Trial court may not incarcerate a defendant who violates his postrelease community supervision (PRCS) by committing a nonviolent drug possession offense (NVDP), without first determining whether he qualifies for Proposition 36 drug treatment. Gutierrez was on PRCS when he was arrested for being under the influence of methamphetamine. A petition was filed alleging a violation of his release terms. Initially, he had an informal administrative probable cause hearing before a probation officer regarding the petition, at which he declined to accept the suggested resolution of his alleged violation and refused to waive a hearing. He filed a motion to dismiss the petition, alleging the procedure employed violated due process. During a court hearing on the petition (Pen. Code, § 3455), the court denied his motion to dismiss, found him in violation of his supervision terms, and ordered him to serve 60 days in custody. Gutierrez appealed, alleging the court’s order violated the mandate of Proposition 36, which requires drug treatment instead of custody when a probationer violates the terms of his release by committing a NVDP offense (Pen. Code, § 1210, et seq.). Held: Reversed and remanded. PRCS, which is similar to parole, was created in 2011 as an alternative to state parole for felons who commit nonserious, nonviolent offenses after their release from prison (Pen. Code, § 3451, subd. (a)). The supervision is conducted by a county. The defendant may be subject to various sanctions for violating the terms of his release, but may not be returned to prison (Pen. Code, § 3458). Here, the trial court’s custodial order violated Proposition 36, which requires a court to first refer a defendant for drug treatment for commission of a NVDP offense (Pen. Code, § 1210.1). While Penal Code section 3455 does not require drug treatment rather than incarceration for persons who violate their PRCS by committing a NVDP offense, it may not be applied in a manner inconsistent with the requirements of Proposition 36.
The process prescribed to revoke PRCS does not deny due process. In Morrissey v. Brewer (1972) 408 U.S. 471, the Court held the requirements of due process apply to parole revocation hearings. These include (1) written notice of the claimed violations; (2) disclosure of evidence regarding the violation; (3) the opportunity to be heard on the allegations; (4) the right to confront witnesses; (5) a “neutral and detached” hearing body; and (6) a written statement regarding the evidence relied upon and reasons for revoking parole. Here, three days after his arrest, a probation officer (there is no indication it was his supervising officer) met with Gutierrez to discuss the alleged violations and the recommendation that he serve 120 days in jail. Gutierrez spoke at the hearing, denied the offense, declined the recommended sanction, refused to waive a formal hearing, and requested counsel. The procedure employed was Morrissey-compliant as that case requires only an informal hearing to determine whether there is probable cause for revocation of PRCS, conducted by someone who is not directly involved in the case.
The PRCS revocation process did not deny defendant equal protection of the law. The fact the procedure used to revoke Gutierrez’s PRCS differed from that applied to parole revocation did not violate equal protection. Gutierrez has not shown that he is similarly situated to parolees with respect to the law challenged. Parole is reserved for those defendants who have committed serious or violent felonies, are high-risk offenders or mentally disordered (Pen. Code, § 3451, subd. (b)). The Legislature could reasonably distinguish this group of offenders from those who commit nonserious, nonviolent offenses, believing the former group requires supervision under more formal procedures.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B264167.PDF
