Opinion
E069273
08-23-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LEE DEARMAN, Defendant and Appellant.
Ava R. Stralla, 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, Steve Oetting and Matthew Mulford, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BPR1701130) OPINION APPEAL from the Superior Court of Riverside County. Judith M. Fouladi, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Ava R. Stralla, 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, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant and appellant Christopher Lee Dearman has a 28-year criminal history that includes a burglary conviction from 1990, several property crime convictions from 1991, 1994, and 2005, two child molestation convictions from 1997, and a drug conviction from 2013. On July 3, 2014, in case No. E058218, we affirmed defendant's 2013 drug conviction and seven-year prison term. (People v. Dearman (July 3, 2014, E058218).) On July 20, 2017, defendant was paroled from his prison term. The next day, on August 21, 2017, defendant signed a notification regarding his parole terms. However, over the following three days, defendant's parole agent believed that defendant had violated the terms of his parole by entering a residence that had not been approved and by failing to maintain the charge on his GPS monitoring device. On August 24, 2017, defendant was arrested.
On August 30, 2017, defendant's parole agent filed a petition to revoke defendant's parole under Penal Code sections 1203.2 and 3000.08. On September 13, 2017, the trial court found that there was probable cause to revoke defendant's parole. On September 28, 2017, the trial court found that defendant had violated the terms of his parole and reinstated parole with the additional condition that defendant serve 180 days in county jail, with a release date of November 21, 2017.
On October 4, 2017, defendant filed a notice of appeal from the parole-violation finding. In his opening brief, defendant acknowledges that he has served the custody imposed.
B. FACTUAL HISTORY
On August 21, 2017, defendant met with parole agent Nicole Bitting. Defendant read and signed his parole terms, which included the requirement that he charge his GPS tracking device at least twice each day.
Over the next three days, defendant's parole agent, Henry Luce, believed that defendant, who was a registered sex offender due to a lewd-act conviction involving a minor, violated another parole term by visiting a residence where a minor lived, which was not preapproved by the parole agency. Defendant's GPS device showed electronically that he had visited this unapproved residence multiple times. Moreover, defendant failed to recharge the device during the evening of August 23 and the morning of August 24.
Defendant later told Agent Luce that he planned to let the GPS device's battery die so that he could attend a funeral. Defendant claimed that he planned to turn himself in to the parole office after the funeral. Defendant acknowledged he had visited the unapproved residence but claimed that he had not entered the residence.
Agent Luce considered intermediate sanctions prior to filing the revocation petition. He concluded that intermediate sanctions were inappropriate because of defendant's risk score and child-molestation convictions. Moreover, defendant had already rejected other housing arrangements and was required to report to parole three times a month.
Defendant testified. He acknowledged meeting Agent Bitting, signing the parole paperwork and knowing that he needed to charge the GPS device twice a day. After he left the meeting with Agent Bitting, defendant retrieved his brother's death certificate from a mortuary, and later tried to update his address with another parole agent before talking that night with Agent Luce. Defendant met with Agent Luce the next day, August 22. They had a brief and heated discussion as to why defendant had rejected a particular type of housing program. On August 23, defendant said that he visited the accident scene where his brother had died, became very emotional, and went to the home of his ex-wife, who lived with her 16-year-old child. Defendant admitted that he did not have his GPS device charger at her home and that he missed charging the device one evening and the next morning. Defendant, however, claimed that he did not go inside his ex-wife's home.
DISCUSSION
A. SUBSTANTIAL EVIDENCE SUPPORTS THE PAROLE REVOCATION
Defendant contends that the trial court abused its discretion by failing to consider intermediate sanctions, and thereby, abused its discretion in revoking defendant's parole and ordering that he serve 180 days in jail. The People contends the issue is moot because defendant "has fully served the custody that he now challenges." Defendant contends the issue is not moot because he remains on parole. We need not consider the mootness issue because defendant's appeal fails on the merits.
Penal Code sections 1203.2 and 3000.08 together establish "a statutory framework for parole revocation." (People v. DeLeon (2017) 3 Cal.5th 640, 647.) When a parole agency determines that there is good cause to believe that a parolee has violated the law or the terms of the parole, it may impose "intermediate sanctions," including " 'flash incarceration' " in jail for up to 10 days." (Ibid., quoting Pen. Code, § 3000.18, subds. (d) & (e).) Where intermediate sanctions are not appropriate, the parole agency must file a revocation petition in court that provides notice to the parolee of, among other things, the reasons for the parole agent's determination that intermediate sanctions are not appropriate. (DeLeon, at p. 647, citing Pen. Code, §§ 1203.2, subd. (b), 3000.08, subd. (f); also People v. Osorio (2015) 235 Cal.App.4th 1408, 1413, disapproved regarding mootness by DeLeon, at p. 646, fn. 2; Cal. Rules of Court, Rule 4.541(e).)
Upon the filing of a revocation petition, a parolee should receive both a preliminary and a final hearing before parole may be revoked. (People v. DeLeon, supra, 3 Cal.5th at pp. 653-659, citing e.g., Morrissey v. Brewer (1972) 408 U.S. 471, 486-487.) A parole may be revoked where a court finds that the parolee "has violated any of the conditions of his or her supervision, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses." (Pen. Code, § 1203.2, subd. (b).) "[I]f interests of justice so require," the court may modify or revoke parole and order that the parolee serve up to 180 days in county jail. (People v. DeLeon, at p. 647, citing Pen. Code, §§ 1203.2, subd. (b), 3000.08, subds. (f) & (g); People v. Zamudio (2017) 12 Cal.App.5th 8, 14.)
The burden of proof at a revocation hearing is by a preponderance of the evidence and the court has broad discretion regarding revocation. (People v. Rodriguez (1990) 51 Cal.3d 437, 442-443; In re Coughlin (1976) 16 Cal.3d 52, 56.) Appellate review is for substantial evidence. (People v. Arreola (1994) 7 Cal.4th 1144, 1161.)
In this case, at defendant's revocation hearing, the trial court considered defense counsel's argument, which focused less on the fact that defendant had violated his parole, and more on the appropriate remedy for the violation. Counsel believed that the court should have more thoroughly considered intermediate sanctions. The prosecutor countered by emphasizing that defendant, a convicted sex offender, went to an unapproved residence where a 16-year-old child resided, and that defendant admittedly ignored the requirement to keep his GPS device charged. After hearing defendant's testimony, the trial court found defendant not credible and found that both alleged violations were proven because defendant was in a prohibited location and did not keep his device charged. The court found the parole agency had sufficiently considered intermediate sanctions because defendant was "considered to be a high-risk offender."
Substantial evidence supports the trial court's findings. Here, defendant admitted that he knew he had to charge his GPS device, and that he had failed to comply. Moreover, the court noted that the parole agent considered and rejected intermediate sanctions. Although defendant argues that the court accepted the parole agent's recommendation "without analysis," the record reflects that the court considered all of the evidence—including the evidence offered by defendant—in making its ruling. In his reply brief, defendant "does not dispute the 20-year-old 1997 offense, for which he is required to register pursuant to Penal Code section 290, for which he was deemed a 'high risk offender,' by the parole agent." Defendant, however, argues that "if this factor was 'not particularly examined,' the court should not have given much weight to it." Defendant puts too much emphasis on the court's words stating "that was not particularly examined." The facts are simple and do not require much examination—defendant committed a sex crime in 1997, and that conviction required him to register as a sex offender. The court, as the trier of fact, could determine the weight it wished to give to this fact. Moreover, although defendant puts much emphasis on his testimony and "what was going on in his life" and that he "provided details about the circumstances as to why he violated the condition," the trial court deemed defendant's testimony lacking credibility. Under the substantial evidence standard, "our review is limited to the determination of 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.)
Based on the above, we find that the trial court's parole revocation order is supported by substantial evidence. We discern no abuse of discretion and affirm.
DISPOSITION
The trial court's order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.