Filed 9/5/13 P. v. Morgan CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
                                       THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


THE PEOPLE,                                                                                   C068845

                   Plaintiff and Respondent,                                      (Super. Ct. No. 10F00025)

         v.

AMBER ADALE MORGAN,

                   Defendant and Appellant.




         About 6:00 p.m. on December 31, 2009, a search of defendant Amber Adale
Morgan during a traffic stop and pursuant to an arrest warrant revealed 19.1 grams of
methamphetamine and $1,251 in cash. In 2008, defendant had been convicted of and
sentenced to state prison for possession of methamphetamine for sale. (He alth & Saf.
Code, § 11378; unless otherwise stated, all further statutory references are to the Health
and Safety Code.)
         After the December 31, 2009 arrest, defendant entered a plea of no contest to
transportation of methamphetamine (§ 11379, subd. (a)) and admitted a prior drug
conviction (§ 11370.2, subd. (c)) in exchange for a sentencing lid of five years in state

                                                              1
prison, that is, the low term of two years for the offense plus three years for the prior
conviction. Defendant also admitted misdemeanor offenses in two other cases with the
agreement that punishment for those offenses would be served concurrently with the
felony conviction.
       The trial court imposed the five-year prison sentence, suspended execution of that
sentence and placed defendant on probation for a term of five years subject to certain
terms and conditions including 180 days incarceration in the county jail. The minute
order relating to the sentencing reflects that the court imposed the “upper term” of five
years but also refers to count two and the prior conviction. In imposing sentence, the
court stated it imposed five years “which is the upper term on Count 2” although it
recognized that defendant pleaded to count two and admitted the prior conviction.
       Within a month, defendant admitted violating probation. She was found in
possession of a controlled substance and paraphernalia, gave a false name to an officer,
and drove on a suspended license. The court revoked and reinstated probation subject to
an additional 180 days in county jail and modified conditions to include the prohibition of
associating with known or reputed drug users.
       Four months later, defendant admitted a second violation of probation. She
possessed a controlled substance and gave a false name to an officer. The court again
revoked and reinstated probation subject to an additional 240 days in county jail. In order
to serve her time in county jail, defendant entered a waiver pursuant to People v. Johnson
(1978) 82 Cal.App.3d 183 (Johnson).
       Eight months later, a third petition for violation of probation alleged that
defendant possessed methamphetamine (§ 11377, subd. (a)). Defendant contested the
allegation.
       After a contested hearing, the court sustained the allegation that defendant
possessed methamphetamine. Over defense counsel’s due process objection, the court
also found that defendant violated probation by associating with known drug users. The

                                              2
court denied the request for continued probation, and ordered execution of the five-year
prison sentence.
       Defendant appeals.
       We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental
brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed,
and we received no communication from defendant.
       After reviewing the record this court requested supplemental briefing on three
issues: (1) whether defendant was denied due process of law when the trial court found a
violation of probation based on grounds not alleged in the petition, (2) whether
modification of the judgment is required because the trial court imposed an “upper term”
of five years for transportation of a controlled substance and did not sentence defendant
for a prior drug conviction, and (3) whether the trial court erred in calculating
presentence custody credits. We conclude the defendant was denied due process of law
when the trial court considered and relied upon a nonalleged violation of probation as a
basis for its decision to revoke defendant’s probation. Even so, we also conclude that the
court’s error was harmless beyond a reasonable doubt. We conclude the abstract of
judgment is in error where it reflects that defendant was sentenced to the five-year “upper
term” for a violation of section 11379, subdivision (a), a matter that we can correct in this
court on appeal. Finally we conclude that we must return the matter to the trial court for
its further consideration of the proper presentence custody credits.




                                              3
                                        DISCUSSION
                                              I
                                    Due Process of Law
       Citing People v. Mosley (1988) 198 Cal.App.3d 1167 (Mosley), defendant
contends that the trial court erred and violated her right to written notice of one of the
grounds that resulted in a finding that she violated her probation. The People argue the
issue is moot because the trial court revoked probation on a properly alleged violation as
well. We conclude that the violation of probation proceeding denied defendant due
process of law, but that the denial was harmless beyond a reasonable doubt.
       In his petition for an order revoking defendant’s probation, the prosecutor alleged
that: “On or about April 27, 2011, said defendant committed a violation of Section
11377(a) of the Health and Safety Code.”
       At the contested hearing, the following evidence was adduced. About 2:00 a.m.
on April 27, 2011, Officers Jacob Guillon and Marcus Masingale stopped a car traveling
with its trunk partially open. The driver, Floyd Allen, said the car belonged to defendant.
His passenger was Charles Blackman.
       A records check showed that the car was registered to Sarah Meyer and that the
registration had expired in December 2010. A search of the car turned up 200 small
plastic baggies, a glass smoking device for methamphetamine, and a pile of a light crystal
substance (rock salt). The ignition and steering column were stripped. Allen was taken
to an apartment complex so that law enforcement officers could talk to defendant about
the ownership of the car.
       At 3:00 a.m. the same day, the officers found defendant standing outside an
apartment complex. She explained that she bought the car and still owed $200 before the
car could be registered in her name. She admitted she was on probation. A search of the
residence where defendant was staying revealed defendant’s purse on top of a bed which
did not appear to have been slept in recently. The purse contained a baggie with a white

                                              4
crystal substance in one lump which tested positive for amphetamines and a letter
addressed to defendant’s sister. Next to the purse, officers found a makeup bag and a
green pouch which contained a digital scale used for weighing narcotics. Defendant
stated that she was staying in the apartment along with Allen and Blackman. The
bedroom belonged to Blackman.
       A lab report which confirmed the officer’s preliminary test for controlled
substances was admitted into evidence. The net weight of the substance found was 2.71
grams, a usable amount.
       Allen testified for the defense and claimed that he placed the bag with at least two
grams of his methamphetamine in defendant’s purse because he did not want to drive
with it in the car. He believed he would return and retrieve his drugs before defendant
woke up. The pipe in the car also belonged to him. He denied ownership of the digital
scale. Allen admitted he used methamphetamine in the bathroom of the home he shared
with defendant.
       Defendant testified. She claimed that she did not know that Allen had placed
methamphetamine in her purse. During her testimony, she admitted that she knew Allen
and Blackman had smoked methamphetamine earlier in the day. She also admitted
knowing that Allen was a methamphetamine user and that she had been dating him for a
month. She claimed he had never used methamphetamine in front of her but she had seen
him under its influence.
       At the conclusion of the evidentiary portion of the hearing, the trial judge asked
the parties when they wanted to return and argue the matter and then stated that defendant
had “confessed to a violation of probation while she was testifying . . . a different one
than that’s alleged,” that is, she was “associat[ing] with known users of narcotics,” but
that the court would “take the time to review and still consider what it is that the People
are offering.” The court queried whether the parties had any thoughts “about how I’m
not allowed to consider that” and said it “want[ed] to give [counsel] a heads-up so you

                                              5
can research it or do whatever you need to do, but it seems to me that is [defendant’s]
main problem.” Defense counsel argued that the petition did not allege what the court
wanted to consider. The court responded, “It seems to me that anything that comes out
during the testimony of a probation violation, if it violates a court order, the Court’s
entitled to consider that and evaluate that in terms of whether it is a violation of the
Court’s order.” Defense counsel noted that defendant’s probation had previously been
reinstated and that defense counsel did not have modified terms and conditions which
added the nonassociation condition.
       Prior to the hearing at which the court planned to entertain argument, defense
counsel filed a written objection to the court’s finding defendant in violation of probation
based on association with a known drug user which counsel did not believe was a current
condition of defendant’s probation. But in fact, the nonassociation condition was added
after defendant’s first violation of probation. After defendant admitted her second
violation of probation, the court restored probation on the “original” terms and
conditions. Defense counsel argued that this meant that only the terms and conditions
imposed when she was first admitted to probation, which terms did not include the
nonassociation condition, were again operative and not the modified terms and conditions
after the second violation of probation hearing which included the nonassociation
condition.
       Defense counsel objected to the court considering the nonalleged violation based
on defendant’s constitutional due process rights, specifically, defendant’s right to proper
notice, citing Mosley as directly on point. Defense counsel argued that had proper notice
been provided, she “would have questioned the witnesses differently [and] may have
elected not to have [defendant] testify.”
       At the hearing at which the court heard argument, the prosecutor, having just
received defense counsel’s written objection, noted that he “had not intended to argue
that [defendant’s] probation be violated on [the nonassociation] condition anyway.” The

                                              6
court proceeded to address the point nonetheless, distinguishing Mosley and stating, “The
difficulty or the difference in this case is there’s no way in the world for the People to
have provided notice to the defense of this particular violation. The violation surfaced
when the defendant testified. And it is a term and condition of probation. [¶] And while
I believe--it would be perfectly appropriate for me to do one of two things. Either to
violate her on that term because she admitted to it on the stand--and there is no due
process issue. [¶] I mean, to me, it’s this. If the defendant got up on the stand and
admitted she had committed a robbery, the defense’s position would have to be that I
couldn’t violate her for that violation of probation because you didn’t give her notice of
the fact that she was going to make that admission. That’s an impossible scenario. You
can only give notice or due process to those things you’re aware of. Or I could delay the
proceedings if I was going to use that as the sole means of violating her probation, give
the defense time to prepare a defense to that particular aspect of it and conclude the
hearing at a later time. I think those would be appropriate procedures. [¶] My thought is
it is somewhat moot. I will hear your arguments. I will give you focus in terms of my
problem from the defense’s perspective on the issue of the possession which is [Allen]
has no credibility whatsoever, the boyfriend.” (Italics added.) The court also determined
that defendant had “some serious credibility issues” and the court did not “have any
doubts at all that she was aware of those drugs.” Noting that it “would be certainly a
much more difficult case if it were a court trial,” the court found defendant in violation of
probation “on both grounds.”
       We begin with basic principles. “At any time during the probationary period of a
person released on probation . . . 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 . . . that
the person has violated any of the conditions of his or her probation . . . .” (Former Pen.
Code, § 1203.2, subd. (a).) A trial court has “very broad discretion in determining
whether a probationer has violated probation.” (People v. Rodriguez (1990) 51 Cal.3d

                                               7
437, 443 (Rodriguez); see also People v. Covington (2000) 82 Cal.App.4th 1263, 1267;
People v. Self (1991) 233 Cal.App.3d 414, 417 (Self).) “Absent abuse of that discretion,
an appellate court will not disturb the trial court’s findings.” (Self, at p. 417; see also
Rodriguez, at p. 443.)
       “Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484] . . . established the
minimal due process requirements in parole revocation proceedings. [Citation.] . . .
Gagnon v. Scarpelli [(1973)] 411 U.S. 778 [36 L.Ed.2d 656] . . . extended the Morrissey
due process guarantees to probationers. [Citation.] . . . [People v.] Vickers [(1972)]
8 Cal.3d [451,] 458 . . . held that the federal Morrissey due process guarantees apply to
formal state probation revocation proceedings. Thus, as a matter of due process, a
probationer facing a formal probation revocation hearing is entitled to (1) written notice
of the claimed violations of probation; (2) disclosure to the probationer of the evidence
against him or her; (3) the opportunity to be heard in person and to present witnesses and
documentary evidence; (4) the right to confront and cross-examine adverse witnesses,
unless the hearing officer specifically finds good cause for not allowing confrontation; (5)
a neutral and detached hearing body; (6) a written statement of the evidence relied on and
the reasons for revoking probation. [Citations.]” (Jones v. Superior Court (2004)
115 Cal.App.4th 48, 61-62, fn. omitted (Jones); see also Rodriguez, supra, 51 Cal.3d at
p. 441; Black v. Romano (1985) 471 U.S. 606, 611-612 [85 L.Ed.2d 636, 642-643].)
       Thus, the trial court may not revoke probation if the defendant was not informed
prior to the hearing of the alleged violations and given an opportunity to prepare for and
defend against the allegations. In Self, this court found that the defendant’s due process
rights were violated when, based on facts arising only during the revocation hearing on
the allegations that the defendant had failed to report regularly and to make restitution
payments, the trial court granted the People’s motion to amend the petition to add the
allegation that the defendant violated the condition that she not possess a checking
account. (Self, supra, 233 Cal.App.3d at pp. 416, 419.) Similarly, in Mosley, the

                                               8
defendant’s due process rights were violated when, based on facts arising only during a
hearing on an alleged rape, the trial court revoked the defendant’s probation for
consuming alcohol. (Mosley, supra, 198 Cal.App.3d at pp. 1170-1174.)
       Here, defendant was not notified prior to the hearing that her association with
Allen was an alleged basis for revocation of probation. As defense counsel explained to
the trial court, had counsel known this might have been a further basis for a finding that
defendant violated her probation, she may not have called defendant to the stand to testify
and may have questioned the other witnesses differently.
       Defendant was entitled to notice and an opportunity to prepare for and defend
against the allegation that she violated probation by associating with Allen. The trial
court erred to the extent it found defendant violated the terms and conditions of her
probation based on her association with a known drug user.
       The properly alleged basis for revoking defendant’s probation, defendant’s
possession of methamphetamine, is supported by sufficient evidence. We must therefore
determine the effect of the court’s error.
       The Attorney General argues that the error, although of constitutional dimension,
is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
We agree.
       The defendant’s knowing association with those who used drugs was of little
significance when compared to her possession of methamphetamine. Indeed, we take the
court’s comment during argument that “[m]y thought is it is somewhat moot” to refer to
the admitted association with a known drug user and in turn to suggest that the basis for
violating defendant’s probation that we have here found constitutionally barred made
little difference to the court in light of the evidence supporting the basis for violating
defendant’s probation alleged in the petition.
       Moreover, defendant had been convicted of transportation of methamphetamine in
2010 and had admitted a 2008 conviction for possession of a controlled substance for

                                               9
sale. In 2010, she was placed on probation for a period of five years. Within a month,
she was found to be in violation of probation for possessing a controlled substance,
possessing drug paraphernalia, giving a false name to a law enforcement officer and
driving on a suspended license. Her probation was reinstated.
       Four months later, defendant was found once again to be in violation of her
probation by possessing a controlled substance and giving a false name to a law
enforcement officer. Her probation was again reinstated.
       Just eight months after that, she was found to be in violation of her probation once
again in this proceeding for possessing methamphetamine. This is a classic case of a
defendant not getting the message by continued grants of probation, returning as she did
each time to the criminal lifestyle she insisted on leading.
       At sentencing in this matter, defendant’s attorney asked whether the court would
“consider anything less than doing the five years suspended.” The court replied: “I
can’t. In my research on it--I wouldn’t. I’ll make the record clear. I would not anyway.
But my research would indicate that I couldn’t do it even if I wanted to. It was time that
was imposed in sentencing. The only alternative I have is to give her additional county
time, and I certainly am not going to do that anymore. (Italics added.)
       We are convinced beyond a reasonable doubt that the trial court would have
ordered defendant’s sentence executed even if it had not found as a ground for violation
of defendant’s probation her known association with a person using controlled
substances.
                                              II
                                 The “Five-Year” Sentence
       We note an error in the abstract of judgment. On January 28, 2010, defendant,
pleaded no contest to the charge of transportation of methamphetamine in violation of
section 11379 and to the allegation that she had a prior conviction within the meaning of
section 11370.2, subdivision (c) pursuant to an agreement that she would be sentenced to

                                             10
the low term of two years for the section 11379 violation and three years for the prior
conviction for an aggregate term of five years in state prison and be granted probation.
The abstract of judgment here reflects that defendant was sentenced to the “upper term”
of five years for a violation of section 11379, subdivision (a).
          Section 11379, subdivision (a) carries an upper term of four years. While it is
correct that the sentencing court purported to sentence defendant to the “upper term” of
five years on the section 11379 conviction and the court that found her in violation of
probation here, ordered execution of the sentence and imposed a five-year term, it was
not solely for a violation of section 11379, subdivision (a) as reflected in the abstract of
judgment but was instead two years for a violation of that section and a consecutive three
years pursuant to section 11370.2, subdivision (c). The abstract of judgment must be
corrected accordingly.
                                               III
                                  Presentence Custody Credits
          As far as custody credits, there is no supplemental probation report in the record
which sets forth defendant’s actual time in custody. The trial court announced that it had
a “note” which is not part of the record on appeal and stated that “[defendant] is still
entitled to a total of 653 total days; 480 under the original sentence--well, 480 in sentence
time excluding the Johnson waiver time and then she has a total of 87 on the current
case.” The trial court then awarded 86 conduct days for a total of 653 days of
presentence custody credit. The court also stated, “Well, I’m guessing she has 720 total
days of county time that she’s done but she Johnson-waived 240 of them.” (Italics
added.) The abstract of judgment reflects “480 dys sent + 87 dys RAW” as actual days of
custody and “86 dys” of conduct credit for a total of “653 dys” of presentence custody
credit.
          The People claim the court should have awarded defendant 538 days as
presentence custody credits. And defendant claims defendant “served only 360 days”

                                               11
when she entered her Johnson waiver “and there were an additional five days available”
which she did not receive.
       On this record, we cannot conclude that the trial court’s or the parties’ calculation
of presentence custody credit is correct. The trial court is responsible for calculating the
custody credits by “determin[ing] the date or dates of any admission to, and release from,
custody prior to sentencing . . . .” (Pen. Code, § 2900.5, subd. (d).) We will remand the
matter to the trial court for a correct calculation of the number of days to which defendant
is entitled as presentence custody credits. A supplemental probation report reflecting the
dates of actual custody might assist the court in its calculations.
       Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.

                                        DISPOSITION
       The matter will be remanded to the trial court to correct the abstract of judgment
and to calculate the presentence custody credits. In all other respects, the judgment is
affirmed.



                                                         HULL                  , Acting P. J.



We concur:



      ROBIE                  , J.



      DUARTE                 , J.




                                              12
