People v. Lopez CA2/6

Filed 7/27/16 P. v. Lopez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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. B266399 (Super. Ct. No. 2012005480) Plaintiff and Respondent, (Ventura County) v. RONALD LOPEZ, Defendant and Appellant.

Ronald Lopez appeals from an order approving a written waiver in which he admitted violating postrelease community supervision (PRCS) (Pen. Code, § 3450 et seq.),1 and agreed to serve 180 days in county jail. (§§ 3455, subd. (a), 1203.2, subd. (b)(1).) Appellant contends the waiver must be set aside because he was not advised of his right to counsel or provided a Morrissey-compliant2 probable cause hearing. He also contends the waiver was not voluntary. We affirm. FACTS AND PROCEDURAL HISTORY In March 2012, appellant pled guilty to willfully evading a police officer (Veh. Code, § 2800.2, subd. (a)) and admitted two of eight prior prison term allegations. He was sentenced to the midterm of two years, plus two years pursuant to section 667.5,

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

2 Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey).

subdivision (b), for a total term of four years. He was released on PRCS approximately two years later. On April 17, 2014, the Ventura County Probation Agency (Agency) obtained a bench warrant after appellant failed to report for an office visit. When police officers went to appellant’s home to execute the warrant, appellant attempted to drive away and was arrested for resisting arrest. (§ 148, subd. (a)(1).) On May 11, 2015, appellant appeared for arraignment on the bench warrant. The trial court discharged the warrant and ordered appellant to report to his probation officer. That evening, Senior Deputy Probation Officer Venessa Meza visited appellant in jail and conducted a probable cause hearing in which she informed him of his alleged PRCS violations, i.e., failure to report, use of narcotics and failure to participate in a treatment program. After Meza advised appellant of his rights, appellant signed a Post Release Community Supervision Advisement of Rights and Acknowledgment Revocation (hereinafter “PROS waiver” or “waiver”) stating that he understood his rights, waived those rights and accepted the proposed modification of a 180-day jail sentence. On May 19, 2015, the Agency filed a revocation petition pursuant to section 3455. Appellant responded by filing a request to vacate the PROS waiver. He argued that the waiver was not voluntary and that his due process rights were violated. On June 22, 2015, the trial court held an evidentiary hearing on appellant’s request to vacate the PROS waiver. The trial court denied the request, finding that appellant’s testimony was not credible. Consistent with the waiver, it found appellant in violation of his PRCS conditions and sentenced him to 180 days in county jail with 90 days credit. The court subsequently released appellant for substance abuse treatment. DISCUSSION Voluntary Waiver Appellant contends that the PROS waiver was not voluntary and that he did not relinquish his right to a formal revocation hearing. (See Johnson v. Zerbst (1938)