People v. Murdock CA2/6

Filed 5/31/16 P. v. Murdock 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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. B266855 (Super. Ct. No. 2012039191) Plaintiff and Respondent, (Ventura County) v. SHEA PATRICK MURDOCK, Defendant and Appellant.

Shea Patrick Murdock appeals an order revoking his postrelease 1 community supervision (PRCS). (Pen. Code, § 3450 et seq.) Appellant contends that 2 his due process rights were violated because he was not provided a Morrissey-compliant probable cause hearing. We affirm. FACTS AND PROCEDURAL HISTORY In May 2013, appellant pled guilty to possession of a firearm by a felon (§ 29800, subd. (a)(1)), and was sentenced to three years in state prison. He was released on PRCS in 2014. On June 22, 2015, appellant admitted to his probation officer that he had ingested "three Norcos" for which he did not have a prescription. After being advised that he would be drug tested, appellant replied, "I'm not gonna waste your time, I'm 1 All statutory references are to the Penal Code. 2 Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey).

dirty." On June 30, 2015, appellant was arrested after he admitted to owning a syringe and a digital scale and to using methamphetamine. Cocaine and a knife also were found in his residence. On July 1, 2015, Senior Deputy Probation Officer Venessa Meza advised appellant of the alleged PRCS violations, conducted a probable cause hearing, and determined there was probable cause that appellant had violated his PRCS terms. (§ 3455, subd. (a).) Appellant was advised of his right to counsel and right to a formal revocation hearing, and that Ventura County Probation Agency was recommending 90 days in county jail. Appellant rejected the recommendation, denied violating PRCS and requested appointment of counsel. On July 8, 2015, Ventura County Probation Agency filed a PRCS revocation petition. (§ 3455, subd. (a).) Appellant moved to dismiss the petition on due process grounds based on Williams v. Superior Court (2014) 230 Cal.App.4th 636 (Williams). The trial court denied the motion, found that appellant violated PRCS and ordered him to serve 90 days in county jail (with a total credit of 34 days). DISCUSSION Appellant argues that his procedural due process rights were violated because he did not receive a Morrissey-compliant probable cause hearing. The PRCS revocation procedures challenged here are consistent with constitutional, statutory and decisional law. These procedures do not violate concepts of equal protection or due process. We so held in People v. Gutierrez (2016) 245 Cal.App.4th 393, 401-405, and People v. Byron (2016) 246 Cal.App.4th 1009. We follow our own precedent. The trial court did not err in denying the motion to dismiss. Appellant contends his due process rights were violated because the probable cause hearing was not conducted by a neutral hearing officer and resembled an ex parte hearing to solicit a waiver of PRCS rights. The argument is without merit. The hearing officer (Meza) was not appellant's supervising probation officer and did not make the arrest or prepare the PRCS revocation report. (See Morrissey, supra, 408 U.S. at p. 485 [probable cause determination should be made by someone "not directly involved