Filed 6/6/16 P. v. Franco 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B267144
(Super. Ct. No. 2014002620)
Plaintiff and Respondent, (Ventura County)
v.
ANDY FRANCO,
Defendant and Appellant.
Andy Franco appeals an order revoking his Post Release 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 May 2014, appellant pled guilty to one count of unlawful driving or
taking of a vehicle (Veh. Code, § 10851, subd. (a)) and one count of evading an officer
(Veh. Code, § 2800.2, subd. (a)). He also admitted prior conviction allegations. (§ 1203,
subd. (e)(4).) He was sentenced to one year four months in state prison. He was released
on PRCS a few months later.
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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).
On August 12, 2015, appellant was arrested for using a controlled
substance. (Health & Saf. Code, § 11550, subd. (a).) The following day, Senior Deputy
Probation Officer Venessa Meza advised appellant of the alleged PRCS violations
(failure to obey all laws, criminal conduct, drug use and access to a knife), 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 90 days in county jail. Appellant rejected the
recommendation, denied violating PRCS and requested appointment of counsel.
On August 17, 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 27, 2015, found that appellant
violated PRCS and ordered him to serve 60 days in county jail (with a total credit of 32
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 his due process rights were violated because the
probable cause hearing was not conducted by a neutral hearing officer and resembled an
ex parte hearing to solicit a waiver of PRCS rights. The argument is without merit. The
hearing officer (Meza) 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
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in the case"]; Williams, supra, 230 Cal.App.4th at p. 647 [same].) Appellant makes no
showing that he was denied a fair hearing.
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 revocation petition and served the custodial
sanction (60 days in county jail). (See, e.g., People v. Gutierrez, supra, 245 Cal.App.4th
at p. 399 [defendant submitted on PRCS revocation petition without contesting the
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.)
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
______________________________
Jolene Larimore, 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, and Connie H. Kan, Deputy
Attorney General, for Plaintiff and Respondent.
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