Filed 1/26/18 P. v. Miranda CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James R. Gericke, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded.

Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Joseph Anthony Miranda appeals from the trial court’s order revoking his parole. We reverse and remand with directions to hold a new hearing.

Facts and Procedure

On February 2, 2012, defendant was convicted of second degree burglary. (Pen. Code, § 459.) He was released on parole on September 8, 2016. As a condition of parole, defendant was subject to global position system (GPS) monitoring and ordered to keep his GPS unit fully charged. On November 1, 2016, at about 10:30 p.m., defendant allowed the battery to die for about 30 minutes. Defendant’s parole officer called the sober living home where defendant lived, and staff stated defendant was not there.

On November 8, 2016, defendant’s parole officer filed a petition to revoke defendant’s parole on the basis that defendant failed to properly charge his GPS tracking device. Defendant was arraigned on the petition on November 9. At the parole revocation hearing held on December 13, 2016, the trial court heard testimony as to the above, and then asked the parole officer if defendant had a curfew as a condition of parole. The parole officer told the court that condition No. 43 required defendant to be in his approved residence from 9:00 p.m. to 6:00 a.m. The court amended the petition by interlineation to add an allegation that defendant violated condition No. 43. The court then found appellant had violated condition No. 43, but made no finding regarding the charged violation that defendant allowed his GPS battery to die.

This appeal followed.

Discussion

Defendant argues, the People concede, and this court agrees, that the court violated defendant’s rights to due process when it found he violated condition No. 43 without first affording him written notice of the charges against him and a fair opportunity to be heard.

Both the United States Supreme Court and the California Supreme Court require the trial courts to provide a criminal defendant with certain minimum due process protections before his or her probation or parole are revoked: “These requirements are: (1) written notice of claimed violations, (2) disclosure of adverse evidence, (3) the right to confront and cross-examine witnesses, (4) a neutral and detached hearing board, and (5) a written statement by the fact finders as to the evidence relied on and the reasons for revocation.” (People v. Rodriguez (1990) 51 Cal.3d 437, 441, citing Morrissey v. Brewer (1972) 408 U.S. 471, 488-489.)

Here, the court deprived defendant of the first two rights when it added the curfew violation to the charges at the conclusion of the hearing. Defendant did not receive written notice of that charge or prior disclosure of any evidence. For this reason, we vacate the judgment and remand the matter back to the trial court to remedy these errors.

Disposition

The parole revocation order is reversed. The matter is remanded to the trial court to hold a new hearing that complies with the procedural due process safeguards outlined ante.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.