Filed 7/18/16 P. v. Fryman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B265479
(Super. Ct. No. 2010038802)
Plaintiff and Respondent, (Ventura County)
v.
DOUGLAS FRYMAN,
Defendant and Appellant.
Douglas Fryman appeals an order revoking his Post Release Community
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Supervision (PRCS; Pen. Code, § 3450 et seq.) and committing him to 120 days county
jail. (§ 3455, subd. (d).) Appellant contends that his due process rights were violated
because he was not 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
On February 4, 2011, appellant pled guilty to failing to update his sex
offender registration (§ 290.012, subd. (a)) and was sentenced to 16 months state prison.
Appellant was released from state prison and placed on PRCS on December 24, 2011.
Appellant violated PRCS 12 times and served three flash incarcerations for
failure to obey all laws, failure to report to probation, failure to drug test, failure to report
for random testing, drug use, failure to register as a sex offender, failure to attend
1
All statutory references are to the Penal Code unless otherwise stated.
treatment/counseling as directed by probation, changing residences without notifying
probation, and possession of a weapon.
On May 3, 2015, appellant was arrested for not reporting to probation on a
weekly basis, not maintaining a residence approved by probation, not maintaining regular
employment, not submitting to drug testing, and not actively participating in substance
abuse treatment as directed by probation.
On May 4, 2015, Senior Deputy Probation Officer Venessa Meza advised
appellant of the alleged PRCS violations, 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 recommended 150 days
county jail. Appellant felt that 150 days "is just too much time," rejected the waiver
offer, and requested a formal revocation hearing.
On May 6, 2015, Ventura County Probation Agency filed a PRCS
revocation petition. (§ 3455, subd. (a).) Appellant appeared with counsel and made a
Williams motion (Williams v. Superior Court (2014) 230 Cal.App.4th 636) to dismiss the
petition on due process grounds. After the trial court denied the motion, appellant
submitted on the petition and was ordered to serve 120 days county jail with 52 days
credit.
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 here utilized are consistent with constitutional, statutory, and
decisional law. These procedures do not violate concepts of equal protection or due
process of law. We so held in People v. Gutierrez (2016) 245 Cal.App.4th 393 and
People v. Byron (2016) 246 Cal.App.4th 1009 (petition for review filed May 24 2016,
S234734). We follow our own precedent. The trial court did not err in denying the
motion to dismiss.
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Appellant contends that his due process rights were violated because the
probable cause hearing resembled an ex-parte hearing to solicit a waiver of PRCS rights
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and was not conducted by a neutral hearing officer. The record reflects that the hearing
officer (Meza) was not appellant's supervising probation officer or the one who reported
the PRCS violation or recommended revocation. (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].)
Meza advised appellant of his right to counsel and right to a formal PRCS revocation
hearing which he invoked. Appellant makes no showing that he was denied a fair
hearing.
Appellant contends that the PRCS revocation procedure violates
Proposition 9 (entitled "Victim's Bill of Rights Act of 2008: Marsy's Law") which
created section 3044 and provides that a parolee is entitled to a probable cause hearing
not later than 15 days following his or her arrest for violating parole and a revocation
hearing no later than 45 days following his or her arrest. (See Williams v. Superior
Court, supra, 230 Cal.App.4th at pp. 649-650.) In People v. Byron, supra, 246
Cal.App.4th at pp. 1017-1018, we held that PRCS is different from parole and that
section 3044 does not apply to PRCS revocations which are governed by section 3455.
Appellant's argument that the section 3455, as enacted as part of the 2011 Realignment
Act, illegally "bypasses" Proposition 9 without a super majority vote of the Legislature is
without merit. (See Williams, supra, 230 Cal.App.4th at p. 658 [Proposition 9 may not
2
Appellant claims that he was not advised that he had 24 to 48 business hours to
prepare a response for the probable cause hearing or advised that he could request a
continuance. The probation officer's report does not say whether or not those
advisements were made. When the motion to dismiss was argued, appellant presented no
evidence about what occurred at the probable cause hearing. Having failed to make an
adequate record for review, appellant is precluded from speculating on matters outside
the record. (People v. Foss (2007) 155 Cal.App.4th 113, 126-127 [offer of proof required
to preserve issue on appeal].)
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be amended except by statute passed by super majority vote of Legislature or by statute
that becomes effective only when approved by the voters].)
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.) Appellant makes no showing 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; People v. Woodall (2013) 216 Cal.App.4th 1221,
1238 [same].) Appellant submitted on the PRCS revocation petition and served the
custodial sanction (150 days county jail). (See e.g., People v. Gutierrez, supra, 245
Cal.App.4th at p. 399 [defendant submitted on PRCS revocation petition without
contesting 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 [140 L.Ed.2d 43,
56].)
Disposition
The judgment (order revoking PRCS) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Donald Coleman, Judge
Superior Court County of Ventura
______________________________
Wayne C. Tobin, 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, David F. Glassman, Deputy
Attorney General, for Plaintiff and Respondent.