People v. Emmons CA2/6 ( 2016 )

Filed 5/23/16 P. v. Emmons 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B265295
(Super. Ct. No. 2010001772)
Plaintiff and Respondent, (Ventura County)
v.
JEFFREY EMMONS,
Defendant and Appellant.
Jeffrey Emmons appeals from an order revoking his postrelease community
supervision (PRCS) following his admission that he violated the conditions of his release.
(Pen. Code, § 3450 et seq.)1 He contends that his due process rights were violated
because he was not provided a Morrissey-compliant probable cause hearing within 15
days of his arrest. (Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey).) We affirm.
BACKGROUND
In 2010, Emmons was convicted after plea of guilty to possession of
methamphetamine for sale under Health and Safety Code section 11378, admitting four
prior sales-related convictions under Health and Safety Code section 11370.2,
subdivision (c), and three prison priors within the meaning of section 667.5, subdivision
(b). The trial court sentenced him to six years in prison.
1 All statutory references are to Penal Code unless otherwise stated.
Emmons was released under PRCS in March 2012. The Ventura County
Probation Agency is his supervising agency. As a condition of release, he agreed to
report to his probation officer as ordered and use no narcotics or dangerous drugs. He
also agreed the probation agency could, without a court hearing, order “flash
incarceration” in a county jail for up to 10 days if he violated a condition of his release.
(§ 3453, subd. (q).)
In April 2015, Emmons did not report to his probation officer as directed
and on two occasions admitted using methamphetamine. He was arrested on April 15,
2015. Two days after his arrest, Senior Deputy Probation Officer Michelle Larson met
with Emmons. He admitted the violations and agreed to a period of confinement of 90
days.
Based on his admission, the probation agency filed a revocation petition.
Emmons filed a “Request to Dismiss the Petition for a Violation of Jeffrey Emmons’ Due
Process Rights.” The trial court denied the request to dismiss and granted the petition to
revoke PRCS.
DISCUSSION
Emmons contends he was entitled to a judicial determination of probable
cause within 15 days of his arrest, citing Morrissey, supra, 408 U.S. 471 (minimum due
process safeguards for parole revocation); People v. Vickers (1972) 8 Cal.3d 451(Vickers) (minimum due process safeguards for probation revocation); and Williams v.
Superior Court (2014) 230 Cal.App.4th 636 (minimum due process safeguards for parole
revocation after realignment).
Emmons concedes that the supervising agency found probable cause at the
administrative hearing on April 17, 2015, and that he was notified of the allegations and
an offer of 90 days incarceration if he waived a revocation hearing. Notwithstanding his
agreement to waive a hearing and accept the 90-day offer, he argues that his waiver
should have been vacated due to the lack of a Morrissey-compliant probable cause
hearing.
2
Emmons complains that Ventura County uses an informal administrative
hearing in PRCS cases which encourages the probation agency to make “waiver offers”
to a defendant, who can admit the PRCS violation in exchange for an agreed upon
sentence. But that procedure is expressly authorized by section 3455, subdivision (a).
He also complains that the probable cause hearings are conducted by the
probation department instead of the court. But Morrissey expressly states that the hearing
officer “need not be a judicial officer.” (Morrissey, supra, 408 U.S. at p. 486.) We so
held in People v. Gutierrez (2016) 245 Cal.App.4th 393, 402 (probation officer not
involved in arrest can conduct probable cause hearing). We follow our own precedent.
Perhaps more significantly, Emmons has made no showing of prejudice in
view of his waiver of a hearing and admission of the violations. The denial of due
process rights, if any, does not warrant reversal unless the violation results in prejudice.
(In re La Croix (1974) 12 Cal.3d 146, 154-155.) But Emmons makes no showing that
any due process defect prejudiced him. (In re Winn (1975) 13 Cal.3d 694, 698
[defendant has burden of showing prejudice]; In re Moore (1975) 45 Cal.App.3d 285,
294.) Because he waived a formal revocation hearing and admitted the violations and has
served the custodial sanction “there is nothing for us to remedy, even if we were disposed
to do so.” (Spencer v. Kemna (1998) 523 U.S. 1, 18.)
DISPOSITION
The order revoking PRCS is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
3
Ryan J. Wright, 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, Shawn
McGahey Webb, Supervising Deputy Attorney General, and Nathan Guttman, Deputy
Attorney General, for Plaintiff and Respondent.