People v. Moreno CA2/6

Filed 5/19/16 P. v. Moreno CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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. B265859 (Super. Ct. No. LA068449) Plaintiff and Respondent, (Ventura County)

v.

NELSON MORENO,

Defendant and Appellant.

Nelson Moreno appeals an order revoking his Post Release Community 1 Supervision (PRCS; Pen. Code, § 3450 et seq), entered after he admitted violating PRCS and agreed to serve 180 days county jail. (§ 3455, subd. (a).) The trial court denied appellant's request to reduce the confinement period to 150 days county jail. We affirm. Buyer's remorse is not grounds for vacating a written waiver of a PRCS revocation hearing. (See e.g., In re Vargas (2000) 83 Cal.App.4th 1125, 1143-1144.) Facts and Procedural History In 2011, appellant was sentenced to three years state prison for felony grand theft auto with a prior. (§ 666.5.) Appellant was released in 2013 and placed on PRCS supervision with drug terms.

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

On May 9, 2015, appellant was arrested for not reporting to his supervising officer after he was released from custody on another matter. A probable cause hearing was conducted two days later on May 11, 2015. The administrative hearing officer determined there was probable cause that appellant had violated his PRCS terms and advised appellant that the Ventura County Probation Agency was recommending 180 days county jail. (§ 3455, subd. (a).) Appellant admitted violating PRCS, agreed to serve 180 days jail, and waived in writing his right to counsel and a formal revocation hearing. On June 4, 2015 the superior court was asked to approve the petition revoking PRCS. 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 court denied the motion, appellant asked the court to "modify" the waiver because 180 days jail "seems to be a little harsh." Appellant said that "I shouldn't have signed" the waiver and "I disagree with my signature." The trial court sustained the petition and ordered appellant to serve 180 days county jail as agreed to. Appellant asked, "Can you do . . . 150?" Appellant was ordered to serve 180 days with 54 days credit. Voluntary Waiver Appellant contends that the written waiver was not voluntary and that he did not relinquish his right to a formal revocation hearing. (Johnson v. Zerbst (1938) 304 U.S. 458, 464 [82 L.Ed. 1461, 1466]; People v. Panizzon (1996) 13 Cal.4th 68, 80 [voluntariness of waiver is reviewed de novo].) Appellant argues that supervising agencies need guidance on when a PRCS revocation waiver is knowing and voluntary. (See e.g., People v. Armogeda (2015) 233 Cal.App.4th 428, 433.) Under the Postrelease Community Supervision Act of 2011, violation of PRCS can result in immediate sanctions including flash incarceration up to 10 days. (§ 3454, subd. (b).) If the supervising county agency determines that intermediate sanctions are not appropriate, it "shall petition the court pursuant to Section 1203.2 to revoke, modify, or terminate postrelease community supervision." (§ 3455, subd. (a).)