Filed 8/16/16 P. v. Ward CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE
,

Plaintiff and R espondent
,

v.

RONALD WA RD
,

Defendant and A ppellant

. B 2 62842

(Los Angeles County Super. Ct. No. B A 420109 )

APPEAL from a judgment of the Super ior Court of Los Angeles County,

Richard S. Kemalyan
, Judge

. A ffirmed. William J. Capriola
, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Lance E. Winters
, Assistant Attorney s General, Shawn McGahey Webb and Nima Razfar , Deputy Attorneys General, for Plaintiff and Respon dent.

______________________________2

Ronald Ward appeals from the judgment entered upon revocation of his probation. He contends he did not validly waive his right to a probation revocation hearing

. We disagree and affirm.

FACTUAL AND PROCEDURAL SUMMAR Y In February 2014, appellant was ch arged with transportation, sale , or offer to sell

cocaine. (Health & Saf. Code, § 11352 .) Five prior prison terms were alleged, three of

which were for drug convictions. (Pen. Code, § 667.5, sub d. (b); Health & Saf. Code,
§ 113 70.2, subd. (a).) Appellant had mental health issues, and a long history of

ho melessness and drug problems. Although he had told a mental health evaluator that he was not interested in rehabilitation, appellant asked to be sent to a dual diagn osis

program. The court reluctantly agreed to consider that option.

In M arch 2014, a ppellant pled no contest and admitted the prior prison term allegations. The co urt imposed and suspended a six

- year prison term and placed appel lant on three

- year forma l probation, on condition that he complete a one

- year treatment program. Appellant was warned that leaving the program would result in

execution of the six

- year sentence. P robation was revoked in M ay 2014

. After appellant stipulated to a probation viola tion, probation was reinstated on the same terms in September 2014. In March 2015, appellant appeared in court on a bench warrant pickup. The court explained that
, on February 3, 2015, appellant had been ordered to enroll in a dual

diagnosis program for one year and to return to court within 48 hours of leaving or having been terminated from the program. 1 Defense counsel related what appellant had

told her : A few hours after checking into the program, appellant had asked permission to get something to eat. While he was out, he suffered a “psychotic episode,” during which he “experienced some auditory hallucinations directing him to engage in certain behavior

1 The record does not include a reporter’s transcript or minute order from the February 3, 2015 hearing.3

and because of that, he d id not return to the program,” and “that’s also why he never

returned to court.” After consulting with appellant, counsel relayed that appellant was “asking the court for another opportunity. ” The court stated that was the third time appellant had left the program without returning to court, terminated probation, and

order ed execution of the previously imposed sentence. This appeal followed.

DISCUSSION Appellant contends the trial court erred in revoking his probation without holding

a formal probation revocation hearing or receiving a valid waiver of such a hearing. 2
Probationers are entitled to due process protections prior to revocation, including a written notice of the claimed probation violation ; disclosure of evidence against them; opportunity to be heard in person
, present evidence , and cross

- examine adverse

w itnesses ; as well as a neutral tribunal and a statement of reasons for revoking probation

. ( Morrissey v. Brewer (1972) 408 U.S. 471 , 48 9 ; People v. Vickers (1972) 8 Cal.3d 451,

457

– 45 9 .) However, probationers are not entitled to “all the procedural safeg uards of a

criminal trial
, ” and personal waivers of the procedur al rights are not required

. ( People v.

Abrams (2007) 158 Cal .App.4th 396, 400 ; People v. Dale (1973) 36 Cal.App.3d 191, 195 ( Dale ) .) A probationer’s failure to object to the procedures used
, and the conduct of his or her attorney
, can indicate acquiescence sufficient to effectuate a waiver

. ( Ibid

. ; see
also People v. Martin (1992) 3 Cal.App.4th 482, 486 ( Martin ). )

The court in Dale concluded that the probationer had waived his right to a

con tested probation revocation hearing through the conduct of his counsel “ in submitting an alleged violation of probation upon the p robation report,” and appellant’ s “acquiesc[ence] by his silence

. . . . ” ( Dale
, supra , 36 Cal.App.3d at p. 195.) In Martin
, the court concluded that appellant had “waived his right to insist on a revocation hearing

2 The March 9, 2015 minute order indicates appellan t was advised and waived his right to a hearing , but the reporter’s transcript does not reflect a formal advisement and waiver.4

by filing a statement in mitigation which acknowledged that he would be sentenced

. . . and failing to object at the sentencing hearing either to the sentencing proc edure or to the grounds for revocation.” ( Martin
, supra , 3 Cal.App.4th at p

. 486 .) Appellant seeks to distinguish these cases on the ground that, here, the matter was not submitted on a probation report, nor did appellant file anything acknowledging he

w ould be sentenced. That is a distinction without a difference. For all intents and purposes, defense counsel conceded that appellant had violated probation by leaving the treatment program and not returning to court as ordered. While appellant claims to have objected to the grounds for revocation , the record reveals no such objection. Rather, appellant, much like the probationer in Dale
, supra , 36 Cal.App.3d. at page 19 3, asked the court to give him another opportunity . Yet, n either appellant nor defen se counsel objected to termination of probation, and counsel orally provided the court with information relevant to sentencing. Appellant effected a waiver by acquiescing in his
counsel’s conduct.

DISPOSITION The judgment is affirmed

. NOT TO BE PUBLI SHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J. We concur:

WILLHITE, J.

COLLINS, J.