People v. Reyes CA2/6

Filed 4/22/16 P. v. Reyes CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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. B267290 (Super. Ct. No. 2010013728) Plaintiff and Respondent, (Ventura County) v. MARICELA REYES, Defendant and Appellant.

Maricela Reyes appeals from an August 6, 2015 order to serve 45 days county jail, entered after the trial court found that appellant violated her Post Release 1 Community Supervision (PRCS; Pen. Code, § 3450 et seq.) Appellant contends, among other things, that her due process rights were violated because she 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. Procedural History In 2010, appellant pled guilty to possession of a firearm by a felon (§ 12021, subd. (a)(1)), eight counts of unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and one count of receiving stolen property (§ 496, subd. (a).) The trial court found true a prior prison term enhancement (§ 667.5, subd. (b)), and sentenced appellant to nine years state prison.

1 All statutory references are to the Penal Code unless otherwise stated.

Appellant was released from prison on September 9, 2014 and arrested on July 22, 2015 for violating PRCS. On July 23, 2015, appellant was provided a "Postrelease Community Supervision Advisement of Rights and Acknowledgment Revocation" form which stated that the Ventura County Probation Agency recommended 90 days county jail. Appellant refused to waive her rights. The hearing officer, Senior Deputy Probation Officer Venessa Meza, conducted a probable cause hearing and found there was probable cause to believe that appellant violated PRCS. On July 31, 2015, nine days after appellant's arrest, a petition to revoke PRCS was filed in superior court. (§ 3455, subd. (a).) Appellant appeared with counsel and filed a motion to dismiss, arguing that the PRCS revocation procedure violated her due process rights. (Williams v. Superior Court (2014) 230 Cal.App.4th 636.) The trial court denied the motion, found that appellant had violated her PRCS terms, and ordered appellant to serve 45 days county jail with 32 days credit. Neutral Hearing Officer The Criminal Justice Realignment Act of 2011 requires that PRCS revocations "incorporate the procedural due process protections held to apply to probation revocation procedures under Morrissey v. 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.) Morrissey, supra, 408 U.S. 471 [33 L.Ed.2d 484], delineates basic due process requirements for the revocation of parole, which includes the right to a probable cause hearing before a neutral hearing officer. "Due 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].) Appellant claims that the hearing officer (Senior Deputy Probation Officer Meza) was not "a neutral uninvolved entity qualified to provide a fair probable hearing." We reject the argument because Meza was not appellant's supervising probation officer and did not make the arrest or prepare the PRCS revocation report. The trial court correctly found that there was no Morrissey violation. (See Morrissey, supra, 408 U.S. at