October 25, 2016
2016-IPG#24 (NEW CASES ON PRCS & PAROLE VIOLATIONS)
This edition of IPG covers five cases which have issued over the last six months that prosecutors handling
postrelease community supervision (PRCS) and parole cases should know about. To discuss those cases on
the accompanying podcast is Santa Clara County Deputy District Attorney Max Zarzana. DDA Zarzana
oversees the handling of the majority of felony cases involving post-conviction violations of these various
forms of supervision. Among the questions answered in this IPG and by DDA Zarzana in the podcast:
Can a judge terminate a defendant’s parole under his or her power to dismiss pursuant to Penal Code
section 1385 when defendant has been sentenced to state prison in a different case? (People v.
Vonwahlde 2016 WL 5800026)
Can a judge impose additional time (even beyond the 364-day maximum sentence for misdemeanors) on a
defendant for violating the one-year parole period imposed on him after his felony was reduced to a
misdemeanor under Prop 47? (People v. Hronchak (2016) 2 Cal.App.5th 884)
Are PRCS revocation hearings subject to the same rules governing parole revocation hearings? And, if not,
do the procedures comport with due process? (People v. Byron (2016) 246 Cal.App.4th 1009; People v.
Gutierrez (2016) 245 Cal.App.4th 393.)
Is a defendant who has completed one year of PRCS without violating conditions of his supervision no
longer subject to a search condition imposed pursuant to the statute governing PRCS? (People v. Young
(2016) 247 Cal.App.4th 972)
This IPG memo is accompanied by a podcast providing 50 minutes of general MCLE
credit. Click hear to listen to the podcast:
https://www.youtube.com/channel/UC5aiUCbAzLfrlQ8AdCF3GCA
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A Court Does Not Have Authority to Terminate a Defendant’s Parole
Pursuant to its PC Section 1385 Powers Even Though Defendant is Being
Sentenced to State Prison in Another Case
People v. VonWahlde 2016 WL 5800026 [No Official Cite Yet]
Facts
The defendant was convicted of assault with a deadly weapon (Pen. Code, § 245(a)(1)) and was
placed on parole. He failed to show up for a scheduled meeting with a parole officer. A petition
to revoke was filed but the court continued the case to see what would happen in another (new)
case that defendant had pending in the same county. The new case involved a charge of running
a chop shop (Veh. Code, § 10801). Shortly after the parole revocation was continued, defendant
pled no contest in the new case to a “term of five years to run concurrently with the parole
revocation case.” (at p. *1.) The court found defendant in violation of his parole, and ordered
defendant’s parole to remain revoked. (at p. *1.)
At sentencing in the new case, the sentencing court decided to terminate defendant’s parole in
the assault with a deadly weapon case over the prosecution’s objection. The sentencing court
reasoned that there was nothing “to be gained by [the defendant] on parole while he’s getting a
five-year term in prison[.]” (at pp. *1-*2.) The sentencing court recognized that it did not have
statutory authority under Penal Code section 1203.2 to terminate parole but believed it could do
so under the power to dismiss cases granted to it by Penal Code section 1385. (at p. *2.)
The People appealed. (at p. *3.)
Holding and Analysis
1.
The court began by finding that the People had statutory authority to appeal the court’s dismissal
pursuant to Penal Code section 1238(a)(5), which permits an appeal from “[a]n order made after
judgment, affecting the substantial rights of the people.” (at p. *3.)
The court rejected the defendant’s argument that since the parole termination order was made
under a different case number than the original case in which judgment was pronounced (Fresno
County assigned new docket numbers to parole cases distinct from the original docket number),
the sentencing court’s order was not an order made after judgment.
The court also rejected the defendant’s argument that since “defendant’s entire parole period
would have run while defendant was serving his prison term in the new case,” no substantial
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rights possessed by the People were affected by the court's order. (at p. *3.) The court
recognized that in order to affect the People’s substantial rights an order “must in some way
affect the judgment or its enforcement or hamper the further prosecution of the particular
proceeding in which it is made.” (at p. *4.) However, it went on to point out that “[w]here a
sentence in a criminal case is required to include a period of parole, an order cutting that period
short is not merely collateral to the underlying criminal case, but rather directly affects the
judgment . . . [and] also directly implicates the protection of public safety. It thus affects the
People’s substantial rights. (at p. *4.) Moreover, the court stated even if appealability was based
on the specific facts of a case rather than the nature of the order at issue, the People’s appeal was
still authorized because there was “simply no guarantee defendant will not be released early,
particularly given the state of flux in which the state’s sentencing laws have been for several years
and continue to be.” (at p. *4.)
Editor’s note: The court left open the question of whether the People’s appeal was also authorized by
subdivision (a)(6) of section 1238, which allows an appeal of “[a]n order modifying the verdict or finding by
reducing the degree of the offense or the punishment imposed[.]” (at p. *4, fn. 4.)
2.
The court went on to find that the sentencing court did not have the authority to dismiss the
period of parole. (at p. *1.)
3.
The court did a quick analysis of what authority a superior court had under the current scheme
when it came to parolees before finding that the governing statutes (Penal Code sections
3000.08 and 1203.2) did not permit termination of a parole period:
The court stated that before the “advent of Realignment, virtually all authority over parole and
parolees . . . resided in the paroling authority, either the California Department of Corrections
and Rehabilitation (CDCR) or the Board of Parole Hearings (formerly known as the Board of
Prison Terms)[.]” (at p. *4.) However, this is no longer the case. “Now, a person such as
defendant, who is released from state prison after serving a prison term for a serious felony . . .
‘is subject to parole supervision by [CDCR] and the jurisdiction of the court in the county in
which the parolee is released, resides, or in which an alleged violation of supervision has
occurred, for the purpose of hearing petitions to revoke parole and impose a term of custody [.]”
(at p. *4 citing to Pen. Code, § 3000.08(a), italics added by court.)
Penal Code section 3000.08(f) vests a superior court in the county where the parolee is
supervised or where the alleged violation to occurred to conduct parole revocation hearings with
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the authority to “(1) Return the person to parole supervision with modifications of conditions, if
appropriate, including a period of incarceration in county jail. [¶] (2) Revoke parole and order
the person to confinement in the county jail. [¶] (3) Refer the person to a reentry court ... or
other evidence-based program in the court’s discretion.” (at p. *5.) And Penal Code section
1203.2, which describes the general procedure to be followed when a person is subject to parole
revocation, “permits the court in the county of supervision or in the county in which the alleged
violation of supervision occurred to modify, revoke, or terminate supervision of the person ‘if the
interests of justice so require[.]” (at p. *5.)
But neither section 3000.08 or section 1203.2 allow for the termination of parole. Indeed,
section 1203.2 prohibits a court from doing so, specifically stating that “the court shall not
terminate parole pursuant to this section.” (at p. *5.)
5.
The court then proceeded to explain why Penal Code section 1385 also did not allow a court to
dismiss a period of parole:
The court observed that “[t]he only action that may be dismissed under ... section 1385,
subdivision (a), is a criminal action or a part thereof” and “[i]n the absence of a charge or
allegation, there is nothing to order dismissed under section 1385.” (at p. *6.)
“[A] period of parole is not a criminal action or a part thereof as contemplated by section 1385.”
(at p. *6.) Rather, it is ‘a form of punishment accruing directly from the underlying conviction.’”
(at p. *6.) And [s]ection 1385 does not give the trial court discretion to modify statutorily
prescribed consequences of a conviction.” (at p. *6.)
6.
The court agreed with the defendant that the “trial court had the authority to terminate parole
supervision” but pointed out that that was not “what the trial court purported to do[.]” (at p.
*6.) Moreover, while the court acknowledged defendant’s argument that a 5-year prison
sentence might render “superfluous any further parole period” and “effectively nullif[y] and
terminate[]” defendant’s parole as “a matter of fact,” it held as “a matter of law,” the trial court’s
order was invalid. (at p. *6.)
Editor’s note: It is not clear why the court stated a trial court could terminate parole supervision. This may be
a misinterpretation of language in Penal Code section 1203.2. The court declined to express any opinion
“concerning whether a parole revocation proceeding — as opposed to parole itself — constitutes ‘an action’ within
the purview of section 1385, or whether a superior court has authority under that statute to dismiss such a
proceeding or, for example, factual allegations contained in the parole revocation petition.” (at p. *6, fn. 6.)
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A Court May Impose Additional Time (Even Beyond the 364-Day
Maximum Sentence for Misdemeanors) on a Defendant Who Has Had His
Felony Reduced to a Misdemeanor Under Prop 47 and Has Been Placed on
One-Year “Prop 47” Parole. And the Parole Revocation Was Properly
Preceded by the Required Consideration of Intermediate Sanctions.
People v. Hronchak (2016) 2 Cal.App.5th 884
Facts
While serving a 16–month sentence for a felony drug conviction, the defendant obtained
resentencing pursuant to Proposition 47 that rendered his felony a misdemeanor. The defendant
was ordered released from prison, given 360 days of custody credit, and was placed on “Prop 47”
parole for one year (pursuant to Penal Code section 1170.18(d)). (at pp. 886-887.)
While on parole, defendant was subsequently convicted of a drug-related misdemeanor and
assault with a deadly weapon. He was released about a month later but failed to report to his
supervising parole agent or inform his parole agent of his residence. A few weeks after that
defendant was arrested and, pursuant to Penal Code section 3000.08 (f), a petition to revoke
parole was filed based on these failures and also alleging defendant had absconded from parole.
Eventually defendant admitted his violation of parole. (at pp. 887-888.)
Defendant then argued that he could not be sentenced to more than 4 days in custody since he
was on parole for a misdemeanor and had already served 360 days in custody. The trial court
disagreed and sentenced defendant to 60 days in county jail with parole supervision to be
reinstated upon completion of the jail sanction. (at p. 888.)
On appeal, defendant claimed that language in section 1170.18(k), which provides that “[a]ny
felony conviction that is recalled and resentenced under subdivision (b) ... shall be considered a
misdemeanor for all purposes,” limited the punishment that could be imposed after reduction to
364 days of imprisonment in a county jail (the maximum time that may be imposed for a
misdemeanor) regardless of whether the time was imposed for a parole violation of the one-year
period of parole authorized by section 1170.18(d). Thus, according to the defendant, since he had
already served 360 days on the offense, the trial court lacked authority to order defendant to
serve more than four additional days in custody.” (at pp. 887, 893-894.)
The defendant also claimed that the parole revocation petition should have been denied because
inadequate consideration was given to imposing intermediate sanctions as required by Penal
Code section 3000.08(f) before filing a petition to revoke his parole. (at p. 886.)
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Holding and Analysis
1.
The court held defendant was properly sentenced to the 60 days in custody for violating the
“Prop 47” one-year parole. The following numbered paragraphs explain why.
2.
A defendant who successfully obtains reduction of a felony to a misdemeanor pursuant to
Proposition 47 “is subject to a one-year term of parole supervision following his or her release
from custody . . . unless the court in its discretion elects not to impose the parole term[.]’” (at p.
890.) “Such person is subject to Section 3000.08 parole supervision by the Department of
Corrections and Rehabilitation and the jurisdiction of the court in the county in which the
parolee is released or resides, or in which an alleged violation of supervision has occurred, for the
purpose of hearing petitions to revoke parole and impose a term of custody.” (at p. 890, citing to
Pen. Code, § 1170.18(d).)
3.
“If a parole violation is proved, section 3000.08, subdivision (f)(1), specifically authorizes the
court to ‘[r]eturn the person to parole supervision with modifications of conditions, if
appropriate, including a period of incarceration in county jail’—exactly what happened in this
case” and section 3000.08, subdivision (g) limits confinement for a parole violation pursuant to
subdivision (f)(1) to no more than 180 days in county jail without reference to the time in
custody the parolee had previously served. (at p. 893.)
4.
The “imposition of a one-year parole term under section 1170.18, subdivision (d), following a
successful petition for resentencing necessarily creates an aggregate sentence that is different
from, and more restrictive than, the basic misdemeanor sentence.” (at p. 894.)
Obviously, placement on the period parole, as mandated by the express language of Proposition
47, could not violate the “misdemeanor for all purposes” provision and “[b]y parity of reasoning,
imposition of additional time in custody as a sanction for violating valid conditions of that
parole, as expressly authorized by sections 1170.18, subdivision (d), and 3000.08, subdivision
(f), is also fully consistent with treating the reclassified conviction as a misdemeanor for future
purposes.” (at p. 894.)
5.
Acceptance of the one-year period of parole and the possibility of revocation of parole is
implicitly agreed to by the defendant by petitioning for resentencing. “That the total time in
custody may ultimately exceed 364 days if the resentenced defendant/parolee violates a
condition of parole is simply part of the agreed-upon exchange for resentencing under
Proposition 47. (at p. 893.)
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6.
The court rejected defendant’s claim that the parole agency did not adequately consider
intermediate sanctions before filing a petition to revoke defendant’s parole. The following
numbered paragraphs explain why:
7.
Penal Code section 3000.08(d) permits the supervising parole agency to impose additional
conditions of supervision and “intermediate sanctions,” including flash incarceration of up to ten
days, without court intervention on a defendant placed on the one-year period of parole
following Proposition 47 resentencing. (at p. 888, 890.)
8.
Penal Code Section 3008(f) provides: “If the supervising parole agency has determined,
following application of its assessment processes, that intermediate sanctions up to and
including flash incarceration are not appropriate, the supervising parole agency shall ... petition
... the court in the county in which the parole is being supervised ... to revoke parole.” (at p. 891.)
9.
Section 3008(f), requires that “a petition to revoke parole include a written report containing
relevant information regarding the parolee and the recommendation to revoke parole.” (at p.
891.) California Rules of Court, rule 4.541 describes the minimum requirements for the written
report included with the petition to revoke; and requires the petition to “include the reasons for
that agency’s determination that intermediate sanctions without court intervention ... are
inappropriate responses to the alleged violations.” (at p. 891.) The report must “state the
specific reasons (individualized to the particular parolee, as opposed to a generic statement) for
its determination that intermediate sanctions ‘are inappropriate responses to the alleged
violations.’” (at p. 891, citing to Williams v. Superior Court (2014) 230 Cal.App.4th 636,
665.)
10.
In the instant case, the report contained sufficient reasons to support its determination that
intermediate sanctions were inadequate.
The report stated: “[The defendant] was recently released from State Prison on 12/22/14.... It is
clearly evident that [the defendant] does not value the meaning of freedom and early release.
Further, [the defendant] should remain in custody since he cannot abide by the law and feels the
need to continue in drug use and has armed himself with a dangerous weapon in the community.
[The defendant] was convicted [in the misdemeanor proceedings after his release from prison].
[The defendant] had only been out in the community for 12 days and he cannot show he will
succeed in parole supervision.... [He] cannot abide by simple directive and report with State
Parole....” (at p. 892.)
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Thus, aside from the new charges, the report documented defendant’s arrest and conviction for
misdemeanor drug and weapons offenses almost immediately after his release from prison and
his inability to conform to the requirements of parole.” (at p. 892.) “Nothing more was required
to satisfy the requirements of section 3000.08 and rule 4.541.” (at p. 892.)
11.
The court rejected the notion that since the parole report used “the Parole Violation Decision
Making Instrument (PVDMI) as its evidence-based tool for a recommendation as to the
appropriate measures to impose for [the defendant’s] parole violation and the recommended
response level was “continue on parole with remedial sanctions,” rather than “refer for
revocation[,]” the showing that intermediate sanctions would be ineffective was inadequate. (at
p. 892, fn. 6.)
The court distinguished the case of People v. Osorio (2015) 235 Cal.App.4th 1408, a case
relied upon by the defendant, which had criticized the parole report for departing from the
PVDMI recommendation for a moderately intensive response and held there was an inadequate
showing that intermediate sanctions would be ineffective, for two reasons. (Hronchak at p.
892, fn. 6.) First, unlike in the instant case, the revocation of parole in Osorio was based on the
relatively minor nature of the parolee’s violation (“talking to two gang members for 10
minutes”). Second, unlike in Osorio, the parole agency in the instant case “adequately
explained why it was departing from the PVDMI recommendation and seeking revocation and
reinstatement of parole with additional custodial time. (Hronchak at p. 892, fn. 6.)
The Statutory Procedures for Revocation of PRCS Complied with Due
Process Even Though the Initial Review was Done by a Probation Officer
and the Procedures Do Not Exactly Comport with Procedures Used to
Revoke Parole
People v. Byron (2016) 246 Cal.App.4th 1009
Facts
In 2009, the defendant was sentenced to state prison for five years. She was released from
prison in June of 2012 and placed on PRCS supervision with terms designed to curtail or stop
her abuse of drugs. (at p. 1012.)
On January 13, 2015, defendant was arrested, for the tenth time, for violating PRCS after she
tested positive for methamphetamine. On January 15, 2015, two days later, a hearing officer*
advised defendant of the basis for the violation. Aside from testing positive, it was also alleged
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she failed to report to her probation officer, refused to sign a form for random drug testing,
refused to provide a urine sample, and failed to actively participate in drug abuse treatment. (at
p. 1013 and fn. 2.)
Editor’s note: The opinion simply identifies the person advising the defendant of the allegations as a
hearing officer. Presumably, the hearing officer was a member of the probation department although not
defendant’s own probation officer or the supervisor of defendant’s probation officer. (at p. 1013.)
The hearing officer determined there was probable cause for arrest, and advised defendant that
the recommended PRCS modification was 180 days in county jail. The defendant denied the
allegations. (at p. 1013.)
A petition to revoke PRCS was filed in superior court on January 22, 2015. And four days later
(January 26, 2015), the court denied a motion to dismiss the PRCS petition filed by the
defendant. (at p. 1013.) On February 5, 2015, the defendant denied the allegations in the PRCS
revocation petition and waived time for the revocation hearing. The defendant then filed a
Proposition 47 petition for resentencing pursuant to Penal Code section 1170.18 and requested a
continuance of the hearing on the PRCS revocation until February 25, 2015. (at p. 1013.)
The Proposition 47 petition for resentencing was denied February 13, 2015. And on February 27,
2015, the trial court conducted an evidentiary hearing, found the defendant in violation of her
PRCS terms, and ordered her to serve 140 days in county jail. (at p. 1013.)
The defendant appealed, claiming her due process rights were violated because she was not
arraigned within 10 days of her arrest and provided a probable cause hearing that complied with
the procedures required for such a hearing identified in Morrissey v. Brewer (1972) 408 U.S.
471. (at p. 1012.)
Holding and Analysis
1.
The procedures used did not violate due process and, in any event, defendant was not prejudiced
by the procedures used. (at pp. 1017-1018.) Here’s why:
2.
In Morrissey v. Brewer (1972) 408 U.S. 471, the High Court delineated the basic due process
protections for a parole revocation hearing. Among the requirements is that after the arrest, a
“determination that reasonable ground exists for revocation of parole should be made by
someone not directly involved in the case.” (Byron at p. 1013 citing to Morrissey at p. 485.)
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Albeit, there is no requirement that the hearing officer be a judicial officer or a lawyer. (Ibid.)
Morrissey also “requires that parolees be afforded two hearings: a preliminary hearing to
determine whether there is probable cause to believe the parolee committed a parole violation;
and a second more comprehensive hearing prior to making the final revocation decision.”
(Byron at p. 1015.)
In People v. Vickers (1972) 8 Cal.3d 451, our state supreme court extended Morrissey due
process protections to probation revocations – albeit while noting that probation proceedings
need not be identical to the parole revocation proceedings and approving a unitary hearing that
would serve the purposes of the separate preliminary and formal revocation hearings outlined in
Morrissey. (at p. 1014.)
Editor’s note: Morrissey also requires that “(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.” (See Morrissey v. Brewer (1972) 408 U.S. 471, 489; People v. Gutierrez (2016) 245
Cal.App.4th 393, 401 [discussed in this IPG memo, below at p. 13-15.)
3.
In Williams v. Superior Court (2014) 230 Cal.App.4th 636, the appellate court, relying on
Penal Code section 3044(a), held that when it comes to parole revocation proceedings, a parolee
is entitled to a Morrissey-compliant probable cause hearing not later than 15 days following
his/her arrest for violating parole and a revocation hearing no later than 45 days following
his/her arrest. (Byron at pp. 1014-1015 citing to Williams at pp. 657–658.) Williams also
held that a parolee must be brought “before the court for arraignment no later than the
permissible period of flash incarceration, i.e., 10 days after arrest.” (Id. at p. 663.)
Thus, it invalidated a parole revocation procedure in Orange County where (i) the parole
supervising agency determined probable cause on its own (without an informal hearing) by
checking a box on a form and calendaring the arraignment more than 10 days after the parolee's
arrest; (ii) parolees averaged over 16 days in custody before their first court appearance and were
not provided a probable cause hearing within 15 days of their arrest; and (iii) the final revocation
hearing, at which the parolee could introduce adverse evidence, was typically three weeks after
arraignment. (Byron at p. 1016 citing to Williams at pp. 644-646.)
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4.
However, Williams interpretation of what procedures are required in the context of parole
revocation hearings does not govern what procedures are required in the context of PRCS
revocation hearings. “Under the Realignment Act, parole and PRCS are two separate forms of
supervision.” (at p. 1016.)
“Parole revocations are governed by section 3000.08 which requires that the supervising agency
file a superior court petition pursuant to [Penal Code] section 1203.2 for revocation of parole.
Section 3044, subdivision (a) provides that the parolee is entitled to a probable cause hearing not
later than 15 days following his/her arrest for violating parole and a revocation hearing no later
than 45 days following his/her arrest.” (at p. 1014.)
In contrast, Penal Code section 3455, subdivision (c), “which governs PRCS revocations, requires
that the revocation hearing be held ‘within a reasonable time after the filing of the revocation
petition.’” (at p. 1015.) Moreover, “PRCS revocations may be informally resolved. Section 3455
provides that before the first court appearance, an individual subject to PRCS revocation shall be
provided an informal hearing and may waive his/her right to counsel, admit the PRCS violation,
waive a court hearing, and accept the proposed PRCS modification. (§ 3455, subd. (a).) If the
individual declines to accept the recommendation (as did [the defendant]), the individual
remains in custody and is provided a formal revocation hearing.” (at p. 1016.)
The Byron court rejected the argument that “parole, probation, and PRCS revocation hearings
are constitutionally indistinguishable and are subject to “uniform supervision revocation
process.” (at p. 1014.)
The Byron court recognized that there is language in an uncodified section of the Postrelease
Community Supervision Act of 2011 Act (Realignment Act) which stated: “By amending ...
subdivision (a) of ... Section 1203.2 of the Penal Code, 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 . . . and
People v. Vickers (1972) 8 Cal.3d 451 . . . and their progeny.” (Byron at p. 1014.) However,
the court pointed out that to render the procedures uniform would require rewriting the various
statutes which treat parole, probation, and PRCS differently – something that is not a legitimate
function of the court. (at p. 1014.)
5.
“Nothing in the PRCS revocation procedures employed in this case violate[d] the letter or spirit
of Morrissey . . . or Vickers[.]” (at p. 1018.) Although the procedures used in this case when
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revoking PRCS differed from those used when revoking parole, the procedures still comported
with the requirements of due process as required by Morrissey:
First, a neutral hearing officer determined there was probable cause that defendant had violated
her PRCS terms within two days after her arrest. The defendant was “advised of the alleged
PRCS violations and the recommended PRCS modification, and advised of her right to counsel if
she elected not to accept the PRCS modification.” (at p. 1017.) This was “the functional
equivalent of an arraignment and a probable cause ruling in superior court.” (at p. 1017.)
Second, 13 days after her arrest, defendant appeared with counsel and moved to dismiss the
petition to revoke PRCS, which was denied the same day. The hearing on the motion to dismiss
was tantamount to a second probable cause hearing, this time heard by the superior court.” (at
p. 1017.) This hearing actually provided “provided greater procedural protections than required
by Morrissey, or Vickers” in regards to its timeliness. (at p. 1017.)
6.
The court declined “the invitation to rewrite section 3455 (PRCS revocation hearings must be
held a “reasonable time” after arrest) or expand section 3044 to require that parole revocation
timelines (i.e., probable cause hearing no later than 15 days following arrest for violation of
parole) be strictly observed in a PRCS revocation.” (at pp. 1017-1018.)
Thus, the court rejected the claim that the requirement for a formal arraignment in the superior
court within 10 days of arrest that applied to parole hearings applied to PRCS revocations and
concluded that the fact an evidentiary hearing was effectively held 25 days after defendant’s
arrest (it was held 45 days after arrest but 20 of those days were attributable to the defendant
who asked for and received a continuance) did not, as a matter of law, result in a due process
violation. (at pp. 1017, 1018 [and rejecting the argument that due process required a court
arraignment for a PRCS revocation].)
And the court rejected the argument that counsel should be “appointed” at the initial probable
cause hearing because doing so “would undercut the informal nature of the proceeding” and
because “[n]owhere in the PRCS statutory revocation scheme is there a requirement for the
appointment of counsel at the initial hearing.” (at p. 1016, fn. 4.)
7.
The court was not swayed by the argument that the PRCS procedures used in the instant case
(i.e., to make “waiver offers” in which the defendant can admit the PRCS violation) should not be
approved because they encourage defendants who may be innocent to admit a PRCS violation to
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avoid a greater punishment (i.e., continued time in custody). The court stated “[t]his argument
fails here because the recommended PRCS modification remained the same: 180 days county
jail.” (at p. 1015.)
Editor’s note: Attentive IPG readers might be pondering why the defendant, whose revocation was based
simply on drug-related offenses, was not entitled to drug treatment rather than incarceration pursuant to
People v. Armogeda (2015) 233 Cal.App.4th 428, 435–436, which held Penal Code section 3455 was
unconstitutional to the extent it permitted the incarceration of nonviolent drug offenders under
circumstances prohibited by Proposition 36 and section 3063.1. The answer is two-fold. First the
defendant waived the argument by failing to object to incarceration under this theory. Second, defendant
was ineligible for Proposition 36 drug treatment since had a prior strike conviction for burglary in 2003, was
convicted again in 2005 for felony receiving stolen property, and returned to prison. (See Byron at p.
1012, fn. 3 and Pen. Code, § 1210.1(b)(1); see also People v. Gutierrez (2016) 245 Cal.App.4th 393, 404
[discussed immediately below].)
The Statutory Procedures for Revocation of PRCS Complied with Due
Process Even Though the Initial Review was Done by a Probation Officer.
Differences in Treatment Between Persons on Parole and PRCS Do Not
Violate Equal Protection. Persons on PRCS May Not Be Incarcerated for
Nonviolent Drug Violations of Supervision.
People v. Gutierrez (2016) 245 Cal.App.4th 393
Facts
The defendant was under postrelease community supervision (PRCS) when he was arrested for
being under the influence of a controlled substance and tested positive for methamphetamine on
February 14, 2015. Three days later, a deputy probation officer conducted an administrative
probable cause hearing. At the hearing, the defendant “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.” (at
p. 398.) The defendant denied committing the offense, claiming he was the victim of a
conspiracy by the police. 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 cause that defendant violated the terms of his
PRCS by using a controlled substance. On February 23, 2015, probation filed a petition for
revocation of PRCS and a probation revocation hearing was held on March 12. At the hearing,
the trial court denied defendant’s request to dismiss the revocation petition, found him in
violation of PRCS, and ordered him to serve 60 days in jail. (at pp. 398-399.)
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On appeal, the defendant claimed the PRCS revocation process violated his rights to due process
because “he was not promptly arraigned or given a probable cause hearing before a neutral
decision maker, as required by Morrissey [v. Brewer (1972) 408 U.S. 471].” (at pp. 400-401,
bracketed information added.) Defendant also argued that if the PRCS revocation process was
not subject to the identical requirements as the parole revocation process, it violated equal
protection. (at p. 403.) And finally, defendant argued the “revocation process violates
Proposition 36 because it permits a nonviolent drug possession offender to be incarcerated
rather than referred to treatment.” (at p. 401.)
Holding and Analysis
1.
The PRCS revocation process utilized in this case comported with due process as required by
Morrissey. (Note: Much of the analysis on the first issue duplicates the analysis of the same
issue in People v. Byron (2016) 246 Cal.App.4th 1009, see this IPG memo at pp. 8-12, and
will not be repeated here.)
2.
The court rejected the argument that since defendant “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” as required by Williams v. Superior Court (2014) 230 Cal.App.4th 636,
he was deprived of due process. (at pp. 402-403.)
As to whether the hearing itself was Morrissey-compliant, the court observed that 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.” (at p. 402.) That
occurred in the instant case when, three days after defendant’s arrest, a probation officer met
with the defendant to discuss his alleged violation and recommended he serve 120 days in jail.
(at p. 402.)
As to whether the time-frames laid out in Williams v. Superior Court (2014) 230
Cal.App.4th 636 for parole revocation hearings were applicable in the context of PRCS
revocation hearings, the court indicated that the two types of hearings were sufficiently
distinguishable that the holding in Williams was not binding. However, the court declined to
decide whether, as a matter of due process, the 10–day arraignment applied in PRCS revocation
proceedings because the defendant failed to show he was prejudiced by the fact he did not appear
in court within 10 days of his arrest. (at p. 403.)
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3.
The court rejected the argument that treating persons on PRCS differently than persons on
parole when it comes to how revocation hearings are handled violated equal protection. (at p.
403.)
The court pointed out that for there to be a violation of equal protection, there must be “a
showing that the state has adopted a classification that affects two or more similarly situated
groups in an unequal manner.” (at p. 403.) And even “reasonable classifications drawn between
similarly situated persons do not violate equal protection ‘provided the classifications are made
with a legitimate goal to be accomplished.’” (at p. 403.)
Persons convicted of different crimes are not similarly situated for equal protection purposes;
and persons placed on parole are convicted of different crimes than persons placed on PRCS:
“parole is reserved for those who have committed serious or violent felonies, are high-risk sex
offenders or are mentally disordered” while “[t]hose who have committed non-serious,
nonviolent felonies are subject to PRCS.” (at pp. 403-404.) Moreover, the classification
distinction has a legitimate goal, i.e., “that serious or violent felons should be supervised under
more formal procedures than those applied to other felons.” (at p. 404.)
4.
The court remanded the case to the lower court to determine whether sentencing the defendant
to jail violated Proposition 36, which mandates that, as a general rule, a person who commits a
nonviolent drug possession offense should be referred to drug treatment rather than to jail. (at
p. 404.) [and, at p. 400, fn. 3, citing to People v. Armogeda (2015) 233 Cal.App.4th 428, 435–
436 for the proposition that “Section 3455 is unconstitutional to the extent that it amends the
treatment of nonviolent drug possession offenders and permits their incarceration under
circumstances prohibited by Proposition 36 and section 3063.1.”].)
Penal Code section 3455, which is applicable to PRCS, authorizes revocation of PRCS and
incarceration for up to 180 days for any violation of supervision conditions, including an NVDP
offense. But “section 3455 may not be applied in a manner that is inconsistent with the
treatment requirements of Proposition 36.” (at p. 404.)
Thus, remand was necessary to determine if the defendant was otherwise eligible for treatment
under Proposition 36 and whether the defendant had to be ordered to participate in drug
treatment instead of being sentenced to serve 60 days in jail. (at p. 404.)
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A Defendant on PRCS Remains Subject to a Search Condition, Even After
Having Completed One Year of PRCS Without a Violation, Up Until the
Defendant is Discharged from Supervision – Which Can Be Up to 30 Days
After the End of the One-Year Period.
People
v. Young
People
v. Young (2016) 246 Cal.App.4th 1009
Facts
After defendant was released from prison on May 14, 2012, he was placed on postrelease
community supervision (PRCS). One of the conditions of defendant's supervision was that he
was subject to warrantless searches of his person and possessions and prohibited from
possessing pornographic material. (at p. 976.)
While defendant was on PRCS, police got information defendant was chatting on-line with
teenage girls about sexual matters and obtained permission from his probation officer to conduct
a search of defendant’s home. The actual search of defendant’s home did not take place until
May 15, 2013, a year and one day after defendant was placed on postrelease community
supervision. During the search, the police located defendant’s computer, which contained child
pornography. (at pp. 976-977.)
According to the testimony of defendant’s probation officer at a hearing on a motion to suppress
evidence resulting from the search, supervision of a person placed on PRCS could last up to three
years but if the person had no violations after a year, the department would begin the process of
“closing” the case. The process involved a probation officer’s review of the person’s records to
assess whether discharge was appropriate. The officer would then “submit this assessment to a
supervisor who, when appropriate, would transmit it to the probation department’s clerk for
formal discharge.” (at p. 977.) The process had to be completed and person discharged within
30 days after the one-year period of no violations had been reached. (at p. 977.) The probation
officer stated that at the time of the search, the defendant had gone a year without a violation but
that he had not yet begun assessing defendant’s eligibility for discharge. (at p. 977.)
On appeal, defendant claimed the “search was unlawful because the county probation
department’s postrelease community supervision of him had terminated the day before the
search as a matter of law, pursuant to the terms of Penal Code section 3456.” (at p. 975.)
1.
Under the Postrelease Community Supervision Act of 2011, codified as section 3450 et seq.,
“[l]ow-level offenders released from prison are subject to community supervision provided by
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the probation department of the county to which the person is being released according to a
postrelease strategy developed by each county’s board of supervisors.” (at p. 979 citing to Pen.
Code, § 3451, subds. (a), (c)(1).)
“Unless his or her supervision is tolled for reasons not relevant here, ‘[a] person shall not remain
under supervision ... on or after three years from the date of the person's initial entry onto
postrelease community supervision....’” (at p. 979 citing to Pen. Code, § 3455(e).)
2.
The person placed on PRCS is subject to numerous mandatory conditions including that “[t]he
person, and his or her residence and possessions, shall be subject to search at any time of the day
or night, with or without a warrant, by an agent of the supervising county agency or by a peace
officer.” (at p. 979, citing to Pen. Code, § 3453(f).)
3.
Penal Code section 3456 provides for the termination of postrelease supervision after three
years, six months and one year as follows: “(a) The county agency responsible for postrelease
supervision ... shall maintain postrelease supervision over a person ... until one of the following
events occurs:
“(1) The person has been subject to postrelease supervision pursuant to this title for three years
at which time the offender shall be immediately discharged from postrelease supervision.
“(2) Any person on postrelease supervision for six consecutive months with no violations of his
or her conditions of postrelease supervision that result in a custodial sanction may be considered
for immediate discharge by the supervising county.
“(3) The person who has been on postrelease supervision continuously for one year with no
violations of his or her conditions of postrelease supervision that result in a custodial sanction
shall be discharged from supervision within 30 days.” (at p. 980, emphasis added by
IPG.)
4.
If a person is going to be discharged from supervision as a result of having been on postrelease
supervision continuously for one year with no violations of his or her conditions of postrelease
supervision that result in a custodial sanction, the agency supervising the defendant has 30 days
to discharge the defendant. “The statute does not require the agency to discharge the person on
any particular date prior to the expiration of this 30–day period; it requires only that discharge
occur sometime within that period.” (at p. 981.)
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Until the discharge actually occurs, Penal Code section 3456(a) provides that the agency “shall
maintain postrelease community supervision.” (at p. 981.)
5.
Since the agency maintains supervision of a person during the period prior to discharge, the
person remains subject to the conditions of supervision, including the search condition. (at p.
982.)
The court pointed out that it would make no sense to provide a 30-day window for the
supervising agency to act if the Legislature intended for a defendant who had completed a year
without violation to be immediately discharged. (at p. 981 [and contrasting the lack of ANY
reference to immediate discharge in subdivision (a)(3) with language in subdivision (a)(1) which
expressly requires “immediate discharge” upon completion of the three-year period].)
6.
In the instant case, the search of defendant’s residence took place one day after the defendant
had been on postrelease supervision continuously for one year with no violations of his or her
conditions of postrelease supervision that result in a custodial sanction. However, defendant
had not yet been discharged from supervision and thus was still subject to postrelease
community supervision conditions, including the search condition. (at pp. 978, 982.)
NEXT EDITION ETA IS NOVEMBER 11. SANTA CLARA COUNTY DDA KATHY STORTON
BREAKS DOWN WHATEVER MEASURES PASS IN THE UPCOMING ELECTION THAT ARE
OF INTEREST TO PROSECUTORS:
PROPOSITION 57 [DESTRUCTION OF TRUTH-IN-SENTENCING,
SENTENCING, AND DIRECT FILING IN JUVENILE CASES];
DETERMINATE
PROPOSITION 62 [ELIMINATION OF DEATH PENALTY];
PROPOSITION 63 [MODIFICATION OF FIREARMS AND AMMUNITION LAWS];
PROPOSITION 64 [LEGALIZATION OF MARIJUANA];
PROPOSITION 66 [REFORM OF DEATH PENALTY].
Suggestions for future topics to be covered by the Inquisitive Prosecutor’s Guide, as well as any other comments or criticisms, should be
directed to Jeff Rubin at (408) 792-1065.
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