Filed 5/24/16 P. v. Gonzales 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                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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. B265407
                                                                          (Super. Ct. No. 2012037929)
     Plaintiff and Respondent,                                                 (Ventura County)
v.
DANNY GONZALES,
     Defendant and Appellant.


                   Danny Gonzales appeals an order revoking his Post Release Community
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Supervision (PRCS). (Pen. Code, § 3450 et seq. ) Appellant contends that his due process
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rights were violated because he was not provided a Morrissey-compliant probable cause
hearing. We affirm.
                                  FACTS AND PROCEDURAL HISTORY
                   In 2012, appellant pled guilty in case No. 2012037929 to one misdemeanor
count of active participation in a criminal street gang (§ 186.22, subd. (a)) and one felony
count of reckless evasion of a peace officer (Veh. Code, § 2800.2, subd. (a)), and admitted
one prior serious felony conviction (§ 667, subds. (b)-(i)) and one prior prison term
(§ 667.5, subd. (b)). The trial court dismissed the serious felony conviction allegation and



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             All statutory references are to the Penal Code unless otherwise stated.
         2
             Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey).
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sentenced appellant to a total of two years four months in state prison. He was released on
PRCS in 2013.
              On May 11, 2015, appellant was arrested for possession of methamphetamine
and paraphernalia (Health & Saf. Code, §§ 11364, subd. (a), 11377, subd. (a)) and for
resisting a peace officer (§ 148, subd. (a)(1)). On May 13, 2015, Senior Deputy Probation
Officer Venessa Meza advised appellant of the allegations that he violated his PRCS terms
and conditions by committing the foregoing crimes and by failing to report to probation
within 48 hours of his most recent release from custody. Meza 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 was recommending
180 days in county jail. Appellant rejected the recommendation, denied violating his PRCS
and requested appointment of counsel.
              On May 19, 2015, Ventura County Probation Agency filed a PRCS revocation
petition. (§ 3455, subd. (a).) Appellant moved to dismiss the petition on due process
grounds based on Williams v. Superior Court (2014) 230 Cal.App.4th 636 (Williams). The
trial court denied the motion on June 11, 2015. It found that appellant violated PRCS and
ordered him to serve 180 days in county jail (with a total credit of 180 days).
                                        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 challenged here are consistent with constitutional, statutory and decisional law.
These procedures do not violate concepts of equal protection or due process. We so held in
People v. Gutierrez (2016) 245 Cal.App.4th 393, 401-405, and People v. Byron (Apr. 22,
2016) __ Cal.App.4th __ [2016 Cal.App.LEXIS 314]. We follow our own precedent. The
trial court did not err in denying the motion to dismiss.

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         In another case (No. 2011032935), appellant was sentenced to one year four months
in prison for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)).
The sentence was ordered to run concurrent to the sentence in case No. 2012037929.


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              Appellant contends his due process rights were violated because the probable
cause hearing was not conducted by a neutral hearing officer and resembled an ex parte
hearing to solicit a waiver of his PRCS rights. The argument is without merit. The hearing
officer (Meza) was not appellant's supervising probation officer and did not make the arrest
or prepare the PRCS revocation report. (See Morrissey, supra, 408 U.S. at p. 485 [probable
cause determination should be made by someone "not directly involved in the case"];
Williams, supra, 230 Cal.App.4th at p. 647 [same].) Appellant makes no showing that he
was denied a fair hearing.
              Moreover, the denial of a Morrissey-compliant probable cause hearing does
not warrant reversal unless it results in prejudice at the revocation hearing. (In re La Croix
(1974) 12 Cal.3d 146, 154-155; People v. Woodall (2013) 216 Cal.App.4th 1221, 1238.)
Appellant fails to show 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.) Appellant
submitted on the PRCS revocation petition without contesting the probable cause
determination, and has already served the custodial sanction (180 days in county jail). (See,
e.g., People v. Gutierrez, supra, 245 Cal.App.4th at p. 399.) "[T]here 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 (order revoking PRCS) is affirmed.
              NOT TO BE PUBLISHED.



                                          PERREN, J.
We concur:


              GILBERT, P. J.



              TANGEMAN, J.



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                                 Jeffrey G. Bennett, 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, Shawn McGahey
Webb, Supervising Deputy Attorney General, and Nathan Guttman, Deputy Attorney
General, for Plaintiff and Respondent.




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