People v. Diaz CA2/6

Filed 6/21/16 P. v. Diaz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B266973 (Super. Ct. No. 2013006994) Plaintiff and Respondent, (Ventura County)

v.

CHRISTOPHER DIAZ,

Defendant and Appellant.

Christopher Diaz 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 2013, Diaz was convicted after plea of guilty to stalking (§ 646.9, subd. (a)). The trial court granted formal probation. After he admitted violating probation, he was sentenced to prison in 2014.

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

Diaz was released in 2014 on PRCS following realignment. The Ventura County Probation Agency is his supervising agency. As a condition of release, he agreed to obey all laws, to report to probation as directed, to not use drugs or controlled substances, and to submit to drug testing. 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 his release. (§ 3453, subd. (q).) In June 2015,3 Diaz was released from jail after serving time for a PRCS violation. He did not report to probation or for drug testing after being released from jail. In July, he was arrested for possession of drugs and admitted using heroin that day. These acts collectively resulted in revocation proceedings for his third violation of PRCS in eight months. Diaz was taken into custody on July 3. On July 6, Diaz appeared in court with counsel. The next day, Senior Deputy Probation Officer Venessa Meza met with Diaz. Meza conducted an administrative probable cause hearing, and concluded there was probable cause to believe that Diaz violated the terms of PRCS. She advised Diaz of his right to be represented by an attorney. He requested a formal revocation hearing. On July 13, the probation agency filed a revocation petition. The hearing was set for July 23. On July 20, Diaz 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 Diaz’s motion to dismiss and heard the revocation petition. Diaz submitted on the probation officer’s report. The trial court found him in violation of PRCS and ordered him to serve a jail sentence.