Opinion
2d Crim. No. B297703
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JACK REESE, Defendant and Appellant.
Todd W. Howeth, Public Defender, William Quest, Deputy Public Defender, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 2014038497)
(Ventura County)
On March 11, 2017, Robert Jack Reese began a three-year period of postrelease community supervision (PRCS). (Pen. Code, § 3450 et seq.) Over the next two years, he habitually absconded from supervision and regularly violated its terms. After a hearing on his ninth PRCS revocation petition (tied to his 15th set of violations overall), the trial court entered an order extending supervision by 98 days, to June 17, 2020. Reese challenges that order, contending: (1) prosecutors forfeited the right to request an extension in the ninth revocation petition because they did not do so in the previous eight petitions, (2) section 654 prohibits the extension of the supervision period, and (3) the extension violates due process. We affirm.
All further statutory references are to the Penal Code.
Reese also contends, for the first time in his reply brief, that prosecutors were collaterally estopped from requesting the extension in the ninth revocation petition. We do not consider this contention. (People v. Mickel (2016) 2 Cal.5th 181, 197.)
FACTUAL AND PROCEDURAL HISTORY
Reese pled guilty to carrying a concealed dirk or dagger (§ 21310). He also admitted that he had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served four prior prison terms (§ 667.5, subd. (b)). The trial court suspended imposition of sentence, and released Reese on felony probation.
After he violated the terms and conditions of probation, the trial court sentenced Reese to two years eight months in state prison. Reese was released on March 11, 2017, and began three years of PRCS. He was directed to report to his probation officer within two days of release.
First revocation petition: Reese failed to report as directed, and "absconded from supervision." The trial court issued a warrant for his arrest on March 17, and police arrested him two weeks later. On April 3, Reese waived the right to a PRCS revocation hearing, admitted four violations (failure to report to probation, failure to submit to drug testing, failure to submit to alcohol testing, and failure to participate in treatment programs), and agreed to serve 90 days in county jail. That same day the court discharged the warrant and reinstated PRCS without extending its expiration date. The revocation petition filed after reinstatement said that Reese's "[s]upervision [was] scheduled to expire on: 3-27-20 (including 16 days of tolled time)."
Second revocation petition: Reese "absconded from supervision" again on May 22. The trial court issued a warrant for his arrest on May 24, and police arrested him on June 12. The next day Reese admitted that he again failed to report to probation, failed to submit to drug and alcohol testing, and failed to participate in treatment programs. He waived his right to a PRCS revocation hearing, and agreed to serve 90 days in jail. The court reinstated PRCS, but again did not change its expiration date. The subsequently filed revocation petition stated that Reese's "[s]upervision [was] scheduled to expire on: 4-15-20 (including 35 days of tolled time)."
In July, Reese again violated the terms of his PRCS. This time the probation agency did not file a revocation petition but instead imposed 10 days of flash incarceration.
Third revocation petition: Reese "resumed his previous behavior and absconded from supervision" again in August. The trial court issued a warrant for his arrest on August 22. After his arrest, Reese waived his right to a PRCS revocation hearing; admitted that he failed to report to his probation officer, failed to inform the officer of his address, used marijuana, failed to submit to drug testing, and failed to participate in treatment programs; and agreed to serve a 120-day jail sentence. The court reinstated PRCS without extending its term on September 11. The revocation petition filed September 26 stated that "[s]upervision [was] scheduled to expire on: 5-4-20 (including 54 days of tolled time)."
Reese violated his PRCS terms in November and again in early December. He served a 10-day period of flash incarceration after each violation. The trial court revoked PRCS for 11 days in December, and reinstated it without extending its expiration date.
Fourth revocation petition: Police cited Reese for misdemeanor battery on December 26. He then "resumed his previous behavior and absconded from supervision" by skipping two meetings with his probation officer later that week. He also used marijuana. He waived his right to a hearing, and agreed to serve 120 days in county jail. The PRCS revocation petition said that "[s]upervision [was] scheduled to expire on: 5-15-20 (including 65 days of tolled time)." The trial court approved the disposition without changing the PRCS expiration date.
Fifth revocation petition: Police cited Reese for misdemeanor trespassing on February 28, 2018. He "absconded from supervision" the next day, something that had become "a consistent pattern for" him by that point. The trial court issued a warrant for his arrest on March 9 and revoked PRCS. After the probable cause hearing, the probation agency filed a revocation petition, which stated that "[s]upervision [was] scheduled to expire on: 5-24-20 (including 74 days of tolled time)." The court discharged the warrant on March 19, and reinstated PRCS without extending its expiration date. Ten days later it found Reese in violation of his PRCS terms because he failed to report to probation, violated the law, used marijuana, and failed to submit to drug and alcohol testing. It ordered him to serve a 135-day jail sentence.
The trial court revoked PRCS on May 29 after Reese violated its terms again. After he completed a 10-day period of flash incarceration on June 11, the court discharged the warrant and reinstated PRCS on the same terms and conditions.
Sixth revocation petition: Reese failed to report to the probation agency as directed following his release from jail. Police arrested him for impersonating a police officer a few days later. The probation agency filed a PRCS revocation petition on July 3, which stated that "[s]upervision [was] scheduled to expire on: 6-5-20 (including 86 days of tolled time)." At the July 12 revocation hearing, Reese admitted that he failed to report to his probation officer and violated the law. He also admitted that he possessed drug paraphernalia, did not submit to drug or alcohol testing, used alcohol, and did not provide his name to police officers. The trial court accepted Reese's admissions and ordered him to serve 170 days in jail. It left unchanged the PRCS terms and conditions.
Seventh revocation petition: Reese failed to report to his probation officer on September 18, and "resumed his pattern of absconding thereafter." The trial court issued a warrant for his arrest on September 26. On October 8 Reese waived his right to a PRCS revocation hearing; admitted his failure to report, his marijuana and methamphetamine use, and his refusal to submit to drug testing; and agreed to serve 140 days in jail. The court discharged the warrant on October 9 and reinstated PRCS without extending its expiration date. The revocation petition filed three days later said that "[s]upervision [was] scheduled to expire on: 6-17-20 (including 98 days of tolled time)."
In December, Reese accrued two more PRCS violations, and served two more 10-day periods of flash incarceration.
Eighth revocation petition: Reese failed to report to his probation officer on January 7, 2019, and refused to submit to drug testing. Four days later he waived his right to a revocation hearing, admitted his violations, and agreed to a 90-day jail sentence. The PRCS revocation petition once again stated that "[s]upervision [was] scheduled to expire on: 6-17-20 (including 98 days of tolled time)." The trial court approved the disposition without changing the terms and conditions of supervision.
Ninth revocation petition: The probation agency established probable cause for two additional PRCS violations on March 1: that Reese failed to report to his probation officer and failed to submit to drug testing. It filed another revocation petition, which again said that Reese's "[s]upervision [was] scheduled to expire on: 6-17-20 (including 98 days of tolled time)." This petition also included a "tolled time calculator" that set forth the seven time periods during which PRCS had been revoked and the period of supervision was tolled: March 17 to April 3, 2017 (16 days); May 24 to June 13, 2017 (19 days); August 22 to September 11, 2017 (19 days); December 1 to 13, 2017 (11 days); March 9 to 19, 2018 (nine days); May 29 to June 11, 2018 (12 days); and September 26 to October 9, 2018 (12 days). On March 20, the trial court found Reese in violation of the terms of supervision, and ordered him to serve a 90-day jail sentence. It extended his PRCS expiration date by 98 days, to June 17, 2020.
DISCUSSION
PRCS tolling
Subject to exceptions not applicable here, each person released from prison is subject to PRCS. (§ 3451, subd. (a).) The period of supervision may not exceed three years unless supervision is tolled and the corresponding PRCS expiration date is extended. (§ 3455, subd. (e).) Revocation of PRCS "toll[s] the running of the period of supervision." (§ 1203.2, subd. (a).) But tolling does not happen automatically. (People v. Johnson (2018) 29 Cal.App.5th 1041, 1050 (Johnson).) Rather, it occurs only if the trial court orders it and extends the PRCS expiration date. (Ibid.) The issue presented in this appeal is whether the court properly did so here. We conclude that it did.
Forfeiture
Reese disagrees, contending prosecutors forfeited the right to request extension of his PRCS expiration date in the ninth revocation petition because they did not do so in the first eight. (See People v. Tillman (2000) 22 Cal.4th 300, 301-303 (Tillman) [forfeiture rule applies to prosecutors]; People v. Byron (2016) 246 Cal.App.4th 1009, 1013, fn. 3 [rule applies in PRCS revocation proceedings].) But the forfeiture doctrine prevents a party from raising an issue on appeal if they did not do so at trial. (People v. Trujillo (2015) 60 Cal.4th 850, 856.) This "'encourage[s] parties to bring [alleged] errors to the attention of the trial court, so that they may be corrected. [Citation.]' [Citations.]" (In re Sheena K. (2007) 40 Cal.4th 875, 881.) It is not applicable where, as here, an issue was raised in the proceedings below and the court had the opportunity to consider it. (Unzueta v. Akopyan (2019) 42 Cal.App.5th 199, 215.)
Nor would the purposes underlying the forfeiture doctrine be well served by applying it here. One purpose of the doctrine is fairness to the trial court and the adverse party. (People v. Davis (2008) 168 Cal.App.4th 617, 627.) Here, each of the first eight revocation petitions alleged an extension of Reese's PRCS expiration date and the total number of days supervision had been tolled. Reese received copies of each of these petitions, as did the trial court. All parties and the court thus had notice that Reese's PRCS expiration date could or would be extended. There was no unfairness. (Hartley v. Superior Court (2011) 196 Cal.App.4th 1249, 1260.)
Another purpose of the forfeiture doctrine is judicial economy. (People v. Butler (2003) 31 Cal.4th 1119, 1128.) Were we to require prosecutors to seek an extension of a habitual violator's PRCS expiration date each time they violated the terms and conditions of supervision, that would "proliferate rather than reduce the nature and scope of legal proceedings." (Ibid.) It would also violate separation-of-powers principles, permitting courts to dictate procedures that are, by statute, left to prosecutors' discretion. (People v. Birks (1998) 19 Cal.4th 108, 134 [courts may not supervise or interfere with matters left to prosecutorial discretion]; § 3451 et seq. [detailing discretion of probation agencies and prosecutors in PRCS matters].)
This case is unlike Tillman, supra, 22 Cal.4th 300, on which Reese relies. In Tillman, prosecutors did not object when the trial court did not order the defendant to pay restitution fines at sentencing. (Id. at p. 303.) The Supreme Court concluded that the failure to object forfeited the argument on appeal that the fines should be imposed, notwithstanding their mandatory nature. (Ibid.) In contrast, prosecutors here sought to extend Reese's PRCS expiration date in the proceedings below, not for the first time on appeal.
This case is also unlike Johnson, supra, 29 Cal.App.5th 1041, the other case on which Reese relies. First, Johnson did not consider any forfeiture issue. "It is axiomatic that cases are not authority for propositions not considered." (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.) Second, Johnson is distinguishable. There, the defendant's PRCS expiration date was extended automatically based on the 25 days from when PRCS was revoked to when it was reinstated. (Johnson, at pp. 1044-1045.) The Court of Appeal reversed, concluding that revocation does not automatically toll a defendant's PRCS. (Id. at p. 1048.) Here, Reese's PRCS expiration date was not automatically extended. Rather, the trial court ordered it extended on the prosecutor's motion, based on the aggregate number of days supervision had been revoked during the previous two years. That is a proper basis for extending PRCS. (Id. at p. 1050; see § 1203.2, subd. (a).)
Section 654Citing Kellett v. Superior Court (1966) 63 Cal.2d 822, Reese next contends section 654's prohibition against multiple prosecutions barred the trial court from extending his PRCS expiration date because it did so based on the same conduct that underlay previous revocation petitions. But a PRCS revocation proceeding is not a criminal prosecution. (People v. Racklin (2011) 195 Cal.App.4th 872, 881; see also People v. Minor (2010) 189 Cal.App.4th 1, 20.) It cannot result in an acquittal or in a new conviction and sentence. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 347-348.) Section 654 and Kellett are inapplicable.
Due process
Finally, Reese contends the trial court's extension of his PRCS expiration date based on actions resolved in his first eight revocation petitions violated his due process right of fundamental fairness. Specifically, he claims prosecutors' failure to allege he absconded until the ninth petition deprived him of the right to contest that allegation and the right to negotiate different outcomes on the previous petitions. But the tolling of Reese's PRCS was not based on an allegation that he absconded; it was based on seven periods during which supervision was revoked. (Compare § 1203.2, subd. (a) [tolling based on revocation] with § 3456, subd. (b) [tolling based on absconding].)
Even if tolling were based on absconding, six of the first eight petitions did allege that Reese had absconded. And all eight included a PRCS expiration date that extended past March 11, 2020. Indeed, both the seventh and eighth petitions included the same expiration date as the ninth—June 17, 2020—giving Reese ample notice of the PRCS extension and the opportunity to contest it. Due process requires no more. (Morrissey v. Brewer (1972) 408 U.S. 471, 487-488 [due process requires notice of allegations and opportunity to contest them]; see also Stats. 2012, ch. 43, § 2, subd. (b) [Morrissey standards apply in PRCS revocation proceedings].)
DISPOSITION
The trial court's postjudgment order, entered March 20, 2019, is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J. We concur:
GILBERT, P. J.
YEGAN, J.
Patricia M. Murphy, Judge
Superior Court County of Ventura
Todd W. Howeth, Public Defender, William Quest, Deputy Public Defender, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.