Opinion
H043000
10-25-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LEE HICKS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 15CR00072
Defendant Johnny Lee Hicks, after having been previously convicted of attempted second degree robbery, was released from prison on parole in March 2015. In a hearing on September 29, 2015, he admitted that he had violated the terms of his parole, and the court sentenced him to 10 days in jail with credit for 10 days served. The judge ordered defendant upon his release from custody to report immediately to the Salinas Parole Office and to participate in an outpatient drug treatment program. He failed to do so, and additional parole violation proceedings were instituted. On October 29, 2015, the court found after a contested hearing that defendant had willfully violated the terms of his parole by failing to report to the parole office, and it ordered him to serve 90 days in jail, with 23 days credit for time served.
On appeal, defendant contends that the court erred in finding the parole violation. He claims that his homelessness, poverty, and lack of access to a telephone made it impossible for him to comply with his obligation to report to the parole office. Defendant contends that the parole department should have taken affirmative measures to assist defendant with his reporting obligations, and that any noncompliance on his part was therefore not willful. Finding no abuse of discretion, we will affirm the order.
FACTS
The Attorney General asserts that the facts underlying defendant's criminal conviction are not relevant to the issues on appeal, and defendant does not disagree with that assertion.
PROCEDURAL BACKGROUND
Defendant was convicted on October 23, 2013, of attempted second degree robbery (Pen. Code, § 212.5, subd. (c), § 664), and was sentenced to 32 months in prison. He was released from prison on three-year parole on March 6, 2015. The record reflects that between March and September 2015, defendant habitually absconded, having violated parole on at least six occasions.
All further statutory references are to the Penal Code unless otherwise stated.
All dates hereafter are 2015 unless otherwise specified.
A parole revocation hearing was held on September 29. After defendant admitted the violation, the court ordered defendant to serve 10 days in jail, with 10 days' credit for time served. Two of the additional terms the court imposed were that defendant, upon his release from custody, report immediately to the parole office, and that he participate in an outpatient drug treatment program.
Defendant was rearrested on October 7 for failing to report to parole. A new petition to revoke parole was filed by Parole Agent Jordan on October 14, based upon defendant's failure to report and failure to attend an outpatient drug treatment program. Defendant's parole was revoked two days later by the court, and defendant was remanded into custody pending a parole revocation hearing. After a contested hearing on October 29, the court found that defendant had willfully failed to report to parole. It noted the People's recommendation of 180 days for the violation, but it ordered defendant to serve 90 days in jail, with 23 days' credit for time served. Defendant filed a timely appeal from the order.
Although there was evidence that defendant also failed to comply with the condition that he participate in an outpatient drug treatment program, the record does not reflect that the court made any specific finding as to defendant's violation of that term and condition.
DISCUSSION
I. The Court Did Not Abuse Its Discretion in Revoking Parole
Before addressing defendant's claim of error, we will briefly discuss the applicable standard of review and provide some necessary detail concerning the parole revocation hearings of September 29 and October 29.
The Attorney General, although ultimately addressing the merits of defendant's challenge, argues that the appeal is moot because defendant would have served his 90-day sentence well before the appeal may be heard. We reject the Attorney General's mootness claim. The reason has been well-stated recently by the Fourth District Court of Appeal, Division Three: "Under California's penal system, any future interactions between defendant and the justice system will likely bring to light defendant's parole revocation. Should defendant suffer a further criminal conviction, the parole revocation may be used as part of his sentencing determination. The parole revocation also may be used against defendant in other noncriminal arenas, such as employment decisions or child custody matters. In short, we cannot say with reasonable certainty that defendant's release from parole moots his claim that the demurrer to the petition for revocation should have been sustained." (People v. Osorio (2015) 235 Cal.App.4th 1408, 1412.)
A. Standard of Review
Determinations concerning parole revocation are "based upon a preponderance of evidence" that may include hearsay evidence from peace officers, parole agents, or victims. (§ 3044, subd. (a)(5).) In order to revoke parole, the evidence must support the conclusion that the violation of the terms of parole was willful. (See People v. Galvan (2007) 155 Cal.App.4th 978, 982 (Galvan) [revocation of probation must be based upon finding of willful violation of probation terms].) Where the inability to comply with the condition was "because of circumstances beyond his or her control and defendant's conduct was not contumacious," it is an abuse of discretion to find a willful violation. (People v. Cervantes (2009) 175 Cal.App.4th 291, 295 (Cervantes).)
The trial court has broad discretion in deciding whether to revoke parole or probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443 [probation revocation]; In re Miller (2006) 145 Cal.App.4th 1228, 1234-1235 [parole revocation].) When the appellant challenges a finding of a probation (or parole) violation based upon sufficiency of the evidence, the reviewing court's role is to decide "whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.) The Supreme Court has summarized a reviewing court's duties in addressing a substantial evidence challenge as follows: "Conflicts 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 trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403 (Maury); see also People v. Young (2005) 34 Cal.4th 1149, 1181.)
The trial court that heard the October 29 parole revocation hearing took judicial notice of the minutes of the September 29 parole revocation hearing. Because the trial court involved in the October 29 hearing may have considered the evidence presented at the September 29 hearing in reaching its decision, and because both parties on appeal cite to the reporter's transcript from that hearing, we will detail what transpired at the September 29 hearing.
Defendant appeared with appointed counsel at the parole revocation hearing on September 29. Parole Agent Balthazar recommended that defendant serve 180 days in jail for the violation, based upon the agent's assertion that there had been six prior violations. Defendant spoke directly to the court on his own behalf, reciting problems he had experienced with the parole office since his case had been reassigned from Agent Rocha (to Agent Perez, and then Agent Jordan). After Agent Baltazar advised the court that parole, before defendant's release from custody, could contact a residential treatment program to place defendant on the waiting list, defendant advised the court: "I can go to Salinas today, if you release me, Your Honor. I promise you, I'll give you my word I'll go. I got the money. It's in my bank. I'll go to Salinas. I will not let you down. I swear to God, I'm not joking." Agent Balthazar advised that parole recommended time in custody, but that upon defendant's release, he could begin a 30-day outpatient program at the parole office. Defendant said, "I'll take it."
After this exchange, the court advised that if defendant admitted the violation, it would impose a 10-day sentence, with 10-days' credit for time served. It noted, however, that it would be inclined to impose a much harsher sentence if defendant again violated the terms of parole. After the court voir dired defendant and accepted his admission of the parole violation, it imposed the 10-day sentence. It also required that defendant report to parole "immediately upon his release in order to get involved in the programs that we have discussed." The minute order reflects the following: "Defendant to report immediately upon release to Parole to begin the 30 day outpatient program while waiting for placement in a residential program." At defendant's request, the court imposed an additional parole condition that defendant wear an ankle monitor.
The clerk's minutes and the reporter's transcript reflect that it was the court's inclination to impose a sentence of 180 days in the event of a further parole violation.
At the outset, defendant requested that his counsel be discharged and that he be permitted to represent himself at the parole violation hearing. The court held a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) and denied defendant's motion to discharge counsel.
Parole Agent Danielle Jordan testified for the prosecution that since September when she was assigned defendant's case, he had not been compliant with the terms of his parole. Defendant had been ordered upon his release from custody on September 29 to report to the parole office in Salinas and to enroll in an out-patient program until parole was able to enroll him in a residential program. He did not report to parole, either in-person or by phone, and did not attend an out-patient program in Salinas or Watsonville. Agent Jordan testified that she provided her cell phone number to the releasing officers at jail so that defendant could make contact with her. Defendant never contacted her on her cell phone and there was no record that he had called the parole office. Agent Jordan, prior to being assigned defendant's case, had spoken with him by telephone at the office; on occasion, he would call "five to ten, even more times a day to try to get ahold of [his then-parole agent,] Rocha." She also testified that an indigent parolee could call the parole office collect, and that if a parolee on her caseload were unable to travel, she would be willing to personally transport him or her.
Defendant testified on his own behalf that he was not given the cell phone number of Agent Jordan prior to his release from jail on September 29. He did not receive the telephone number of the parole office; he testified: "I've never had that number in my possession at any time." Further, he stated that he had never called the Salinas parole office personally, but that other people had called on his behalf. Defendant testified that at the time he was released, he had a peace officer at the jail (Santa Cruz County Deputy Sheriff Zelwig) make a phone call on his behalf to the parole office to advise the parole officer on duty that defendant had no way to travel to Salinas. Defendant was given two Santa Cruz Metropolitan bus tickets upon his release, but none of the agencies had tickets for travel to Salinas. After his release, defendant traveled by bus to Watsonville. He stated that this has been his practice for years when he was released from custody, and that the police and parole office were well aware of it. He was homeless at the time he was released.
Defendant testified further that, the morning after his release, he had his wife, Ernestina, call the parole office on his behalf. She told the person at the parole office that defendant was trying to get ahold of his parole agent. Ernestina explained that defendant did not have a telephone but he could be reached through her on her cell phone. The agent with whom she spoke said that he would give Ernestina's telephone number to the new parole agent. Defendant explained to the court that he had Ernestina make the call because he had no cell phone and did not have the telephone number for the parole office. Ernestine made the call because she did not like other people to use her cell phone. He admitted that he never physically reported to the Salinas parole office.
The People submitted as an offer of proof in rebuttal to defendant's testimony that Agent Jordan would testify that there were no telephone messages received by the parole office from defendant on September 29 or 30, that Agent Jordan never had Ernestine's cell phone number, and that the parole office would have provided Agent Jordan's cell phone number to anyone calling in for assistance. The court stated that it "[did not] need that evidence."
After hearing the evidence, the court found that defendant had violated the terms of his parole. The court noted that defendant had an obligation to contact the parole office and had failed to do so. The court observed: "It's one thing to say, 'I had somebody call them.' That is not the same as you reporting or calling them." It noted that although perhaps defendant thought the parole office would call back, he did not follow up for many days afterward by contacting the parole office. Although the recommendation was for 180 days, the court ordered defendant to serve 90 days in custody, with 23 days' credit for time served.
Pursuant to defendant's request, we granted judicial notice of the appellate record in a subsequent appeal brought by defendant in this court, People v. Hicks (H043946). We have considered the record in this subsequent appeal in reaching our decision in the present appeal.
D. No Abuse of Discretion
Defendant challenges the trial court's order, contending that there was no substantial evidence to support the finding that he willfully violated parole. He asserts that although he admittedly did not report physically to the Salinas Parole Office after his release from custody on September 29, there were extenuating circumstances showing that such action was impossible and that parole failed to do its job to adequately assist him in being a compliant parolee. He points to the fact that as of September 29, he was homeless, had no money or a telephone, and had no way to travel to the Salinas Parole Office. He also emphasizes his testimony that (1) at the time of his release, he asked a peace officer to call the parole office and explain that defendant had no way to get to Salinas, and (2) he had his wife (who had a cell phone but would not let anyone use it) call the parole office indicating that he was attempting to reach his parole agent.
In support of the court's conclusion that defendant had willfully violated the terms of his parole, there was uncontroverted evidence that defendant did not comply with his obligation to report to the parole office and enroll in outpatient treatment services. Without question, he did not personally appear at the parole office. And there is no evidence that he enrolled in 30-day outpatient treatment services as required by the court in its September 29 order. Moreover, it was made abundantly clear to defendant at the September 29 hearing that he had the duty to report to the parole office immediately upon his release from custody and that there would be severe consequences if he were to ignore the court's order.
At the September 29 hearing, the court, in accepting defendant's admission of the parole violation, instructed defendant: "You'll report immediately [to parole] to get involved in a[n outpatient] program." The court and defendant later had the following exchange: "[Court:] Do you understand if you admit this violation, I will sentence you to ten days with ten days['] credit for time served? [¶] I will make a note to myself and also a mental note that if I see you again, we'll begin at 180 days and then if there's another violation on top of that, we'll deal with that. [¶] [Defendant:] It's gonna get nasty, I agree. [¶] [Court:] It's gonna get nasty, that's correct, Mr. Hicks. And you appreciate the fact that you will immediately report to Parole upon your release, you will become involved in whatever program they have available at that point, if they're able to transfer you then into a residential treatment program, you will do that? [¶] [Defendant:] No slim, shady report. Right away. [¶] [Court:] I'm sorry, sir? [¶] [Defendant:] No slim, shady business. Report right away, yes, sir. [¶] [Court:] All right. Thank you."
Further, there was evidence—albeit conflicting evidence—that after his release from custody on September 29, defendant did not contact the parole office (either directly or through a third party) at all. Agent Jordan testified that she provided her cell phone number to the releasing officers at the jail in order for defendant to make contact with her. She received no contact from defendant, and there was no record of any contact with the parole office. Certainly, defendant presented conflicting evidence, i.e., that he was never given Agent Jordan's cell phone number, and that he contacted the parole office through Deputy Sheriff Zelwig on September 29 and through his wife on September 30. But the trial court was vested with the authority to discount—or even disregard—that evidence in weighing the evidence and assessing the credibility of the witnesses, and we may not second-guess the court in its exercise of those functions. (See Maury, supra, 30 Cal.4th at p. 403.)
In urging that the trial court erred, defendant places emphasis on the assertion that he did not have the ability to contact the parole office directly, either by appearing in person or by telephone. But that assertion is similarly founded upon conflicting evidence. He asserts that the evidence showed that he was unable to travel to Salinas on September 29 because he had no money and the only bus tickets he received were for travel in Santa Cruz County. But this contention ignores other evidence to the contrary. Earlier that same day, defendant affirmatively told the court at the September 29 parole revocation hearing that he had the means and ability to report to the Salinas Parole Office: "I can go to Salinas today, if you release me, Your Honor. I promise you, I'll give you my word I'll go. I got the money. It's in my bank. I'll go to Salinas. I will not let you down. I swear to God, I'm not joking." And while defendant claimed that he could not call the office directly because he did not have a telephone and never had the parole office's telephone number, Agent Jordan testified that defendant had called the office many times in the past and that the office routinely accepted collect calls from indigent parolees. And the trial court discounted defendant's claim that he did not have the ability to personally contact the parole office, concluding that defendant, rather than waiting for a call, could have telephoned the parole office "on [October] the 1st or the 2nd or the 3rd or the 4th" or at some time thereafter. There was substantial evidence supporting the trial court's finding that defendant had the ability to personally contact the parole office and failed to do so.
Defense counsel argues that in finding the parole violation, the court disregarded defendant's "psychiatric problems and struggles for stability." In the same breath, defense counsel admits that "[t]he record does not indicate what the nature of [defendant's] mental problems might be." Indeed, no evidence was presented at the October 29 hearing concerning defendant's alleged psychiatric or mental issues, beyond a reference to a form pertaining to defendant that placed him in a class of persons with "psychiatric issues." There is therefore no basis for defense counsel's claim that the court, in failing to consider such alleged issues, abused its discretion in finding a willful violation. (See People v. Tran (1996) 47 Cal.App.4th 759, 772 [in sufficiency of evidence challenge, factual findings by court though inferences must may be evidence-based and not may not be " ' " ' " ' "a mere speculation as to probabilities without evidence" ' " ' " ' "].) Defense counsel argues further that defendant "should not be punished for [his psychiatric condition], particularly when he asked for an ankle bracelet to hopefully compensate for his difficulties with communications and to facilitate Parole helping him to make a successfully reintegrate [sic] in the outside world." While defendant's offer to wear an ankle monitor expressed at the September 29 hearing may have evidenced a willingness at that time to cooperate with parole, it is unclear how this suggests the trial court abused its discretion in finding a parole violation one month later. Indeed, there was evidence from Agent Jordan that she was aware of the ankle monitor condition in the court's prior September 29 order, but that parole did not take steps to implement the order "because we cannot put one [an ankle monitor] on without his being present."
The only indication in the record of the October 29 hearing concerning the court's view of defendant's mental faculties does not assist him. After hearing the evidence, including testimony from defendant, and finding the violation, the court twice described defendant as "a smart man."
Defendant argues further that Agent Jordan acted arbitrarily in filing the parole violation petition in October after her predecessor, Agent Rocha, had for "years prior recognized [defendant's] circumstances and deemed him in compliance with such efforts." Defendant provides no citation to the record in support of this factual assertion, in violation of rule 8.204(a)(1)(C) of the California Rules of Court. We will therefore disregard this unsupported contention. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.) --------
Defendant contends that People v. Zaring (1992) 8 Cal.App.4th 362 (Zaring) is "most closely on point" in supporting his claim of error. In Zaring, the defendant probationer, after being ordered by the court to appear the next week at 8:30 a.m. for a further hearing upon threat of imprisonment for noncompliance, arrived 22 minutes late to court (id. at pp. 365-366), which was 35 miles from her home (id. at p. 379). At a subsequent evidentiary hearing, the defendant testified that she had been late for the prior hearing because prior child care arrangements she had made for the morning had gone awry due to the caretaker's illness, and the defendant's transportation (through her mother-in-law) was delayed until the children could be taken to school. (Id. at p. 376.) The court found a probation violation based upon the defendant's failure to appear " 'on time' " for the prior hearing. (Id. at p. 367.) The appellate court held that the defendant's late arrival to court because of the "last[-]minute unforeseen circumstance as well as a parental responsibility common to virtually every family" was not a willful violation of any term of probation. (Id. at p. 379.)
No such "last[-]minute unforeseen circumstance" or "[common] parental responsibility" (Zaring, supra, 8 Cal.App.4th at p. 379) was the cause of defendant's noncompliance with the terms of his parole here. There were no obligations or unexpected developments that prevented defendant from complying with the court's order to report immediately to the parole office and to participate in an outpatient treatment program recommended by the parole department. Zaring does not support defendant's claim of error.
Likewise, defendant's reliance upon Cervantes, supra, 175 Cal.App.4th 291, and Galvan, supra, 155 Cal.App.4th 978, is misplaced. The appellate court in the former case held that the trial court erred in determining that the defendant had willfully violated probation by failing to appear at a scheduled hearing where such appearance was made impossible by his having been placed in the custody of the federal Immigration and Customs Enforcement agency (ICE). (Cervantes, at pp. 295-297.) And in Galvan, the appellate court held that the defendant's failure to report to probation within 24 hours of his release from custody was not willful, because his immediate deportation made his compliance impossible. (Galvan, at pp. 982-984.) Unlike in Cervantes and Galvan, there were no circumstances that rendered it impossible for defendant to report to parole or participate in an outpatient treatment program.
The trial court's determination that defendant had willfully violated the terms of his parole was supported by substantial evidence. We therefore find no abuse of discretion.
DISPOSITION
The order determining that defendant violated the terms of his parole is affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.