Filed 6/22/16 P. v. Salas 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B267113
                                                                          (Super. Ct. No. 2011028508)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

KATHERINE H. SALAS,

     Defendant and Appellant.



                   Katherine H. Salas appeals from judgment after an order revoking her
postrelease community supervision (PRCS). (Pen. Code, § 3450 et seq.)1 She contends
the revocation procedures employed by Ventura County violated her right to due process
because she did not have a Morrissey-compliant2 probable cause hearing before the court
within 15 days of arrest. She seeks an order reversing the trial court’s denial of her
motion to dismiss. We affirm.
                                         FACTUAL BACKGROUND
                   In 2011, Salas was convicted after plea of guilty to felony elder abuse
(§ 368, subd. (b)(1)). The trial court granted formal probation. After she admitted
violating probation, she was sentenced to prison in 2013.


         1 All   statutory references are to the Penal Code unless otherwise stated.
         2 Morrissey    v. Brewer (1972) 408 U.S. 471 (Morrissey).
                Salas was released in 2013 on PRCS following realignment. The Ventura
County Probation Agency is her supervising agency. As a condition of release, she
agreed to not consume alcohol. She also agreed the probation agency could, without a
court hearing, order “flash incarceration” in a county jail for up to 10 days if she violated
the conditions of her release. (§ 3453, subd. (q).)
                In August 2015,3 Salas reported to her scheduled office appointment and
submitted to alcohol testing. She tested positive and registered at .05 percent blood
alcohol content. This was her sixth violation of PRCS.
                Salas was taken into custody on August 6. On August 10, Supervising
Deputy Probation Officer Michelle Larson met with Salas. Larson advised Salas of her
rights, including her right to counsel and a revocation hearing, and conducted an
administrative probable cause hearing. Larson concluded there was probable cause to
believe that Salas violated the terms of PRCS. Salas refused to waive her rights and
requested a formal revocation hearing.
                On August 12, the probation agency filed a revocation petition. The
hearing was set for August 20.
                On the date of the hearing, Salas moved (through counsel) to dismiss the
petition for revocation and for release based upon an alleged violation of due process.
She argued she 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 Salas’s motion to dismiss and heard the revocation
petition. Salas submitted on the probation officer’s report. The trial court found her in
violation of PRCS and ordered her to serve a 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, supra, 408 U.S.


       3 All   future dates are in the year 2015.
                                                2
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.)
              Salas complains that the probable cause hearing conducted by Larson was
an “ex parte proceeding[] designed to secure a waiver and, not a genuine fact-finding
proceeding.”) But these arguments advanced on appeal were not made to the trial court.
Arguments not raised below are forfeited. (People v. Hartshorn (2012) 202
Cal.App.4th 1145, 1151.)
              In any event, we decline to exercise our discretion to review forfeited issues
because, as explained below, Salas has failed to demonstrate prejudice in view of the
court’s findings at the formal revocation hearing. For the same reasons, we do not

                                             3
address Salas’s arguments regarding the effect of Proposition 9, the Victims’ Bill of
Rights Act of 2008: Marsy’s Law.
                       Salas Has Failed to Demonstrate Prejudice
              Salas argues that her due process rights were violated at the probable cause
phase, prior to the formal revocation hearing. But the underlying problem with her
appeal is this: No matter what due process violation is claimed, she makes no showing of
prejudice at the formal revocation hearing. She submitted at the revocation hearing and
has now served her 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 Salas makes no showing that any due
process defect prejudiced her 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 she 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.



              YEGAN, 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.
