Filed 6/21/16 P. v. Schenk 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B267150
                                                                          (Super. Ct. No. 2014020107)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

MYCHAL LLORENCE SCHENK,

     Defendant and Appellant.



                   Mychal Llorence Schenk 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. He seeks an order reversing the trial court’s denial of his motion
to dismiss. We affirm.
                                         FACTUAL BACKGROUND
                   In 2014, Schenk was convicted after plea of guilty to entering a custodial
facility as a former convict without consent (§ 4571) and misdemeanor vandalism (§ 594,
subd. (a)(2)). He also admitted a prior conviction within the meaning of the three strikes
law and a prior prison term (§ 667.5, subd. (b)). He was sentenced to a prison term.

         1 All   statutory references are to the Penal Code unless otherwise stated.
         2 Morrissey    v. Brewer (1972) 408 U.S. 471 (Morrissey).
                Schenk was released in 2015 on PRCS following realignment. The Ventura
County Probation Agency is his supervising agency. As a condition of release, he agreed
to obey all laws and not consume or possess alcohol. He also agreed the probation
agency could, without a court hearing, order “flash incarceration” in a county jail for up
to 10 days if he violated the conditions of release. (§ 3453, subd. (q).)
                In August 2015,3 Schenk was arrested for extreme alcohol intoxication after
threatening physical violence. He was taken into custody on August 8.
                On August 12, Senior Deputy Probation Officer Venessa Meza met with
Schenk. Meza conducted an administrative probable cause hearing, and concluded there
was probable cause to believe that Schenk violated the terms of PRCS. She advised
Schenk of his right to be represented by an attorney. He requested a formal revocation
hearing.
                On August 18, the probation agency filed a revocation petition. The
hearing was set for August 27. On the date of the hearing, Schenk moved (through
counsel) to dismiss the petition for revocation and for release based upon an alleged
violation of due process. He argued he was entitled to arraignment before a court within
10 days of arrest and a probable cause hearing before a court within 15 days of arrest.
                The trial court denied Schenk’s motion to dismiss and heard the revocation
petition. Schenk 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].)




       3 All   future dates are in the year 2015.
                                                2
              To conform to due process, revocation of conditional release requires a
two-step process: (1) an initial determination of probable cause to justify temporary
detention; and (2) a formal revocation hearing to determine whether the facts warrant
revocation. (Morrissey, supra, 408 U.S. at p. 485; Vickers, supra, 8 Cal.3d at p. 456.) It
is undisputed that the formal revocation hearing complied with Morrissey and Vickers in
this case.
                               The Probable Cause Hearing
              The probable cause determination is a “minimal inquiry,” made near the
place of arrest “as promptly as convenient after arrest.” (Morrissey, supra, 408 U.S. at
p. 485.) It need not be made by a judicial officer; it may be made by any qualified person
“not directly involved in the case.” (Id. at pp. 485-486 [probable cause determination for
parole revocation may be made by a parole officer other than the officer who reports the
violation or recommends revocation]; Vickers, supra, 8 Cal.3d at pp. 456-457.) To
conform to due process, the probable cause determination must be preceded by notice of
the hearing and the alleged violations, and must provide an opportunity for the supervised
person to speak on his own behalf, present evidence, and question adverse witnesses.
(Morrissey, at pp. 485-486; Vickers, at pp. 456-457.) The officer who determines
probable cause must summarize what occurs at the hearing, but need not make formal
findings of fact and law. (Morrissey, at p. 487; Vickers, at p. 457.)
              Schenk complains that the probable cause hearing conducted by Meza was
“nothing more than a pro forma, ex-parte interview” which was “in effect, an early
disposition conference rather than a fact-finding hearing.” But these arguments advanced
on appeal were not made to the trial court. Arguments not raised below are forfeited.
(People v. Hartshorn (2012) 202 Cal.App.4th 1145, 1151.)
              In any event, we decline to exercise our discretion to review forfeited issues
because, as explained below, Schenk has failed to demonstrate prejudice in view of the
court’s findings at the formal revocation hearing. For the same reasons, we do not
address Schenk’s arguments regarding the effect of Proposition 9, the Victims’ Bill of
Rights Act of 2008: Marsy’s Law.

                                             3
                       Schenk Has Failed to Demonstrate Prejudice
              Schenk argues that his due process rights were violated at the probable
cause phase, prior to the formal revocation hearing. But the underlying problem with his
appeal is this: No matter what due process violation is claimed, he makes no showing of
prejudice at the formal revocation hearing. He submitted at the revocation hearing and
has now served his sentence.
              The denial of a Morrissey-compliant probable cause hearing does not
warrant reversal unless the violation results in prejudice at the revocation hearing. (In re
La Croix (1974) 12 Cal.3d 146, 154-155.) But Schenk makes no showing that any due
process defect prejudiced him or affected the outcome of the PRCS revocation hearing.
(In re Winn (1975) 13 Cal.3d 694, 698 [defendant has burden of showing prejudice];
In re Moore (1975) 45 Cal.App.3d 285, 294.) Because he was found in violation and has
served the custodial sanction “there is nothing for us to remedy, even if we were disposed
to do so.” (Spencer v. Kemna (1998) 523 U.S. 1, 18.)
                                      DISPOSITION
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                           TANGEMAN, J.

We concur:



              GILBERT, P. J.



              YEGAN, J.




                                             4
                                Donald D. Coleman, Judge

                           Superior Court County of Ventura

                          ______________________________


             Wayne C. Tobin, 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, Scott A. Taryle,
Supervising Deputy Attorney General, and David A. Wildman, Deputy Attorney General,
for Plaintiff and Respondent.
