People v. Tanner CA2/6

Filed 6/20/16 P. v. Tanner CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B267474 (Super. Ct. No. 2011040562) Plaintiff and Respondent, (Ventura County)

v.

LELAND EDWARD TANNER,

Defendant and Appellant.

Leland Edward Tanner appeals from an order revoking his postrelease community supervision (PRCS) and confining him in the county jail for 180 days. Appellant contends that the revocation proceedings violated his due process rights. We affirm. Procedural Background In October 2012 appellant pleaded guilty to possession of a firearm by a convicted felon. (Former Pen. Code § 12021, subd. (a)(1), enacted in 2010, and replaced by new Pen. Code § 29800, subd. (a)(1), Stats. 2010, ch. 711, §6 (SB1080).)1 The trial court found true one prior prison term enhancement. (§ 667.5, subd. (b).) It sentenced appellant to prison for four years.

1 Unless otherwise stated, all statutory references are to the Penal Code.

In January 2014 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 August 3, 2015, he was arrested for and charged with resisting a peace or public officer in violation of section 148, subdivision (a)(1). From May 8, 2015, until his arrest, he "failed to report to the probation office and his whereabouts remained unknown." On August 5, 2015, two days after his arrest, Senior Deputy Probation Officer Jennifer Souza found that probable cause existed to believe that appellant had violated PRCS. Appellant was in custody and not represented by counsel at the probable cause hearing. He "declined to answer any questions or make any statement." In his opening brief appellant alleges: "Officer Souza would have presented to appellant a five page document entitled 'Post Release Community Supervision Advisement of Rights and Acknowledgment Revocations.' The document appears to be a standard document presented in all of the cases involving community supervision after an alleged violation of supervision terms." The record on appeal, however, does not include this document. After the probable cause hearing, Deputy Probation Officer Eric Sanders wrote a report. Sanders did not state what rights, if any, appellant had been informed of or waived, except that he had been advised of his right to counsel at the revocation hearing. Nor did Sanders state that appellant had been given notice of the claimed violations of PRCS. On August 6, 2015, the Probation Agency filed a petition for revocation of PRCS. A court hearing on the petition was set for August 20, 2015, 17 days after appellant's arrest. On the date of the hearing, appellant's counsel filed a request to dismiss the petition. Counsel alleged: "[T]he postrelease supervision revocation process violates [appellant's] procedural due process rights by not providing for an arraignment date 10 days from his arrest, and a probable cause hearing 15 days from his arrest." On August 20, 2015, the trial court denied the request for a dismissal. That same day, appellant submitted the matter on the allegations in the petition for revocation