Opinion
C092287
05-20-2021
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE LAWRENCE DILLMAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 20SPP02673)
Following a contested hearing, the trial court found true the allegations that defendant Dwayne Lawrence Dillman violated his parole by failing to register each month as a transient sex offender and disabling his Global Positioning System (GPS) tracking device. Defendant appeals arguing this determination must be reversed because there is insufficient evidence in the record that he committed these violations willfully. For the reasons we shall explain herein, we disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 28, 2020, the People filed a petition to revoke defendant's parole alleging he was required to register as a transient sex offender every 30 days, and that on May 23, 2020, defendant had last registered on February 24, 2020. The petition further alleged that defendant violated his parole condition that stated: " 'You shall charge the GPS device at least two times per day (every 12 hours) for at least one full hour each charging time. You shall contact your parole agent immediately if and when the device vibrates and/or makes an audible tone.' " On May 14, 2020, defendant's GPS device went into critical battery mode at 8:31 a.m. The battery went dead at 9:46 a.m. and remained dead until 2:50 p.m.
The court held an evidentiary hearing on the revocation petition on June 26, 2020. The People presented the testimony of Parole Agent Jeremiah Gonzalez, who had been assigned to supervise defendant. Defendant signed his last set of parole conditions on March 6, 2019. As conditions of defendant's parole, he was required to register in compliance with Penal Code section 290 and to wear a GPS monitor, which he had to keep charged. Defendant was also required to charge his GPS device twice daily for one hour. This condition facilitated tracking of defendant, and Agent Gonzalez checked defendant's GPS location data every morning. The GPS monitor was placed on defendant when he was released from custody on February 23, 2020.
Undesignated statutory references are to the Penal Code.
The conditions quoted in the violation petition were special conditions 73 and 75. These stated: "You shall charge the GPS device at least two times per day (every 12 hours) for at least 1 full hour for each charging time" and "You shall contact your parole agent immediately if and when the device vibrates and/or makes an audible tone (beep)."
On May 14, 2020, at approximately 6:30 a.m., the battery of defendant's GPS device went low and should have vibrated. The battery went into critical mode about 8:30 a.m. and then would have vibrated every 10 minutes until the battery went dead at 9:46 a.m. The battery stayed dead until defendant charged the device for 23 minutes starting at 2:50 p.m. Once the battery went dead, defendant was in violation of his parole. This was defendant's second failure to charge since he was paroled on February 4, 2018. Agent Gonzalez has eight other transient sex offenders on his caseload who consistently keep their GPS devices charged.
Concerning defendant's section 290 requirements, because defendant was a transient, he was required to register every 30 days with a law enforcement agency, which could be city police or a county sheriff depending on where he was then residing. Agent Gonzalez discovered defendant was out of compliance when he checked the California sex offender registry web site in May 2020 and discovered that defendant had last registered with the City of Oroville on February 24, 2020, which was the day after he had been released from jail. Defendant's next registration was due by March 24, 2020, shortly after the Governor's stay-in-place order. Agent Gonzalez had instructed transients to call in their registrations, but Gonzalez did not provide that instruction to defendant because he had not found him, and defendant did not have a phone that Gonzalez was aware of.
Prior to defendant's arrest, Agent Gonzalez had last seen defendant on March 16, 2020.
On March 6, 2020, defendant also admitted to using methamphetamine, which was a violation of his parole. That violation was closed after parole referred defendant to drug treatment, but because of the COVID-19 pandemic, the parole department did not fault defendant for not attending the drug program.
Defendant testified in his defense that he was released on February 24, 2020, and a parole agent put the ankle monitor on him. Defendant told the agent that he would be staying with his significant other on family property in Concow. He then went to the Oroville Police Department where he completed his registration and given its proximity to his birthday, he was told by the woman that his registration was good for the year. Defendant later admitted he knew he had to register every 30 days and usually did so a few days early.
Shortly after his release, his significant other used money from the Concow fire to purchase an SUV, which the couple lived in. Having the SUV made things better and the couple was "able to take care of [their] business, appointments, whatever we need to do." Defendant also purchased an inverter and a generator to keep his GPS device charged. Defendant denied being aware that his battery was going dead, touting his extensive experience with the devices over the past 30 years. Defendant kept his device plugged in whenever they were in the SUV and would have awakened if it had vibrated. He denied having a motive to let the device go dead and professed his significant other would backup his story.
Following the issuance of the Governor's shelter-in-place order, defendant went to Concow where he and his significant other "went rock exploring, we went into mines . . . we went all kinds of places and did things that we wanted to do." When asked about his "responsibility in obeying" the stay-in-place order, defendant testified: "Well, from February 24th to March 24th, prior to that, I wasn't in violation. So when that March 24th date comes that is when I know I need to start worrying about -- I mean, figuring out what I need to do to -- you know what I mean -- to make that registration to take place. So I mean, what I -- what I did was -- I mean, Oroville PD, they were closed. Everything was closed. There was no way to do anything. I can't do nothing. So we packed our stuff, moved to Concow, moved to the hills." Defendant denied seeing a parole agent after February 24 up until his arrest. Defendant did not have a cell phone, was not told to register by phone, and testified "all the phone places closed." He also did not receive anything by mail at his post office box. Defendant did not call his significant other to testify to confirm his testimony.
Following argument of the parties, the court found that the People had shown by a preponderance of the evidence that defendant had violated both conditions of his parole, specifically by failing to register and disabling his GPS device. The court revoked and reinstated defendant's parole with the condition that defendant serve 180 days in county jail. Defendant timely appealed.
DISCUSSION
The procedural due process protections that apply to probation revocation also apply to parole revocation. (Williams v. Superior Court (2014) 230 Cal.App.4th 636, 650-651.) The court may revoke parole or probation if it has reason to believe the defendant has violated a condition thereof. (§ 1203.2, subd. (a); People v. Urke (2011) 197 Cal.App.4th 766, 772.) Proof of a violation need only be by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) While we review a trial court's revocation determination for an abuse of discretion (People v. Butcher (2016) 247 Cal.App.4th 310, 318), we review the court's factual finding of a parole violation for substantial evidence (see ibid.; Urke, at p. 773). "The standard is deferential: 'When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . .' " (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, italics omitted.)
I
Defendant's Failure To Register
"A convicted sex offender must register in the county where he resides or, if he does not have a residence, where he is located as a transient." (People v. Aragon (2012) 207 Cal.App.4th 504, 506 [citing §§ 290, 290.011].) Section 290.011, subdivision (a) mandates in pertinent part: "A transient shall reregister no less than once every 30 days regardless of the length of time he or she has been physically present in the particular jurisdiction in which he or she reregisters. If a transient fails to reregister within any 30-day period, he or she may be prosecuted in any jurisdiction in which he or she is physically present." It is undisputed that defendant was aware of and subject to this duty.
"On March 4, 2020, due to the outbreak of the COVID-19 virus, Governor Gavin Newsom declared a state of emergency. On March 11, 2020, the World Health Organization (WHO) declared COVID-19 a pandemic. On March 19, 2020, Governor Newsom issued an executive order directing all Californians not providing essential services to stay at home." (In re M.P. (2020) 52 Cal.App.5th 1013, 1016, fns. omitted.)
Defendant contends because he was supposed to shelter in place, he should be forgiven for not complying with his registration requirement. He reasons the Governor's order made it impossible for him to comply with his duty, and thus, substantial evidence does not support a factual finding that he willfully failed to reregister. He continues, because his violation was not willful, the trial court abused its discretion. We disagree.
As our Supreme Court has stated: " 'The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]' [Citations.] 'Plainly, the Legislature perceives that sex offenders pose a "continuing threat to society" [citation] and require constant vigilance. [Citation.]' [Citation.]" (People v. Barker (2004) 34 Cal.4th 345, 357.) To that end, the high court has rejected that merely forgetting to register is a valid excuse. (Id. at pp. 357-358.) Nonetheless, the high court has held evidence of an involuntary condition that is "temporary or permanent, physical or mental" may negate knowledge of a duty to register. (People v. Sorden (2005) 36 Cal.4th 65, 72 [rejecting that defendant's depression excused his failure to register].) "Willfully" in this context " 'implies simply a purpose or willingness to commit the act, or make the omission referred to.' " (Barker, at p. 334.)
We believe the record supports that defendant acted willfully in failing to comply with his duty to register. Unlike the defendant who was in the custody of immigration authorities and thus without fault for his failure to attend his probation hearing as required in People v. Cervantes (2009) 175 Cal.App.4th 291, 293-295, we refuse to find the shelter-in-place order prevented defendant from complying with his duty under law to register each month. In so finding, we acknowledge that defendant was faced with two, seemingly contradictory requirements. However, defendant chose to do nothing, despite being aware of the affirmative duty that he register every 30 days.
It is not clear whether defendant initially attempted to register in person at the Oroville Police Department on March 24. Defendant's testimony relevant to this point was: "Well, from February 24th to March 24th, prior to that, I wasn't in violation. So when that March 24th date comes that is when I know I need to start worrying about -- I mean, figuring out what I need to do to -- you know what I mean -- to make that registration to take place. So I mean, what I -- what I did was -- I mean, Oroville PD, they were closed. Everything was closed. There was no way to do anything. I can't do nothing. So we packed our stuff, moved to Concow, moved to the hills." Thus, it is not clear whether defendant attempted to register, but the police department was closed or whether defendant was merely asserting that he could not have registered in person due to his belief that police agencies were closed.
More tellingly, there is absolutely no evidence defendant did anything after that date to contact the parole office, the police department, or the local sheriff in order to obtain guidance concerning or otherwise comply with his requirement to register each month as a transient sex offender. In point of fact, defendant still had not registered as of May 2020. There was evidence, however, that defendant was mobile and living in an SUV. In fact, defendant testified he was "able to take care of [his] business, appointments, whatever we need[ed] to do." We do not know what defendant's business or appointments were, but the mere fact that he was able to make appointments and keep them is substantial evidence supporting the trial court's implied finding that he could have contacted authorities to provide his registration information and for further guidance had he chosen to do so. The record is also clear that if defendant had contacted his parole agent, he would have been instructed to phone in his monthly registrations. Under these circumstances, we find substantial evidence supporting the trial court's implied finding that defendant's failure to comply with the monthly registration requirement was willful. (See, e.g., People v. Johnson (1998) 67 Cal.App.4th 67, 72-73 [the jury could have reasonably concluded defendant's failure to register was willful where "defendant allowed transportation difficulties, misinformation, and fear of parole revocation to deter him from registering as a sex offender for almost three months"].) Thus, the trial court did not abuse its discretion.
II
Defendant's Failure To Charge The GPS Device
Defendant argues that his failure to charge his GPS device was not willful because that device did not vibrate or make a noise warning him the battery was getting low, and thus, he did not knowingly let the battery go dead. We disagree.
Defendant's special condition 73 stated: "You shall charge the GPS device at least two times per day (every 12 hours) for at least 1 full hour for each charging time." Clearly, the purpose of this condition is to assure the device remained charged at all times, and the court implicitly found defendant had violated this condition when it determined that defendant had "disabl[ed] a GPS tracking device." Substantial evidence supports this finding.
Agent Gonzalez established that on May 14 defendant's GPS device battery went low and vibrated at approximately 6:30 a.m. It then went into critical battery mode about 8:30 a.m. and vibrated every 10 minutes until the battery went dead at 9:46 a.m. The battery then stayed dead until defendant charged the device for 23 minutes starting at 2:50 p.m. This is approximately eight hours and 20 minutes after the device first alerted defendant to charge it. Once the battery went dead, defendant was in violation of the parole condition.
There is no testimony here regarding the parole agent's receipt of simultaneous alerts of these statuses on May 14 because defendant was out of range such that his device was not transmitting. Agent Gonzalez learned of defendant's failure to charge on May 18, 2020, when defendant entered an area of service.
Defendant did not provide testimony that he had charged the GPS device every 12 hours for a full hour as required. Defendant also did not testify that his device failed to alert him regarding the need to charge on any other occasion. Rather, defendant affirmed that if the battery goes low, it vibrates and professed that he would not have let the device go dead. However, there is no question that defendant's device did go into dead battery mode and that defendant had the means to charge it with his inverter and generator.
While the trial court could have accepted defendant's explanation that on the day in question the GPS device did not buzz or otherwise alert him of the impending dead battery, the court was not required to do so. Rather, it was for the court to weigh the conflicting evidence on this point. (See People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463 [the trial court is the sole weigher of a witness's credibility on conflicting evidence].) We further find the court's rejection of defendant's testimony inherently reasonable in light of his other testimony that he had had no contact with anyone in parole after February 24, 2020, despite the presentation of evidence that Agent Gonzalez contacted defendant two times (February 26 and March 16) and that defendant admitted using methamphetamine to another parole agent on March 6, 2020.
Therefore, it was within the court's discretion to accept Agent Gonzalez's testimony concerning the operation of the device, infer that defendant had not charged the device as required by his conditions of parole, and find by a preponderance of the evidence that defendant had violated the condition. (People v. Rodriguez, supra, 51 Cal.3d at p. 441.) Under these circumstances, we find substantial evidence supports the court's finding. (People v. Superior Court (Jones), supra, 18 Cal.4th at p. 681.)
Moreover, we also highlight as a separate and independent basis for finding a violation of defendant's GPS charging condition alleged in the petition, that it is undisputed that defendant charged the battery for only 23 minutes following its five-hour dead period and not the full hour required by special condition 73. Defendant is mistaken in characterizing his duty to charge as being merely for one hour of charging during a 12-hour period. The condition at issue specifically required charging every 12 hours "for at least 1 full hour each charging time." (Italics added.) While this would not necessarily render the device inoperable as found by the court, it nonetheless demonstrates a separate violation of special condition 73.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Murray, J. /s/_________
Renner, J.