People v. Powell CA2/6

Filed 5/23/16 P. v. Powell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B267097
(Super. Ct. No. 2014028568)
Plaintiff and Respondent, (Ventura County)
v.
DRUE GENE POWELL,
Defendant and Appellant.
Drue Gene Powell 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 where he admitted his PRCS violations and waived his
right to a revocation hearing. Subsequently, the trial court found him in violation of
PRCS after his counsel at a new hearing "submit[ted]" on the admissions Powell made at
the probable cause hearing. Powell 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 2014, Powell was convicted of evading an officer. (Veh. Code,
§ 2800.2, subd. (a).) He was sentenced to 16 months in state prison.
On May 28, 2015, Powell was released on PRCS. On July 14, 2015,
Powell was arrested.
On July 16, 2015, a probable cause hearing was held before Probation
Officer Venessa Meza. Meza found probable cause for finding Powell violated his PRCS
conditions. Powell waived his right to counsel, admitted the violations, and agreed to a
period of confinement for 90 days.
On July 16, 2015, the trial court held a hearing. Meza appeared and told
the court that Powell had agreed to a custodial sanction. The court ordered Powell to be
held in jail for a "Flash Incarceration" for violating his PRCS terms. It also found that
Powell had "agreed to a 90-day sentence." The court told Powell, "You will get halftime
for all the time you're serving, so you get 90 days actual. It's going to be 45 days."
Powell responded, "Okay. Thank you." The court indicated that the Ventura County
Probation Agency should file a petition for revocation of PRCS.
On July 24, 2015, the Ventura County Probation Agency filed a petition to
revoke PRCS. Powell's counsel filed a motion to dismiss the petition claiming the PRCS
procedure violated his right to due process of law. Powell relied on Williams v. Superior
Court (2014) 230 Cal.App.4th 636 (Williams) and claimed he did not receive a probable
cause hearing in compliance with Morrissey v. Brewer (1972) 408 U.S. 472 (Morrissey.)
On July 30, 2015, the trial court denied the motion and found the PRCS procedure Powell
received complied with his "due process rights" and Morrissey standards.
At the hearing Powell's counsel told the trial court, "Mr. Powell previously
signed a revocation for 90 days with probation. We've spoken with the court regarding
that. I'll submit on his previous signature and revocation filed by probation." (Italics
added.)
The trial court found Powell had "waived his rights and admitted the
violation." It approved the 90-day custodial sanction.
DISCUSSION
Powell 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 PRCS process undercuts the will of the
electorate when it passed Proposition 9, 4) the procedure used by the probation officer at
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the probable cause hearing was unfair, 5) Meza was not neutral, and 6) he was entitled to
the procedures provided to parolees mentioned in Willlams.
The PRCS procedures here do not violate Powell'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, Powell 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 Proposition 9 parole
procedures are not required to be identical. (Gutierrez, at pp. 403-404.) There are valid
justifications for the different procedures. (Ibid.) Powell did not produce a record to
support his current claims on appeal. He did not present evidence in the trial court to
show that PRCS hearing officers at the probable cause hearings are not neutral, that their
findings are incorrect or unreliable, that the procedure was unfair, that he was not
afforded a prompt probable cause hearing after his arrest, or that he did not violate his
PRCS conditions. Powell consequently is not in a position to challenge the trial court's
findings that the PRCS probable cause hearings comply with Morrissey standards and his
due process rights were not violated.
Moreover, the denial of a Morrissey compliant probable cause hearing does
not warrant reversal unless it results in prejudice. (In re La Croix (1974) 12 Cal.3d 146,
154-155.) Powell makes no showing that a due process defect or any alleged defect
prejudiced him. (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].) Powell admitted
the PRCS violations. He waived his right to testify, to call witnesses and to have a
revocation hearing. Moreover, at the July 30 hearing, Powell's counsel did not challenge
Powell's admissions that he violated PRCS. She made no claim that his admissions were
not voluntary, that the PRCS procedure was unfair, or that he was not in violation of
PRCS. Instead, she said, "I'll submit on his previous signature and revocation filed by
probation." (Italics added.) Powell has made no showing of any trial court error.
Moreover, he has served the custodial sanction. "[T]here is nothing for us to
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remedy . . . ." (Spencer v. Kemna (1998) 523 U.S. 1, 18.) We have reviewed his
remaining contentions and we 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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Patricia M. Murphy, 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, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, Stephanie A. Miyoshi, Deputy
Attorney General, for Plaintiff and Respondent.
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