Filed 6/21/16 P. v. Tarallo 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B265739
                                                                          (Super. Ct. No. 2010045141)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

TERRY TARALLO,

     Defendant and Appellant.



                   Terry Tarallo 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 2011, Tarallo was convicted after plea of guilty to traumatic injury to
child (§ 273d, subd. (a)), corporal injury to spouse (§ 273.5), and assault with a deadly




         1 All   statutory references are to the Penal Code unless otherwise stated.
         2 Morrissey    v. Brewer (1972) 408 U.S. 471 (Morrissey).
weapon (§ 245, subd. (a)(1)). The trial court granted formal probation. After he admitted
violating probation, he was sentenced to prison in 2014.
                Tarallo was released in 2014 on PRCS following realignment. The Ventura
County Probation Agency is his supervising agency. As a condition of release, he agreed
to obey all laws, not consume alcohol, and maintain a residence with a street address as
approved by probation. 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 April 2015,3 Tarallo moved out of his residence without informing
probation. In May, he was arrested for driving under the influence of alcohol.
                Tarallo was taken into custody on May 1. On May 4, Senior Deputy
Probation Officer Venessa Meza met with Tarallo. Meza advised Tarallo of his rights,
including his right to counsel and a revocation hearing, and conducted an administrative
probable cause hearing. Meza concluded there was probable cause to believe that Tarallo
violated the terms of PRCS. Tarallo refused to waive his rights and requested a formal
hearing.
                On May 8, the probation agency filed a revocation petition. The hearing
was set for May 28.
                On the date of the hearing, Tarallo 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 Tarallo’s motion to dismiss and heard the revocation
petition. Tarallo admitted the violations of PRCS. The trial court found him in violation
of PRCS and ordered him to serve a jail sentence.




       3 All   future dates are in the year 2015.
                                                2
                                      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].)
              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.)
              Tarallo complains that the probable cause hearing conducted by Meza was
“nothing more than a pro forma, ex-parte interview” and was no more than “an illusion”
which was “in effect, an early disposition conference rather than a fact-finding hearing.”


                                             3
We upheld the same revocation procedure challenged in this case in People v. Byron
(2016) 246 Cal.App.4th 1009. We follow our own precedent.
                       Tarallo Has Failed to Demonstrate Prejudice
               Tarallo 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 admitted the violations 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 Tarallo 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 admitted the violations 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.)4
                                      DISPOSITION
               The judgment is affirmed.
               NOT TO BE PUBLISHED.



                                           TANGEMAN, J.
We concur:




               GILBERT, P. J.                                   YEGAN, J.



       4 For the same reasons, we do not address Tarallo’s arguments regarding the effect
of Proposition 9, the Victims’ Bill of Rights Act of 2008: Marsy’s Law.
                                              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, Victoria B.
Wilson, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney
General, for Plaintiff and Respondent.
