People v. Cervantes CA2/6

Filed 5/31/16 P. v. Cervantes CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B265297 (Super. Ct. No. 2012034793) Plaintiff and Respondent, (Ventura County)

v.

DOMINGO CERVANTES,

Defendant and Appellant.

Domingo Cervantes 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. Subsequently, the trial court found him in violation of PRCS. Cervantes contends the trial court erred because the PRCS revocation process violates his rights to due process and equal protection. We affirm. FACTS In 2012, Cervantes was convicted of possessing a firearm by a felon. (Pen. Code, § 29800, subd. (a)(1).) He was sentenced to two years in state prison. He was released on PRCS. On March 26, 2015, Cervantes was arrested for violating the terms and conditions of his PRCS. He was arrested by police for obstructing and delaying a peace officer. (Pen. Code, § 148, subd. (a)(1).)

On March 27, 2015, a probable cause hearing was held before Probation Officer Venessa Meza. At that hearing, Cervantes said, among other things, that "[h]e is always violated for the 'same shit'" and that "he didn't report because he 'doesn't like to.'" Cervantes refused a "waiver offer and requested a formal Court hearing." Meza found probable cause for finding Cervantes violated his PRCS conditions. In the April 2, 2015, probation officer's written report for revocation of PRCS, the probation agency stated that Cervantes was advised of his right to counsel and "the public defender's office has been notified of this petition." It said, "[Cervantes] is before the Court for his 5th revocation of his Post Release Community Supervision case. Since his original release from CDCR, the offender has only reported to Probation on two separate occasions. He has made no measurable effort to comply with the simplest terms and conditions . . . ." The probation agency said that Cervantes's Penal Code section 148, subdivision (a)(1) offense "puts the offender's safety in jeopardy," as well as "the safety of peace officers and innocent civilians"; consequently, "custody time is warranted." On April 3, 2015, the Ventura County Probation Agency filed a petition for revocation of PRCS. On May 7, 2015, Cervantes's counsel filed a motion to dismiss the petition. Cervantes argued the revocation process violated his due process rights and cited Williams v. Superior Court (2014) 230 Cal.App.4th 636 (Williams). On May 8, 2015, the trial court held a hearing on that motion. The court ruled Williams, a parole revocation case, had no application to PRCS. It found probation had conducted a probable cause hearing consistent with Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey) standards and it denied the motion. On that same day, the trial court found Cervantes had violated his PRCS conditions. It ordered him to serve 180 days in the Ventura County jail with a total credit of 88 days. DISCUSSION Cervantes contends, among other things, that the process used to revoke his PRCS violated his right to due process because he was not promptly arraigned or given a