 157 [“Generally... a defendant who elects to be his own attorney may not thereafter seek a reversal of his conviction based on incompetent representation.”].) As the second case was dismissed, appellant has not shown that the sequence of the proceedings supports a reversal of the judgment. In sum, appellant’s contentions fail on the record before us.
Appellant raises two novel contentions in his reply brief. Because he failed to present these contentions in his opening brief, he has forfeited them. (People v. Senior (1995) 33 Cal.App.4th 531, 537.) Moreover, they fail on the merits.
DISPOSITION
The order revoking probation is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.
“(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 [the] 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.”
Because appellant does not suggest that this provision is applicable here, he has forfeited any such contention. Moreover, even if it were applicable, the absence of a written waiver would not constitute reversible error. As our Supreme Court has explained, errors implicating statutory rights to counsel are assessed for prejudice under the standard in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Crayton (2002) 28 Cal.4th 346, 364-366). As the record demonstrates that appellant voluntarily and knowingly waived his right to counsel, any error here is harmless. (See id. at pp. 365-366.)
First, appellant contends that Judge Van Sicklen denied him due process on December 13, 2007, by receiving the prosecution’s request to conduct the formal revocation hearing while appellant was absent from Judge Van Sicklen’s courtroom. We disagree. “A criminal defendant... has a right to be personally present at trial under various provisions of law, including... the due process clause of the Fourteenth Amendment...; section 15 of article I of the California Constitution; and sections 977 and 1043 of the Penal Code.” (People v. Waidla (2000) 22 Cal.4th 690, 741.) However, these rights attach only when the hearings are “‘critical to [the] outcome’” and the defendant’s “‘presence would contribute to the fairness of the procedure,’” or when his presence has a “‘“‘“reasonably substantial relation to the fullness of his opportunity to defend against the charge.”’”’” (Id. at pp. 741-742.)
Here, the record discloses that moments before appellant entered Judge Van Sicklen’s courtroom, the prosecutor requested that the formal revocation hearing proceed in lieu of the trial. In ordering appellant to Judge Bowers’s courtroom for the hearing, Judge Van Sicklen directed appellant to raise his challenges to the hearing before Judge Bowers. Appellant agreed to do so. Judge Bowers later rejected appellant’s contention that the formal revocation hearing should not have been held before trial. We see no denial of due process.
Second, appellant suggests that there is insufficient evidence to support Judge Bowers’s determination that he violated his probation conditions. In view of Detective Richter’s testimony, this contention fails.