Opinion
H044744
08-10-2018
THE PEOPLE, Plaintiff and Respondent, v. EDDIE PEREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. PH17027)
I. INTRODUCTION
Defendant Eddie Perez appeals after the trial court found him in violation of his parole and sentenced him to serve 50 days in the county jail. On appeal, defendant contends that insufficient evidence supports the trial court's finding that he violated his parole; the trial court failed to refer the matter to parole for the preparation of a written report pursuant to Penal Code section 1203.2, subdivision (b)(1); and the trial court failed to award the proper number of custody credits.
All further section references are to the Penal Code.
For reasons that we will explain, we will order the sentencing minutes modified to reflect that defendant had accrued 88 days of custody credits, and we will affirm the order as so modified.
II. FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 2016, defendant was convicted of willful infliction of corporal injury on a spouse or cohabitant (§ 273.5) and false imprisonment (§ 236). Defendant was released on parole on July 11, 2016, for a supervision period of three years.
Because the record on appeal does not include the abstract of judgment or other conviction records, we rely on the parole revocation petition for information about the underlying convictions. The petition does not include the sentence imposed.
On April 20, 2017, defendant was arrested for violating the terms of his parole and was booked into the county jail without bail pursuant to section 3056. The parole hold was removed on April 26, 2017, after the District Attorney filed a new case against defendant for resisting, delaying, or obstructing a peace officer in violation of section 148, subdivision (a)(1). Defendant remained in custody.
On May 22, 2017, at the District Attorney's request, the trial court dismissed the new case against defendant. The same day, the District Attorney filed a petition for the revocation of defendant's parole alleging that on April 20, 2017, defendant "refused to follow [the] lawful orders of [his] parole officer [and] resisted arrest by parole agents." Also on May 22, the parole authority reinstated defendant's parole hold. A formal parole revocation hearing was held on June 2, 2017.
Defendant's parole agent, Pablo Bailon, was the sole witness to testify at the hearing. Agent Bailon stated that he began supervising defendant in November 2016. Since that time, defendant had violated the terms of his parole on several occasions, including three times for using methamphetamine and once for obstructing a peace officer.
Agent Bailon testified that on April 20, 2017, he met with defendant, defendant's mother, and another member of defendant's family when they unexpectedly appeared at the parole office. Defendant's mother requested help for defendant. As defendant's mother was talking, defendant began acting erratically and appeared to become agitated. Defendant stood up from his chair a couple of times. Each time, Agent Bailon asked him to have a seat, but it took longer for defendant to do so the second time. When defendant stood up for a third time, he walked out of Agent Bailon's office and down the hallway. Agent Bailon "order[ed] [defendant] to stop and to return back to [the] office," but defendant did not comply and "turn[ed] the corner." Agent Bailon stated that he followed defendant and continued to order him to stop and return to the office. Eventually, after Agent Bailon's second or third order, defendant returned to Agent Bailon's office and resumed his seat.
The record refers to the family member as both defendant's aunt and defendant's grandmother.
Agent Bailon testified that he decided to handcuff defendant for safety reasons, including the safety of defendant's family members and the safety of other parole agents. Agent Bailon stated that he "made . . . the discretionary decision" that defendant "needed to be restrained" so he could "figure out . . . what's going on, what the situation is." He instructed defendant to give him his hands, but defendant said, " 'No,' " and asked, " 'What for?' " Agent Bailon replied, " 'For our safety, I'm going to place you in . . . handcuffs for the moment,' " but defendant refused Agent Bailon's orders. Agent Bailon then tried to grab defendant's left hand, but defendant resisted. Agent Bailon was unable to control defendant, and a struggle ensued as Agent Bailon "g[ave] him direct orders to stop resisting." Defendant was handcuffed after four parole agents wrestled with him on the ground and used a taser on him twice. Defendant was arrested for resisting, obstructing, or delaying a peace officer, and was transported to the hospital and then the county jail.
At the conclusion of the hearing, defendant argued that he was "allowed to use reasonable force to resist an illegal arrest," and that the parole agents used excessive force against him. The trial court determined, "Based on the testimony, the Court finds that the Defendant has violated his conditions of parole, so [it] finds there's a violation."
The trial court asked whether defendant wished to be sentenced, and defendant stated through counsel that he did. The court sentenced defendant to serve 50 days in the county jail, awarding him 40 days of custody credits, and reinstated defendant on parole. Defendant has completed the county jail term imposed for his parole violation.
III. DISCUSSION
A. Mootness
Defendant contends that his appeal is not moot even though he has completed the county jail term imposed for his parole violation, and raises the fact that he is still on parole. The Attorney General contends that the appeal is moot under Spencer v. Kemna (1998) 523 U.S. 1, 12 and People v. DeLeon (2017) 3 Cal.5th 640 (DeLeon).
It has long been the rule that " ' "[w]hen, pending an appeal from the judgment of a lower court, and without any fault of the [opposing party], an event occurs which renders it impossible for this court, if it should decide the case in favor of [defendant], to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal" ' as moot." (DeLeon, supra, 3 Cal.5th at p. 645, quoting Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.)
Defendant's claims on appeal include his contention that the parole violation finding is not supported by sufficient evidence, and it appears that a reversal of that finding could affect the term of defendant's parole. (See § 3000, subd. (b)(6) ["Time during which parole is suspended because the prisoner has absconded or has been returned to custody as a parole violator shall not be credited toward any period of parole unless the prisoner is found not guilty of the parole violation"].) In addition, defendant contends that the trial court failed to award him custody credits for the entirety of his presentence custody, and the Attorney General concedes that defendant was entitled to the credits, stating that "[a]ny excess presentence credits are . . . to be applied to reduce the parole period." Thus, it appears that should this court decide the appeal in defendant's favor, it could grant him " ' "effectual relief." ' " (DeLeon, supra, 3 Cal.5th at p. 645.)
For these reasons, we will assume the case is not moot and will address the issues raised.
B. Standard of Review
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; see also People v. Young (2005) 34 Cal.4th 1149, 1181.)
C. Sufficiency of the Evidence
Defendant contends that there is insufficient evidence to support the parole violation finding because Agent Bailon's decision to place him in handcuffs was unreasonable and he therefore had to the right to resist. He asserts that the seizure was unlawful because it was "capricious[] and harassing."
"Under California statutory law, every inmate eligible for release on parole 'is subject to search or seizure by a . . . parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause.' " (People v. Schmitz (2012) 55 Cal.4th 909, 916 (Schmitz), quoting § 3067, subd. (b)(3).) " 'As a convicted felon still subject to the Department of Corrections, a parolee has conditional freedom—granted for the specific purpose of monitoring his transition from inmate to free citizen.' [Citation.] The state, by contrast, 'has an " 'overwhelming interest' " in supervising parolees because "parolees . . . are more likely to commit future criminal offenses." [Citation.]' [Citation.] 'The state has a duty not only to assess the efficacy of its rehabilitative efforts but to protect the public . . . .' " (Id. at pp. 916-917.) For those reasons, warrantless searches and seizures of parolees "are reasonable, so long as the parolee's status is known to the officer and the search [or seizure] is not arbitrary, capricious, or harassing." (Id. at p. 916; see also People v. Reyes (1998) 19 Cal.4th 743, 753-754 [providing examples of arbitrary, capricious, and harassing searches, including "when the motivation for the search is unrelated to rehabilitative, reformative or legitimate law enforcement purposes, . . . the search is motivated by personal animosity toward the parolee," or the search is performed at an officer's "whim or caprice"].)
Here, in support of the trial court's conclusion that defendant had violated the terms of his parole, there was uncontroverted evidence that defendant was agitated and acting erratically while he was at the parole office, and that his conduct included walking out of Agent Bailon's office and wandering down the hall as the agent ordered him to stop. Although defendant eventually returned to Agent Bailon's office, he only did so after he had "turn[ed] [a] corner" with the agent following him and reiterating the order for him to stop. Agent Bailon did not know why defendant and his family members had come to see him that day, and it appeared to Agent Bailon that defendant's mother was trying to get help for defendant. Under these circumstances, given defendant's erratic behavior and failure to promptly follow orders, it was not arbitrary, capricious, or harassing for Agent Bailon to decide he needed to handcuff defendant for safety reasons. Because this determination was not unreasonable, defendant was obligated to submit to the detention. (See § 3067, subd. (b)(3).) Instead, defendant refused to be handcuffed and struggled with Agent Bailon and other parole agents as Agent Bailon ordered defendant to stop resisting.
Defendant argues that the decision to handcuff him after he wandered down the hallway was unreasonable because he was not required to be at the parole office that day, and asserts that "this was a situation of [Agent] Bailon's own making." As noted, however, "the state's interest in supervising parolees is substantial," and its duties include not only rehabilitation of the parolee but protection of the public. (Schmitz, supra, 55 Cal.4th at pp. 917, 923.) Agent Bailon would have been remiss in failing to ascertain why defendant's family was asking for help, and he reasonably concluded that he could not safely do so while defendant wandered the halls of the parole office.
We conclude that the trial court's determination that defendant violated the terms of his parole was supported by substantial evidence.
D. Referral for a Presentence Report
Defendant contends that the trial court abused its discretion when it sentenced him for the parole violation without referring the matter to parole for the preparation of a written report pursuant to section 1203.2, subdivision (b)(1). The Attorney General asserts that defendant waived his right to the report when he told the court through counsel that he wished to be sentenced at the conclusion of the parole violation hearing.
"Section 1203.2 . . . governs the procedure for revocation of various forms of supervision, including both probation and parole." (People v. Zamudio (2017) 12 Cal.App.5th 8, 14.) Subdivision (b)(1) of that section "requires the court to refer a district attorney petition, once filed, to the parolee's parole officer for a written report that must be considered by the court when deciding whether to modify or revoke parole." (Id. at p. 15.) "[S]ection 1203.2 does not describe the contents of the written report." (Ibid.)
The statute provides regarding a district attorney petition: "The court shall refer . . . the petition to the . . . parole officer. After the receipt of a written report . . . , the court shall read and consider the report and . . . the petition and may modify, revoke, or terminate the supervision of the supervised person . . . if the interests of justice so require." (§ 1203.2, subd. (b)(1).)
We agree with the Attorney General that the requirement of a written report was waived. Although it is undisputed that defendant was entitled to the preparation of a report pursuant to section 1203.2, subdivision (b)(1), when the court asked defense counsel at the conclusion of the hearing whether defendant wanted to be sentenced, counsel stated, "He does, Your Honor." Counsel then indicated that defendant wished to make a statement to the court, and the court heard from defendant before it imposed sentence. "[T]here is nothing in the record indicating any reluctance on defendant's part to proceed without the report, and no indication that defendant believed there were additional facts to be presented to the court that might have influenced the court's decision." (People v. Oseguera (1993) 20 Cal.App.4th 290, 294 (Oseguera) [waiver of probation report pursuant to section 1203, subdivision (b)]; see also People v. Begnaud (1991) 235 Cal.App.3d 1548, 1555-1556 (Begnaud) [same].)
We are aware that Oseguera and Begnaud were decided before the Legislature amended section 1203 to require the parties to waive the preparation of a probation report by stipulation. (See People v. Dobbins (2005) 127 Cal.App.4th 176, 182.) Section 1203.2 contains no such requirement.
For these reasons, we find that the trial court did not abuse its discretion when it failed to obtain a written report from defendant's parole officer before it imposed sentence.
E. Custody Credits
Defendant contends that the trial court should have awarded him 88 days of custody credits, instead of the 40 days it awarded, because his presentence custody was attributable to the same conduct for which he was found in violation of parole. Citing section 2900.5, the Attorney General concedes that defendant was entitled to credits from the date of his arrest until the date he was found in violation.
Because defendant's presentence custody was solely attributable to the conduct for which he was found in violation of parole, he was entitled to credit for the entirety of that custody. (See § 2900.5, subds. (a)-(c).) Thus, defendant was entitled to 88 days of custody credits.
We note that had defendant been awarded the proper number of custody credits, the 50-day sentence imposed for the parole violation would have been served by the date of sentencing. --------
Accordingly, we will order the June 2, 2017, sentencing minutes modified to reflect credit for time served of 88 days (44 days actual plus 44 conduct/work credits).
IV. DISPOSITION
The clerk of the superior court is directed to modify the June 2, 2017, sentencing minutes to reflect credit for time served of 88 days (44 days actual plus 44 conduct/work credits). As modified, the June 2, 2017 order is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.