Filed 9/26/16 P. v. Herrera 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B268217
                                                                          (Super. Ct. No. 2011024573)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

STEVEN R. HERRERA,

     Defendant and Appellant.



                   Steven R. Herrera appeals the order revoking his postrelease community
supervision (PRCS) (Pen. Code, § 3451)1 and confining him for 120 days in county jail.
Appellant contends the revocation proceedings violated his due process rights. We
affirm.
                                                  BACKGROUND
                   In July 2011, appellant pled guilty to unlawfully driving or taking a vehicle
(Veh. Code, § 10851, subd. (a)) and evading an officer (id. § 2800.2, subd. (a)). The
court suspended imposition of sentence and placed appellant on probation on the
condition he serve 180 days in county jail. In February 2013, probation was terminated




          1 All statutory references are to the Penal Code unless otherwise stated.
and appellant was sentenced to two years in state prison. In December 2013, he was
released on PRCS.
              In May 2015, appellant was found in violation of his PRCS and was
ordered to serve 120 days in county jail. In June 2015, the court vacated the 120-day
sentence and ordered appellant to serve 180 days in county jail, with the first 90 days to
be served at Khepera House. In July 2015, appellant admitted another violation of his
PRCS and was ordered to serve 180 days in county jail.
              On August 21, 2015, appellant was arrested for yet another violation of his
PRCS. On August 24, an administrative probable cause hearing was conducted by Senior
Deputy Probation Officer Meza. During the hearing, Meza informed appellant of the
alleged violation and of his right to counsel. Appellant denied the violation and declined
to waive his right to a court hearing and accept the recommended sanction of 120 days in
county jail. On August 31, 2015, the probation department filed a petition for revocation
of appellant’s PRCS.
              On September 10, 2015, the court denied appellant’s request to dismiss the
petition on due process grounds and proceeded with the revocation hearing. Appellant
submitted on the allegations of the petition. The court found him in violation of his
PRCS and ordered him to serve 120 days in county jail.
                                       DISCUSSION
              Appellant contends he was denied due process because the administrative
probable cause hearing failed to comply with the requirements of Morrissey v. Brewer
(1972) 408 U.S. 471 (Morrissey). He claims, among other things, that the hearing was
merely an “illusion” and a “sham” rather than “a true fact-finding probable cause
hearing” because “it was simply an ex-parte process carried out by a probation officer to
secure a waiver of rights under section 3455, subdivision (a) . . . .” He further claims that
section 3044, which governs the rights of parolees during revocation proceedings, also
applies to individuals like him who are faced with revocation of their PRCS. We are not
persuaded.

                                              2
              The PRCS revocation procedures employed here were consistent with
constitutional, statutory, and decisional law. They do not violate the due process
requirements of Morrissey. (People v. Gutierrez (2016) 245 Cal.App.4th 393, 402-404;
People v. Byron (2016) 246 Cal.App.4th 1009, 1014-1017.) Appellant was provided a
prompt probable cause hearing after his arrest and the hearing was conducted by a
probation officer who was not directly involved in the case. (Gutierrez, at pp. 402-404.)
Moreover, there are valid justifications for the procedural differences between PRCS and
traditional parole, each of which deal with different types of offenders. (Byron, at p.
1017.)
              Even if appellant had not received a Morrissey-compliant probable cause
hearing, he would not be entitled to relief because he has failed to show prejudice.
Contrary to his claim, the error would not be reversible per se. “[I]n the absence of
evidence that the [Parole] Authority is not making a good faith effort to comply with the
mandates of Morrissey . . . , a parolee whose parole has been revoked after a properly
conducted revocation hearing is not entitled to have the revocation set aside unless it
appears that the failure to accord him a prerevocation hearing resulted in prejudice to him
at the revocation hearing. [Fn. omitted.]” (In re La Croix (1974) 12 Cal.3d 146, 154; see
also People v. Woodall (2013) 216 Cal.App.4th 1221, 1238 [“defendant’s claim of error
fails because he has not shown prejudice arising from the nature of the initial revocation
proceeding”].) We reject appellant’s contention that “the absence of counsel and a
neutral adjudicator [at the administrative probable cause hearing] disintegrates the
foundation for applying the harmless error doctrine . . . .”
              Appellant submitted on the PRCS revocation petition and served the
custodial sanction (120 days county jail). (See, e.g., People v. Gutierrez, supra, 245
Cal.App.4th at p. 399 [defendant submitted on PRCS revocation petition without
contesting probable cause determination].) Accordingly, any error that took place during
the pre-revocation proceedings was harmless. “[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.)

                                              3
                                    DISPOSITION
              The order revoking PRCS and confining appellant in county jail for 120
days is affirmed.
              NOT TO BE PUBLISHED.




                                        PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




                                           4
                               Gilbert A. Romero, 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, Stephanie A. Miyoshi, Deputy
Attorney General, for Plaintiff and Respondent.
