Filed 5/10/16 P. v. Kinkead 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B266588
                                                                          (Super. Ct. No. 2012023502)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

MICHAEL KINKEAD,

     Defendant and Appellant.



                   Michael Kinkead appeals the trial court’s order revoking his postrelease
community supervision (PRCS) and sentencing him to 180 days in county jail. Appellant
contends that the process employed to revoke his PRCS violated his constitutional right
to due process. We affirm.
                                      PROCEDURAL BACKGROUND
                   In August 2012, appellant pled guilty to one count of resisting an executive
officer (Pen. Code, § 69),1 and admitted a prior strike conviction allegation (§§ 667,
subds. (c)(1) & (e)(1), 1170.12, subds. (a)(1) & (c)(1)). He was sentenced to two years
eight months in state prison and was subsequently released on PRCS.
                   Appellant was arrested on June 4, 2015, for being under the influence of a
controlled substance (Health & Saf. Code, § 11550, subd. (a)) and for possessing drug


         1 All   further statutory references are to the Penal Code unless otherwise stated.
paraphernalia (Health & Saf. Code, § 11364). This was his fourth PRCS violation since
his release from state prison.
              The next day, the Ventura County Probation Agency (Probation Agency)
held an administrative probable cause hearing. Senior Deputy Probation Officer Venessa
Meza acted as the hearing officer. Appellant denied the allegations against him. Meza, a
probation officer not otherwise connected to appellant’s arrest, determined that there was
probable cause to revoke appellant’s PRCS. She suggested a disposition that he serve
150 days in custody with credit for 29 days served.
              Appellant invoked his right to a judicial revocation hearing and requested
counsel. On June 12, 2015, the Probation Agency filed a petition to revoke appellant’s
PRCS. A hearing on the petition was held before Judge Donald D. Coleman on July 2,
2015. Citing Williams v. Superior Court (2014) 230 Cal.App.4th 636 (Williams),
appellant’s attorney moved to dismiss the petition on the ground that the PRCS
revocation process violated appellant’s due process rights because he did not receive an
arraignment date within 10 days of his arrest and did not receive a probable cause hearing
within 15 days of his arrest. The trial court denied the motion, finding that parole
revocation and PRCS revocation processes are different, and that due process protections
are safeguarded in the PRCS revocation process by compliance with sections 1203.2 and
3455. It further found that the Probation Agency had conducted a probable cause hearing
consistent with Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey) standards.
Appellant submitted without presenting any evidence or argument. The court found
appellant in violation of PRCS and ordered him to serve 180 days in county jail (with
total credit of 58 days).
                                      DISCUSSION
                                         PRCS Act
              PRCS was created as an alternative to parole for nonserious and nonviolent
felons. (§ 3450 et seq.) PRCS and traditional parole are similar yet not identical. A
person who qualifies for PRCS may be supervised for up to three years following his or
her release from prison. (§ 3451, subd. (a).) Supervision is conducted by a county

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agency, such as the Probation Agency, rather than the Department of Corrections and
Rehabilitation. (Ibid.; People v. Gutierrez (2016) 245 Cal.App.4th 393, 399 (Gutierrez).)
Individuals who violate the conditions of PRCS may be subject to sanctions including,
flash incarceration in a city or county jail, but may not be returned to state prison.
(§§ 3454, subd. (b), 3458; Gutierrez, at p. 399.)
              Suspected violations of PRCS are treated differently than suspected
violations of traditional parole. A traditional parolee alleged to have violated the terms of
his or her release is arrested and brought “before the court” (§ 1203.2, subd. (a)), while a
person subject to PRCS is arrested and brought “before the supervising county agency”
(§ 3455, subd. (b)(1)). If the supervising agency determines that intermediate sanctions
are inappropriate, it “shall petition the court pursuant to [s]ection 1203.2 to revoke,
modify, or terminate” PRCS. (§ 3455, subd. (a).) The petition must include a report
from the supervising agency that explains “the relevant terms and conditions of [PRCS],
the circumstances of the alleged underlying violation, the history and background of the
violator, and any recommendations.” (Ibid.; Cal. Rules of Court, rule 4.541(c);
Gutierrez, supra, 245 Cal.App.4th at p. 400.)
              A person charged with violating PRCS is entitled to notice of a petition for
revocation. (§ 1203.2, subd. (b)(1).) The person may waive a formal hearing and agree
to modifications of his or her PRCS conditions. Absent a waiver, the court holds a
formal hearing at which the supervised person is entitled to be represented by counsel.
(§ 1203.2, subd. (b)(2).) The hearing “shall be held within a reasonable time after the
filing of the revocation petition.” (§ 3455, subd. (c); Gutierrez, supra, 245 Cal.App.4th
at p. 400.) In conducting the hearing, the court must review and consider the probation
officer’s report to determine whether the alleged violations occurred and if so, whether to
revoke or terminate PRCS. (§ 1203.2, subd. (b)(1); Gutierrez, at p. 400.)
                                        Due Process
              Relying primarily on Williams, supra, 230 Cal.App.4th 636, appellant
contends the trial court erred in denying his motion to dismiss the petition to revoke his
PRCS because the Probation Agency violated his right to due process by failing to

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arraign him within 10 days of his arrest and to provide a probable cause hearing within 15
days of his arrest. He further contends his due process rights were violated because he
did not receive access to counsel during the probable cause hearing, he did not receive a
judicial determination of probable cause, the probation officer prematurely tried to obtain
a waiver of his rights to a revocation hearing and to counsel, and the probation officer
was not a neutral uninvolved entity qualified to provide a fair probable cause finding.
We reject each of these contentions.
               Morrissey sets forth the basic due process protections for parole revocation
proceedings. (Morrissey, supra, 408 U.S. at p. 481.) The minimum requirements include
“(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of
evidence against him; (c) opportunity to be heard in person and to present witnesses and
documentary evidence; (d) the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for not allowing confrontation);
(e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of
which need not be judicial officers or lawyers; and (f) a written statement by the
factfinders as to the evidence relied on and reasons for revoking parole.” (Id. at p. 489.)
               People v. Vickers (1972) 8 Cal.3d 451 (Vickers) extended Morrissey due
process protections to probation revocations, but “held that probation revocation
proceedings need not be identical to parole revocation procedures, so long as equivalent
safeguards are in place to assure that a probationer is not arbitrarily deprived of his or her
liberty for a significant period of time.” (Gutierrez, supra, 245 Cal.App.4th at p. 401,
citing Vickers, at p. 458.) “Once taken into custody . . . due process requires that [the
probationer] be accorded both preliminary and formal hearings which conform to
Morrissey standards.” (Vickers, at p. 460.) The probationer is also entitled to legal
representation “by retained or appointed counsel at all revocation proceedings other than
at summary proceedings had while the probationer remains at liberty after absconding.”
(Id. at p. 461.)
               In Gutierrez, the appellant was arrested for a PRCS violation and, as in this
case, given an informal probable cause hearing before a probation officer. (Gutierrez,

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supra, 245 Cal.App.4th at p. 398.) We rejected his argument that he was deprived of due
process because he was not promptly arraigned or given a probable cause hearing before
a neutral decision maker. We concluded that “Morrissey requires only an informal
hearing to determine whether reasonable grounds exist for the revocation of PRCS,
conducted by ‘someone not directly involved in the case.’ [Citation.]” (Gutierrez, at p.
402; see People v. Coleman (1975) 13 Cal.3d 867, 894-895.) Those standards were
satisfied because there was no evidence that the probation officer who conducted the
appellant’s probable cause hearing was involved in his arrest. (Gutierrez, at p. 402.)
              We further determined that Williams, supra, 230 Cal.App.4th 636, “is
distinguishable because it involved the revocation of parole, not PRCS.” (Gutierrez,
supra, 245 Cal.App.4th at p. 402.) “The Williams court was concerned that a parolee not
be held in custody indefinitely before that initial court hearing. It imposed the 10-day
arraignment requirement to insure that parolees would be held in custody for no longer
than the statutory flash incarceration period [citation], without appearing in court.
[Citation.]”2 (Id. at p. 403.) We did not address whether this requirement applies in
PRCS revocation proceedings because the “appellant fail[ed] to demonstrate he was
prejudiced by the fact he did not appear in court within 10 days of arrest.” (Ibid.; see In
re La Croix (1974) 12 Cal.3d 146, 154.)
              As in Gutierrez, we conclude appellant’s PRCS was revoked in accordance
with statutory requirements. Appellant had an informal probable cause hearing the day
after he was arrested. The record indicates that he was present and that the hearing took
place before an officer other than the probation officer who arrested him or who directly
supervised him. The hearing officer recounted the evidence upon which the finding of
probable cause was based, and another probation officer recommended revocation of
appellant’s PRCS. This comported with due process. (See Morrissey, supra, 408 U.S. at


       2 We   note that another court has rejected the conclusion in Williams that due
process requires a probable cause hearing of a parole revocation charge within 15 days of
arrest, and that our Supreme Court has granted review. (People v. DeLeon (2015) 241
Cal.App.4th 1059, 1071-1072 (review granted Feb. 3, 2016, S230906).)
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p. 486 [“It will be sufficient . . . in the parole revocation context, if an evaluation of
whether reasonable cause exists to believe that conditions of parole have been violated is
made by someone such as a parole officer other than the one who has made the report of
parole violations or has recommended revocation”].) Appellant has not demonstrated
that he had a right to counsel during the informal probable cause hearing, and his
argument that the hearing officer prematurely tried to obtain a waiver of his rights to a
revocation hearing and to counsel is immaterial given that appellant did not waive those
rights.
                                           Prejudice
              Even if appellant could establish error, his claim would fail. “[A] parolee
whose parole has been revoked after a properly conducted revocation hearing is not
entitled to have the revocation set aside unless it appears that the failure to accord him a
prerevocation hearing resulted in prejudice to him at the revocation hearing.” (In re La
Croix, supra, 12 Cal.3d at p. 154.) Appellant makes no such showing. He was provided
a timely revocation hearing with all the required procedural protections. He was
represented by counsel and given the opportunity to challenge the allegations set forth in
the revocation petition. When the matter was called for hearing, however, appellant
submitted without presenting any evidence or argument. Moreover, the evidence of a
violation of his PRCS was overwhelming. He was arrested for being under the influence
of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) and for possession of
drug paraphernalia (Health & Saf. Code, § 11364). Any error arising from deficiencies in
the prerevocation proceedings was thus harmless beyond a reasonable doubt. (In re La
Croix, at p. 155.) And because appellant already has served the custodial sanction (180
days in county jail), “there is nothing for us to remedy, even if we were disposed to do
so.” (Spencer v. Kemna (1998) 523 U.S. 1, 18.)




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                                   DISPOSITION
             The judgment (order granting petition to revoke PRCS) is affirmed.
             NOT TO BE PUBLISHED.


                                        PERREN, J.
We concur:



             GILBERT, P. J.



             YEGAN, J.




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                              Donald D. Coleman, Judge


                           Superior Court County of Ventura

                         ______________________________

             Jolene Larimore, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, and Connie H. Kan, Deputy
Attorney General, for Plaintiff and Respondent.




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