HILL, J.
Appellant Jill Deanne Davis appeals from the trial court's judgment sentencing her to a three-year prison term following revocation of probation. She contends the trial court erred by refusing to reopen the probation revocation hearing to allow her to testify, or, alternatively, by failing to consider her testimony as a statement in mitigation at sentencing. Appellant further contends the trial court erred by failing to order a supplemental probation report before sentencing her and by imposing an assessment pursuant to Government Code section 70373. Finally, appellant contends she is entitled to additional presentence conduct credits. We disagree with appellant's contentions and affirm the judgment.
On September 23, 2008, appellant went into a Mervyn's department store. She selected some purses and concealed within them clothing and other items from throughout the store. She eventually left the store without making any attempt to pay for the merchandise, which had a total value of $1,659.98. Appellant was subsequently charged, by complaint, with entering a building with intent to commit larceny (Pen. Code,
On February 27, 2009, appellant pleaded no contest to the petty theft with a prior and admitted one of the prison priors, and the remaining counts and allegations were dismissed.
A probation report concerning appellant was prepared on March 18, 2009, and filed on March 27, 2009. That day, the trial court suspended sentence and placed appellant on probation for three years. The terms and conditions of probation required appellant, inter alia, to serve one year in jail, successfully complete a residential drug and alcohol program, and report to the probation department within five days of her release from custody and on a monthly basis thereafter.
On June 3, 2009, the probation department filed a declaration letter, requesting that appellant's probation be revoked. The letter alleged that appellant had violated the terms of her probation by committing new law violations, and failing to report to the probation department after her release from custody.
On June 4, 2009, appellant appeared in court and waived formal arraignment on the probation violation allegations. The trial court summarily revoked probation and set the matter for a formal probation revocation hearing.
The probation revocation hearing took place on July 29, 2009. The prosecution presented the testimony of three witnesses to show that, after appellant was released from custody on April 14, 2009, she never contacted the probation department, and on June 1, 2009, was stopped driving a Ford Windstar van that had recently been reported stolen. Appellant told the police officer that she purchased the van for $300, a price she admitted was "awfully low" for a vehicle with no apparent problems.
Appellant elected not to testify at the probation revocation hearing but called two witnesses on her behalf. One of these witnesses, Antonio Montiel, Jr., testified that he worked at a residential treatment center called the Kennemer Center, and that appellant arrived at the center on April 22, 2009. Montiel discharged appellant from the center on May 4, 2009, on medical grounds, after appellant "returned from Kaiser Permanente with a diagnosis of a kidney disorder." Montiel reviewed the documents appellant brought from Kaiser Permanente and they appeared to confirm her statement that "she would need an operation or some further attention requiring her to enter the hospital."
Montiel further testified that when appellant came to the Kennemer Center, he advised her that there was a particular probation officer assigned to the center who worked with clients "on Prop 36."
After listening to the testimony presented and the arguments of counsel, the trial court found appellant in violation of probation, observing: "She is driving a stolen car. Her story does not make sense that she bought this car for $300. Even she admitted that was a low price." The court further observed: "As far as failing to report, I probably would have accepted the explanation given the counselor's words to her or advice to her that Probation will contact them.... But once she left May 4th, she wasn't arrested until June 1st. She clearly should have reported. So she is in violation on both grounds."
Following a pause in the proceedings, defense counsel informed the court: "Your Honor, [appellant] has indicated a desire to testify in this matter. I don't know if the Court would be willing to reopen testimony to hear from her." This exchange followed:
There was no further discussion of appellant's desire to testify, and the matter proceeded to sentencing. The defense counsel and prosecutor presented arguments for and against reinstatement of probation. The trial court declined defense counsel's request to grant probation, observing, "I think she's had her — opportunities." The trial court then proceeded to pronounce appellant's sentence, stating: "Probation having been revoked, she is sentenced to the Department of Corrections for the midterm of two years. Said sentence to be enhanced by one year pursuant to 667.5(b) for a total fixed term of three years."
Appellant contends the trial court abused its discretion and violated her constitutional rights by refusing to reopen the probation revocation hearing to allow her to testify. We disagree.
A probation revocation hearing is not a criminal prosecution and thus does not invoke the full panoply of constitutional rights ordinarily due a defendant in a criminal prosecution. (Morrissey v. Brewer (1972) 408 U.S. 471, 480; People v. Vickers (1972) 8 Cal.3d 451, 458.) The purpose of the formal hearing is to give the probationer an opportunity to explain or deny the allegations of the violation petition or show that revocation is not warranted due to mitigating circumstances. (People v. Perez (1994) 30 Cal.App.4th 900, 907.) The minimum due process requirements at a formal probation revocation hearing include written notice of the claimed violations, disclosure of evidence against the probationer, an opportunity for the defendant to be heard and to present evidence, and the right to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation. (People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153.)
Section 1203.2, subdivision (e), permits the trial court to set aside an order revoking probation "for good cause upon motion made before pronouncement of judgment." Code of Civil Procedure section 128, subdivision (a)(8), also permits the trial court to "amend and control its process and orders so as to make them conform to law and justice." The trial court may permit a party to reopen a criminal proceeding to allow the introduction of additional evidence. (People v. Marshall (1996) 13 Cal.4th 799, 836.) In exercising its discretion to reopen proceedings, the trial court may consider the stage of the proceedings, the moving party's diligence in discovering the new evidence, and the significance of the evidence, among other factors. (Ibid.; People v. Cuccia (2002) 97 Cal.App.4th 785, 792-793.)
Applying the forgoing principles here, we find no constitutional error or abuse of discretion in this case. The record shows that appellant received a full evidentiary hearing, in which she participated through her attorney by cross-examining the prosecution witnesses and calling two witnesses to testify on her behalf. Appellant was not denied the opportunity to be heard but chose not to testify on the advice of counsel. There was no due process violation because appellant received the required probation revocation hearing.
Assuming appellant's belated request to testify could be construed as a motion to set aside the order revoking probation under section 1203.2, subdivision (e), the trial court did not abuse its discretion in denying the motion. The request to testify was made late in the proceedings after the trial court had already heard the evidence and arguments of the parties and rendered factual findings against appellant. Appellant did not offer any new facts that were not already presented during the evidentiary hearing or any explanation why such facts could not have been presented earlier. Moreover, as there was no offer of proof but simply an asserted desire to testify, there is no basis for concluding that the evidence appellant sought to introduce was significant.
It appears to be appellant's position that, because we do not know what she would have testified at a reopened probation revocation hearing, the other factors that militated against reopening the proceedings, such as the lateness of the request and the failure to make an offer of proof or showing of diligence, should have yielded to her asserted desire to testify. Appellant has no legal authority for this position. Instead, she cites inapposite case law addressing a defendant's constitutional right to testify in a criminal prosecution. As mentioned above, a probation revocation is not a criminal prosecution and appellant was afforded a full evidentiary hearing that comported with the due process requirements for probation revocation hearings.
But even assuming the authorities she cites were applicable, we would still find appellant's right to testify was not violated in this case because it was not timely asserted. In the context of a criminal prosecution, a defendant's right to testify over defense counsel's objection "is subject to one significant condition: The defendant must timely and adequately assert his right to testify. [Citation.]" (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231.) Here, appellant waited until the unfavorable outcome of the evidentiary hearing before expressing the desire to testify. "When the record fails to disclose a timely and adequate demand to testify, "`[A] defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to counsel his desire to testify, he was deprived of that opportunity.' [Citations.]" (People v. Alcala (1992) 4 Cal.4th 742, 805-806; see People v. Guillen (1974) 37 Cal.App.3d 976, 984-985 [assertion untimely where the defendant first told court of his desire to testify at posttrial hearing].) The "right to testify can be waived by conduct and does not require a personal and explicit waiver." (People v. Hayes, supra, 229 Cal.App.3d at p. 1234, fn. omitted.) Courts have no sua sponte obligation to obtain a defendant's personal waiver and without a timely statement of the desire to testify, the decision by defense counsel is binding. (Id. at p. 1232.)
We likewise reject appellant's claim that the trial court had a sua sponte duty to inquire into appellant's reasons for changing her mind concerning her previous decision not to testify. The authorities she cites, which address the inquiry required by a trial court when a self-represented defendant seeks appointment of counsel in the middle of a criminal trial, are simply inapposite. (See People v. Gallego (1990) 52 Cal.3d 115, 163-164; see also People v. Lawrence (2009) 46 Cal.4th 186, 188.) The onus was on appellant to make a showing to justify her request to reopen the probation hearing to admit her testimony. She failed to do so. The trial court did not abuse its discretion or violate her due process rights by denying her request.
As an alternative to her first contention on appeal, appellant contends the trial court violated her due process rights by refusing to consider her testimony as a sworn statement in mitigation at sentencing pursuant to section 1204.
In finding a forfeiture of the right to address the court at sentencing as provided in section 1204, we necessarily reject appellant's contention that the trial court somehow should have interpreted her request to reopen testimony in the probation revocation hearing as a request to testify in mitigation at sentencing. The trial court characterized her request as an attempt to get "another bite at the apple" and defense counsel did not dispute this characterization. There was no basis for the trial court to interpret the request, that would give appellant another chance to litigate the probation violation allegations, also as a request to testify in mitigation of punishment under section 1204.
Appellant suggests the forfeiture should be excused because any request to testify in mitigation at sentencing would have been futile in light of the trial court's denial of her request to reopen the proceedings to allow her to testify. The record does not support appellant's futility argument because, as respondent correctly notes, the court's rationale for denying her request to testify in a reopened probation revocation hearing was that it was not timely made. This rationale would not have been applicable to a timely request to testify in mitigation of sentencing. Therefore, we cannot infer from the trial court's denial of her untimely request to reopen the probation revocation hearing that it would have necessarily denied a timely request to address the court at sentencing pursuant to section 1204.
Appellant further contends that, assuming forfeiture occurred, she received ineffective assistance as a result of defense counsel's failure to make a specific request that appellant be allowed to testify in mitigation of sentencing pursuant to section 1204. Appellant's ineffective assistance of counsel claim is unavailing because the record fails to disclose why defense counsel did not make such request. It is axiomatic that when the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we must affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Maury (2003) 30 Cal.4th 342, 389.)
We find unpersuasive appellant's suggestion that defense counsel's failure to call her to testify in mitigation at sentencing was the type of tactical decision for which there could be no satisfactory explanation. Citing to federal authorities and the American Bar Association Guidelines in her reply brief, appellant asserts that the denial of a defendant's "right to allocution" at sentencing is a due process violation, and therefore it would have been improper for her attorney to "prevent [her] from addressing the court at sentencing." The problem with appellant's argument is it presupposes that she expressed to her attorney a desire to address the court at sentencing, which was then overridden by her attorney, but the record is silent as to whether this was in fact the case. Rather, as discussed above, the only indication we have in the record is that appellant sought to testify in a reopened probation revocation hearing which is not the same thing as testifying in mitigation at sentencing.
Appellant's ineffective assistance of counsel claim also fails because she has failed to identify any facts demonstrating a reasonable probability that the result would have been different had she requested and been permitted to testify in mitigation at sentencing. (See People v. Maury, supra, 30 Cal.4th at p. 389.) The record of sentencing reflects that defense counsel acted as a zealous advocate on appellant's behalf, urging the court to give appellant another opportunity on probation to complete a residential treatment program, noting that appellant "struggled with some health problems" but had "indicated a desire" at the Kennemer Center to address her "serious drug problem." These are precisely the types of "mitigating disabilities" appellant claims she was prevented from presenting to the court because of her attorney's alleged incompetence. Similarly, the circumstance that appellant was discharged from the Kennemer Center, in her words, "solely for medical reasons and was welcome to return when her medical situation had stabilized" was a circumstance that was already before the court at the time of sentencing. Appellant has failed to demonstrate the result would likely have been different had she been permitted to testify in mitigation of sentencing and elaborated on circumstances already known to the court.
Appellant argues the trial court prejudicially erred in failing to order and review a supplemental probation report prior to sentencing. We disagree.
California Rules of Court, rule 4.411(c) (hereafter, rule 4.411(c)) provides: "The court must order a supplemental probation officer's report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared." (Italics added; see also People v. Dobbins (2005) 127 Cal.App.4th 176, 180 (Dobbins).) The Advisory Committee comment to rule 4.411(c) states, "Subdivision (c) is based on case law that generally requires a supplemental report if the defendant is to be resentenced a significant time after the original sentencing, as, for example, after a remand by an appellate court, or after the apprehension of a defendant who failed to appear at sentencing." (Advisory Com. com., Cal. Rules of Court, rule 4.411(c).) "The rule does not require a new investigation and report if a recent report is available and can be incorporated by reference and there is no indication of changed circumstances." (Ibid.)
What time period constitutes a "significant period of time" is not defined in rule 411(c). However, the Advisory Committee comment states: "If a full report was prepared in another case in the same or another jurisdiction within the preceeding [sic] six months, during which time the defendant was in custody, and that report is available to the Department of Corrections and Rehabilitation, it is unlikely that a new investigation is needed." (Advisory Com. com., Cal. Rules of Court, rule 4.411(c).) Thus, the court in Dobbins noted, "a period of more than six months may constitute a significant period of time." (Dobbins, supra, 127 Cal.App.4th at p. 181.)
Here, the original probation report was prepared on March 18, 2009, and filed on March 27, 2009. The time lapse between the original probation report and appellant's resentencing on July 29, 2009, was only four months and, therefore, a supplemental probation report was not presumptively required. Nonetheless, appellant contends the trial court's failure to order a supplemental probation report violated rule 4.411(c). Focusing on the Advisory Committee's comment that "[t]he rule does not require a new investigation and report if a recent report is available ... and there is no indication of changed circumstances[,]" appellant contends new circumstances mandated a supplemental probation report. (Advisory Com. com., Cal. Rules of Court, rule 4.411(c), italics added.) The changed circumstance appellant identifies in her opening brief is her "medical condition, which caused her medical discharge[]" from the residential treatment program at the Kennemer Center.
However, the fact appellant suffered a medical condition was not a changed circumstance, as it was noted in the original probation report. Specifically, the original report noted that appellant "takes Macrobid for a kidney disease." In her reply brief, appellant suggests that the changed circumstance was not so much the kidney disease itself but the "need for surgery" which arose after preparation of the original probation report. Appellant cites no authority that this circumstance, which the trial court was already aware of due to the evidence presented at the probation revocation hearing, was the type of changed circumstance requiring a supplemental probation report that was contemplated by the Advisory Committee in its comment to rule 4.411(c).
In any event, appellant has not shown she was prejudiced by the trial court's failure to order a supplemental probation report. Error in this regard is reviewed under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818. (Dobbins, supra, 127 Cal.App.4th at p. 182.) Appellant does not suggest any favorable information of which the court was unaware at the time of sentencing that would have been included in a supplemental probation report. Appellant had done nothing to demonstrate that she could perform well on probation. Considering these circumstances, there is no reason to believe that additional information would have led to reinstatement of probation. Because appellant suggests no other factors that might have been included in a supplemental probation report and led to a different sentence, we find no prejudice to appellant from the failure to order a supplemental report.
Government Code Section 70373, subdivision (a)(1) became effective January 1, 2009. (People v. Phillips (2010) 186 Cal.App.4th 475, 477 (Phillips).) Appellant committed the offense underlying her guilty plea in 2008. Appellant argues that the assessment must be stricken because the instant offense occurred before the statute's effective date and the statute does not operate retroactively.
After briefing was completed, this court held in Phillips that the statute applies as to the date of sentencing, not the date of the offense. Agreeing with the court in People v. Castillo (2010) 182 Cal.App.4th 1410, we stated: "`The assessment is "imposed on every conviction" as defined. ([Gov. Code,] § 70373, subd. (a)(1).) Defendant's conviction occurred after the statute's effective date. The fact that defendant's conviction flowed from antecedent criminal conduct is not addressed by the statute.'" (Phillips, supra, 186 Cal.App.4th at p. 478, italics omitted.) We see no reason to depart from this holding. Accordingly, we conclude the Government Code section 70373 assessment was properly imposed.
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of section 4019 presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
When appellant was sentenced in July 2009, the court calculated appellant's conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) However, the Legislature amended section 4019 effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody. Applying this amendment retroactively, appellant argues she is entitled to additional days of conduct credit. We disagree and conclude the amendment applies prospectively only.
Under section 3, it is presumed that a statute operates prospectively "`absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by "`clear and compelling implication'" from any other factor(s), that it intended the amendment operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only.
We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to section 4019.
The judgment is affirmed.
WE CONCUR:
LEVY, Acting P.J.
POOCHIGIAN, J.
