Filed 6/16/16 P. v. Garcia 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B267203
                                                                          (Super. Ct. No. 2010006106)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

DOMINIC B. GARCIA,

     Defendant and Appellant.



                   Dominic B. Garcia 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 was not provided with counsel at his probable cause hearing before the
supervising agency; was not brought before the court for arraignment within 10 days of
arrest; did not have a probable cause hearing before the court within 15 days of arrest; a
probation officer asked him to waive his rights before the revocation petition was filed;
and a probation officer (rather than a judicial officer) served as the probable cause
hearing officer. We affirm.




         1 All   statutory references are to the Penal Code unless otherwise stated.
                                 FACTUAL BACKGROUND
                In 2010, Garcia was granted probation and ordered to serve 365 days in jail
after plea of guilty to corporal injury to spouse/cohabitant (§ 273.5, subd. (a)), dissuading
a witness from reporting a crime (§ 136.1, subd. (b)(1)), violation of a protective order
(§ 273.6, subd. (b)), and petty theft (§ 484, subd. (a)).
                In 2011, probation was revoked and Garcia was sentenced to a two-year
prison term.
                Garcia was released in 2012 on PRCS following realignment. The Ventura
County Probation Agency is his supervising agency. As a condition of release, he agreed
to report to probation within two days of his release from custody, not be absent from
Ventura County for more than 48 hours without prior written approval, maintain a
residence with a street address as approved by probation, submit to drug testing, attend
domestic violence counseling sessions, and participate in programs as directed. 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 his release. (§ 3453,
subd. (q).)
                In May 2015,2 after being released from custody following his fourth
violation of probation, Garcia absconded. He was arrested in July for failing to report as
directed, absconding from Ventura County, failing to report for drug testing, and failing
to re-enroll in domestic violence and behavioral health counseling programs.
                Three days after his arrest, Garica was arraigned in court with counsel
present. On the same day, Senior Deputy Probation Officer Venessa Meza met with
Garcia. Meza advised Garcia in writing that he had the right to written notice of the
alleged violations, the right to an administrative hearing within two days, and the right at
that hearing to speak on his own behalf and present letters and documents. Meza
conducted an administrative probable cause hearing, and concluded there was probable
cause to believe that Garcia violated the terms of PRCS. Meza advised Garica of his


       2 All   future dates are in the year 2015.
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right to a formal revocation hearing at which he would have the right to be represented by
an attorney, the right to call and confront witnesses, and the right to testify or remain
silent. Garcia refused to waive his rights and requested counsel.
              Seven days after Garcia’s arrest, the probation agency filed a revocation
petition. The hearing was set for 20 days after Garcia’s arrest.
              On July 24 (six days before the hearing), Garcia 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 Garcia’s motion to dismiss and heard the revocation
petition. Garcia submitted on the probation officer’s report. The trial court found him in
violation of PRCS and ordered him to serve a 160-day 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 v. Brewer (1972)
408 U.S. 471, 482 (Morrissey) [parole revocation]; People v. Vickers (1972) 8 Cal.3d
451, 458 (Vickers) [probation revocation].)
              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

                                              3
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.)
              Meza conducted a Morrissey-compliant administrative probable cause
hearing. Three days after arrest, she gave Garcia written notice of the claimed violations
and an opportunity to be heard. Meza advised him of his rights and found cause to
believe he was in violation of PRCS. Meza was sufficiently “neutral and detached” to
make the determination because she was not “directly involved in the case.” (Morrissey,
supra, 408 U.S. at pp. 485-486.) Another probation officer prepared the report in support
of revocation, and there has been no showing that Meza was involved in the arrest.
              Garica was not entitled to counsel at the probable cause hearing because it
was a summary proceeding, not a formal proceeding. (Vickers, supra, 8 Cal.3d at
pp. 461-462.) Under Vickers, a probationer is entitled to counsel for “formal proceedings
for the revocation of probation,” although Vickers also states that counsel is required “at
all revocation proceedings other than at summary proceedings had while probationer
remains at liberty after absconding.” (Id. at p. 461.) In Vickers, all proceedings were
court proceedings following the initiation of a petition to revoke probation in contrast to
proceedings before the “supervising agency” during the statutorily authorized “flash
incarceration” period. Moreover, the record reveals that Garica was provided with
counsel at the first court proceeding on July 13. There is no requirement that counsel be
provided at the administrative probable cause hearing.
            Williams v. Superior Court Does Not Apply to PRCS Revocations
              In Williams v. Superior Court (2014) 230 Cal.App.4th 636 (Williams), the
court applied the Morrissey and Vickers safeguards to the post-realignment statutory

                                             4
framework for parole revocation. It concluded that revocation of parole conforms to due
process if the parolee is arraigned within 10 days of arrest and afforded a judicial
probable cause hearing within 15 days of arrest and a formal revocation hearing within 45
days of arrest. (Id. at p. 643.) But its decision was guided by statutes that do not apply to
PRCS. (Id. at pp. 657-658, 662; §§ 3000.08, 3044.) Section 3000.08, subdivision (c)
provides that an officer with probable cause to believe “a parolee” is violating a condition
of release may arrest the person and “bring him or her before the court.” In contrast,
section 3455, subdivision (b)(1) provides that an officer with probable cause to believe a
person subject to PRCS is violating a condition of release may arrest the person and
“bring him or her before the supervising county agency.” Section 3044, subdivision
(a)(1) and (2) provides that the “parolee shall be entitled to a probable cause hearing no
later than 15 days following his or her arrest for violation of parole,” and a formal
revocation hearing no later than 45 days after arrest. There are no corresponding
requirements for persons arrested for violation of PRCS. Section 3455 provides that a
person arrested for violating PRCS shall be brought “before the supervising agency,” and
any petition for revocation must be heard “within a reasonable time.”
                       Garcia Has Failed to Demonstrate Prejudice
              Garcia argues that his due process rights were violated in many respects,
including those assertions addressed above. 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 Garcia 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


                                              5
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.




             PERREN, J.




                                            6
                               Patricia M. Murphy, 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.
