Filed 7/27/16 P. v. Lopez 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B266399
                                                                          (Super. Ct. No. 2012005480)
     Plaintiff and Respondent,                                                 (Ventura County)
v.
RONALD LOPEZ,
     Defendant and Appellant.


                   Ronald Lopez appeals from an order approving a written waiver in which
he admitted violating postrelease community supervision (PRCS) (Pen. Code, § 3450
et seq.),1 and agreed to serve 180 days in county jail. (§§ 3455, subd. (a), 1203.2,
subd. (b)(1).) Appellant contends the waiver must be set aside because he was not
advised of his right to counsel or provided a Morrissey-compliant2 probable cause
hearing. He also contends the waiver was not voluntary. We affirm.
                                FACTS AND PROCEDURAL HISTORY
                   In March 2012, appellant pled guilty to willfully evading a police officer
(Veh. Code, § 2800.2, subd. (a)) and admitted two of eight prior prison term allegations.
He was sentenced to the midterm of two years, plus two years pursuant to section 667.5,


         1   All statutory references are to the Penal Code unless otherwise stated.

         2   Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey).
subdivision (b), for a total term of four years. He was released on PRCS approximately
two years later.
              On April 17, 2014, the Ventura County Probation Agency (Agency)
obtained a bench warrant after appellant failed to report for an office visit. When police
officers went to appellant’s home to execute the warrant, appellant attempted to drive
away and was arrested for resisting arrest. (§ 148, subd. (a)(1).)
              On May 11, 2015, appellant appeared for arraignment on the bench
warrant. The trial court discharged the warrant and ordered appellant to report to his
probation officer. That evening, Senior Deputy Probation Officer Venessa Meza visited
appellant in jail and conducted a probable cause hearing in which she informed him of his
alleged PRCS violations, i.e., failure to report, use of narcotics and failure to participate
in a treatment program. After Meza advised appellant of his rights, appellant signed a
Post Release Community Supervision Advisement of Rights and Acknowledgment
Revocation (hereinafter “PROS waiver” or “waiver”) stating that he understood his
rights, waived those rights and accepted the proposed modification of a 180-day jail
sentence.
              On May 19, 2015, the Agency filed a revocation petition pursuant to
section 3455. Appellant responded by filing a request to vacate the PROS waiver. He
argued that the waiver was not voluntary and that his due process rights were violated.
              On June 22, 2015, the trial court held an evidentiary hearing on appellant’s
request to vacate the PROS waiver. The trial court denied the request, finding that
appellant’s testimony was not credible. Consistent with the waiver, it found appellant in
violation of his PRCS conditions and sentenced him to 180 days in county jail with 90
days credit. The court subsequently released appellant for substance abuse treatment.
                                       DISCUSSION
                                      Voluntary Waiver
              Appellant contends that the PROS waiver was not voluntary and that he did
not relinquish his right to a formal revocation hearing. (See Johnson v. Zerbst (1938)



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304 U.S. 458, 464; People v. Panizzon (1996) 13 Cal.4th 68, 80 [voluntariness of waiver
is reviewed de novo].) We are not persuaded.
              Under the PRCS Act of 2011, violation of PRCS can result in immediate
sanctions, including up to 10 days of flash incarceration. (§ 3454, subd. (b).) If the
supervising county agency determines that intermediate sanctions are not appropriate, it
“shall petition the court pursuant to Section 1203.2 to revoke, modify, or terminate
postrelease community supervision.” (§ 3455, subd. (a).) Section 3455, subdivision (a)
states: “At any point during the process initiated pursuant to this section, a person may
waive, in writing, his or her right to counsel, admit the violation of his or her postrelease
community supervision, waive a court hearing, and accept the proposed modification of
his or her postrelease community supervision.”
              That is what occurred here. On May 11, 2015, Meza visited appellant at
the county jail. She informed appellant that he had a right to written notice of the
allegations against him and a right to an administrative probable cause hearing no later
than two business days after a hold was placed on him, that he had between 24 and 48
hours to prepare a response, and that he had a right to present documents and speak on his
behalf at the hearing. She also told him he had the right to an attorney at a revocation
hearing. Appellant said he understood those rights.
              Meza also presented appellant with a PROS waiver. Because appellant did
not have his reading glasses with him, Meza read the entire waiver to him. Appellant was
able to follow along by listening to her. Appellant testified that Meza told him that the
waiver was something the public defender did not want defendants to sign. Appellant
understood this to mean that he should sign the waiver, because he did not want to make
“any waves” or have problems with his probation officer. He was particularly concerned
about the possibility of retaliation if he refused to sign the waiver.
              Hilda Castillo, appellant’s assigned probation officer, testified that she met
with appellant on June 8, 2015. At that time, appellant told her that he believed 180 days
was a fair sentence since “he had been out to warrant for one year.” He said he did not
feel pressured to sign the documents and did not indicate he was unable to read them.


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Appellant’s comments suggested to Castillo that he understood the contents of the
waiver. Appellant expressed concern that the public defender would fight the allegations
and wanted the officers to know that it was not appellant who was challenging them. He
also wanted the officers to understand that he did not believe that Meza forced him sign
the waiver and reiterated his belief “that it was a fair sentence.”
              The trial court believed the probation officers’ testimony. It stated: “I’ve
heard two witnesses testify as to statements that Mr. Lopez made to them. I believe in
the credibility of those two witnesses. And I don’t believe the credibility of Mr. Lopez.
Therefore the Court finds there’s a valid waiver.”
              The testimony of Meza and Castillo supports the finding that appellant
knowingly and voluntarily waived his right to a formal revocation hearing. It was only
after he signed the waiver that he had second thoughts. It is well settled that buyer’s
remorse is not grounds for vacating a guilty plea. (In re Vargas (2000) 83 Cal.App.4th
1125, 1143-1144; People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) The same is
true of a PRCS revocation where the defendant admits the PRCS violation, waives the
right to a formal revocation hearing and agrees to serve the recommended jail term. We
conclude appellant has not demonstrated error.
                                    Due Process Claims
              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 here challenged 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 (2016) 246 Cal.App.4th 1009, 1014-1018. We follow our own
precedent.
              Appellant further 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 PRCS rights. This argument is without merit. The
hearing officer (Meza) was not appellant’s supervising probation officer and did not


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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 v. Superior Court (2014) 230 Cal.App.4th 636, 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 admitted his PRCS violations and has already served the custodial
sanction. (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.) We have reviewed appellant’s remaining contentions and conclude he
has not shown grounds for reversal.
                                      DISPOSITION
              The judgment (order approving written waiver and modifying PRCS) is
affirmed.
              NOT TO BE PUBLISHED.




                                           PERREN, J.

We concur:



              YEGAN, Acting P. J.



              TANGEMAN, J.


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                              Donald D. Coleman, 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, Steven D.
Matthews, Supervising Deputy Attorney General, and J. Michael Lehmann, Deputy
Attorney General, for Plaintiff and Respondent.
