P. v. .Mendez CA2/6

Filed 8/16/16 P. v .Mendez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.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. B267304 (Super. Ct. No. 2014008867) Plaintiff and Respondent, (Ventura County) v. MARIO MENDEZ, Defendant and Appellant.

Mario Mendez appeals an order revoking his Post Release Community 1 Supervision (PRCS; Pen. Code, § 3450 et seq.) and committing him to 130 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 January 9, 2015, appellant pled guilty to attempted second degree burglary (§§ 664/459) and admitted a prior strike (§ 1170, subd. (h)(3)) and a prior prison term enhancement (§ 667.5, subd. (b)). The trial court struck the prior strike and prior prison enhancement, and sentenced appellant to 16 months state prison. On February 10, 2015, appellant was released from prison and placed on PRCS.

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

On August 9, 2015, appellant was arrested for failing to report to probation, traveling more than 50 miles away from his residence without prior approval, domestic violence, fleeing from an arresting officer, and violating drug-related PRCS terms. On August 11, 2015, Senior Deputy Probation Officer Michelle Larson 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 180 days county jail. Appellant refused the waiver offer and requested a formal revocation hearing. On August 17, 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 the trial court found appellant in violation of PRCS. Appellant was ordered to serve 130 days county jail with 38 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. We follow our own precedent. The trial court did not err in denying the motion to dismiss. Appellant contends that his due process rights were violated because the probable cause hearing resembled a pro forma, ex-parte hearing to solicit a waiver of