People v. Fryman CA2/6

Filed 7/18/16 P. v. Fryman CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B265479 (Super. Ct. No. 2010038802) Plaintiff and Respondent, (Ventura County) v. DOUGLAS FRYMAN, Defendant and Appellant.

Douglas Fryman appeals an order revoking his Post Release Community 1 Supervision (PRCS; Pen. Code, § 3450 et seq.) and committing him to 120 days county jail. (§ 3455, subd. (d).) Appellant contends that his due process rights were violated because he was not provided a Morrissey-compliant probable cause hearing (Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484] (Morrissey).) We affirm. Facts and Procedural History On February 4, 2011, appellant pled guilty to failing to update his sex offender registration (§ 290.012, subd. (a)) and was sentenced to 16 months state prison. Appellant was released from state prison and placed on PRCS on December 24, 2011. Appellant violated PRCS 12 times and served three flash incarcerations for failure to obey all laws, failure to report to probation, failure to drug test, failure to report for random testing, drug use, failure to register as a sex offender, failure to attend

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

treatment/counseling as directed by probation, changing residences without notifying probation, and possession of a weapon. On May 3, 2015, appellant was arrested for not reporting to probation on a weekly basis, not maintaining a residence approved by probation, not maintaining regular employment, not submitting to drug testing, and not actively participating in substance abuse treatment as directed by probation. On May 4, 2015, Senior Deputy Probation Officer Venessa Meza advised appellant of the alleged PRCS violations, conducted a probable cause hearing, and determined there was probable cause that appellant had violated his PRCS terms. (§ 3455, subd. (a).) Appellant was advised of his right to counsel and right to a formal revocation hearing, and that Ventura County Probation Agency recommended 150 days county jail. Appellant felt that 150 days "is just too much time," rejected the waiver offer, and requested a formal revocation hearing. On May 6, 2015, Ventura County Probation Agency filed a PRCS revocation petition. (§ 3455, subd. (a).) Appellant appeared with counsel and made a Williams motion (Williams v. Superior Court (2014) 230 Cal.App.4th 636) to dismiss the petition on due process grounds. After the trial court denied the motion, appellant submitted on the petition and was ordered to serve 120 days county jail with 52 days credit. Discussion Appellant argues that his procedural due process rights were violated because he did not receive a Morrissey-compliant probable cause hearing. The PRCS revocation procedures here utilized are consistent with constitutional, statutory, and decisional law. These procedures do not violate concepts of equal protection or due process of law. We so held in People v. Gutierrez (2016) 245 Cal.App.4th 393 and People v. Byron (2016) 246 Cal.App.4th 1009 (petition for review filed May 24 2016, S234734). We follow our own precedent. The trial court did not err in denying the motion to dismiss.