Filed 3/17/15 P. v. Skidmore 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Glenn)
                                                            ----




THE PEOPLE,                                                                                  C075428

                   Plaintiff and Respondent,                                   (Super. Ct. No. 13SCR08026)

         v.

ARMON SKIDMORE,

                   Defendant and Appellant.




         The People appeal (Pen. Code, § 1238, subd. (a)(6) & (8))1 from an order
terminating defendant’s probation and setting aside the accusatory pleading after a
hearing pursuant to section 1210.1, subdivision (e). The People contend their due process
rights were violated because they were not given notice of the hearing. We agree and
reverse.




1   Further undesignated statutory references are to the Penal Code.

                                                             1
                                         FACTS
      In June 2013, defendant’s probation was transferred into Glenn County from Yolo
County. The Glenn County Probation Department told the Glenn County court that
defendant was amenable to and acceptable for probation. He had completed his
Proposition 36 drug treatment.2 At that point, defendant still had about a year remaining
on probation. The court accepted the transfer; defendant remained on probation with the
same terms and conditions. The Probation Department asked for a review in three
months. The court set a hearing for September 11, 2013. The court told defendant, “if
everything is copacetic they’ll move to dismiss your case.”
      At that September hearing, the Probation Department asked the court to dismiss
defendant from the drug treatment program due to defendant’s successful completion
thereof. A representative from the treatment program told the court defendant had
attended for nine months and “he did everything that he needed to do to do that.” The
representative also asked that defendant be dismissed from the program.
      Defense counsel then asked that defendant’s underlying charges be reduced to
misdemeanors “if available” and the charges be reinstated and dismissed. The court
noted it did not know what defendant was on probation for, and the probation officer said
defendant was on probation for “11379 of the Health and Safety Code.”3 The court told


2 “Following the enactment of Proposition 36, the ‘Substance Abuse and Crime
Prevention Act of 2000,’ which took effect July 1, 2001, a defendant who has been
convicted of a ‘nonviolent drug possession offense’ must receive probation and diversion
into a drug treatment program, and may not be sentenced to incarceration as an additional
term of probation.” (People v. Canty (2004) 32 Cal.4th 1266, 1272-1273, citing
§ 1210.1, subd. (a).)
3 The record does not reveal the exact nature of defendant’s crime. Transportation for
personal use is a nonviolent drug possession offense subject to Proposition 36. (§ 1210,
subd. (a).) In 2013, Health and Safety Code section 11379 was amended to define
“transports” as “to transport for sale.” (Health & Saf. Code, § 11379, subd. (c); Stats.
2013, ch. 504, § 2.)

                                            2
defendant, “Well, Mr. Skidmore, you’ve successfully completed the program, and the
reward for that is to reinstate your criminal charges and dismiss them.” The court
(Twede, J.) then dismissed the charge.4 It did not orally address the request to reduce the
felony conviction to a misdemeanor; the minute order indicated in part that defendant’s
motion to reduce any felonies “that apply” to misdemeanors was granted.
       Over a month later, an order was filed, signed by a different judge (Byrd, J.). The
order recited that notice had been given to “the District Attorney, the Probation
Department, and Treatment of [the] hearing and the opportunity to appear and provide
information on this matter.” The court found defendant eligible for relief under section
1210.1, subdivision (d)(1), and granted the request to set aside the conviction and dismiss
the complaint/information. This final order did not purport to reduce the charge to a
misdemeanor before its dismissal. The People timely appealed this order.
                                      DISCUSSION
                                             I
                               The People’s Right to Notice
       The People contend they had a due process right to notice of the hearing held
pursuant to subdivision (e) of section 1210.1. They are correct.
       Section 1210.1, subdivision (e)(1) provides in pertinent part: “At any time after
completion of drug treatment and the terms of probation, the court shall conduct a
hearing, and if the court finds that the defendant successfully completed drug treatment,
and substantially complied with the conditions of probation, including refraining from the
use of drugs after the completion of treatment, the conviction on which the probation was
based shall be set aside and the court shall dismiss the indictment, complaint, or



4 Although defense counsel and the court consistently referred to “charges,” it appears
that the only conviction at issue is defendant’s violation of section 11379 of the Health
and Safety Code, although the record we were provided is not entirely clear on this point.

                                             3
information against the defendant. . . . The defendant may additionally petition the court
for a dismissal of charges at any time after completion of the prescribed course of drug
treatment.”
       Section 1210, subdivision (c) defines “successful completion of treatment” to
mean “that a defendant who has had drug treatment imposed as a condition of probation
has completed the prescribed course of drug treatment . . . and, as a result, there is
reasonable cause to believe that the defendant will not abuse controlled substances in the
future.” “Mere completion of the program is not enough; the court must also find the
program was, for the individual defendant, effective to the point that, postcompletion,
reasonable cause exists to believe that the defendant will not abuse controlled substances
in the future.” (People v. Hinkel (2005) 125 Cal.App.4th 845, 851.)
       The People have a right to due process of law in criminal cases. (Cal. Const., art.
I, § 29.) The People’s due process right to notice of a hearing in a criminal case was
discussed in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 at pages
1297-1298 (Kaulick): “[D]ue process requires that the prosecution be afforded notice and
an opportunity to be heard. ‘The parties to a criminal action are the People, in whose
sovereign name it is prosecuted, and the person accused . . . .’ [Citation.] ‘Once, as here,
the adversary nature of a proceeding is established, then it follows that notice of all
motions must be given whenever the order sought may affect the right of an adverse
party. [Citations.] Correlative to the foregoing is the further rule that a court, after any
judicial order regularly made, may not enter another and different order without notice to
the adverse party.’ [Citation.] ‘[N]otices must be given of any application where the
rights of an adverse party are affected, even though no statute, as here, specifically
requires it.’ [Citation.] ‘ “A judicial decision made without giving a party an opportunity
to present argument or evidence in support of his contention ‘is lacking in all the
attributes of a judicial determination.’ ” ’ [Citation.]”



                                               4
       Defendant contends Kaulick is distinguishable because it involved an adversarial
proceeding and this case does not. In Kaulick, the hearing at issue was a hearing for
resentencing under the Three Strikes Reform Act of 2012. (Kaulick, supra, 215
Cal.App.4th at p. 1285.) Resentencing under that act requires a hearing on the
defendant’s dangerousness. (§ 1170.126, subd. (f).) Defendant contends here there was
no issue as to defendant’s dangerousness, only whether he complied with the
requirements of Proposition 36, and both the probation department and treatment
declared that he had.
       We do not find the trial court’s role as ministerial as defendant suggests. In
addition to finding that defendant completed drug treatment and substantially complied
with the terms of probation (§ 1210.1, subd. (e)), the court must also find “cause exists to
believe that the defendant will not abuse controlled substances in the future.” (People v.
Hinkel, supra, 125 Cal.App.4th at p. 851.) This finding--relating to the effect defendant’s
future actions will have on society--is analogous to the finding of dangerousness in
Kaulick. As in that case, here too due process requires notice to the People.
       Contrary to defendant’s assertion, this case is somewhat similar to People v.
Burrows (2014) 226 Cal.App.4th 811, in which the trial court reduced defendant’s felony
charges to misdemeanors and then dismissed them upon her “drug court graduation,”
without giving notice to the People. We reversed, finding the court erred in failing to
give the People notice as required by section 1203.3, subdivision (b)(1) (two-day notice
required for modification of probation) and 1203.4, subdivision (e)(1) (15-day notice
required to dismiss charges). (Burrows, supra, at p. 813.)
       Defendant contends reinstating his conviction and probation is contrary to the
purpose and intent of Proposition 36. Nothing in Proposition 36, however, indicates an
intent to dispense with the notice requirements of due process.




                                             5
                                             II
                         Whether Notice Was Properly Provided
       The order recites that notice was given to the District Attorney. “There is a
presumption that official duties have been regularly performed. (Evid. Code, § 664 [“[i]t
is presumed that official duty has been regularly performed”].) That presumption may be
rebutted when ‘irregularity is clearly shown.’ [Citations.]” (In re Hare (2010)
189 Cal.App.4th 1278, 1292.) The People contend no such notice was given and offer
numerous reasons why the recitation in the order should be found inaccurate. Tellingly,
defendant does not dispute the People’s claim that they received no notice.
       We agree with the People that the record supports the conclusion that no notice
was provided to them. The record contains no proof of service for any notice and the
order does not state how or when notice was given. The order was signed a month later
by a different judge than the one who presided over the hearing, thus that judge had no
personal knowledge of notice being given. Further, the People have augmented the
record to include a declaration from the appeals clerk of Glenn County stating: “There
was no notice provided to the District Attorney regarding the hearing scheduled on
September 11, 2013.”
       Because the People were not given notice of the hearing, the resulting order must
be reversed.5



5 The People read the minute order as purporting to reduce defendant’s conviction for
violating Health and Safety Code section 11379 from a felony to a misdemeanor pursuant
to section 17, subdivision (b)(3). They argue the trial court erred in doing so because the
crime is punishable only as a felony. Defendant does not address the propriety of any
reduction, arguing only that reduction was “not necessary” due to the felony’s subsequent
set aside and dismissal. It is unclear to us whether the court intended to reduce the
felony; to the extent that it did, we agree with the People. A violation of Health and
Safety Code section 11379 is punishable by three, four, or five years in state prison, or
three, six, or nine years for transportation into a noncontiguous county. (Id., subds. (a) &
(b).) When the crime is a felony, the trial court is “without jurisdiction to declare it a

                                             6
                                      DISPOSITION
       The order terminating defendant’s probation is reversed, together with all
accompanying orders. Any felony charges addressed by the termination order are
reinstated, as is probation. The matter is remanded to the trial court with instructions to
set the matter for hearing regarding defendant’s probationary status (within 60 days of the
issuance of the remittitur), with proper notice to the People.



                                                        DUARTE                 , J.



We concur:



      HULL                  , Acting P. J.



      MAURO                 , J.




misdemeanor pursuant to section 17.” (People v. Prothero (1997) 57 Cal.App.4th 126,
134.) To the extent that the minute order purporting to reduce any felonies “that apply”
arguably purported to reduce defendant’s felony violation of that statute, the order was
error and should not be repeated.

                                              7
