Opinion
D072775
01-30-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAYMOND BAUER, Defendant and Appellant.
Sheila O'Connor, 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, Melissa Mandel and Mary K. Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. PLAH6893) APPEAL from an order of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Sheila O'Connor, 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, Melissa Mandel and Mary K. Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Michael Raymond Bauer, a registered sex offender (former Pen. Code, § 290, subds. (b) & (c)), appeals an order finding him in violation of his conditions of parole following an evidentiary hearing in which defendant represented himself. Defendant's obligation to register as a sex offender arose from his conviction for forcibly putting his hands down the pants of a seven-year-old boy and touching the boy's penis, skin-on-skin, in a McDonald's restaurant bathroom. (See People v. Bauer (2012) 212 Cal.App.4th 150, 153; see also Pen. Code, § 288, subd. (a).) After serving six years in prison, defendant was released on parole in July 2015.
On or about June 20, 2017, the Department of Corrections and Rehabilitation, Division of Adult Parole Operations (Parole Department), filed a petition to revoke defendant's parole, based on a June 11 incident in which defendant contacted a four-year-old boy (sometimes, minor) at a different McDonald's restaurant (restaurant). The court after an evidentiary hearing found that defendant violated the conditions of his parole by failing to inform his parole agent of the contact with minor, revoked his parole, and imposed as a sanction for the violation 180 days in custody.
Unless otherwise noted, all dates refer to calendar year 2017.
After lengthy briefing (discussed post), defendant on appeal contends that the court prejudicially erred in imposing a stay-away order with respect to minor and minor's family; in failing to admonish his parole agent for allegedly lying to the court; and in rejecting his claim that revocation of parole was allegedly the result of inherent bias. As we explain, we find these contentions lack merit. We thus affirm the court's order revoking defendant's parole and imposing as a sanction 180 days in custody.
FACTUAL BACKGROUND
On June 11, Ruth C., her husband Jonathan C., and their two young boys — including minor — went to the restaurant for lunch after church. While Jonathan waited in line to place their order, Ruth sat down in a booth with her boys. A man whom she had seen at the restaurant counter and who was later identified as defendant, sat in the booth directly behind them without ordering anything to eat. Ruth noticed the man staring at her and her boys, as he was "hovering" over them. Uncomfortable by the man's behavior, Ruth changed seats a few minutes later, so she could face the man to keep an eye on him.
Once Jonathan sat down with their order, the family began to pray. The man in response started asking the family a series of questions, including among others where they went to church, where they lived, and their names. As the family ate, the man started directing more of his questions at minor, asking minor what his favorite television shows were, whether minor liked movies such as Captain America and Spiderman, and whether minor wanted to "share [his] food with [defendant]." At the August 28 parole revocation hearing, Ruth could not recall whether the man gave his name as he continued to engage minor. However, in her report to police, Ruth stated the man identified himself as "Michael." Ruth observed the man also contacting other children in the restaurant, including a little girl in a soccer uniform.
Ruth testified that after about 15 minutes, they decided to leave the restaurant because defendant continued to ask myriad questions and "hover[ed]" over the family, making them uncomfortable and unable to enjoy their meal. As the family was leaving, the man asked if he could say goodbye to minor, then repeatedly said "Bye" using minor's first name. Minor, whom Ruth described as shy, refused to engage defendant.
Two days later, while on social media Ruth found a picture of, and information about, the man that had contacted the family and her boys at the restaurant, which had just been released to the community on the site's "East County page." Because the information regarding defendant stated he was not allowed to talk to children under 18 years old, Ruth called the sheriff the following morning. At trial, Ruth identified defendant from photographs taken from a surveillance camera inside the restaurant, which showed defendant standing near the cash register and Ruth in the left-hand corner of the photograph. Ruth unequivocally testified that defendant was the man who contacted her family — including minor — inside the restaurant.
San Diego County Deputy Sheriff Marco Collins investigated the incident. He obtained video footage recorded on June 11 from inside the restaurant. Deputy Collins then took pictures of the video, which showed defendant and Ruth in the restaurant at the same time, as Ruth noted in her testimony. Deputy Collins also interviewed Jonathan, who confirmed that the man inside the restaurant was defendant; that the man had a "long conversation with him and his children," which made Jonathan "very uncomfortable"; and that Jonathan also looked at the social media site viewed by his wife two days after the incident, and immediately recognized the man that had spoken to them in the restaurant as defendant, a feeling which made Jonathan "sick to his stomach."
Parole Department agent Martin Jacobo testified he was assigned to supervise defendant while on parole; that as a condition of his parole, defendant was required to wear a GPS device; that parole condition 17 mandated defendant notify "his parole agent of any contact with a minor, whether [such contact was] incidental or accidental"; that defendant failed to report the contact involving minor on June 11; and that, as a result of his failure to report this contact, defendant was found to be in violation of his conditions of parole and was thus arrested.
Agent Jacobo testified defendant admitted having contact with the minor on June 11. However, according to defendant, he merely said "hi" to minor. Agent Jacobo reviewed defendant's "GPS tracks" from the Parole Department's "monitoring system" for June 11 and found it corroborated the surveillance video from inside the restaurant, and the testimony of both Ruth and Jonathan, that the man who contacted minor was in fact defendant, and that defendant on June 11 was inside this particular restaurant between 10:58 a.m. and 12:22 p.m.
Agent Jacobo testified defendant has had "over 30 parole violations," and has had his parole revoked seven times, since his release in 2015. As his parole agent, Agent Jacobo recommended the court impose the "maximum of 180 days to keep all the children here in San Diego safe."
The record shows a petition for revocation of parole was also filed by the Parole Department on March 15, based on three incidents that took place earlier that same month. Defendant was found outside the "Children's Place" department store in San Ysidro, at the beach and boardwalk in Pacific Beach, and in a McDonald's restaurant in San Diego, despite the condition of parole that defendant not "enter or loiter within 250 feet of the perimeter where children congregate." With respect to the McDonald's incident, defendant was found in possession of "geometry . . . problems" that belonged to a student named "Aris S."
On his arrest on March 9 for the parole violations, defendant was placed in the backseat of a San Diego Police Department patrol vehicle. Defendant "immediately started forcefully and repeatedly banging his head on the plastic patrician." When told to stop, defendant "slipped his handcuffs to the front and started kicking the patrol car windows and doors" with such force the doors were "literally flexing . . . open." After the officer administered pepper spray, defendant continued to kick at the doors and windows of the patrol car, leading the officer to re-administer the spray.
During an interview with Agent Jacobo on March 14 at the San Diego Central Jail, defendant stated he was in possession of the geometry homework because he was helping Aris in school, claiming Aris was a college student. When defendant was told the homework page also included the notation "Per 6th" suggesting the homework was from a junior high or high school student, defendant claimed he found the homework and then spontaneously stated, " 'If you violate me I'm going to kill myself.' " After a break, defendant stated he wanted to make an additional statement to Agent Jacobo. After being placed in a holding cell, defendant stated, "Give me a break . . . . Let's work something out because I'm going to file criminal charges against you if you don't." When Agent Jacobo responded he was merely "doing his job," defendant "became enraged and yelled out, 'I'm going to fuck you up.' "
With respect to the March 15 petition to revoke parole, Agent Jacobo in the evaluation portion of the petition noted in part as follows: "With this latest incident it might be an indicator that Subject [i.e., defendant] is demonstrating recalcitrant behavior. It is suspected Subject has escalated his sexual predatory deviancy by contacting any children in his path and by any means such as grooming his next victim with toys and gifts and to establish any kind of relationship such as acting as a homework tutor to accomplish another victim. Subject is considered a very dangerous individual to public safety as it is apparent he will do anything in his power to accomplish his means. What is of great concern to [Agent Jacobo] is that it is clearly apparent that Subject is constantly looking for a victim. He also admits that he frequently masturbates to young boys and has the same sexual desire for young girls. Therefore, based on Subject's history of uncontrollable sexual overtones, specifically towards boys and girls and violent criminal history specifically towards Law Enforcement[, Agent Jacobo] strongly recommends Subject be evaluated as a potential violent sexual predator. Due to the aforementioned and Subject's history of violence combined with history of sexual impulse for children that he has shown he cannot control, a return to custody for Subject appears to be the only option at this time to keep a child from being harmed."
In support of his recommendation that defendant be held in custody for 180 days as a sanction for the June 11 incident, Agent Jacobo testified that the Probation Department had "attempted to assist [defendant with] positive reintegration into society"; that defendant has refused this help; and that defendant "continues to re-offend." Agent Jacobo specifically testified that the Parole Department had referred defendant to "sex-offender treatment," "behavioral interventions" including through "Telecare," where defendant would have received housing assistance and transportation; and had provided defendant housing through "AB 113."
According to Agent Jacobo, defendant failed to take advantage of these opportunities and instead, "continue[d] to display sexual deviancy toward[] young boys"; that defendant has "also admitted that he has — that while on parole he has contacted young boys with the intention of molesting them"; that defendant "has gone as far as asking [Agent Jocobo] what he should do if he sees a young boy and feels like molesting them, if he should masturbate at that time"; and that, although Agent Jacobo initially thought defendant was asking such questions and making such inquiries because defendant was reaching out for help, Agent Jacobo opined that defendant made such comments and statements in a "narcissistic" way, as "taunts toward[] law enforcement, more in the sense of 'catch me if you can.' "
Sitting as the trier of fact, the court at the August 28 parole revocation hearing found Ruth to be credible and truthful, noting she was "one of the best lay witnesses [the court has] ever heard testify." Based on her testimony, the court found the "facts establish[ed] a violation that is both material and, in this [c]ourt's mind, highly disturbing, particularly when one considers the facts of Mr. Bauer's offense of commitment to prison." The court also found Deputy Collins and Agent Jacobo to be credible and their testimony "truthful and accurate," and defendant not credible and his argument that "none of this happened" on June 11 "false."
The court imposed as a sanction for the violation 180 days of custody. Particularly relevant to this appeal, the court also ordered defendant to "have no contact, direct or indirect, with Ruth C. and any and all members of her family," which included a "hundred-yard stay-away order from them, their home, their school, their place of work, [and] place of business, if any." The court noted its no-contact order included any contact by "electronic" means. After defendant stated he would be reporting the trial judge to the judicial council based on the court's alleged improper conduct in "not relying on regular evidence," the record shows the court wished defendant "good luck" and concluded the proceeding.
PROCEDURAL BACKGROUND
On January 18, 2018, counsel for defendant filed an opening brief in this court. In his opening brief, defendant raised a single issue: whether the court acted in excess of its jurisdiction by issuing an order requiring defendant to stay away from minor and his family, an order the record shows defendant himself expressly asked the court to make — while in propria persona — during the parole revocation hearing. On April 6, 2018, the People filed a motion to dismiss, which defendant opposed. On April 18, 2018, this court ordered respondent's motion to dismiss considered concurrently with this appeal, and ordered the People to file its respondent's brief, which was done on May 17, 2018.
On May 23, 2018, counsel for defendant filed a motion to strike defendant's opening brief and replace it with a brief in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738. In the motion to strike the opening brief and proposed Wende brief, counsel for defendant presented to this court the following three possible, but not arguable, issues: 1) "Did the trial court abuse its discretion when it found Mr. Bauer violated his parole by failing to inform his parole agent of an encounter with a minor?" 2) "Did the court properly deny Mr. Bauer's request to have his parole agent arrested or admonished for lying to the court about things he said about Mr. Bauer?" And 3) "Was the court's stay-away order unauthorized and unreasonable?"
On or about June 1, 2018, this court denied the motion to strike defendant's opening brief and to replace it with a Wende brief. This court on its own motion ordered defendant to file a supplemental brief addressing at a minimum each of the three issues raised in his ill-fated Wende brief. The order further provided the People could file a supplemental brief in response, and defendant could reply to the People's supplemental brief.
This court's June 1 order expressly provided defendant could raise additional issues in his supplemental brief other than the three counsel included in the proposed Wende brief.
We have read and considered the supplemental briefs of the parties. We note the issue raised by defendant in his opening brief regarding whether the court exceeded its jurisdiction by issuing the stay-away order is largely duplicative of the issues he raised in his supplemental briefing, which shall therefore be the focus of this court's opinion.
Because we address defendant's appeal on the merits, we find it unnecessary to rule on the motion to dismiss filed (before supplemental briefing) by the People, which argued the instant appeal was "either unripe, moot, or both" because the trial court on September 11 had separately "issued a pretrial criminal protective order" protecting minor from defendant pursuant to Penal Code section 136.2, subdivision (a).
DISCUSSION
A. Brief Additional Background
At the outset of the August 28 parole revocation hearing, defendant represented that in the materials turned over by his public defender — after the court approved defendant's request to proceed in propria persona — was a police report that included minor's family's identifying information. Defendant stated he was not entitled to have such information, citing Penal Code section 1054.2, subdivision (b), and suggested he then hand over that portion of the report to the prosecutor because he was "not supposed to have the address to the alleged victim." Defendant then asked the court to hold his former public defender in contempt.
The court in response applauded defendant for his "candor" with respect to his possession of the victim's personal information. The court, however, denied defendant's request to hold the public defender in contempt, noting that while the victim's address should have been redacted before the files were handed over to defendant, the court was satisfied that the failure to do so was "inadvertent" and not "willful."
Near the conclusion of the August 28 hearing, defendant argued the court should impose less than 180 days as a sanction because there was no video footage from the restaurant showing him actually contacting minor and his family. The prosecutor next raised the issue of the inadvertent disclosure of the personal information of minor and his family. Defendant in response stated, "Your Honor, in regards to that, I would agree that the restraining order be issued that I do not contact them," to which the court responded, "Thank you for that."
Shortly thereafter, when the court asked defendant to address the People's recommendation of 180 days in custody as a sanction, defendant argued in part as follows: "I would also ask the [c]ourt to issue a restraining order against Mr. Bauer, if the court believes that he did violate his conditions of parole, and that he have no contact with the alleged family as the prosecution's requesting." The court then asked defendant if in fact he had "divested [himself] — that is, gotten rid of — anything with Ruth's or her family's personal identifying information on it." Defendant in response stated it was possible that he also had such information in his "cell" attached to another motion he had intended to file. Defendant agreed to mail such information to the district attorney's office.
B. Guiding Principles
The fundamental goals of parole are " 'to help individuals reintegrate into society as constructive individuals' [citation], ' "to end criminal careers through the rehabilitation of those convicted of crime" ' [citation] and to [help them] become self-supporting." (In re Stevens (2004) 119 Cal.App.4th 1228, 1233). In furtherance of these goals, "[t]he state may impose any condition reasonably related to parole supervision." (Ibid.) These conditions "must be reasonably related to the compelling state interest of fostering a law-abiding lifestyle in the parolee." (Id. at p. 1234.)
The validity and reasonableness of parole conditions are analyzed under the same standard as that developed for probation conditions. (In re Hudson (2006) 143 Cal.App.4th 1, 9.) "A condition of [parole] will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' [Citation.] Conversely, a condition of [parole] which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted, superseded on another ground by Proposition 8 as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.)
"[R]evocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. [Citation] . . . Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions." (Morrissey v. Brewer (1972) 408 U.S. 471, 480 (Morrissey).)
"If the court finds the parolee has violated the conditions of parole, it may (1) return the person to parole supervision with modifications of conditions, if appropriate, (2) revoke parole and order the person to confinement in county jail, or (3) refer the person to reentry court or an evidence-based program." (Williams v. Superior Court (2014) 230 Cal.App.4th 636, 652, disapproved on another ground as stated in People v. DeLeon (2017) 3 Cal.5th 640, 653; see Pen. Code, § 3000.08, subd. (d) [providing in part that if there is a "finding of good cause that the parolee has committed a violation of law or violated his or her conditions of parole, the supervising parole agency may impose additional and appropriate conditions of supervision, including rehabilitation and treatment services and appropriate incentives for compliance, and impose immediate, structured, and intermediate sanctions for parole violations, including flash incarceration in a city or a county jail"].)
Whether to revoke parole lies within the trial court's "very broad discretion." (People v. Rodriguez (1990) 51 Cal.3d 437, 443 (Rodriguez).) The facts supporting revocation must be proved by a preponderance of the evidence. (See id. at p. 441; see also Pen. Code, § 3044, subd. (a)(5) [noting parole revocation determinations "shall be based upon a preponderance of evidence admitted at hearings including documentary evidence, direct testimony, or hearsay evidence offered by parole agents, officers, or a victim"].) Although we review the order revoking parole for abuse of discretion (Rodriguez, at p. 443), we review the court's factual findings in connection with a parole revocation decision for substantial evidence (see People v. Urke (2011) 197 Cal.App.4th 766, 773 (Urke)).
Parolees have fewer constitutional rights than do ordinary persons. (Morrissey, supra, 408 U.S. at p. 482.) "Although a parolee is no longer confined in prison[,] his [or her] custody status is one which requires and permits supervision and surveillance under restrictions which may not be imposed on members of the public generally." (People v. Burgener (1986) 41 Cal.3d 505, 531 (Burgener), disapproved on another ground as stated in People v. Reyes (1998) 19 Cal.4th 743, 754, 756.) The state may impose any condition reasonably related to parole supervision. (Pen. Code, § 3053, subd. (a).) The criteria for assessing the constitutionality of conditions of probation also applies to conditions of parole. (In re Naito (1986) 186 Cal.App.3d 1656, 1661, citing Burgener, at p. 532.) Conditions of parole typically bar a parolee from having contact with old associates or engaging in past activities; they are designed to prevent the parolee from reverting to a former crime-inducing lifestyle. (People v. Denne (1956) 141 Cal.App.2d 499, 508.)
There are, however, limits upon imposition of restrictions of the parolee. Parole conditions, like conditions of probation, must be reasonable since parolees retain "constitutional protection against arbitrary and oppressive official action." (People v. Thompson (1967) 252 Cal.App.2d 76, 84.) Conditions of parole must be reasonably related to the compelling state interest of fostering a law-abiding lifestyle in the parolee. (In re White (1979) 97 Cal.App.3d 141, 146.)
C. Stay-Away Order
1. Forfeiture and Invited Error
Before reaching the merits of defendant's appeal, as defendant concedes he not only failed to object in the trial court to the stay-away order that is at the heart of his appeal, but he also expressly and repeatedly requested that the court issue such an order, both at the outset and at the end of the evidentiary hearing. For these reasons alone, we reject defendant's claim that the court erred in imposing the stay-away order precluding him from having any direct or indirect contact — including electronically — with minor and minor's family. (See People v. Welch (1993) 5 Cal.4th 228, 234-235 [noting the failure to challenge the condition or conditions of mandatory supervision in the trial court results in a forfeiture of that issue on appeal]; see also People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3 [noting the "doctrine of invited error applies to estop a party from asserting an error when 'his [or her] conduct induces the commission of error' "].)
Moreover, because defendant was in propria persona, he also cannot rely on any ineffective assistance of counsel claim in response to the forfeiture or invited error doctrines, as he openly acknowledged in the trial court when he was warned of the perils of self-representation. (See People v. Blair (2005) 36 Cal.4th 686, 708 [noting a "criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his [or her] own defense, provided that he [or she] knowingly and intelligently waives his [or her] Sixth Amendment right to the assistance of counsel," and further noting among the dangers of self-representation are that a prosecutor, as "an experienced lawyer[,] . . . would have an advantage over [the defendant], that as an in propria persona the defendant . . . would receive no special consideration from the court, [and] that [the defendant] would be unable to claim ineffective assistance of counsel on appeal" (italics added)], overruled on another ground as stated in People v. Black (2014) 58 Cal.4th 912, 919.) For these reasons, we thus reject this claim of error.
2. Merits
We also reject on the merits defendant's claim the trial court erred when it issued the stay-away order. There is overwhelming evidence in the record to support the trial court's finding that defendant violated parole condition 17 on June 11 by failing to notify Agent Jacobo and/or the Parole Department that he contacted minor, a four-year-old boy, in the restaurant. (See Urke, supra, 197 Cal.App.4th at p. 773 [applying the substantial evidence standard of review].)
Although defendant was required to notify his parole agent of such contact even if it was merely "incidental or accidental," the record shows defendant's contact with minor was anything but, as defendant "hovered" over the family, initially sitting in a booth directly behind Ruth and asking her and the boys myriad questions which, as time went on, he directed more and more to minor. Defendant's questioning included asking the family where they lived, their names, and what church they attended; what were minor's favorite television shows and whether minor liked movies such as Spiderman and Captain America (movies defendant ostensibly believed would be of interest to a four-year-old boy); whether minor would "share" his food with defendant; and whether minor would say "goodbye," as minor and his family left the restaurant after being made uncomfortable by defendant.
We also conclude the court properly exercised its very broad discretion in revoking defendant's parole based on the June 11 incident and in imposing 180 days in custody as a sanction. (See Rodriguez, supra, 51 Cal.3d at p. 443; see also People v. Butcher (2016) 247 Cal.App.4th 310, 318 [applying an abuse of discretion standard to a probation revocation order].) Indeed, the record shows that defendant's performance on parole has been dismal, as he has been violated more than 30 times since his release in 2015; that he was required to register as a sex offender pursuant to Penal Code section 288, subdivision (a) because he molested a seven-year-old boy in 2009 in a McDonald's restaurant, which led to a six-year prison term; that since his release, defendant has not taken advantage of various programs offered by the Parole Department, including "sex-offender treatment" and "behavior interventions"; that by his own admission, defendant frequently "masturbates to young boys and has the same sexual desire for young girls"; that defendant asked Agent Jacobo what defendant should do if he sees "a young boy and feels like molesting" him; and that defendant's ongoing contact with children, including minor, showed he was "very dangerous" to "public safety," as Agent Jacobo testified, and as (tacitly) found by the trial court in finding this agent's testimony to be truthful and accurate.
In addition, the record shows the court had jurisdiction pursuant to Penal Code section 3000.08 to impose the stay-away order. Although this court, like the trial court, applauds defendant for his candor in admitting he had received the personal identifying information of minor and his family, we conclude the trial court, the prosecutor, and defendant himself (as proven by the unambiguous record) were understandably concerned about defendant attempting to make additional contact with minor, including electronically, as the record shows defendant had a history of "sexual impulse for children." (See Pen. Code, § 3000.08, subds. (d) [providing if a parolee has violated his or her conditions of parole, the parole agency "may impose additional and appropriate conditions of supervision, including rehabilitation and treatment services and appropriate incentives for compliance"]; & (f) [providing a court "shall have authority" to "[r]eturn the person to parole supervision with modifications of conditions"].)
In light of our conclusion that the stay-away order was proper, we also reject defendant's related contention that the court allegedly was "biased" against him when it issued the order. In any event, from our independent review of the record, we note the court was professional, patient, and courteous toward defendant, and it was only after the court announced its decision to revoke defendant's parole and credit the People's evidence, that defendant accused the court of "not relying on regular evidence" and threatened to report the court to the judicial council.
D. Failure to Admonish Agent Jacobo
Defendant next contends the court prejudicially erred by failing to admonish Agent Jacobo for "lying" to the court. We find this novel contention lacks merit.
Indeed, as noted ante, the record shows it was defendant who accused Agent Jacobo of being untruthful because, quite frankly, defendant disagreed with Agent Jacobo's testimony that defendant was a high-risk sex offender, who was dangerous to society, and who refused the help of, and various services offered by, the Parole Department as defendant went looking for his next victim. The record further shows the court as trier of fact found Agent Jacobo credible and his testimony truthful.
Defendant's contention Agent Jacobo was lying is merely a request of this court to reweigh the evidence and the credibility of witnesses and make new findings favorable to defendant, which we cannot and will not do. (See People v. Letner & Tobin (2010) 50 Cal.4th 99, 161-162 [noting "[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the [trier of fact] . . . to determine the credibility of a witness"]; People v. Whisenhunt (2008) 44 Cal.4th 174, 200 [noting it is not the role of the appellate court to reweigh the evidence or reevaluate witness credibility]; People v. Barnes (1986) 42 Cal.3d 284, 303-304 [noting that when — as here — the factual determination by the trier of fact is supported by substantial evidence, we accord deference to that determination].)
DISPOSITION
The order revoking defendant's parole, and imposing as a sanction 180 days in custody, is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. GUERRERO, J.