People v. Moreno CA2/6 ( 2016 )

Filed 5/19/16 P. v. Moreno CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.111.5.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B265859
(Super. Ct. No. LA068449)
Plaintiff and Respondent, (Ventura County)
v.
NELSON MORENO,
Defendant and Appellant.
Nelson Moreno appeals an order revoking his Post Release Community
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Supervision (PRCS; Pen. Code, § 3450 et seq), entered after he admitted violating PRCS
and agreed to serve 180 days county jail. (§ 3455, subd. (a).) The trial court denied
appellant's request to reduce the confinement period to 150 days county jail. We affirm.
Buyer's remorse is not grounds for vacating a written waiver of a PRCS revocation
hearing. (See e.g., In re Vargas (2000) 83 Cal. App. 4th 1125, 1143-1144.)
Facts and Procedural History
In 2011, appellant was sentenced to three years state prison for felony
grand theft auto with a prior. (§ 666.5.) Appellant was released in 2013 and placed on
PRCS supervision with drug terms.
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All statutory references are to the Penal Code unless otherwise stated.
On May 9, 2015, appellant was arrested for not reporting to his supervising
officer after he was released from custody on another matter. A probable cause hearing
was conducted two days later on May 11, 2015. The administrative hearing officer
determined there was probable cause that appellant had violated his PRCS terms and
advised appellant that the Ventura County Probation Agency was recommending 180
days county jail. (§ 3455, subd. (a).) Appellant admitted violating PRCS, agreed to serve
180 days jail, and waived in writing his right to counsel and a formal revocation hearing.
On June 4, 2015 the superior court was asked to approve the petition
revoking PRCS. Appellant appeared with counsel and made a Williams motion (Williams
v. Superior Court (2014) 230 Cal. App. 4th 636) to dismiss the petition on due process
grounds. After the court denied the motion, appellant asked the court to "modify" the
waiver because 180 days jail "seems to be a little harsh." Appellant said that "I shouldn't
have signed" the waiver and "I disagree with my signature." The trial court sustained the
petition and ordered appellant to serve 180 days county jail as agreed to. Appellant
asked, "Can you do . . . 150?" Appellant was ordered to serve 180 days with 54 days
credit.
Voluntary Waiver
Appellant contends that the written waiver was not voluntary and that he
did not relinquish his right to a formal revocation hearing. (Johnson v. Zerbst (1938) 304
U.S. 458, 464 [82 L. Ed. 1461, 1466]; People v. Panizzon (1996) 13 Cal. 4th 68, 80
[voluntariness of waiver is reviewed de novo].) Appellant argues that supervising
agencies need guidance on when a PRCS revocation waiver is knowing and voluntary.
(See e.g., People v. Armogeda (2015) 233 Cal. App. 4th 428, 433.)
Under the Postrelease Community Supervision Act of 2011, violation of
PRCS can result in immediate sanctions including flash incarceration up to 10 days.
(§ 3454, subd. (b).) If the supervising county agency determines that intermediate
sanctions are not appropriate, it "shall petition the court pursuant to Section 1203.2 to
revoke, modify, or terminate postrelease community supervision." (§ 3455, subd. (a).)
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Section 3455, subdivision (a) provides: "At any point during the process initiated
pursuant to this section, a person may waive, in writing, his or her right to counsel, admit
the violation of his or her postrelease community supervision, waive a court hearing, and
accept the proposed modification of his or her postrelease community supervision."
That is what happened here. On May 11, 2015 Senior Deputy Officer
Venessa Meza held an administrative hearing and determined there was probable cause
that appellant violated his PRCS terms. Appellant admitted violating PRCS and signed a
waiver of rights and admission form stating that "I hereby waive and give up my right to
a revocation hearing." Appellant waved his right to be represented by an attorney and
agreed to serve 180 days county jail. The hearing officer verified that the waiver form
was read to appellant and that appellant understood his rights and conditions of release.
Appellant initialed a paragraph stating that "[t]his waiver is executed freely, voluntarily,
and without any coercion or promise of immunity" and that in admitting the PRCS
violation, he would serve 180 days county jail. Appellant initialed another paragraph
stating: "I hereby declare to the Court that I have read or have had read to me and
understand each and every one of the paragraphs above and that I have personally
initialed the applicable paragraphs after careful consideration. Further, I warrant and
represent that by signing this form I agree to waive each and every one of the rights
initialed above in order to waive a revocation hearing and accept the proposed
modification(s) as indicated above of my Postrelease Community Supervision."
Appellant argues that he did not voluntarily waive his rights because he
"crumple[d] up" the probable cause hearing documents and left the room on May 11,
2015. On May 14, 2015, three days later, appellant spoke to Deputy Probation Officer
Rebecca Convery but did not disavow the waiver. Appellant said that he did not report to
probation because he was working and that using methamphetamine was "something I
had to do." Appellant said that once he was released from custody, he wanted to "make a
deal with probation" and would stay clean and report as directed.
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The record shows that appellant was well-versed in PRCS revocations and
made a knowing, voluntary, and intelligent waiver of his right to a formal revocation
hearing. (See e.g., People v. Mosby (2004) 33 Cal. 4th 353, 365 [prior experience with
criminal justice system supports conclusion that defendant knew and waived his rights];
People v. Vargas (1993) 13 Cal. App. 4th 1653, 1660 [court considers relevant facts and
circumstances, including the defendant's experience, conduct, and background].)
Appellant had already served seven flash incarcerations and seven PRCS revocations (a
total of 420 days in custody) for failure to obey all laws, drug use, failure to report to
probation, failure to drug test, and changing residences without notifying probation.
The pending PRCS violation was more serious and carried a recommended
180 day jail confinement period (the maximum confinement period) for a reason.
Appellant had chronically absconded from probation supervision and reverted back to
illicit drug use and sexually deviant behavior. In March 2015, appellant masturbated in
an animal hospital waiting room and was ordered to leave. Oxnard Police identified
appellant from a surveillance video and told him that he would be arrested for lewd
conduct (§ 647, subd. (a)) in the upcoming days.
On April 27, 2015, appellant was in jail on another matter and directed to
report to probation within 48 hours of his custodial release. Appellant was released on
May 4, 2015 and absconded.
On May 9, 2015, appellant was detained by the Oxnard Police for being
under the influence of a controlled substance. Appellant falsely identified himself as
"Oscar Gonzales," was in possession of a glass methamphetamine pipe that had a burnt
crystalline substance, and tested positive for amphetamines, methamphetamine, and
MDMA.
On May 11, 2015, appellant waived his PRCS revocation rights and agreed
to serve 180 days county jail, the maximum confinement period. (§ 3455, subd. (d).)
Frustrated about his predicament, appellant crumpled up the documents but did not
disavow the waiver. At the hearing on the PRCS revocation petition, appellant said that
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"I had no other choice . . . but to sign" and accept the 180 day jail recommendation. The
trial court responded, "Oh, we always have choices in life. Sometimes the alternative
choice just isn't a very good one."
The record shows that appellant knowingly and voluntarily waived his right
to a formal revocation hearing. Weeks after appellant agreed to serve 180 days county
jail, he tried to strike a new bargain. It is well settled that buyer's remorse is not grounds
for vacating a guilty plea. (In re Vargas, supra, 83 Cal.App.4th at pp. 1143-1144; People
v. Knight (1987) 194 Cal. App. 3d 337, 344; People v. Huricks (1995) 32 Cal. App. 4th
1201, 1208.) The same principle applies to PRCS revocations where the defendant
admits the PRCS violation, waives the right to a formal revocation hearing, and agrees to
serve a recommended jail term. In the words of the trial court, appellant "understood and
knew what he was doing when he agreed to the waiver. . . ." We concur. Having served
the agreed upon period of confinement, appellant has no due process right to a reduced
negotiated disposition. The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Donald Coleman, Judge
Superior Court County of Ventura
______________________________
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, Stephanie A. Miyoshi, Deputy
Attorney General, for Plaintiff and Respondent.