1 Filed 8/26/14 P. v. Hopkins CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 rev oking probation and imposing a previously suspende d six-year prison sentence. In revoking probation, the trial court found that Hopk ins was not credible in testifying about his probation compliance. We fully accept th is finding, but we conclude that the record nonetheless lacks substantial evidence that Hopkins willf ully violated his probation. We also conclude that we must accept Hopkins’s term of probation even thou gh 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 Hopk ins shoplifted a boxed gift set of alcohol

from a store in El Cerrito. 1 At the time of the offense, Ho pkins had a long string of prior

convictions. The information filed by the district attorn ey charged Hopk ins with one

1 Because the case was resolved by plea, our understanding of the facts of the case comes from the probation report, whic h in turn relied on police reports.2 count of petty th eft with a prior 2 and alleged nine prior convi ctions, including six prior strikes (three robberies in 1983 and three robbe ries in 1990) and five prior convictions for which Hopkins had served a prison term und er 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 co nviction (§§ 6 67, subds. (b)-(i), 1170.12). Under the agreement, Hopkins was placed on probation for four years, with a suspended six-year prison sentence. The agreem ent included a probation cond ition requiring Hopkins to complete treatment at the Jericho Project dr ug 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 agai nst the county. Th e only evidence in the record about this, other than Hopkins’s testimony at hi s probation-revocation hearing, was a letter from the Jericho Project stating that Hopkin s had “expressed the need and urgency to pursue several civil legal matters,” and that sta ff “determined that he would not be able to properly manage his legal matters while pa rticipating in [the program].” At the probation-revocation hearing, no witness fro m the Jericho Project was called to testify and the only other evidence introduced about the letter wa s testimony from a probation officer who reviewed Hopkin s’s file and simply referred to the letter’s content. After being denied admission in the Jeri cho Project, Hopkins sought, and the trial court approved, a modification of the proba tion condition to allow him to complete

treatment at the Oakland Salva tion Army rehabilitation program. Four days after this modi fication was approved, Hopkins started to send letters to the trial court claiming to be unable to par ticipate in the Salvation Army program due to a back injury, and he asked to withdraw his pl ea 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, repe titive bending, stooping, pushing, repetitive lifting or pulling.” In any event, after about six week s into the Salvation Army program, Hopkins injured his knee and was taken to a nearby hosp ital. He was then discharged from the program because he was unable to negotiate st airs at the Salvati on Army program that needed to be traversed several times a day. A petition to revoke probatio n was filed on the grounds of “program failure.” It specified that “[o]n 9/19/12, the court ordere d 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 defenda nt was terminated from the program.” The petition made no allegation about Hopkins’s de nied admission in the Jericho Project. After a contested revocation hearing at which Hopkins represented himself, the trial court found that Hopkins willf ully violated his probation, and it then revoked his probation and imposed the six-year prison sentence. The court summarized its findings with th e following remarks: “All right. I listened very carefully to the ev idence. I also worked on this case quite a bit initially with Mr. Hopkins, both in pro per an d when he was represented by counsel, which he has gone in and out of pro per status. [¶] Frankl y, I find that Mr. Hopkins was not credible whatsoever. I think that he’s ag reed to things that either he knew he couldn’t do or chose not to do; and he manipulated Jericho Project, he manipu lated 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 st ate 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 no t willfully violate his probation and the Attorney General argues that he did. Af ter we received the parties’ initial round of briefing, we requested supplemental briefi ng on whether probation had been authorized in the first instance in light of Penal Code section 667, subdivision (c)(2), which precludes probation for defendant s who have been convicted of one or more strikes.4 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 re quire and the court, in its judgment, has reason to believe from the re port of the probation or parole officer or otherwise that the person has vi olated any of the conditions of his or her supervision, has become abandoned to imprope r associates or a vicious life, or has subsequently committed other offenses, regard less whether he or she has been prosecuted for such

offenses.” A decision to re voke probation involves two comp onents: (1) a retrospective factual question whether the probationer has vi olated a condition of probation, and (2) a discretionary determination by the court wh ether 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 con tinue probation as originally set, depending upon its analysis of the ci rcumstances 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 4 37, 439), but the evidence must support a conclu sion that the probationer willf ully 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 fi nding for substantial supporting evidence. Under this test, we determine only whether, in view of the entire record, there is substantial evidence, contradicted or un contradicted, 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[,] re asonable 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 de ference to the trial court and resolve all

inferences and intendments in favor of the judgment. ( Kurey , at pp. 848-849.)5 Once the trial court has found a viola tion of probation it must “decide whether

under all of the circumstances the viola tion 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 ex treme case should an appellate court interfere

with the discretion of the trial court in the matte r of denying or revoking probation. . . .’ ” ( Ibid .)

II. The record lacks subst antial 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 hi s probation because he was manipulating the system and “program shopping.” We conclude that the record lack s substantial evidence to support a finding that Ho pkins willfully violated his probation even though we fully accept the trial court’s determinat ion that Hopkins was not credib le in testifying about his probation compliance. We begin by discussing the evidence pr esented 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 th e 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 d ealings 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 ag ainst the county, evid ently arising out of an alleged attack on him by another inmate while incarcerated in a detention center.6 Hopkins, 5 essentially no other evidence was presen ted to explain the letter or to further describe the Jericho Project’s decision to deny Hopkins admi ssion. But according to the probation officer who reviewed Hopkins’s file, Hopkins “immedia tely contacted the Court and got placed back on the court calend ar” when he was deni ed admission into the Jericho Project.

The trial court made it clear that it be lieved Hopkins was not taking his recovery seriously when it granted Hopkins’s request fo r 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 ye ars state prison. [¶] I am not happy about this at all. I think you are full of it. I th ink that you are playing ga mes. 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 H opkins 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 th e Salvation Army program and “I am letting you do that in lieu of the Jeri cho Project with great reluct ance and letting you know that

this is it.” At the probation-revocation hearing, however, the undis puted evidence introduced about Hopkins’s discharge fro m the Salvation Army was that it was due to a medical reason. A Salvation Army intake coordina tor testified that H opkins 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 be cause he wasn’t able to do the program.” When asked again about the reason for the disc harge, the representative stated, “We have

5 Hopkins testified, “I went to Jericho Project

― they asked me did I have any pending civil matters. I told them I had a pe nding 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 Proj ect with the expectation of getting discharged. When Jericho Project aske d me did I have any pending court cases, I told them I had a civil matter pending in federal c ourt. 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.”7 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 coordina tor also testified that there were no compliance problems by Hopkins at th e 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 eviden ce was presented, that Hopki ns had not actually been injured, had exaggerated his injury, or ha d been discharged from the Salvation Army program for any reason other than his medical condition. We have no difficulty a ccepting the trial court’s finding that Hopkins was not credible. The judge who revoke d Hopkins’s probation had a lo ng history with Hopkins. The judge first became involv ed in the case a year befo re the probation-revocation hearing, saw Hopkins through at least tw o counsel appointments and withdrawals, presided at several pretrial proceedings, accepted Hopkins’s no-contest plea, granted Hopkins probation, and modified the proba tion condition when Hopkins was rejected from the Jericho Project. Furthermore, the judge was familiar with Hopkins’s criminal history, which included crimes of moral tu rpitude. This judge was in a good position— certainly far better than ours—to ev aluate Hopkins’s testimony. (See Abbott v. Mandiola (1999) 70 Cal.App.4th 676, 68 2–683 [“Typically, an appella te 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 [a ppellate court does not “weigh the evidence, pass on credibility of wi tnesses, or substitute its judg ment for that of the trial court, but will uphold the verd ict 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 Hopki ns’s testimony, we

are unable to find substantial evidence of su ch a violation. The letter from the Jericho Project is not evidence that Hopkins willfully violated his probati on condition since all it says is that he was denied admission because he had pending lawsuits. No evidence was8 presented to explain the letter or to provide a ny context for it. Although we can speculate that Hopkins may have been denied admission because he balked at complying with rules prohibiting participants from e ngaging in activities that w ill distract them from their treatment, there is simply nothi ng 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 testifie d 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 pres ented 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 sp oken with Hopk ins’s parole agent wh o said that Hopkins was “trying to basically program shop, and fi nd 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 pos ition at the time of Hopkins’s probationrevocation hearing. Hopkins had a long crimin al history, and the court believed he was not taking his substance- abuse treatment seriously and was being manipulative. Still, the

record before us lacks substan tial evidence to support a conc lusion that he willfully failed to complete his treatment at the Je richo 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 la w, 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 fo r the current offense9 shall not be granted, nor sh all execution or imposition of th e sentence be suspended for any prior offense.” “Probation is not an optio n 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 ‘strik e 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 pa rties 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 disreg ard the error. The A ttorney General argues that a conclusion by us that the probation violation was willful renders moot whether Hopkins was properly placed on probation beca use Hopkins will be reincarcerated. But she argues that if we conclude that the pr obation violation was not willful, we “cannot order probation reinstated” and must instea d set aside the plea bargain and return the parties to the status quo ante. Hopkins argues that a conclusion by us th at 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 jurisdic tion, but not without fundamental jurisdiction, and hence neither part y should be allowed to “ ‘trifle with the courts’ ” by attempting to “better the barg ain” through the appellate process. ( People v.

Flood (2003) 108 Cal. App.4th 504, 508.) Neither party here has attempted to trif le with the court since we, on our own initiative, raised the question whether proba tion 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 tr ial 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 revo cation of probation. ( People v. Ramirez (2008) 159 Cal.App.4th 1412, 1423-1428.)10 In agreeing to plead no contest in exch ange for a grant of probation, Hopkins surrendered his right to appeal. And althou gh 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 un authorized sentence may be corrected

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

Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) Th is constitutes an exception to the rule generally disallowing appeal of sentencing e rrors not raised in the trial court. ( People v.

Scott (1994) 9 Cal.4th 331, 354.) But this ex ception applies only where the appellate court properly has before it th e order imposing the illegal senten ce. In contrast, where, as here, probation was granted as part of an unauthorized sentence th at 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.)11 DISPOSITION The judgment revoking probation is reversed.

_

____________ ____________ Humes, P.J.

We concur:

_____________ ____________ Margulies, J.

_____________ ____________ Banke, J.