Filed 5/4/15 P. v. Cortez CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050144

         v.                                                            (Super. Ct. No. R-02245)

CARLOS CORTEZ,                                                         OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed.
                   James M. Crawford, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Barry Carlton and Minh U. Le, Deputy Attorneys General, for Plaintiff and
Respondent.
              Carlos Cortez appeals from an order revoking his Postrelease Community
Supervision (PRCS) (Pen. Code, § 3450 et. seq.)1 after he violated the terms of supervision
by being arrested for repeatedly stealing liquor from grocery stores. Cortez contends the
prosecutor violated the reciprocal discovery statutes and his constitutional rights by failing
to provide defense counsel with copies of the surveillance videotape by which the stores’
loss prevention personnel and police officers identified him as the offender. We find no
error and affirm the order.
                                  FACTS & PROCEDURE
              In 2012, Cortez pleaded guilty to possession of a firearm by a felon (§ 29800,
subd. (a)(l)), and was sentenced to prison for three years. In February 2014, he was released
from prison to PRCS, on terms including that he not engage in any conduct prohibited by
law.
              A petition to revoke Cortez’s PRCS was filed on March 25, 2014. The
petition, and the probation report, both stated Cortez was arrested and charged with multiple
counts of stealing liquor, worth a total of $2,336, from four different Albertson’s stores in
Irvine over the course of five days. The petition and probation report both stated, “Each
[Albertson’s] location had video surveillance of the offender taking the items, by which
[Cortez] was identified.” Additionally, the petition and probation report both stated “the
[l]oss [p]revention[] personnel at the Albertson’s locations worked together, in conjunction
with [the Irvine Police Department], to use surveillance footage to positively identify
[Cortez] as the main suspect.” The petition and the probation report stated a police officer
interviewed Cortez at his residence and during the interview, Cortez admitted he “had a
problem with stealing.” He also said the gray hoodie sweatshirt worn during commission of
the crimes might be at a friend’s house.
              Cortez was arraigned on the PRCS revocation petition on March 26, 2014, and
the hearing on the revocation proceeding took place on April 29, 2014. The surveillance

1             All further statutory references are to the Penal Code.

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videotapes were not shown or introduced into evidence at the revocation hearing. The two
prosecution witnesses—an Albertson’s loss prevention employee and an Irvine police
officer—testified to their identification of Cortez as the thief based on having viewed the
surveillance videotapes. Both testified the recordings were still accessible to them on their
computers. The police officer testified that when he interviewed Cortez about the liquor
thefts, Cortez initially denied knowing about them but then told the officer he “had a
problem.” When the officer asked if it was a “drinking problem,” Cortez replied it was a
“stealing problem.” The officer testified the liquor thief wore the same gray hoodie
sweatshirt during each occurrence shown on the surveillance videotapes. The officer
testified that when he mentioned this to Cortez, and asked where the gray hoodie sweatshirt
was, Cortez replied it was in his room. When the officer could not find the sweatshirt in
Cortez’s room, Cortez said he left it at a friend’s house.
              Cortez objected to the witnesses’ testimony identifying him as the liquor thief
from the surveillance videotapes. He moved to strike their testimony arguing the prosecutor
committed a discovery violation by not providing him with copies of the surveillance
videotapes before the revocation hearing so he could cross-examine the prosecution
witnesses. Cortez argued the prosecution violated reciprocal discovery rules and his due
process rights. The prosecutor responded he had provided the defense with all reports and
petitions he had, and the defense never requested the surveillance videotapes or requested a
continuance of the revocation hearing to obtain them before the hearing. The trial court
overruled Cortez’s objections and found no disclosure violation. It found Cortez in
violation of his PRCS and ordered him to serve 180 days in custody.
                                        DISCUSSION
              Cortez contends the prosecution failed to disclose the surveillance videotapes,
which violated the prosecution’s statutory discovery obligations (§ 1054 et seq.), and
violated his right to due process and the rule of Brady v. Maryland (1963) 373 U.S. 83




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(Brady). Accordingly, Cortez contends the order revoking his PRCS should be reversed.
We reject his contentions.
              The 2011 Realignment Act “shifted responsibility for housing and supervising
certain felons from the state to the individual counties.” (People v. Cruz (2012) 207
Cal.App.4th 664, 671.) Under the Realignment Act, a qualifying felon is subject to PRCS
“for a period not exceeding three years immediately following release” (§ 3451, subd. (a)),
subject to several conditions including, as relevant here, that the supervisee obey all laws
during his or her period of supervision. (§ 3453, subd. (b), § 3454, subds. (a)-(b).)
              Violation of conditions of PRCS can result in intermediate sanctions (e.g.,
flash incarceration of up to 10 days (§ 3454)). But under section 3455, subdivision (a), if
“the supervising county agency” determines “intermediate sanctions . . . are not
appropriate,” it “shall petition the court pursuant to [s]ection 1203.2 to revoke, modify, or
terminate [PRCS].” An uncodified section of the legislation that added the reference to
section 1203.2 declared, “[b]y amending . . . [s]ection 3455 . . . to apply to probation
revocation procedures under [s]ection 1203.2 . . . , it is the intent of the Legislature that
these amendments simultaneously incorporate the procedural due process protections held to
apply to probation revocation procedures under Morrissey v. Brewer (1972) 408 U.S. 471
[(Morrissey]), and People v. Vickers (1972) 8 Cal.3d 451 [(Vickers)], and their progeny.”
(Stats. 2012, ch. 43, § 2(b), p. 1965.)
              Probation violations need only be established by a preponderance of the
evidence. (People v. Jackson (2005) 134 Cal.App.4th 929, 935; § 3455, subd. (c).) We
review the revocation of probation for abuse of discretion. (People v. Rodriguez (1990)
51 Cal.3d 437, 443, 445.)
              To the extent Cortez’s argument is premised on the Criminal Discovery
Statute, section 1054 et seq., which requires reciprocal exchange of evidence in criminal
cases, Jones v. Superior Court (2004) 115 Cal.App.4th 48, 62 (Jones), explained those
statutes do not apply to probation revocation proceedings. Probation revocation is not part


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of a criminal prosecution and a probation revocation hearing is not a criminal trial.
(Morrissey, supra, 408 U.S. at p. 480.) “[T]he reciprocal discovery obligations mandated
by the Criminal Discovery Statute apply only in the context of a criminal ‘trial.’” (Jones,
supra, 115 Cal.App.4th at p. 59.) “‘“[P]robation revocation hearings and criminal trials
serve different public interests, and different concerns may shape the People’s pursuit of
revocation and conviction.”’ [Citations.]” (Id. at p. 60.) Cortez’s argument the reasoning
of Jones is limited to whether the defense must give reciprocal discovery in a probation
revocation proceeding and does not impact the prosecution’s statutory reciprocal discovery
obligations is unavailing. The cases upon which he relies People v. Gutierrez (2013)
214 Cal.App.4th 343 (Gutierrez), and Magallan v. Superior Court (2011) 192 Cal.App.4th
1444 (Magallan), did not deal with the applicability of the Criminal Discovery Statute to a
postconviction probation revocation hearing, but with its applicability to pretrial
proceedings (Gutierrez, supra, 214 Cal.App.4th 343 [preliminary hearing]; Magallan,
supra, 192 Cal.App.4th 1444 [pretrial motion for discovery in support of suppression
motion].) And there is nothing in the Criminal Discovery Statutes that distinguishes
between the reciprocal discovery obligations of the defense and the prosecution.
              Although the Criminal Discovery Statute does not “require reciprocal
disclosure of discovery in connection with a probation revocation hearing” (Jones, supra,
115 Cal.App.4th at p. 61), a probationer nonetheless has due process rights. Cortez largely
argues the prosecution’s failure to provide him with copies of the surveillance videotapes
upon which its witnesses relied violates the rule of Brady, supra, 373 U.S. at pages 86-88, in
which the United States Supreme Court held due process requires prosecutors to disclose
material exculpatory evidence to a criminal defendant before trial. But the United States
Supreme Court has made clear Brady does not apply to compel disclosure in postconviction
proceedings. (District Attorney’s Office v. Osborne (2009) 557 U.S. 52, 68-70 (Osborne).)
Instead, when courts analyze the fairness of postconviction proceedings, they consider




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whether the procedures employed offend traditional principles of fundamental fairness.
(Id. at p. 70.)
                  In examining the fairness of probation revocation proceedings, we are mindful
“the full panoply of rights due a defendant in [a criminal] proceeding does not apply.”
(Morrissey, supra, 408 U.S. at p. 480.) “‘In placing a criminal on probation, an act of
clemency and grace [citation], the state takes a risk that the probationer may commit
additional antisocial acts,’ and ‘the state has a great interest in being able to imprison the
probationer [for probation violations] without the burden of a new adversary criminal trial.
[Citation.]’ [Citation.] The standard of proof in probation revocation proceedings is proof
by a preponderance of the evidence. [Citation.]” (People v. Stanphill (2009)
170 Cal.App.4th 61, 72.) Moreover, there is also no right to a jury trial on a probation
revocation, and the rules of evidence are relaxed and the exclusionary rule does not apply.
(Jones, supra, 115 Cal.App.4th at pp. 60-61.)
                  Due process requires a defendant facing a probation revocation hearing is
entitled to written notice of the claimed violations, disclosure of the evidence against him,
the opportunity to be heard and to present evidence, the right to confront and cross-examine
adverse witnesses (unless the hearing officer finds good cause for not allowing
confrontation), a neutral and detached fact finder, and a written statement of the evidence
relied on and the reasons for revoking probation. (Morrissey, supra, 408 U.S. at p. 489;
Vickers, supra, 8 Cal.3d at pp. 457-459.) Although a probationer has the right to the
evidence to be used against him in a revocation hearing and the prosecution is required to
maintain and produce it (People v. Moore (1983) 34 Cal.3d 215, 218-221), there is no
general right to prehearing disclosure of exculpatory evidence and in accordance with
Osborne, supra, 557 U.S. 52, our inquiry is whether the procedures offend traditional
principles of fundamental fairness.
                  Cortez’s due process rights were not violated. Cortez had written notice of the
claimed violation and of the evidence against him that he now claims was not disclosed.


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The petition and the probation report both specifically referred to the existence of
surveillance videotapes, stating that each store where a theft was committed “had video
surveillance of the offender taking the items, by which [Cortez] was identified[,]” and that
Albertson’s loss prevention personnel “worked together, in conjunction with [the Irvine
Police Department], to use surveillance footage to positively identify [Cortez] as the main
suspect.” The existence of the surveillance videotapes was known to Cortez via the petition
and the probation report, and nothing in the record demonstrates the defense requested the
tapes, or that the prosecution suppressed or concealed them. (People v. Morrison (2004)
34 Cal.4th 698, 715 [no Brady claim of prosecutorial suppression of evidence “‘when
information is fully available to a defendant at the time of trial and his only reason for not
obtaining and presenting the evidence to the [trial c]ourt is his lack of reasonable
diligence.’”].)
              Moreover, although the trial court agreed the testimony regarding the
identification of Cortez from the surveillance video tapes was important, it also observed the
other evidence was not without weight in its decision. In a probation revocation proceeding,
“‘The judge is not determining whether the defendant is guilty or innocent of a crime.
Rather, he [or she] must determine whether the convicted offender “can be safely allowed to
return to and remain in society.”’” (In re Coughlin (1976) 16 Cal.3d 52, 57 (Coughlin).) As
a result, “evidence which is insufficient or inadmissible to prove guilt at trial nevertheless
may be considered in determining whether probation should be revoked.” (Id. at p. 58.)
Likewise, the court assessing a probation revocation can even consider evidence seized
illegally. (People v. Hayko (1970) 7 Cal.App.3d 604, 609-611.)
              In a probation revocation proceeding, the trial court need only have “reason to
believe” the defendant violated probation. (§ 1203.2, subd. (a).) This is because
“‘[r]evocation deprives an individual, not of the absolute liberty to which every citizen is
entitled, but only of the conditional liberty properly dependent on observance of
special . . . restrictions.’” (People v. Rodriguez (1990) 51 Cal.3d 437, 442.) “‘The


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court . . . need not wait until the defendant proves, by new acts of criminality, that the hope
and expectation were unfounded. Acts short of criminality, or evidence which leaves a
criminal violation still uncertain, may well, in the judgment of the court . . . indicate that the
hoped for rehabilitation is on the road to complete failure and that a more restrictive process
is required both to protect society and to assist the defendant toward ultimate
rehabilitation.’” (Coughlin, supra, 16 Cal.3d at pp. 59-60, italics omitted.) Here, when
interviewed by police about the multiple thefts, Cortez initially denied involvement but then
admitted he “had a problem with stealing.” When told the culprit wore the same gray
hoodie sweatshirt in each theft, Cortez said the gray sweatshirt could be found in his room,
and when it could not be located, said he left it at a friend’s house. Cortez’s admissions
were sufficient to support the court’s conclusion he violated the conditions of his PRCS.
                                         DISPOSITION
              The order is affirmed.




                                                    O’LEARY, P. J.

WE CONCUR:



MOORE, J.



ARONSON, J.




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