Filed 4/18/16 P. v. Rice 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B266899
                                                                          (Super. Ct. No. 2009038873)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

JOHN RICE,

     Defendant and Appellant.



                   John Rice appeals from a judgment after an order revoking his postrelease
community supervision (PRCS). (Pen. Code, § 3450 et seq.)1 He contends the
revocation process 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; and a probation officer asked him to
waive his rights before the revocation petition was filed. We affirm.
                                         FACTUAL BACKGROUND
                   In 2012, Rice was convicted after a plea of guilty to false personation.
(§ 529.) The trial court suspended imposition of sentence and granted formal probation.




         1 All   statutory references are to the Penal Code unless otherwise stated.
Rice violated the terms of his probation. The trial court revoked probation and sentenced
him to a prison term.
              Rice was released in 2012 under PRCS following realignment. The
Ventura County Probation Department is his supervising agency. As a condition of
release, he agreed to maintain contact with the probation department and obey all laws,
among other things. Rice also agreed the probation department 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).)
              Following a release from jail in March 2015, Rice did not report to the
probation department. On July 7, a police officer detained Rice on an outstanding
warrant and found a methamphetamine pipe with burnt residue in his pocket. He was
arrested for a new charge (Health & Saf. Code, § 11364, subd. (a)) and for violating the
terms of his PRCS.
              Two days after his arrest, Rice appeared with counsel for arraignment. The
court ordered that he be released from jail upon completion of his flash incarceration
period. On the same day, Senior Deputy Probation Officer Venessa Meza met with Rice.
Meza advised Rice 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. Simultaneously,
Meza conducted an administrative probable cause hearing, at which Meza concluded
there was probable cause to believe that Rice violated the terms of release by failing to
report to the probation department and failing to obey all laws. Rice acknowledged
receipt of a “PROS Hold” form that identified the alleged violations. It gave notice of a
court hearing set for 16 days after Rice’s arrest. Meza advised Rice of his 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.
The advisement was memorialized in a “Postrelease Community Supervision Waivers of
Rights and Admission Form.” Rice acknowledged receipt of the form and refused to
waive his rights.

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                Seven days after Rice’s arrest, the probation department filed a revocation
petition. Consistent with the PROS Hold form, the hearing was set for 16 days after his
arrest.
                Thirteen days after his arrest, Rice moved to dismiss the petition for
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.
Counsel do not mention the July 9 arraignment in their arguments to the trial court or to
this court.
                Rice appeared in court with counsel 16 days after his arrest for the hearing
on the motion to dismiss. The trial court denied the motion. It conducted an evidentiary
hearing on the revocation petition 41 days after his arrest. At the revocation hearing,
Rice was represented by counsel and admitted the allegations. The trial court found Rice
in violation and ordered him to serve a 180-day jail sentence.
                                        DISCUSSION
          The trial court properly denied Rice’s motion to dismiss because Rice had access
to the court and counsel within 10 days of his arrest.
                                     Statutory Framework
                The Legislature created PRCS in 2011 as part of its realignment of the
criminal justice system. (§ 3450 et seq. [Postrelease Community Supervision Act of
2011]; Stats. 2011, ch. 15, § 479.) PRCS shifts responsibility for postrelease supervision
of certain felons from the state Department of Corrections and Rehabilitation to county
agencies, such as the Ventura County Probation Department. (Ibid.)
                The conditions of release under PRCS include waiver of the right to any
court hearing before imposition of a flash incarceration in jail for up to 10 days. (§ 3453,
subd. (q).) A person under PRCS is subject to arrest without a warrant at the direction of
the supervising agency whenever a peace officer has probable cause to believe the person
has violated the conditions of release. (§ 3453, subd. (s).) The peace officer may “arrest
the person and bring him or her before the supervising county agency.” (§ 3455, subd.
(b)(1).) The supervising agency may hold the supervised person in custody for up to 10

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days without bringing him or her before a court. (§ 3454, subd. (b) [the supervising
agency may “order appropriate responses to alleged violations,” including “intermediate
sanctions,” such as flash incarceration for up to 10 days].)
               If the supervising agency determines that intermediate sanctions are not
appropriate, it “shall petition the court pursuant to [s]ection 1203.2 to revoke, modify, or
terminate” PRCS. (§ 3455, subd. (a).) The supervised person is statutorily entitled to:
notice of the petition for revocation upon the “first court appearance in the proceeding”;
an opportunity to agree to modification or termination and to waive his or her
appearance; and the right to consult with counsel “[p]rior to the modification or
termination and waiver of appearance.” (§ 1203.2, subd. (b)(2).) Section 1203.2’s
revocation procedures apply uniformly to revocation of any supervised release, including
“probation . . .[,] postrelease community supervision . . .[,] or . . . parole.” (Id., subd. (a);
see Stats. 2012, ch. 43, § 2, subd. (a).) The declared purpose of amending the PRCS and
parole revocation statutes was to “simultaneously incorporate the procedural due process
protections held to apply to probation revocation procedures under Morrissey v. Brewer
(1972) 408 U.S. 471, and People v. Vickers (1972) 8 Cal.3d 451, and their progeny.”
(Stats. 2012, ch. 43, § 2, subd. (b).)
                                          Due Process
               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, at p. 485; Vickers, at p. 456.)
                            (1)     Probable Cause Determination
               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

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“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.)
               Officer Meza conducted a Morrissey-compliant administrative probable
cause hearing two days after arrest when she gave Rice written notice of the claimed
violations and an opportunity to be heard. Rice “declined to make any statements.”
Meza summarized the hearing and set forth her probable cause determination on an
“Administrative Probable Cause Hearing” form. 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 a police officer made the arrest.
               Rice was not entitled to a judicial probable cause hearing within 15 days.
The “independent officer need not be a judicial officer,” and the probable cause hearing
need only be “promptly as convenient after arrest.” (Morrissey, supra, 408 U.S. at pp.
485-486.) Williams v. Superior Court (2014) 230 Cal.App.4th 636 required a judicial
probable cause hearing within 15 days for parole revocation, but it was based on pre-
petition safeguards that are unique to parole. (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 time requirements for persons arrested for violation of PRCS.
In any case, the record shows that Rice was brought before the court, with counsel, two
days after his arrest.


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                            (2)    Formal Revocation Hearing
              The formal revocation hearing is the “final evaluation of any contested
relevant facts” to determine whether revocation is warranted, and it must be held “within
a reasonable time” after arrest. (Morrissey, supra, 408 U.S. at p. 488.) The minimum
safeguards at a formal parole revocation hearing are: “(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 pp. 488-489.) Due process requires equivalent
safeguards in probation revocation proceedings. (Vickers, supra, 8 Cal.3d at pp. 461-
462.)
              Here, the formal revocation proceeding complied with Morrissey and
Vickers, because it was conducted within a reasonable time of arrest and included all the
required safeguards, including assistance of counsel. The court heard the revocation
petition 41 days after arrest, “within a reasonable time.” (§ 3455, subd. (c); Morrissey,
supra, 408 U.S. at p. 488 [a two month interval between arrest and a formal parole
revocation hearing was not unreasonable].)
                                     Right to Counsel
              Rice was not entitled to counsel at the informal probable cause hearing
because it was a summary proceeding conducted outside of court proceedings during the
flash period. Vickers addressed the right to counsel at court proceedings and is
distinguishable on that basis. Here, Rice was represented by counsel at his court
proceedings, commencing a mere two days after his arrest.




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                           The Request for a Waiver of Rights
             Rice contends that a waiver of his rights to a revocation hearing or counsel
is invalid, because Meza asked for his waiver before the petition to revoke was filed. But
Rice did not waive any rights, so we need not address this argument.
                                     DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED.




                                         TANGEMAN, J.


We concur:



             GILBERT, P. J.




             YEGAN, J.




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                                Bruce A. Young, 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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