People v. Schenk CA2/6

Filed 6/21/16 P. v. Schenk CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B267150 (Super. Ct. No. 2014020107) Plaintiff and Respondent, (Ventura County)

v.

MYCHAL LLORENCE SCHENK,

Defendant and Appellant.

Mychal Llorence Schenk appeals from judgment after an order revoking his postrelease community supervision (PRCS). (Pen. Code, § 3450 et seq.)1 He contends the revocation procedures employed by Ventura County violated his right to due process because he did not have a Morrissey-compliant2 probable cause hearing before the court within 15 days of arrest. He seeks an order reversing the trial court’s denial of his motion to dismiss. We affirm. FACTUAL BACKGROUND In 2014, Schenk was convicted after plea of guilty to entering a custodial facility as a former convict without consent (§ 4571) and misdemeanor vandalism (§ 594, subd. (a)(2)). He also admitted a prior conviction within the meaning of the three strikes law and a prior prison term (§ 667.5, subd. (b)). He was sentenced to a prison term.

1 All statutory references are to the Penal Code unless otherwise stated. 2 Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey).

Schenk was released in 2015 on PRCS following realignment. The Ventura County Probation Agency is his supervising agency. As a condition of release, he agreed to obey all laws and not consume or possess alcohol. He also agreed the probation agency could, without a court hearing, order “flash incarceration” in a county jail for up to 10 days if he violated the conditions of release. (§ 3453, subd. (q).) In August 2015,3 Schenk was arrested for extreme alcohol intoxication after threatening physical violence. He was taken into custody on August 8. On August 12, Senior Deputy Probation Officer Venessa Meza met with Schenk. Meza conducted an administrative probable cause hearing, and concluded there was probable cause to believe that Schenk violated the terms of PRCS. She advised Schenk of his right to be represented by an attorney. He requested a formal revocation hearing. On August 18, the probation agency filed a revocation petition. The hearing was set for August 27. On the date of the hearing, Schenk moved (through counsel) to dismiss the petition for revocation and for release based upon an alleged violation of due process. He argued he was entitled to arraignment before a court within 10 days of arrest and a probable cause hearing before a court within 15 days of arrest. The trial court denied Schenk’s motion to dismiss and heard the revocation petition. Schenk submitted on the probation officer’s report. The trial court found him in violation of PRCS and ordered him to serve a jail sentence. DISCUSSION Due Process Requirements Revocation of supervised release deprives a person of a conditional liberty interest, and may only be had with due process protections. (Morrissey, supra, 408 U.S. at p. 482 [parole revocation]; People v. Vickers (1972) 8 Cal.3d 451, 458 (Vickers) [probation revocation].)