People v. Craig CA2/6

Filed 6/14/16 P. v. Craig 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B266504
(Super. Ct. No. 2012028786)
Plaintiff and Respondent, (Ventura County)
v.
KENNETH RAY CRAIG,
Defendant and Appellant.
Kenneth Ray Craig appeals an order revoking his Post Release Community
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Supervision (PRCS; Pen. Code, § 3450 et seq.) after he submitted on a PRCS revocation
petition and was ordered to serve 160 days county jail. Appellant contends that his due
process rights were violated because he was not provided a Morrissey-compliant
probable cause hearing (Morrissey v. Brewer (1972) 408 U.S. 471 [33 L. Ed. 2d 484]
(Morrissey).) We affirm.
Facts and Procedural History
In 2012, appellant was convicted by plea of possession of heroin for sale
(Health & Saf. Code, § 11351) and granted 36 months formal probation. Probation was
terminated on April 3, 2013 and appellant was sentenced to two years state prison. On
September 8, 2013, appellant was released from custody and placed on PRCS.
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All statutory references are to the Penal Code unless otherwise stated.
On May 19, 2015 appellant was arrested for possession of
methamphetamine (Health & Saf. Code, § 11550) and violation of his PRCS terms
(failing to report and test, failing to register, failure to obey laws). It was appellant's third
violation since being released on PRCS. On May 21, 2015, Senior Deputy Probation
Officer Meza advised appellant of the alleged PRCS violations, conducted a probable
cause hearing, and determined there was probable cause that appellant had violated his
PRCS terms. (§ 3455, subd. (a).) Appellant was advised of his right to counsel and right
to a formal revocation hearing, and that Ventura County Probation Agency recommended
180 days county jail. Appellant refused the waiver offer and requested a formal court
hearing.
On May 28, 2015, Ventura County Probation Agency filed a PRCS
revocation petition. (§ 3455, subd. (a).) Appellant appeared with counsel on June 11,
2015, denied the allegations in the petition, and filed a Williams motion (Williams v.
Superior Court (2014) 230 Cal. App. 4th 636) to dismiss on due process grounds. The
trial court denied the motion on June 18, 2015, finding no due process violation.
At the June 24, 2015 revocation hearing, appellant submitted on the petition
to revoke PRCS. The trial court found the allegations to be true, found appellant to be in
violation of PRCS, and ordered appellant to serve 160 days with 74 days credit for time
served.
Discussion
Appellant argues that his procedural due process rights were violated
because he did not receive a Morrissey-compliant probable cause hearing. The PRCS
revocation procedures here challenged are consistent with constitutional, statutory, and
decisional law. These procedures do not violate concepts of equal protection or due
process of law. We so held in People v. Gutierrez (2016) 245 Cal. App. 4th 393.
We follow our own precedent. The trial court did not err in denying the motion to
dismiss.
Appellant contends that the probable cause hearing was an ex parte
interview to solicit a waiver and was not conducted by a neutral hearing officer. The
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record reflects that the hearing officer (Meza) was not appellant's supervising probation
officer or the one who reported the PRCS violation or recommended revocation.
Appellant was afforded a neutral hearing officer. (See Morrissey, supra, 408 U.S. at p.
486 [33 L.Ed.2d at p. 497]; Williams, supra, 230 Cal.App.4th at p. 647 [probable cause
finding must be by someone not directly involved in the case].) The trial court so found.
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; People v. Woodall (2013) 216 Cal. App. 4th 1221, 1238.)
Appellant makes no showing that any due process defect prejudiced him or affected the
outcome of the PRCS revocation hearing. (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.) Appellant submitted on the PRCS revocation petition and has already served the
custodial sanction. (See e.g., People v. Gutierrez, supra, 245 Cal.App.4th at p. 399
[defendant submitted on PRCS revocation petition without contesting probable cause
determination].) "[T]here is nothing for us to remedy, even if we were disposed to do
so." (Spencer v. Kemna (1998) 523 U.S. 1, 18 [140 L. Ed. 2d 43, 56].)
Disposition
The judgment (order revoking PRCS) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, Acting, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Donald Coleman, Judge
Superior Court County of Ventura
______________________________
Susan S. Bauguess, 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, Scott A. Taryle,
Supervising Deputy Attorney General, David A. Wildman, Deputy Attorney General, for
Plaintiff and Respondent.