People v. Kinkead CA2/6

Filed 5/10/16 P. v. Kinkead CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B266588 (Super. Ct. No. 2012023502) Plaintiff and Respondent, (Ventura County)

v.

MICHAEL KINKEAD,

Defendant and Appellant.

Michael Kinkead appeals the trial court’s order revoking his postrelease community supervision (PRCS) and sentencing him to 180 days in county jail. Appellant contends that the process employed to revoke his PRCS violated his constitutional right to due process. We affirm. PROCEDURAL BACKGROUND In August 2012, appellant pled guilty to one count of resisting an executive officer (Pen. Code, § 69),1 and admitted a prior strike conviction allegation (§§ 667, subds. (c)(1) & (e)(1), 1170.12, subds. (a)(1) & (c)(1)). He was sentenced to two years eight months in state prison and was subsequently released on PRCS. Appellant was arrested on June 4, 2015, for being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) and for possessing drug

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

paraphernalia (Health & Saf. Code, § 11364). This was his fourth PRCS violation since his release from state prison. The next day, the Ventura County Probation Agency (Probation Agency) held an administrative probable cause hearing. Senior Deputy Probation Officer Venessa Meza acted as the hearing officer. Appellant denied the allegations against him. Meza, a probation officer not otherwise connected to appellant’s arrest, determined that there was probable cause to revoke appellant’s PRCS. She suggested a disposition that he serve 150 days in custody with credit for 29 days served. Appellant invoked his right to a judicial revocation hearing and requested counsel. On June 12, 2015, the Probation Agency filed a petition to revoke appellant’s PRCS. A hearing on the petition was held before Judge Donald D. Coleman on July 2, 2015. Citing Williams v. Superior Court (2014) 230 Cal.App.4th 636 (Williams), appellant’s attorney moved to dismiss the petition on the ground that the PRCS revocation process violated appellant’s due process rights because he did not receive an arraignment date within 10 days of his arrest and did not receive a probable cause hearing within 15 days of his arrest. The trial court denied the motion, finding that parole revocation and PRCS revocation processes are different, and that due process protections are safeguarded in the PRCS revocation process by compliance with sections 1203.2 and 3455. It further found that the Probation Agency had conducted a probable cause hearing consistent with Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey) standards. Appellant submitted without presenting any evidence or argument. The court found appellant in violation of PRCS and ordered him to serve 180 days in county jail (with total credit of 58 days). DISCUSSION PRCS Act PRCS was created as an alternative to parole for nonserious and nonviolent felons. (§ 3450 et seq.) PRCS and traditional parole are similar yet not identical. A person who qualifies for PRCS may be supervised for up to three years following his or her release from prison. (§ 3451, subd. (a).) Supervision is conducted by a county