People v. Curry CA2/6

Filed 5/17/16 P. v. Curry CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B266589 (Super. Ct. No. 2012036853) Plaintiff and Respondent, (Ventura County)

v.

ROBERT JOSEPH CURRY III,

Defendant and Appellant.

Robert Joseph Curry III appeals from an order revoking his postrelease community supervision (PRCS) and confining him in the county jail for 130 days. Appellant contends that the revocation proceedings violated his due process rights because he was not provided a probable cause hearing that complied with Morrissey v. Brewer (1972) 408 U.S. 471 [92 S.Ct. 2593, 33 L.Ed.2d 484] (Morrissey). We affirm. Procedural Background In October 2012 appellant pleaded guilty to carrying a concealed dirk or dagger. (Pen. Code, § 21310.)1 He admitted two prior prison term enhancements. (§ 667.5, subd. (b).) The trial court struck the enhancements and sentenced him to prison for one year, four months.

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

In June 2013 appellant was released from prison to PRCS for a period not exceeding three years. His supervising county agency was the Ventura County Probation Agency (Probation Agency). On January 31, 2015, appellant was arrested for being drunk in a public place in violation of section 647, subdivision (f). At an administrative hearing conducted on February 2, 2015, Senior Deputy Probation Officer Meza found that probable cause existed to believe that appellant had violated PRCS. In an "Administrative Probable Cause Hearing" form, Meza listed numerous violations of PRCS. Appellant admitted the violations and agreed to serve 120 days in county jail, after which he would be returned to PRCS. Appellant signed an "Advisement of Rights and Acknowledgement" form in which he acknowledged that he had been informed of and understood specified rights. On June 16, 2015, appellant was again arrested for being drunk in a public place. (§ 647, subd. (f).) At an administrative hearing conducted on June 17, 2015, Meza found that probable cause existed to believe that appellant had violated PRCS. But unlike the hearing previously conducted on February 2, 2015, the record does not include an "Administrative Probable Cause Hearing" form completed by Meza. Nor does it include an "Advisement of Rights and Acknowledgement" form signed by appellant. On June 19, 2015, the Probation Agency filed a petition for the revocation of PRCS. A hearing on the petition was set for July 2, 2015, 16 days after appellant's arrest. On July 2, 2015, appellant's counsel filed a request to dismiss the petition. Counsel contended that his client's due process rights had been violated because (1) he had not been arraigned within 10 days of his arrest; and (2) within 15 days of his arrest, he had not been provided a probable cause hearing that complied with Morrissey, supra, 408 U.S. 471. The trial court denied the motion. Appellant submitted the matter on the allegations in the petition for revocation of PRCS. The court found the allegations true and concluded that appellant had violated the terms of PRCS. It ordered him to serve 130