People v. Powell CA2/6

Filed 5/23/16 P. v. Powell CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B267097 (Super. Ct. No. 2014028568) Plaintiff and Respondent, (Ventura County)

v.

DRUE GENE POWELL,

Defendant and Appellant.

Drue Gene Powell was subject to postrelease community supervision (PRCS) when he was arrested. (Pen. Code, § 3451.) He had an informal probable cause hearing before a probation officer where he admitted his PRCS violations and waived his right to a revocation hearing. Subsequently, the trial court found him in violation of PRCS after his counsel at a new hearing "submit[ted]" on the admissions Powell made at the probable cause hearing. Powell contends, among other things, that the trial court erred because the PRCS revocation process violates his right to due process. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2014, Powell was convicted of evading an officer. (Veh. Code, § 2800.2, subd. (a).) He was sentenced to 16 months in state prison. On May 28, 2015, Powell was released on PRCS. On July 14, 2015, Powell was arrested.

On July 16, 2015, a probable cause hearing was held before Probation Officer Venessa Meza. Meza found probable cause for finding Powell violated his PRCS conditions. Powell waived his right to counsel, admitted the violations, and agreed to a period of confinement for 90 days. On July 16, 2015, the trial court held a hearing. Meza appeared and told the court that Powell had agreed to a custodial sanction. The court ordered Powell to be held in jail for a "Flash Incarceration" for violating his PRCS terms. It also found that Powell had "agreed to a 90-day sentence." The court told Powell, "You will get halftime for all the time you're serving, so you get 90 days actual. It's going to be 45 days." Powell responded, "Okay. Thank you." The court indicated that the Ventura County Probation Agency should file a petition for revocation of PRCS. On July 24, 2015, the Ventura County Probation Agency filed a petition to revoke PRCS. Powell's counsel filed a motion to dismiss the petition claiming the PRCS procedure violated his right to due process of law. Powell relied on Williams v. Superior Court (2014) 230 Cal.App.4th 636 (Williams) and claimed he did not receive a probable cause hearing in compliance with Morrissey v. Brewer (1972) 408 U.S. 472 (Morrissey.) On July 30, 2015, the trial court denied the motion and found the PRCS procedure Powell received complied with his "due process rights" and Morrissey standards. At the hearing Powell's counsel told the trial court, "Mr. Powell previously signed a revocation for 90 days with probation. We've spoken with the court regarding that. I'll submit on his previous signature and revocation filed by probation." (Italics added.) The trial court found Powell had "waived his rights and admitted the violation." It approved the 90-day custodial sanction. DISCUSSION Powell contends, among other things, that: 1) the process used to revoke his PRCS violated his right to due process, 2) he did not have a probable cause hearing that complied with Morrissey standards, 3) the PRCS process undercuts the will of the electorate when it passed Proposition 9, 4) the procedure used by the probation officer at