THE PEOPLE v. ORLANDO GUTIERREZ
2d Crim. No. B264167
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX
March 2, 2016
CERTIFIED FOR PUBLICATION
IN
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
ORLANDO GUTIERREZ,
Defendant and Appellant.
2d Crim. No. B264167
(Super. Ct. No. LA075268,
also listed as 2014024993)
(Ventura County)
Orlando Gutierrez was subject to postrelease community supervision (PRCS) when he was arrested for being under the influence of a
FACTUAL AND PROCEDURAL BACKGROUND
On November 11, 2013, appellant was convicted of unlawful possession of a firearm. (
On February 14, 2015, Oxnard Police Department officers arrested appellant for being under the influence of a controlled substance and he tested positive for methamphetamine. On February 17, a senior deputy probation officer conducted an administrative probable cаuse proceeding. The probation officer met with appellant, who acknowledged he had read and received written notice of alleged violations of the terms of his PRCS, and that he had a right to speak on his behalf and present letters and documents at the administrative probable cause hearing. Appellant denied he сommitted the February 14 offense, and claimed there was a conspiracy by the Oxnard Police Department to keep him in custody. He declined probation‘s recommended offer to return him to PRCS supervision if he would admit the alleged violations of PRCS and serve 120 days in jail. The probation officer determined there was probable causе that appellant violated the terms of his PRCS by using a controlled substance.
On February 23, 2015, probation filed a petition for revocation of PRCS pursuant to
Counsel for appellant argued he was entitled to treatment rather than a custodial sanction for a nonviolent drug offense. Counsel did not indicate whether appellant was already on Prоposition 36 probation.2 Appellant submitted the matter on the allegations in the petition. The trial court found him in violation of PRCS, ordered him to serve 60 days in jail, and granted him 52 days of credit (including actual custody and conduct credits).
PRCS Act
The PRCS was created by the Legislature in 2011 as an alternative to parole for non-serious, nonviolent felons. It is similar, but not idеntical to parole. A felon who qualifies for PRCS may be subject to supervision for up to three years after his or her release from prison. (
PRCS violations. (
Some PRCS conditions are mandated by statute. (
If the supervising agency determines that intermediate sanctions are not appropriate, the agency shall petition the court pursuant to
The supervised person is entitled to notice of a petition for revocation of his or her PRCS. (
The supervising аgency may order the supervised person to remain in custody, if the agency determines, by a preponderance of the evidence, that the person poses a public safety or flight risk, or for any reason in the interests of justice. (
At the revocation hearing, the trial court is required to review and consider the probation officer‘s report. After considering that report, the court determines whether the alleged violations occurred and if so, whether to revoke or terminate the person‘s PRCS. (
DISCUSSION
Appellant contends the process used to revoke his PRCS violated his right to due process because he was not promptly arraigned or given a probable
Due Process
Morrissey held that the requirements of due process apply to parole revocation proceedings. (Morrissey, supra, 408 U.S. 471 at p. 481.) The minimum requirements of due process to which each parolee is entitled include “(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence
against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact finders as to the evidence relied on and reasons for revoking parole.” (Id. at p. 489.)
In People v. Vickers (1972) 8 Cal.3d 451, our Supreme Court held that probation revocation proceedings need not be identical to parole revocation procedures, so long as equivalent safeguards are in place to assure that a probationer is not arbitrarily deprived of his or her liberty for a significant period of time. (Id. at p. 458.) “Once taken into custody . . . due process rеquires that [the probationer] be accorded both preliminary and formal hearings which conform to Morrissey standards.” (Id. at p. 460.) The probationer is also entitled to representation “by retained or appointed counsel at all revocation proceedings other than at summary proceedings had while the probationer remains at liberty after absconding.” (Id. at p. 461.)
In parole revocation proceedings, “due process requires that after the arrest, the determination that reasonable ground exists for revocation of parole should be made by someone not directly involved in the case.” (Morrissey, supra, 408 U.S. at p. 485.) This determination need not be made by a judicial officer but may, for example, be made by a parole officer other than the one who initiated the revocation process. (Id. at p. 486.) By contrast,
Appellant contends he was deprived оf due process because he was not arraigned before a court within 10 days of his arrest, and did not receive a Morrissey-compliant probable cause hearing within 15 days of his arrest. The
petition for revocation and the accompanying report indicate that three days after appellant‘s arrest and six days before the revocation petition was filed, a probation officer met with appellant to discuss his alleged violation and the recommendation that he serve 120 days in jail. Appellant availed himself of the opportunity to speak at the hearing, denied the February 14 offense, declined the recommended sanction, refused to waive his right to a
Morrissey requires only an informal hearing to determine whether reasonable grounds exist for the revocation of PRCS, conducted by “someone not directly involved in the case.” (Morrissey, supra, 408 U.S. at p. 485; see also People v. Coleman, supra, 13 Cal.3d at pp. 894-895 [“a unitary hearing will usually suffice in probation revocation cases“].) These standards were satisfied here. The record does not suggest that the probation officer who conducted the probable cause hearing was involved in appellant‘s arrest.
Williams, supra, 230 Cal.App.4th 636, the case on which appellant relies, is distinguishable because it involved the revocation of parole, not PRCS. Williams held that a parolee who remains in custody pending a formal revocation hearing has a due process right to an in-court arraignment within 10 days of arrest, a probable cause hearing within 15 days after the arrest, and a revocation hearing within 45 after arrest. (Id. at p. 665.) It did not consider whether due process requires the same time limits be observed in a PRCS revocation procеeding.
As we have noted, parole and PRCS, while similar in some respects, remain two separate forms of supervision. (People v. Espinoza, supra, 226 Cal.App.4th at p. 639.) One significant difference between the two systems appears in the beginning stage of each process. After a person subject to PRCS is arrested for an alleged violation of his or her PRCS terms, that person is first brought before thе supervising agency, which determines whether probable cause supports the alleged PRCS violations. (
terms of his or her parole is initially brought before the court. (
Equal Protection
Appellant argues his equal protection rights were violated because the procedure used to revoke his PRCS differs from that applied to a parole revocation. Although appellant did not expressly raise an equal protection claim in his motion to dismiss the revocation petition, he did argue that his PRCS revocation should be subject to the procedures mandated by Williams, supra, 230 Cal.App.4th 636, because PRCS and parole are nearly idеntical systems of supervision. The trial court considered and rejected this argument. We will exercise our discretion to address this constitutional issue. (In re Spencer S. (2009) 176 Cal.App.4th 1315, 1323.) “[A] threshold requirement of any meritorious equal protection claim ‘is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citаtion.]’ (In re Eric J. [(1979)] 25 Cal.3d [522, 530].) ‘This initial inquiry is not whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.” [Citation.] (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 . . .)” (People v. Guzman (2005) 35 Cal.4th 577, 591-592.) In addition, reasonable classifications drawn between similarly situated persons do not violate equal protection “provided the classifications are made with a legitimate goаl to be
accomplished.” (People v. Mora (2013) 214 Cal.App.4th 1477, 1483.) Appellant has not shown that he is similarly situated to a current parolee.
First, parole is reserved for those who have committed serious or violent felonies, are high-risk sex offenders or are mentally disordered. (
Proposition 36
After finding that appellant‘s February 14, 2015 positive drug test violated the terms of his PRCS, the trial court ordered appellant to serve 60 days in county jail. Appellant contends this order violated Proposition 36 because he was not first referred to treatment for a non-violent drug possession (NVDP) offense. Respondent corrеctly concedes the issue.
Proposition 36 mandates that, as a general rule, a person who commits a NVDP offense should be referred to drug treatment rather than to jail. (
Respondent concedes
DISPOSITION
The trial court‘s order revoking appellant‘s PRCS did not violate his rights to due process or equal protection. However, the court erred when it imposed a jail term without first determining whether appellant qualifies for drug
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
Donald D. Coleman, Judge
Superior Court County of Ventura
Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy Public Defender, William Quest, Senior Deputy Public Defender, for Defendant and Appellant
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Chung L. Mar, Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.