People v. Green CA2/6

Filed 5/31/16 P. v. Green 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B267475
(Super. Ct. No. 2012042162)
Plaintiff and Respondent, (Ventura County)
v.
RYAN GREEN,
Defendant and Appellant.
Ryan Green appeals an order revoking his postrelease community
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supervision (PRCS). (Pen. Code, § 3450 et seq.) Appellant contends that his due
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process rights were violated because he was not provided a Morrissey-compliant
probable cause hearing. We affirm.
FACTS AND PROCEDURAL HISTORY
In 2013, appellant pled guilty to evading an officer (Veh. Code, § 2800.2,
subd. (a)), and was placed on formal probation for 36 months. In December 2014, the
trial court revoked probation and sentenced appellant to two years in state prison. He was
released on PRCS a few months later.
On July 30, 2015, appellant was arrested. On August 3, 2015, Senior
Deputy Probation Officer Jennifer Souza advised appellant of the alleged PRCS
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All statutory references are to the Penal Code unless otherwise stated.
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Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey).
violations (failure to report to probation, engaging in conduct prohibited by law, and
possession of a device resembling a firearm), 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 was recommending 180
days in county jail. Appellant rejected the recommendation, denied violating PRCS and
requested appointment of counsel.
On August 10, 2015, Ventura County Probation Agency filed a PRCS
revocation petition. (§ 3455, subd. (a).) Appellant moved to dismiss the petition on due
process grounds based on Williams v. Superior Court (2014) 230 Cal.App.4th 636(Williams). The trial court denied the motion. On August 31, 2015, it found that
appellant violated PRCS and ordered him to serve 150 days in county jail (with a total
credit of 66 days).
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 challenged here are consistent with constitutional, statutory and
decisional law. These procedures do not violate concepts of equal protection or due
process. We so held in People v. Gutierrez (2016) 245 Cal.App.4th 393, 401-405, and
People v. Byron (2016) 246 Cal.App.4th 1009. 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 a pro forma ex
parte interview, and was not conducted by a neutral hearing officer. The argument is
without merit. The hearing officer (Souza) was not appellant's supervising probation
officer and did not make the arrest or prepare the PRCS revocation report. (See
Morrissey, supra, 408 U.S. at p. 485 [probable cause determination should be made by
someone "not directly involved in the case"]; Williams, supra, 230 Cal.App.4th at p. 647
[same].) Appellant makes no showing that he was denied a fair hearing.
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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; People v. Woodall (2013) 216 Cal.App.4th
1221, 1238.) Appellant fails to show 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 without contesting the
probable cause determination, and has already served the custodial sanction (150 days in
county jail). (See, e.g., People v. Gutierrez, supra, 245 Cal.App.4th at p. 399.) "[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.)
DISPOSITION
The judgment (order revoking PRCS) is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Donald D. 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, Paul R.
Roadarmel, Jr., Supervising Deputy Attorney General and Stephanie A. Miyoshi, Deputy
Attorney General, for Plaintiff and Respondent.
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