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Filed 8/26/14 P. v. Hopkins CA1/1 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

FIRST APPELLATE DISTRICT 

DIVISION ONE 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

KEVIN L. HOPKINS, 

 Defendant and Appellant. 

 A138452 

 (Contra Costa County 

 Super. Ct. No. 51115138) 

 Defendant Kevin L. Hopkins appeals from an order revoking probation and 

imposing a previously suspended six-year prison sentence. In revoking probation, the 

trial court found that Hopkins was not credible in testifying about his probation 

compliance. We fully accept this finding, but we conclude that the record nonetheless 

lacks substantial evidence that Hopkins willfully violated his probation. We also 

conclude that we must accept Hopkins’s term of probation even though he was ineligible 

for probation when he was placed on it. Accordingly, we reverse. 

FACTUAL AND PROCEDURAL 

BACKGROUND 

 The underlying crime that gave rise to the imposition, and eventual revocation, of 

probation was a 2010 incident in which Hopkins shoplifted a boxed gift set of alcohol 

from a store in El Cerrito.1

 At the time of the offense, Hopkins had a long string of prior 

convictions. The information filed by the district attorney charged Hopkins with one 

 1

 Because the case was resolved by plea, our understanding of the facts of the case 

comes from the probation report, which in turn relied on police reports. 
2

count of petty theft with a prior2

 and alleged nine prior convictions, including six prior 

strikes (three robberies in 1983 and three robberies in 1990) and five prior convictions for 

which Hopkins had served a prison term under section 667.5, subdivision (b). Hopkins 

eventually entered into a plea agreement in which he pleaded no contest to the charge and 

admitted one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). Under the 

agreement, Hopkins was placed on probation for four years, with a suspended six-year 

prison sentence. The agreement included a probation condition requiring Hopkins to 

complete treatment at the Jericho Project drug and alcohol recovery program. Hopkins 

accepted this condition. 

 Hopkins reported to the Jericho Project, but he was denied admission because he 

had civil litigation pending against the county. The only evidence in the record about 

this, other than Hopkins’s testimony at his probation-revocation hearing, was a letter 

from the Jericho Project stating that Hopkins had “expressed the need and urgency to 

pursue several civil legal matters,” and that staff “determined that he would not be able to 

properly manage his legal matters while participating in [the program].” At the 

probation-revocation hearing, no witness from the Jericho Project was called to testify 

and the only other evidence introduced about the letter was testimony from a probation 

officer who reviewed Hopkins’s file and simply referred to the letter’s content. 

 After being denied admission in the Jericho Project, Hopkins sought, and the trial 

court approved, a modification of the probation condition to allow him to complete 

treatment at the Oakland Salvation Army rehabilitation program. 

 Four days after this modification was approved, Hopkins started to send letters to 

the trial court claiming to be unable to participate in the Salvation Army program due to a 

back injury, and he asked to withdraw his plea and have new counsel appointed. A letter 

from his neurologist was also faxed to the court confirming that Hopkins suffered from 

lumbar spondylosis, which limited his ability to perform certain functions, such as 

 2

 Hopkins was charged under Penal Code sections 484 and 666. All subsequent 

statutory references are to the Penal Code. 
3

“lifting over 25 pounds, repetitive bending, stooping, pushing, repetitive lifting or 

pulling.” In any event, after about six weeks into the Salvation Army program, Hopkins 

injured his knee and was taken to a nearby hospital. He was then discharged from the 

program because he was unable to negotiate stairs at the Salvation Army program that 

needed to be traversed several times a day. 

 A petition to revoke probation was filed on the grounds of “program failure.” It 

specified that “[o]n 9/19/12, the court ordered the defendant to complete a year program 

at the Salvation Army Program in Oakland, CA. On 9/19/12, the defendant entered the 

program. However, on 11/02/12, the defendant was terminated from the program.” The 

petition made no allegation about Hopkins’s denied admission in the Jericho Project. 

After a contested revocation hearing at which Hopkins represented himself, the trial court 

found that Hopkins willfully violated his probation, and it then revoked his probation and 

imposed the six-year prison sentence. 

 The court summarized its findings with the following remarks: “All right. I 

listened very carefully to the evidence. I also worked on this case quite a bit initially with 

Mr. Hopkins, both in pro per and when he was represented by counsel, which he has gone 

in and out of pro per status. [¶] Frankly, I find that Mr. Hopkins was not credible 

whatsoever. I think that he’s agreed to things that either he knew he couldn’t do or chose 

not to do; and he manipulated Jericho Project, he manipulated this Court and then 

manipulated the Salvation Army. [¶] Therefore I am finding that he is in violation of his 

probation; and I am imposing the six[-]year state prison suspended as follows: [¶] I am 

imposing the aggravated term of three years state prison on Count 1, doubling it to six 

years. He did admit one strike. He has six strikes, but he admitted one.” 

 On appeal, Hopkins argues that he did not willfully violate his probation and the 

Attorney General argues that he did. After we received the parties’ initial round of 

briefing, we requested supplemental briefing on whether probation had been authorized 

in the first instance in light of Penal Code section 667, subdivision (c)(2), which 

precludes probation for defendants who have been convicted of one or more strikes. 
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DISCUSSION 

I. The standard of review.

 Section 1203.2, subdivision (a) authorizes the trial court to revoke probation after 

proper notice and a hearing “if the interests of justice so require and the court, in its 

judgment, has reason to believe from the report of the probation or parole officer or 

otherwise that the person has violated any of the conditions of his or her supervision, 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.” A decision to revoke probation involves two components: (1) a retrospective 

factual question whether the probationer has violated a condition of probation, and (2) a 

discretionary determination by the court whether the violation warrants revocation of 

probation and sentencing to prison. (Black v. Romano (1985) 471 U.S. 606, 611.) The 

court has discretion to revoke, modify, or continue probation as originally set, depending 

upon its analysis of the circumstances before it. (People v. Hawthorne (1991) 

226 Cal.App.3d 789, 792; § 1203.2, subd. (b)(1).) 

 The facts supporting a revocation of probation need only be proven by a 

preponderance of the evidence (People v. Rodriguez (1990) 51 Cal.3d 437, 439), but the 

evidence must support a conclusion that the probationer willfully violated the terms and 

conditions of probation. (People v. Cervantes (2009) 175 Cal.App.4th 291, 295.) 

Noncompliance is not willful when it is attributable to circumstances beyond a 

probationer’s control. (Ibid.) We review the factual finding for substantial supporting 

evidence. Under this test, we determine only whether, in view of the entire record, there 

is substantial evidence, contradicted or uncontradicted, to support the trial court’s 

decision. (People v. Kurey (2001) 88 Cal.App.4th 840, 848.) To be “ ‘substantial,’ ” 

evidence must be “ ‘of ponderable legal significance[,] reasonable in nature, credible, and 

of solid value.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Cole (1994) 

23 Cal.App.4th 1672, 1678.) We give great deference to the trial court and resolve all 

inferences and intendments in favor of the judgment. (Kurey, at pp. 848-849.) 
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 Once the trial court has found a violation of probation it must “decide whether 

under all of the circumstances the violation of probation warrants revocation.” (People v. 

Avery (1986) 179 Cal.App.3d 1198, 1204.) On this second step the trial court is vested 

with broad discretion (People v. Jones (1990) 224 Cal.App.3d 1309, 1315), and its 

decision is reviewed only for abuse of that discretion. (People v. Rodriguez, supra, 

51 Cal.3d at p. 443.) “ ‘[O]nly in a very extreme case should an appellate court interfere 

with the discretion of the trial court in the matter of denying or revoking probation. . . .’ ” 

(Ibid.) 

II. The record lacks substantial evidence that Hopkins willfully violated his 

probation. 

 Hopkins argues that there was insufficient evidence for the trial court to find that 

he willfully violated the terms of his probation because he was prevented from 

completing his treatment programs for medical and other reasons. The Attorney General 

argues that Hopkins willfully violated his probation because he was manipulating the 

system and “program shopping.” We conclude that the record lacks substantial evidence 

to support a finding that Hopkins willfully violated his probation even though we fully 

accept the trial court’s determination that Hopkins was not credible in testifying about his 

probation compliance. 

 We begin by discussing the evidence presented about Hopkins’s dealings with the 

Jericho Project.3

 As mentioned above, this evidence consisted of a letter from the Jericho 

Project stating that Hopkins had “expressed the need and urgency to pursue several civil 

legal matters,” and that staff “determined that he would not be able to properly manage 

his legal matters while participating in [the program].”4

 Other than testimony from 

 3

 Hopkins did not argue below, and he does not argue on appeal, that he was given 

inadequate notice that his dealings with the Jericho Project could be a basis for his 

probation revocation. He has thus forfeited any such claim. (People v. Holt (1997) 

15 Cal.4th 619, 672; People v. Buford (1974) 42 Cal.App.3d 975, 982.) 

4

 Hopkins admits that he had a lawsuit against the county, evidently arising out of 

an alleged attack on him by another inmate while incarcerated in a detention center. 
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Hopkins,5

 essentially no other evidence was presented to explain the letter or to further 

describe the Jericho Project’s decision to deny Hopkins admission. But according to the 

probation officer who reviewed Hopkins’s file, Hopkins “immediately contacted the 

Court and got placed back on the court calendar” when he was denied admission into the 

Jericho Project. 

 The trial court made it clear that it believed Hopkins was not taking his recovery 

seriously when it granted Hopkins’s request for an alternative placement at the Salvation 

Army program: “Mr. Hopkins, you are clean. You are very lucky because if you were 

dirty I would have just sentenced you to six years state prison. [¶] I am not happy about 

this at all. I think you are full of it. I think that you are playing games. I think that you 

are unwilling to get into recovery. [¶] The only thing you should have said at intake is ‘I 

am an addict and I need to get this matter addressed,’ not ‘I have some civil matters to 

take care of.’ ” The court also warned Hopkins about his placement at the Salvation 

Army program by stating that “if anything else happens, that’s it. It’s over.” The court 

mentioned that it was “very familiar” with the Salvation Army program and “I am letting 

you do that in lieu of the Jericho Project with great reluctance and letting you know that 

this is it.” 

 At the probation-revocation hearing, however, the undisputed evidence introduced 

about Hopkins’s discharge from the Salvation Army was that it was due to a medical 

reason. A Salvation Army intake coordinator testified that Hopkins was discharged 

because “[h]e hurt his knee at work and then went to the hospital at Highland and came 

back, and then we medically discharged him because he wasn’t able to do the program.” 

When asked again about the reason for the discharge, the representative stated, “We have 

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 Hopkins testified, “I went to Jericho Project―they asked me did I have any 

pending civil matters. I told them I had a pending civil matter in federal court, and that 

was it. They terminated me the next day. I didn’t know why they terminated me.” On 

cross-examination, he stated, “I didn’t go to Jericho Project with the expectation of 

getting discharged. When Jericho Project asked me did I have any pending court cases, I 

told them I had a civil matter pending in federal court. That’s it. That’s all. [¶] I didn’t 

tell them it was urgent that I attend any medical, court dates, anything. I just told them I 

had a court case, that’s it. I had no expectations of getting discharged.” 
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three flights of stairs that the guys have to go up on a daily basis, three or four times a 

day. And if his knee is in a brace he won’t be able to manipulate the stairs so he would 

be able to perform the work therapy.” The intake coordinator also testified that there 

were no compliance problems by Hopkins at the program before he was discharged and 

that he had participated in all aspects of the program. There was nothing in this 

testimony, and no other evidence was presented, that Hopkins had not actually been 

injured, had exaggerated his injury, or had been discharged from the Salvation Army 

program for any reason other than his medical condition. 

 We have no difficulty accepting the trial court’s finding that Hopkins was not 

credible. The judge who revoked Hopkins’s probation had a long history with Hopkins. 

The judge first became involved in the case a year before the probation-revocation 

hearing, saw Hopkins through at least two counsel appointments and withdrawals, 

presided at several pretrial proceedings, accepted Hopkins’s no-contest plea, granted 

Hopkins probation, and modified the probation condition when Hopkins was rejected 

from the Jericho Project. Furthermore, the judge was familiar with Hopkins’s criminal 

history, which included crimes of moral turpitude. This judge was in a good position—

certainly far better than ours—to evaluate Hopkins’s testimony. (See Abbott v. Mandiola

(1999) 70 Cal.App.4th 676, 682–683 [“Typically, an appellate court has only a cold 

transcript, exhibits, and papers from the trial court’s file to go on. . . . [C]redibility 

determinations require a personal presence that a cold transcript cannot convey”]; People 

v. Belcher (1961) 189 Cal.App.2d 404, 407 [appellate court does not “weigh the 

evidence, pass on credibility of witnesses, or substitute its judgment for that of the trial 

court, but will uphold the verdict or finding even though it might have decided otherwise 

if it had occupied the place of the trial judge or jury”].) 

 But a finding that Hopkins’s testimony was not credible did not create evidence 

that there was a willful probation violation. Even discounting Hopkins’s testimony, we 

are unable to find substantial evidence of such a violation. The letter from the Jericho 

Project is not evidence that Hopkins willfully violated his probation condition since all it 

says is that he was denied admission because he had pending lawsuits. No evidence was 
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presented to explain the letter or to provide any context for it. Although we can speculate 

that Hopkins may have been denied admission because he balked at complying with rules 

prohibiting participants from engaging in activities that will distract them from their 

treatment, there is simply nothing in the record to permit us to conclude that such a 

speculation is based on substantial evidence. 

 Similarly, the record lacks substantial evidence that Hopkins’s discharge from the 

Salvation Army program was based on anything other than his medical condition. The 

Salvation Army intake coordinator testified that Hopkins was discharged because he 

sustained a knee injury while at the program and could no longer climb the stairs that 

participants in the program were required to use. This testimony was uncontradicted. It 

is true that evidence was presented that Hopkins had sought a transfer from the Salvation 

Army to a less strict program called Options. And it is true that the probation officer who 

reviewed Hopkins’s file testified that, either before or after Hopkins was discharged from 

the Salvation Army, she had spoken with Hopkins’s parole agent who said that Hopkins 

was “trying to basically program shop, and find whatever program he wanted to go to.” 

But whether or not Hopkins tried to get into another program is immaterial to whether his 

discharge from the Salvation Army was due to his willful behavior. 

 The trial court was in a difficult position at the time of Hopkins’s probationrevocation hearing. Hopkins had a long criminal history, and the court believed he was 

not taking his substance-abuse treatment seriously and was being manipulative. Still, the 

record before us lacks substantial evidence to support a conclusion that he willfully failed 

to complete his treatment at the Jericho Project or the Salvation Army. 

III. The original sentence imposing probation must be executed because the 

time to challenge it has passed. 

 Hopkins should not have been placed on probation. Penal Code section 667, 

subdivision (c)(2) provides that “[n]otwithstanding any other law, if a defendant has been 

convicted of a felony and it has been pled and proved that the defendant has one or more 

prior serious and/or violent felony convictions as defined in subdivision (d), the court 

shall adhere to each of the following: [¶] . . . [¶] (2) Probation for the current offense 
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shall not be granted, nor shall execution or imposition of the sentence be suspended for 

any prior offense.” “Probation is not an option for the convicted Three Strikes defendant. 

‘The language of section 667, subdivisions (c) and (e) is entirely clear and without 

ambiguity. A defendant who is in the ‘strike zone’ by reason of a prior conviction for a 

serious or violent felony is not eligible for probation.’ (People v. Nobleton (1995) 

38 Cal.App.4th 76, 81.)” (People v. Superior Court (Roam) (1999) 69 Cal.App.4th 

1220, 1228.) 

 In their supplemental briefing, the parties acknowledge that Hopkins’s probation 

was unauthorized, but each asks this court to rule in its favor on the willfulness of 

Hopkins’s probation violation and then disregard the error. The Attorney General argues 

that a conclusion by us that the probation violation was willful renders moot whether 

Hopkins was properly placed on probation because Hopkins will be reincarcerated. But 

she argues that if we conclude that the probation violation was not willful, we “cannot 

order probation reinstated” and must instead set aside the plea bargain and return the 

parties to the status quo ante. 

 Hopkins argues that a conclusion by us that the probation violation was not willful 

requires us to reinstate probation because it is too late to contest the legality of the plea 

deal. He argues that the sentence was imposed in excess of jurisdiction, but not without 

fundamental jurisdiction, and hence neither party should be allowed to “ ‘trifle with the 

courts’ ” by attempting to “better the bargain” through the appellate process. (People v. 

Flood (2003) 108 Cal.App.4th 504, 508.) 

 Neither party here has attempted to trifle with the court since we, on our own 

initiative, raised the question whether probation was properly imposed. Nonetheless, we 

conclude that we may not tamper with the original sentence at this juncture. The 

imposition of probation was approved by the trial court, and the time to challenge it on 

appeal has long since expired. Thus, the judgment granting probation is final and cannot 

be challenged by either party on appeal from a subsequent revocation of probation. 

(People v. Ramirez (2008) 159 Cal.App.4th 1412, 1423-1428.) 
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 In agreeing to plead no contest in exchange for a grant of probation, Hopkins 

surrendered his right to appeal. And although the prosecution could have refused to 

agree to probation and appealed its imposition (§ 1238, subd. (a)(10)), it declined to do 

so. It thereby forfeited its ability to challenge probation now. 

 We are aware of the rule that an unauthorized sentence may be corrected 

“whenever the error comes to the attention of the reviewing court.” (E.g., People v. 

Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) This constitutes an exception to the rule 

generally disallowing appeal of sentencing errors not raised in the trial court. (People v. 

Scott (1994) 9 Cal.4th 331, 354.) But this exception applies only where the appellate 

court properly has before it the order imposing the illegal sentence. In contrast, where, as 

here, probation was granted as part of an unauthorized sentence that was reduced to a 

final judgment without either party appealing, we conclude we are without jurisdiction to 

reverse or modify the probation on an appeal from its later revocation. (People v. 

Ramirez, supra, 159 Cal.App.4th at pp. 1423-1428.) 
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DISPOSITION 

 The judgment revoking probation is reversed. 

 _________________________ 

 Humes, P.J. 

We concur: 

_________________________ 

Margulies, J. 

_________________________ 

Banke, J.