Filed 6/16/16 P. v. Webb 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B266587
                                                                          (Super. Ct. No. 2020032632)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

CREAGH WEBB,

     Defendant and Appellant.



                   Creagh Webb 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, Webb was convicted after plea of guilty to driving under the
influence causing injury (Veh. Code, § 23153, subd. (a)). In a separate case, he was
convicted of identity theft (§ 530.5, subd. (a)). The trial court sentenced Webb to
consecutive prison terms.

         1 All   statutory references are to the Penal Code unless otherwise stated.
         2 Morrissey    v. Brewer (1972) 408 U.S. 471 (Morrissey).
                Webb 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 as directed, to not use drugs or controlled substances, to not
associate with persons using or trafficking in drugs or controlled substances, to submit to
drug testing, and to participate in drug treatment 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 June 2015,3 Webb failed to report to a scheduled appointment with
probation. The same month, he tested positive for codeine and morphine, admitted using
heroin, and was contacted while asking another known user for “dope.” Webb also did
not report for drug testing and did not re-enroll in drug treatment as directed. These acts
collectively resulted in revocation proceedings for his sixth violation of PRCS.
                Webb was taken into custody on June 14. The next day, Senior Deputy
Probation Officer Venessa Meza met with Webb. Meza conducted an administrative
probable cause hearing, and concluded there was probable cause to believe that Webb
violated the terms of PRCS. She advised Webb of his right to be represented by an
attorney.
                On June 19, the probation agency filed a revocation petition. The hearing
was set for July 2.
                On the day of the hearing, Webb 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 Webb’s motion to dismiss and heard the revocation
petition. Webb submitted on the probation officer’s report. 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.)
              Webb complains that the probable cause hearing conducted by Meza was
“nothing more than a pro forma, ex-parte interview” and that “there is nothing in the
record to suggest that a fact-finding determination was held.” But these arguments
advanced on appeal were not made to the trial court. Arguments not raised below are

                                             3
forfeited. (People v. Hartshorn (2012) 202 Cal.App.4th 1145, 1151.) And, in any event,
we decline to exercise our discretion to review forfeited issues because, as explained
below, Webb 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 Webb’s arguments
regarding the effect of Proposition 9, the Victims’ Bill of Rights Act of 2008: Marsy’s
Law.
                       Webb Has Failed to Demonstrate Prejudice
              Webb 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 Webb 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.                                    PERREN, 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, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, and Stephanie A. Miyoshi, Deputy
Attorney General, for Plaintiff and Respondent.
