People v. Stermer CA2/6

Filed 8/16/16 P. v. Stermer CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B267473 (Super. Ct. No. 2011015483) Plaintiff and Respondent, (Ventura County)

v.

RUDOLPH STERMER,

Defendant and Appellant.

Rudolph Stermer 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. We affirm. FACTUAL BACKGROUND In 2011, Stermer was convicted after plea of guilty to driving under the influence with prior convictions (Veh. Code, §§ 23152, subd. (a), 23550) and admission of a prison prior (§ 667, subd. (b)). He was sentenced to 16 months in prison. Stermer was released in 2012 on PRCS following realignment. The Ventura County Probation Agency is his supervising agency. As a condition of release,

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

he agreed to not consume alcohol. He also agreed the probation agency could, without a court hearing, order “flash incarceration” in the county jail for up to 10 days if he violated the conditions of his release. (§ 3453, subd. (q).) On August 13, 2015,3 Stermer admitted drinking alcohol on August 4 and 7. On August 20, he admitted drinking a “pint of vodka.” He tested positive and registered at .108 percent blood alcohol content. Stermer was taken into custody on August 20. On August 24, probation offered Stermer a six-month residential treatment program, which he declined. On the same day, Senior Deputy Probation Officer Venessa Meza met with Stermer. Meza advised him of his rights, including his right to counsel and a revocation hearing, and conducted an administrative probable cause hearing. Meza concluded there was probable cause to believe that he violated the terms of PRCS. Stermer refused to waive his rights and requested a formal revocation hearing. On September 2, the probation agency filed a revocation petition. The hearing was set for September 10. On the date of the hearing, Stermer moved (through counsel) to dismiss the petition for revocation and for release based upon an alleged violation of due process. The trial court denied Stermer’s motion to dismiss and heard the revocation petition. Stermer submitted on the probation officer’s report. The trial court found him in violation of PRCS and ordered him to serve a jail sentence. DISCUSSION Due Process Requirements Revocation of supervised release deprives a person of a conditional liberty interest, and may only be had with due process protections. (Morrissey, supra, 408 U.S. at p. 482 [parole revocation]; People v. Vickers (1972) 8 Cal.3d 451, 458 (Vickers) [probation revocation].)