Filed 6/10/21 P. v. Vos CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306919
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 0PR02052)
v.
JONATHAN DANIEL VOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Kevin S. Rosenberg, Judge. Affirmed.
Edward Mahler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Peggy Z. Huang,
Deputy Attorneys General, for Plaintiff and Respondent.
******
A defendant on postrelease community supervision was
arrested for committing a new crime, and the People sought to
revoke his supervision. The defendant was quarantined in
custody for COVID-19 for several weeks, so the trial court did not
conduct the evidentiary hearing on the revocation petition until
95 days after his arrest. Because the maximum sentence of
incarceration for a revocation (once custody credits are taken into
consideration) is 90 days, defendant argues that his incarceration
for longer than 90 days violates due process and entitles him to
have the revocation petition dismissed in its entirety. The trial
court rejected this argument, and so do we. Accordingly, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Plea, Sentence and Placement on Postrelease
Community Supervision
In April 2019, Jonathan Daniel Vos (defendant) entered a
no contest plea to a single charge of attempting to inflict injury
upon a cohabitant or spouse (Pen. Code, §§ 273.5, subd. (a), 664).1
In exchange for his plea, the People dismissed the original charge
of making a criminal threat (§ 422) and agreed to a two-year
prison sentence.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
On March 19, 2020, defendant was released from the two-
year prison sentence and placed on postrelease community
supervision (supervision). As mandated by statute (§ 3453, subd.
(b)), one of the terms of supervision was that he “obey all laws.”
II. The March 21, 2020 Incident
Two days after his release from prison, on March 21, 2020,
defendant went to his father’s house. While there, defendant got
into a verbal fight with his father that escalated into a melee in
which defendant eventually swung a skateboard at his father and
hit his father in the face and/or the arm. Defendant was arrested
the same day.
III. The Repercussions from the March 21, 2020 Incident
Based on defendant’s assault on his father, (1) the
probation office filed a petition to revoke defendant’s supervision,
and (2) the People charged defendant in a new case with the
crime of assault with a deadly weapon (§ 245, subd. (a)(1)).
A. Proceedings to revoke supervision
On April 2, 2020, defendant was arraigned and denied the
allegations in the revocation petition.
On April 23, 2020, the trial court held a probable cause
hearing. Based on the testimony of an officer who responded to
the scene and the probation officer, the court found probable
cause to believe that defendant had violated his supervision. The
court set the evidentiary hearing on the revocation petition for
May 15, 2020.
On May 1, 2020, defendant was placed into quarantine for
COVID-19.
On May 15, 2020, defendant was still in quarantine and the
court was forced to take the evidentiary hearing off calendar.
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The court set the matter for a hearing-setting date on May 21,
2020.
On May 21, 2020, defendant was still in quarantine, so the
court set a further hearing-setting date for June 1, 2020. At the
defense attorney’s request, the court also set bail at $500,000,
according to the bail schedule.
On May 28, 2020, the trial court issued an in-chambers
order advancing the June 1, 2020 hearing and rescheduling the
hearing-setting date for June 10, 2020.
On June 10, 2020, the court convened the hearing setting.
Defendant was out of quarantine and present in court. Before
the court could select a date, defendant moved to dismiss the
revocation petition on the ground that (1) the maximum period
for incarceration for a revocation of supervision is 180 days in jail
(§ 3455, subd. (d)), (2) due to the award of one custody credit for
each day of actual time served, the maximum 180-day jail term
was really a maximum of 90 days of actual jail time, and (3)
defendant had already served 85 days of actual jail time, so
setting the evidentiary hearing more than five days later would
exceed the maximum sentence, violate due process, and require
dismissal of the revocation petition. The trial court denied the
motion, finding that the delay in holding the evidentiary hearing
was excusable “under the circumstances” and did not violate due
process. After the People indicated that could not have their
witnesses present in less than 10 “business days,” the court set
the evidentiary hearing for June 23, 2020.
On June 23, 2020, the court held the evidentiary hearing.
After the People called defendant’s father and the probation
officer as witnesses, the court found defendant in violation of his
supervision, revoked and reinstated supervision, and imposed a
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jail sentence of 180 days with credit for 95 actual days, which
amounted to a sentence of time served.
Defendant filed this timely appeal.
B. New prosecution
The new charges for assault with a deadly weapon still
appear to be pending.
DISCUSSION
Defendant argues that the trial court erred in denying his
motion to dismiss the revocation petition because, in defendant’s
view, his due process rights were violated. Because this case
involves the application of undisputed facts to a constitutional
standard, our review is de novo.2 (People v. Byron (2016) 246
Cal.App.4th 1009, 1013 (Byron).)
Since the Realignment Act of 2011, not all persons released
from state prison are placed on parole, where they are supervised
by state officials. Instead, persons released from prison after
serving time for many “lower-level” felonies (that is, felonies that
do not qualify as “serious felonies,” “violent felonies” or more
aggravated sex-related felonies) are placed on postrelease
community supervision, where they are supervised by county
officials. (§ 3451, subds. (a) & (b).)
Persons placed on either type of supervision are entitled to
the protections of due process. Due process guarantees a person
the right to an evidentiary hearing before his supervision may be
revoked (Morrissey v. Brewer (1972) 408 U.S. 471, 481, 489
2 Although defendant completed the 180-day jail sentence,
the issue defendant raises on appeal is one that is capable of
repetition yet evading review and that raises an issue of
continuing public interest. We accordingly exercise our discretion
to reach the issue. (People v. Morales (2016) 63 Cal.4th 399, 409.)
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(Morrissey)), and, most pertinent here, that hearing must be
conducted “within a reasonable time.” (People v. Murdock (2018)
25 Cal.App.5th 429, 435 (Murdock); People v. Gutierrez (2016)
245 Cal.App.4th 393, 400-401 (Gutierrez).) When evaluating
whether the timing of a hearing satisfies the due process
requirement of reasonableness in other contexts, courts have
“balance[d] the harm to the defendant” from any delays “against
the justification for th[ose] delays.” (See People v. Catlin (2001)
26 Cal.4th 81, 107 [applying this metric in assessing whether
precharging delay violates due process]; People v. Boysen (2007)
165 Cal.App.4th 761, 772 [same]; United States v. Lovasco (1977)
431 U.S. 783, 790 [“reasons for the delay” and “prejudice to the
accused” must be “consider[ed]”].) We see no reason not to apply
the same standard here.
We independently conclude that the balance of these
factors establishes that the evidentiary hearing in this case was
conducted within a “reasonable” time, and hence in compliance
with due process.
On one side of the balance, the delay in conducting
defendant’s evidentiary hearing was justified. Here, the trial
court initially set the evidentiary hearing for May 15, 2020—55
days after defendant was arrested. The delay between May 1 and
at least May 21, 2020, was due to defendant’s COVID-19
quarantine, which was certainly a justifiable delay. (E.g.,
Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 170
[“prolonged pretrial detention during the pandemic” does not
violate “due process” because “[h]ealth quarantines to prevent the
spread of infectious diseases have long been recognized as good
cause for continuing a trial date”].) What is more, the fact that
no emergency order was in effect on June 10, 2020, allowing for
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further COVID-related continuances does not, as defendant
seems to assert, negate the justification for the earlier delay.
And the delay between June 10 and June 23, 2020, was due to
the People’s reasonable request for 10 business days from the
date of a hearing-setting to subpoena the witnesses needed for
that hearing. (But see Pickett v. Municipal Court (1970) 12
Cal.App.3d 1158, 1160-1162 [several month delay to
accommodate witness’s “summer vacation”; inexcusable delay].)
On the other side of the balance, defendant has not
articulated any cognizable, actual prejudice arising from the
delay. (People v. Price (1985) 165 Cal.App.3d 536, 542 [“actual
prejudice must be shown”].) Prejudice from delay in conducting a
hearing or trial typically arises when the delay “impair[s]” “the
defense” through the loss of evidence or fading of memories (e.g.,
Barker v. Wingo (1972) 407 U.S. 514, 532), but defendant has
made no claim that the postponement of his hearing from May 15
to June 23 caused him any such prejudice. Rather, defendant
argues that he was prejudiced because his prehearing
incarceration exceeded the sentence ultimately imposed by five
days. To be sure, a defendant’s interest in avoiding delay
encompasses an interest in “prevent[ing] oppressive pretrial
incarceration.” (Ibid.) But it is far from clear that defendant’s
service of a sentence that is well within the 180-day statutory
maximum but a few days in excess of ultimately imposed
sentence that accounts for custody credits constitutes “oppressive
pretrial incarceration” and hence actual prejudice.
Even if we assume that defendant has suffered some actual
prejudice by virtue of his serving five days’ more time than was
ultimately imposed, the delay in conducting the evidentiary
hearing in this case was amply justified by the need to schedule
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around defendant’s multiweek quarantine. Defendant’s assertion
that any service of more jail time than ultimately imposed
automatically violates due process would convert due process into
an absolute, fixed deadline calculated as the maximum time less
any custody credits. Not only does this construction, if accepted,
rewrite the test for evaluating due process by eliminating any
consideration of the reasons or justification for any delay, but it is
also fundamentally inconsistent with the longstanding principle
that “due process is flexible” and turns on what a “particular
situation demands.” (Morrisey, supra, 408 U.S. at p. 481, italics
added.)
Defendant resists this conclusion with what boils down to
three arguments.
First, defendant maintains that the People have no
cognizable interest in conducting an evidentiary hearing—and he
is therefore entitled to dismissal of a pending revocation
petition—once he has already served the maximum sentence that
can be imposed upon revocation of his supervision (see In re
Banks (1979) 88 Cal.App.3d 864, 869 (Banks) [state has “no
legitimate interest in continued confinement of an incompetent
accused beyond the maximum sentence term for the charged
offense”; so further “[p]retrial confinement” “violates basic
notions of fairness and due process”]).
While it is epistemologically true that “time is an
irretrievable commodity” (People v. Simpson (1973) 30 Cal.App.3d
177, 183 (Simpson)), we nevertheless reject defendant’s
contention for several reasons. To begin, the very premise of this
argument—namely, that the People have no interest in an
adjudication of the revocation petition once the maximum period
of incarceration has already been served—is inaccurate. That is
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partly because incarceration is not the sole sanction available for
a violation of supervision; because other sanctions (such as
modification of the conditions of supervision or references to a
reentry or other “evidence-based program”) may still be imposed
in addition to 180 days of jail time (§ 3455, subd. (a); Gutierrez,
supra, 245 Cal.App.4th at p. 399), the People still have a
legitimate interest in an adjudication of a supervisee’s petition
even after the maximum period of incarceration has been served.
The People also have a continuing, legitimate interest because
the revocation of supervision can affect the overall duration of the
supervision (§ 3456, subds. (a)(2) & (a)(3)). (Cf. Banks, supra, 88
Cal.App.3d at pp. 870-871 [where defendant has “immunity to
postsentence punishment” by reason of presentence confinement,
the state has continuing interest in determining his guilt or
innocence if there may be future effects from adjudication].)
Further, because the People have a continuing interest in the
adjudication of a violation petition that assures compliance with
due process, accepting defendant’s “90 days and you’re out”
argument would effectively rewrite two different statutes without
a constitutional mandate to do so: The statute governing credits
specifies that the remedy for a period of pretrial incarceration
that exceeds the maximum sentence is to deem the sentence fully
served (§ 2900.5, subd. (a)), not to dismiss the conviction or
finding of violation; and the statute governing postrelease
community supervision specifies that the “revocation hearing” be
“held within a reasonable time after the filing of the revocation
petition” (§ 3455, subd. (c)), not within 90 days regardless of the
justification for any delay. (See Byron, supra, 246 Cal.App.4th at
pp. 1017-1018 [declining to rewrite the supervision timeliness
“[u]nder the guise of ‘due process’”].)
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Second, defendant contends that the People never
established “good cause” to “continue” the evidentiary hearing for
10 “business days” because, in defendant’s view, the People could
have secured the witnesses’ attendance within five days. In
making this contention, defendant relies on section 1050, the
statute governing continuances. We reject defendant’s
contention. Even if we assume that the setting of a hearing
qualifies as a “continuance” governed by section 1050 (§ 1050,
subd. (b)), that section expressly provides that it is “directory only
and does not mandate dismissal of an action” (§ 1050, subd. (l)).
Thus, section 1050 disavows the very remedy defendant seeks.
This means that dismissal is a remedy only if the continuance
violated due process by resulting in a hearing not “held within a
reasonable time.” (People v. Johnson (2013) 218 Cal.App.4th 938,
943.) As discussed above, the hearing here was held within a
reasonable time.
Lastly, defendant cites several cases interpreting the
speedy trial clause that limits delay between initial charging and
a trial, such as Simpson, supra, 30 Cal.App.3d 177 and Craft v.
Superior Court (2006) 140 Cal.App.4th 1533. These cases do not
control. Any additional jail time imposed when postrelease
community supervision is revoked is part of the sentence initially
imposed upon conviction rather than a wholly new charge or new
sentence to which the speedy trial clause might apply. (People v.
Freeman (2021) 61 Cal.App.5th 126, 134; Murdock, supra, 25
Cal.App.5th 429, 434.) Consequently, the applicable test is the
due process balancing test for “reasonableness”; as explained
above, that test is satisfied here.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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