Filed 5/16/2016 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B262956
(Super. Ct. No. 2008033202)
Plaintiff and Respondent, (Ventura County)
v. ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
ALLYSON BYRON,
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on April 22, 2016, be modified as
follows:
1. On page 2, fn. 3, insert the following after the third sentence:
Waiver aside, the argument fails because appellant had a prior strike conviction for
burglary in 2003, was convicted again in 2005 for felony receiving stolen property, and
returned to prison which made her ineligible for Proposition 36 drug treatment. (See
§ 1210.1, subd. (b)(1); (People v. Superior Court (Turner) (2002) 97 Cal.App.4th 1222,
1228-1229.)
2. On page 5, in the first sentence, strike the words "within 10 days of the
parolee's arrest". As corrected, the sentence reads: "Morrissey requires that parolees be
afforded two hearings: a preliminary hearing to determine whether there is probable
cause. . . ."
There is no change in judgment.
Filed 4/22/16 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B262956
(Super. Ct. No. 2008033202)
Plaintiff and Respondent, (Ventura County)
v.
ALLYSON BYRON,
Defendant and Appellant.
Allyson Byron appeals an order revoking her Post Release Community
1
Supervision (PRCS; Pen. Code, § 3450 et seq.) and requiring her to serve 140 days jail.
She contends that her due process rights were violated because she was not arraigned
within 10 days of her arrest and 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 2009, appellant was sentenced to state prison for five years after she pled
guilty to felony receiving stolen property and admitted a prior strike conviction (§ 667,
subds. ((c)(1) & (e)(1; 1170, subds. (a)(1) & (c)(1)) and a prior prison term (§ 667.5,
subd. (b)). Appellant was released from prison on June 3, 2012 and placed on PRCS
supervision with terms designed to curtail or stop her abuse of drugs. (§ 3450 et seq.) As
we explain, her PRCS performance has been a dismal failure.
1
All statutory references are to the Penal Code unless otherwise stated.
On January 13, 2015, appellant was arrested, for the tenth time, for
violating PRCS after she tested positive for methamphetamine. On January 15, 2015,
two days later, a hearing officer advised appellant of the PRCS charges, determined that
there was probable cause for arrest, and advised appellant that the recommended PRCS
modification was 180 days county jail. Appellant said the violations are "'bullshit'" and
2
that her probation officer "can kiss my ass."
A petition to revoke PRCS was filed in superior court on January 22, 2015.
(§ 3455.) On January 26, 2015, appellant filed a motion to dismiss the PRCS petition
which was denied the same day. On February 5, 2015, appellant denied the allegations in
the PRCS revocation petition, waived time for the revocation hearing, filed a Proposition
47 petition for resentencing (§ 1170.18), and continued the hearing on the PRCS
revocation to February 25, 2015. The Proposition 47 petition for resentencing was
denied February 13, 2015. On February 27, 2015, the trial court conducted an
evidentiary hearing, found that appellant violated her PRCS terms, and ordered appellant
3
to serve 140 days county jail. (§ 3455.)
Morrissey - Vickers
Relying upon Williams v. Superior Court (2014) 230 Cal.App.4th 636,
appellant argues that her procedural due process rights were violated because she was not
arraigned in superior court within 10 days of her arrest or provided a Morrissey-
compliant probable cause hearing. Because the appeal is a mixed question of law and
2
It was alleged that previously, appellant failed to report to her probation officer, refused
to sign a form for random drug testing, tested positive for methamphetamine, refused to
provide a urine sample, and failed to actively participate in drug abuse treatment.
3
At no time did appellant object to incarceration based upon the rule of People v.
Armogeda (2015) 233 Cal.App.4th 428, 435-436 [section 3455 is unconstitutional to the
extent it amends the treatment of nonviolent drug possession offenders and permits their
incarceration under circumstances prohibited by Proposition 36 and section 3063.1].)
She is precluded from doing so for the first time on appeal. (See e.g., People v. Sanders
(1995) 11 Cal.4th 475, 531). Appellant is not permitted to change her trial court theory
on appeal. (People v. Borland (1996) 50 Cal.App.4th 124, 129.)
2
fact implicating constitutional rights, we review the question de novo. (See e.g., People
v. Cromer (2001) 24 Cal.4th 889, 894–896; People v. McKee (2012) 207 Cal.App.4th
1325, 1338.)
Morrissey delineates the basic due process protections for a parole
revocation and requires a probable cause hearing. "[D]ue process requires that after the
arrest, the determination that reasonable ground exists for revocation of parole should be
made by someone not directly involved in the case." (Id., at p. 485 [33 L.Ed.2d at p.
497].) The hearing officer need not be a judicial officer or a lawyer. (Id., at p. 489 [33
L.Ed.2d at p. 499].) (Italics added.) That is what happened here. This direction from the
seminal case is lost upon appellant and similar appellants in the deluge of cases now
flooding our court.
In People v. Vickers (1972) 8 Cal.3d 451, 461 (Vickers), our state supreme
court extended Morrissey due process protections to probation revocations. "Since 'the
precise nature of the proceedings for [probation] revocation need not be identical' to the
bifurcated Morrissey parole revocation procedures, so long as 'equivalent due process
safeguards' assure that a probationer is not arbitrarily deprived of his conditional liberty
for any significant period of time [citation], a unitary hearing will usually suffice in
probation revocation cases to serve the purposes of the separate preliminary and formal
revocation hearings outlined in Morrissey. [Citations.]" (People v. Coleman (1975) 13
Cal.3d 867, 894-895, fn. omitted.)
2011 Realignment Act
Appellant argues that parole, probation, and PRCS revocation hearings are
constitutionally indistinguishable and are subject to "uniform supervision revocation
process." The argument is based on an uncodified section of the Postrelease Community
Supervision Act of 2011 Act (Realignment Act) which also provides: "By
amending . . . subdivision (a) of . . . Section 1203.2 of the Penal Code, it is the intent of
the Legislature that these amendments simultaneously incorporate the procedural due
process protections held to apply to probation revocation procedures under Morrissey v.
3
Brewer (1972) 408 U.S. 471, and People v. Vickers (1972) 8 Cal.3d 451, and their
progeny." (Vol. 6 West's Cal. Legislative Service (Stats 2012) ch. 43, § 2(b), p. 1969.)
To so rule, we would have to rewrite the various statutes which treat parole, probation,
and PRCS differently. That is not our legitimate function. (See e.g., People v. Buena
Vista Mines (1996) 48 Cal.App.4th 1030, 1034.) If the legislature wants "uniform" rules,
it should enact uniform rules, not separate statutory revocation procedures for parole,
probation, and PRCS.
PRCS and Parole - Different Revocation Procedures
The trial court correctly ruled that the procedural differences between
parole revocation and revocation of PRCS do not violate appellant's due process rights.
Parole revocations are governed by section 3000.08 which requires that the supervising
agency file a superior court petition pursuant to section 1203.2 for revocation of parole.
Section 3044, subdivision (a) provides that the parolee is entitled to a probable cause
hearing not later than 15 days following his/her arrest for violating parole and a
revocation hearing no later than 45 days following his/her arrest. Citing section 3044,
subdivision (a), the Williams court held that a Morrissey-compliant probable cause
hearing must take place within 15 days of the parolee's arrest. (Williams, supra, 230
Cal.App.4th at pp. 657-658.)
Section 3455, subdivision (c), which governs PRCS revocations, requires
that the revocation hearing be held "within a reasonable time after the filing of the
revocation petition." Subdivision (a) provides: "At any point during the process initiated
pursuant to this section, a person may waive, in writing, his or her right to counsel, admit
the violation of his or her postrelease community supervision, waive a court hearing, and
accept the proposed modification of his or her postrelease community supervision."
PRCS revocations do not use the same time table as parole revocations but comport with
Morrissey which requires an "informal hearing structured to assure that the finding of a
parole violation will be based on verified facts . . . ." (Morrissey, supra, 408 U.S. at
p. 484 [33 L.Ed.2d at p. 496].)
4
Morrissey requires that parolees be afforded two hearings: a preliminary
hearing within 10 days of the parolee's arrest to determine whether there is probable
cause to believe the parolee committed a parole violation; and a second more
comprehensive hearing prior to making the final revocation decision. (See Gagnon v.
Scarpelli (1973) 411 U.S. 778, 781-782, 786 [36 L.Ed.2d 656, 661, 664] [Morrissey
mandates preliminary and final revocation hearings].) Appellant was provided a probable
cause hearing on January 15, 2015, two days after her arrest, and another hearing on
January 26, 2015 when the trial court denied the motion to dismiss the PRCS petition.
An evidentiary hearing on the petition to revoke PRCS was conducted on February 27,
2015, 45 days after appellant's arrest, after appellant waived time.
Appellant complains that Ventura County uses a unitary revocation hearing
in PRCS cases and encourages the supervising agency to make "waiver offers" in which
the defendant can admit the PRCS violation. That procedure is authorized by section
3455, subdivision (a). If the inmate rejects the "waiver offer," the inmate remains in
custody until the formal revocation hearing which must be held a reasonable time after
the PRCS revocation petition is filed. (§ 3455, subd. (c).) Appellant complains that the
"waiver offer" procedure encourages "Alford" type admissions (North Carolina v. Alford
(1970) 400 U.S. 25, 32-39 [27 L.Ed.2d 162, 168-172]) in which the inmate protests
his/her innocence but admits the alleged PRCS violation to avoid a greater punishment.
This argument fails here because the recommended PRCS modification remained the
same: 180 days county jail.
Williams v. Superior Court
Appellant's reliance on Williams v. Superior Court, supra, 230 Cal.App.4th
636 (Williams) is misplaced because it is a parole revocation case. There, the Orange
County parole supervising agency determined probable cause on its own (without an
informal hearing) by checking a box on a form and calendaring the arraignment more
than 10 days after the parolee's arrest. (Id., at p. 644.) Parolees averaged over 16 days in
custody before their first court appearance and were not provided a probable cause
5
hearing within 15 days of their arrest. (Id., at p. 646.) The final revocation hearing, at
which the parolee could introduce adverse evidence, was typically three weeks after
arraignment. (Id., at p. 646.) The Williams court held that the changes wrought by the
Realignment Act "entitled [a parolee] to arraignment within 10 days of an arrest for a
parole violation, a probable cause hearing within 15 days of the arrest, and a final hearing
within 45 days of the arrest." (Id., at pp. 643.)
Williams is not a PRCS case and did not consider the due process
requirements for a PRCS revocation. "[C]ases are not authority for propositions not
considered." (People v. Brown (2012) 54 Cal.4th 314, 320.) Under the Realignment Act,
parole and PRCS are two separate forms of supervision. (People v. Espinoza (2014) 226
Cal.App.4th 635, 639.) Section 1203.2 describes the general procedure to be followed
when an individual is subject to PRCS revocation (§ 3455) or parole revocation (§
3000.08) and provides that a probation officer or peace officer may "rearrest the
supervised person and bring him or her before the court . . . ." (§ 1203.2, subd. (a).)
4
PRCS revocations may be informally resolved. Section 3455 provides that
before the first court appearance, an individual subject to PRCS revocation shall be
provided an informal hearing and may waive his/her right to counsel, admit the PRCS
violation, waive a court hearing, and accept the proposed PRCS modification. (§ 3455,
subd. (a).) If the individual declines to accept the recommendation (as did appellant), the
individual remains in custody and is provided a formal revocation hearing.
That was the procedure used here. On January 15, 2015, two days after
appellant was arrested, a neutral hearing officer determined there was probable cause that
appellant had violated her PRCS terms. The hearing officer was not appellant's
4
Appellant argues that counsel should be "appointed" at the initial probable cause hearing
but that would undercut the informal nature of the proceeding. (§ 3455, subd. (a).)
Nowhere in the PRCS statutory revocation scheme is there a requirement for the
appointment of counsel at the initial hearing.
6
supervising probation officer or the one who reported the PRCS violation. Appellant was
afforded a neutral hearing officer. (See Morrissey, supra, 408 U.S. at p. 485 [33 L.Ed.2d
at p. 497] [probable cause determination should be made by someone "not directly
involved in the case"]; Williams, supra, 230 Cal.App.4th at p. 647 [same].) It was the
functional equivalent of an arraignment and a probable cause ruling in superior court.
Appellant was advised of the alleged PRCS violations and the recommended PRCS
modification, and advised of her right to counsel if she elected not to accept the PRCS
modification.
On January 26, 2015, 13 days after her arrest, appellant appeared with
counsel and moved to dismiss the petition to revoke PRCS, which was denied the same
day. The hearing on the motion to dismiss was tantamount to a second probable cause
hearing, this time heard by the superior court. In terms of a timely hearing, appellant was
provided greater procedural protections than required by Morrissey, or Vickers.
Although PRCS revocations must afford general Morrissey/Vickers protections, there is
no requirement that the PRCS revocations and parole revocations use the identical
procedure or timeline. The requirement for a formal arraignment in the superior court
within 10 days of arrest, as discussed in Williams, does not apply to PRCS revocations.
Appellant makes no showing that she was prejudiced by the PRCS
revocation procedures or that Mathews v. Eldridge (1976) 424 U.S. 319 [47 L.Ed.2d 18]
due process "balancing factors" require a court arraignment for a PRCS revocation. 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; In re Winn (1975) 13
Cal.3d 694, 698 [defendant has burden of showing prejudice].) Assuming, arguendo, that
Williams applies to PRCS revocation hearings, appellant received functionally equivalent
protections and any deviation in the timing or substance of the hearings was harmless
beyond a reasonable doubt. (See e.g., Hinrichs v. County of Orange (2004) 125
Cal.App.4th 921, 928; citing People v. Woodward (1992) 4 Cal.4th 376, 387 [procedural
7
due process violations, even if proved, are subject to harmless error analysis].) Appellant
has already served the custodial sanction. "[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].)
Under the guise of "due process," we decline the invitation to rewrite
section 3455 (PRCS revocation hearings must be held a "reasonable time" after arrest) or
expand section 3044 to require that parole revocation timelines (i.e., probable cause
hearing no later than 15 days following arrest for violation of parole) be strictly observed
in a PRCS revocation. As discussed in Morrissey, "[w]e cannot write a code of
procedure; that is the responsibility of each State. Most States have done so by
legislation, others by judicial decision usually on due process grounds. Our task is
limited to deciding the minimum requirements of due process." (Morrissey, supra, 408
U.S. at pp. 488-489, fn. omitted [33 L.Ed.2d at pp. 498-499.)
Conclusion
Nothing in the PRCS revocation procedures employed in this case violate
the letter or spirit of Morrissey v. Brewer, supra, or People v. Vickers, supra. Appellant
did not languish indefinitely in county jail after the hearing officer advised her of the
charges and found probable cause for her incarceration. The revocation hearing was
conducted in superior court approximately 45 days after her arrest. Twenty days are
attributable to appellant who asked for, and received, a continuance. Had she not
requested a continuance, the evidentiary hearing would have been held 25 days after her
arrest. That may not be warp speed but we cannot say, as a matter of law that, it resulted
in a due process of law violation.
8
The judgment (order revoking PRCS) is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
9
Brian J. Back, 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, Scott A. Taryle,
Supervising Deputy Attorney General, Timothy M. Weiner, Nathan Guttman, Deputy
Attorneys General, for Plaintiff and Respondent.