People v. Cervantes CA2/6

Filed 5/31/16 P. v. Cervantes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B265297
(Super. Ct. No. 2012034793)
Plaintiff and Respondent, (Ventura County)
v.
DOMINGO CERVANTES,
Defendant and Appellant.
Domingo Cervantes 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. Cervantes contends the trial court erred because the PRCS revocation process
violates his rights to due process and equal protection. We affirm.
FACTS
In 2012, Cervantes was convicted of possessing a firearm by a felon. (Pen.
Code, § 29800, subd. (a)(1).) He was sentenced to two years in state prison. He was
released on PRCS.
On March 26, 2015, Cervantes was arrested for violating the terms and
conditions of his PRCS. He was arrested by police for obstructing and delaying a peace
officer. (Pen. Code, § 148, subd. (a)(1).)
On March 27, 2015, a probable cause hearing was held before Probation
Officer Venessa Meza. At that hearing, Cervantes said, among other things, that "[h]e is
always violated for the 'same shit'" and that "he didn't report because he 'doesn't like to.'"
Cervantes refused a "waiver offer and requested a formal Court hearing." Meza found
probable cause for finding Cervantes violated his PRCS conditions.
In the April 2, 2015, probation officer's written report for revocation of
PRCS, the probation agency stated that Cervantes was advised of his right to counsel and
"the public defender's office has been notified of this petition." It said, "[Cervantes] is
before the Court for his 5th revocation of his Post Release Community Supervision case.
Since his original release from CDCR, the offender has only reported to Probation on two
separate occasions. He has made no measurable effort to comply with the simplest terms
and conditions . . . ." The probation agency said that Cervantes's Penal Code section 148,
subdivision (a)(1) offense "puts the offender's safety in jeopardy," as well as "the safety
of peace officers and innocent civilians"; consequently, "custody time is warranted."
On April 3, 2015, the Ventura County Probation Agency filed a petition for
revocation of PRCS.
On May 7, 2015, Cervantes's counsel filed a motion to dismiss the petition.
Cervantes argued the revocation process violated his due process rights and cited
Williams v. Superior Court (2014) 230 Cal.App.4th 636 (Williams). On May 8, 2015, the
trial court held a hearing on that motion. The court ruled Williams, a parole revocation
case, had no application to PRCS. It found probation had conducted a probable cause
hearing consistent with Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey) standards
and it denied the motion.
On that same day, the trial court found Cervantes had violated his PRCS
conditions. It ordered him to serve 180 days in the Ventura County jail with a total credit
of 88 days.
DISCUSSION
Cervantes contends, among other things, that the process used to revoke his
PRCS violated his right to due process because he was not promptly arraigned or given a
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probable cause hearing before a neutral decision maker, as required by Morrissey.
Because the process afforded persons subject to PRCS differs from that afforded to
parolees, he argues the PRCS revocation process violates equal protection.
The PRCS procedures here do not violate Cervantes'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, Cervantes 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.) Parole procedures and PRCS procedures are
not required to be identical. (Gutierrez, at pp. 403-404.) There are valid justifications for
the different procedures. (Ibid.)
Cervantes contends PRCS participants have a right to be arraigned within
10 days of their arrest because Williams held parolees have this right. But we need not
decide whether this applies to PRCS because Cervantes has not shown he was prejudiced.
(In re La Croix (1974) 12 Cal.3d 146, 154.) On March 27, 2015, the same day as his
probable cause hearing, and one day after his arrest, Cervantes appeared in court with his
public defender for "arraignment" on his "Post Release Offender Supervision case."
Cervantes has failed to cite to the record to show that he presented evidence
in the trial court to challenge the court's finding that he received a due process compliant
probable cause hearing. He claims that the hearing officer was not "neutral" and
"detached," and failed to adequately examine "the circumstances" justifying his
"continued detention." But Cervantes has not cited to the record to support these claims.
Before the trial court ruled on his motion to dismiss the petition, he had an opportunity to
present evidence to support his assertions about a hearing officer who was not neutral and
an unfair probable cause hearing. But his counsel merely presented oral argument
without any evidence to support his claims. Cervantes consequently is not in a position
to challenge the trial court findings that the probable cause hearings comply with
Morrissey standards.
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Moreover, 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,
supra, 12 Cal.3d at pp. 154-155.) Cervantes 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.) He has
failed to cite facts from the record to show that he did not violate his PRCS conditions.
He has already served his custodial sanction. "[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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Ryan J. Wright, Judge
Superior Court County of Ventura
______________________________
Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General,
for Plaintiff and Respondent.
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