People v. Nunez CA2/6

Filed 6/30/16 P. v. Nunez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B266772 (Super. Ct. No. 2013002710) Plaintiff and Respondent, (Ventura County)

v.

JULIAN ANTHONY NUNEZ,

Defendant and Appellant.

Julian Anthony Nunez was subject to postrelease community supervision (PRCS) when he was arrested. (Pen. Code, § 3451.)1 He had an informal probable cause hearing before a probation officer where he admitted his PRCS violations and waived his right to a revocation hearing. Subsequently, at a court hearing the trial court found him to be in violation of PRCS. Nunez acknowledged that he had been advised of his rights and that he waived them at the probable cause hearing. Nunez contends, among other things, that the trial court erred because the PRCS revocation process violates his right to due process. We affirm.

1 All statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND In 2013, Nunez pled guilty to carrying a concealed firearm (§ 25400, subd. (a)(2)) and receiving stolen property (§ 496, subd. (a)). He was released on formal probation for 48 months. Nunez's probation was revoked and he was ordered to serve 16 months in state prison. On May 29, 2014, Nunez was released on PRCS. On June 26, 2015, Nunez was arrested for violating his PRCS conditions. On June 30, 2015, at a probable cause hearing, Probation Officer Venessa Meza found Nunez violated his PRCS conditions. Nunez received and signed a PRCS “waivers of rights and admission form.” He waived his right to counsel and to a revocation hearing. He admitted the violations and agreed to a period of confinement for 150 days. On July 2, 2015, the Ventura County Probation Agency filed a petition for revocation. On July 15, 2015, Nunez filed a motion to dismiss the petition, claiming the PRCS procedure violated his right to due process of law. Nunez relied on Williams v. Superior Court (2014) 230 Cal.App.4th 636 (Williams) and claimed his probable cause hearing did not comply with Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey). On July 16, 2015, the trial court denied the motion and found the PRCS procedure Nunez received complied with his “due process rights.” On the same day, the trial court found Nunez violated his PRCS conditions. The court asked Nunez whether he had been advised of his rights, waived them and agreed to a 150-day custodial sanction. Nunez responded, “Correct.” The court ordered him to serve 150 days in county jail with a credit of 44 days. DISCUSSION Nunez contends, among other things, that 1) the revocation of his PRCS violated his right to due process, 2) he did not have a probable cause hearing that complied with Morrissey standards, 3) a 21-day delay before his first court hearing was unreasonable, 4) the procedure used by the probation officer at the probable cause