People v. Cervantes CA2/6

Filed 6/23/16 P. v. Cervantes CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B267116 (Super. Ct. No. 2012034793) Plaintiff and Respondent, (Ventura County)

v.

DOMINGO CERVANTES,

Defendant and Appellant.

Domingo Cervantes appeals an order revoking his postrelease community supervision status ("PRCS"), and ordering him to serve 160 days confinement in county jail. (Pen. Code, § 3450 et seq. ["Postrelease Community Supervision Act of 2011"].)1 We affirm. FACTUAL AND PROCEDURAL HISTORY On November 9, 2012, Cervantes pleaded guilty to misdemeanor street terrorism (count 1), possession of a firearm by a felon (count 2), and resisting a police officer (count 3). (§§ 186.22, subd. (a), 29800, subd. (a)(1), 148, subd. (a)(1).) Cervantes also admitted suffering a prior serious felony and strike conviction and serving two prior prison terms. (§§ 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) As part of a plea agreement, the trial court struck the prior serious felony and strike conviction and prison term allegations. It then sentenced Cervantes to a

1 All statutory references are to the Penal Code unless stated otherwise.

midterm two-year prison term for count 2, and 90 days confinement in county jail, to be served concurrently to count 2, for each of the remaining counts. The court imposed a $600 restitution fine, a $600 parole revocation restitution fine (suspended), a $40 court security assessment, and a $30 criminal conviction assessment. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.) It also awarded Cervantes 160 days of presentence custody credit. On February 26, 2014, the Department of Corrections and Rehabilitation released Cervantes into the PRCS program. On July 15, 2015, Cervantes was arraigned on a warrant for violating the terms of his PRCS program. This PRCS violation, his sixth, involved his failure to attend residential drug treatment and submit to drug testing, among other things. On July 15, 2015, Senior Deputy Probation Officer Venessa Meza advised Cervantes of the alleged violations, conducted an administrative probable cause hearing, and determined that there was probable cause to believe that he had violated his PRCS terms. Meza advised Cervantes of his right to counsel and right to a formal revocation hearing and that she was recommending that he serve 180 days confinement in county jail. Cervantes denied committing the violations, declined to accept Meza's recommendation, and demanded a formal revocation hearing. On July 22, 2015, the Ventura County Probation Agency filed a PRCS revocation petition, alleging that Cervantes failed to: 1) participate in drug rehabilitation; 2) report to probation within 48 hours of leaving the drug rehabilitation program; 3) maintain a residence approved by the probation officer; 4) submit to drug testing; and 5) actively participate in substance abuse treatment. (§ 3455.) On July 24, 2015, Cervantes filed a motion to dismiss the petition pursuant to Morrissey v. Brewer (1972) 408 U.S. 471, Williams v. Superior Court (2014) 230 Cal.App.4th 636, and constitutional principles of due process of law. The trial court denied the motion. On July 30, 2015, Cervantes submitted on the allegations in the revocation petition. The court found the allegations true, revoked Cervantes's PRCS status, and ordered him to serve 160 days confinement in county jail, with credit for 34 days served.