People v. Lovio CA2/6 ( 2016 )

Filed 5/24/16 P. v. Lovio 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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. B266809
(Super. Ct. No. 2013009607)
Plaintiff and Respondent, (Ventura County)
v.
RICHARD LOVIO,
Defendant and Appellant.
Richard Lovio was subject to postrelease community supervision
(PRCS) when he was arrested. (Pen. Code, § 3451.) He had an informal probable
cause hearing before a probation officer. Subsequently, the trial court found him in
violation of PRCS. He contends, among other things, that the trial court erred
because the PRCS revocation process violates his right to due process. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, Lovio was convicted of possession of a firearm (Pen. Code,
§ 29800, subd. (a)(1)) and possession of a controlled substance (Health & Saf. Code,
§ 11377, subd. (a)). He was sentenced to 16 months in state prison.
On July 8, 2014, Lovio was released on PRCS.
On February 18, 2015, Lovio was arrested for violating his PRCS
terms.
On February 20, 2015, a probable cause hearing was held before a
probation officer who found probable cause that Lovio violated his PRCS conditions.
On February 25, 2015, the Ventura County Probation Agency filed a petition to
revoke his PRCS.
On March 12, 2014, Lovio's counsel filed a motion to dismiss the
petition citing Williams v. Superior Court (2014) 230 Cal. App. 4th 636 (Williams)
and alleging the PRCS procedure violated his due process rights. On March 13,
2015, the trial court denied the motion. It found his probable cause hearing complied
with the due process protections in Morrissey v. Brewer (1972) 408 U.S. 472
(Morrissey).
At a PRCS revocation hearing on March 25, 2015, Lovio submitted on
the violations alleged in the petition. The trial court revoked his PRCS and ordered
him to serve 90 days in county jail with a total credit of 72 days.
On June 26, 2015, Lovio was in custody for violating his PRCS
conditions. On June 29, 2015, he had a probable cause hearing before Probation
Officer Venessa Meza. Lovio denied the violations, was advised of his right to
counsel, declined to accept a proposed sanction, and demanded a court hearing.
Meza found probable cause that Lovio violated his PRCS conditions.
On July 2, 2015, the Ventura County Probation Agency filed a petition
to revoke PRCS and scheduled a hearing date for July 16, 2015.
On July 15, 2015, Lovio's counsel filed a motion to dismiss the
petition. Citing Williams, Lovio claimed the PRCS revocation process violated his
due process rights. The trial court denied the motion.
On July 16, 2015, Lovio appeared in court with his public defender and
submitted on the allegations of the petition finding PRCS violations. The trial court
found he violated PRCS. It ordered him to serve 150 days in county jail with a total
credit of 42 days.
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DISCUSSION
Lovio contends, among other things, that: 1) the process used to
revoke his PRCS violated his right to due process, 2) he did not have a probable
cause hearing that complied with Morrissey standards, 3) the probation officers
conduct inadequate probable cause hearings, 4) their goal "is to obtain a waiver and
to move [defendants] as quickly and as cheaply as possible to revocation and jail," 5)
the probation officers are not neutral, and 6) he was entitled to the same procedures
provided to parolees mentioned in Williams.
The PRCS procedures here do not violate Lovio's equal protection or
due process rights. (People v. Gutierrez (2016) 245 Cal. App. 4th 393, 402-404.)
After his arrest for violating PRCS conditions, Lovio received a prompt probable
cause hearing. (Id. at p. 402.) The PRCS hearing officers who decide probable cause
are neutral decision makers. (Morrissey, supra, 408 U.S. at p. 485 ["someone not
directly involved in the case"]; Gutierrez, at p. 402.) PRCS procedures and parole
procedures are not required to be identical. (Gutierrez, at pp. 403-404.) There are
valid justifications for the different procedures. (Ibid.) Lovio did not produce an
adequate record to support his claims about how the hearing officers conduct the
probable cause hearings. He did not introduce evidence in the trial court to show that
the hearing officers are not neutral, that their findings are incorrect or unreliable, that
the procedure was unfair, or that he was not afforded a prompt probable cause
hearing after his arrest. He consequently is not in a position to challenge the trial
court's finding that his probable cause hearings complied with Morrissey standards.
Moreover, the denial of a Morrissey-compliant probable cause hearing
does not warrant reversal unless it results in prejudice at the revocation hearing. (In
re La Croix (1974) 12 Cal. 3d 146, 154-155.) Lovio makes no showing that a due
process defect prejudiced him or affected the outcome of the PRCS revocation
hearing. (In re Moore (1975) 45 Cal. App. 3d 285, 294; see also In re Winn (1975) 13
Cal. 3d 694, 698 [defendant has the burden of showing prejudice].) Lovio submitted
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on the PRCS violations at the revocation hearings and served the custodial sanctions.
"[T]here is nothing for us to remedy . . . ." (Spencer v. Kemna (1998) 523 U.S. 1,
18.) We have reviewed his remaining contentions and conclude he has not shown
grounds for reversal.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Donald D. Coleman, Judge
Superior Court County of Ventura
______________________________
Jolene Larimore, 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, Connie H. Kan, Deputy
Attorney General, for Plaintiff and Respondent.
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