Opinion
A147094 A148027
07-25-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID DIMARINO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR317264)
David DiMarino was convicted of committing lewd and lascivious acts with a minor in violation of Penal Code section 288, subdivision (a), sentenced to prison, and eventually released on parole subject to his agreement not to, among other things, "date, socialize, or form a romantic interest or sexual relationship with any person who has physical custody of a minor." In these consolidated appeals from two orders revoking his parole based on repeated parole violations, DiMarino argues he was found to have violated unconstitutionally vague and overboard conditions of parole. In one of the appeals, he also claims that his due process rights were violated because his parole officer did not consider lesser sanctions first, before parole revocation proceedings were instituted. We conclude DiMarino's attacks on the facial constitutionality of his parole conditions are not cognizable for failure to exhaust administrative remedies, and we reject on the merits his due process argument that lesser sanctions were required before revocation. Accordingly, we affirm.
Further statutory references are to the Penal Code unless otherwise noted.
I. BACKGROUND
The Solano County District Attorney filed a parole revocation petition on October 19, 2015, alleging that DiMarino had (1) violated his curfew, (2) entered within 250 feet of an elementary school, (3) formed a dating or sexual relationship with a person known as "M.F." who had custody of a minor, and (4) associated with prohibited persons, in this case M.F.'s daughters. At an evidentiary hearing, the court found DiMarino violated conditions of his parole based on grounds (1)-(3) and sentenced him to 180 days in county jail, with credit for time already served.
DiMarino was released from custody in January 2016. A few days after his release, DiMarino's parole officer, agent Jason Colarusso, interviewed M.F. and informed her that he was prohibiting DiMarino from contacting her if he could not limit the relationship to a platonic one. Colarusso informed both M.F. and DiMarino that a no contact "special condition" was being imposed, barring him from "contact[ing] or attempt[ing] to contact [M.F.] or her immediate family," which DiMarino signed. DiMarino continued to contact M.F. and meet up with her, which led to his arrest on February 25, 2016. Following his arrest, DiMarino called M.F. every day from jail.
In light of DiMarino's continued pattern of violating of his parole conditions, the Solano County District Attorney filed a second parole revocation petition on March 2, 2016, this time alleging that DiMarino (1) associated with a prohibited person, M.F., and in doing so violated the special condition prohibiting him from contacting M.F., and (2) dated or formed a sexual relationship with someone who had custody of a minor. At an evidentiary hearing, the court again found Marino found that DiMarino had violated his parole conditions. He was again sentenced to 180 days in county jail.
DiMarino appeals from both parole revocation orders.
II. DISCUSSION
A. Nos. A147094 & A148027: Constitutionality of DiMarino's Parole Conditions
Di Marino does not challenge the trial court's findings in either of the revocation proceedings at issue here that he violated his conditions of parole. Instead, by appealing the revocation orders, he seeks to mount facial challenges to the constitutionality of the conditions he was found to have violated. Absent a challenge to the basis for the violation findings, an appeal from the revocation orders is not the proper avenue for attacking the constitutionality of his parole conditions. The appropriate way to seek review is by way of a petition for writ of habeas corpus after exhausting his administrative remedies. (See Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 685 [after administrative remedies have been exhausted, a "parolee may bring a habeas corpus proceeding challenging his or her parole conditions to superior court, appellate court and the Supreme Court, which have original jurisdiction to hear a habeas corpus proceeding relating to parole"]; In re Hudson (2006) 143 Cal.App.4th 1, 7 ["It is well settled that inmates must exhaust available administrative remedies before filing a petition for habeas corpus in the courts."].)
The exhaustion requirement furthers important interests, including giving agencies the opportunity to make a factual record, encouraging consensual resolution, filtering out frivolous claims, and promoting judicial economy. (In re Hudson, supra, 143 Cal.App.4th at p. 7.) In In re Hudson, Division One of this court concluded that Hudson had exhausted his administrative remedies by filing an appeal with the Department of Adult Parole Operations, although there was nothing in the record to indicate that the Department of Adult Parole Operations provided Hudson with any type of follow up response. (Id. at p. 8.) A parolee dissatisfied with his parole conditions can challenge those conditions by an administrative review (Cal. Code Regs., tit. 15, §§ 3084.1-3084.3, 3084.7-3084.9 [describing appeal process for inmates and parolees with grievances]), which included the right to seek reconsideration during the course of that administrative appeal (see Pen. Code, § 3000, subd. (b)(5), (7) [inmates have the right to reconsideration by the Board of Parole Hearings, also known as the parole authority].)
At his revocation hearing in case No. A147094, DiMarino proffered expert opinions that he is not a danger to minor children, but as the trial court told him, if he disagreed with his parole conditions he should "work with your agents and work with these doctors to get your parole conditions changed." "Parole has the power to change these conditions of parole." There is no indication in the record here that DiMarino ever sought to modify his parole conditions administratively. A major thrust of his facial constitutionality attack is that his conditions of parole were not properly individualized to his specific circumstances. That claim should first be addressed to his parole agent and the Board of Parole Hearings before he seeks judicial relief. With no effort having been made to seek administrative relief, we lack an adequate record to address the issues DiMarino now for the first time presents.
Most basically, we do not even have before us the original parole conditions he signed, since the findings of violation were based on testimony from Colarusso summarizing the conditions. Neither party made the original conditions, as signed, a part of the record. Under these circumstances, any decision from us on the constitutional validity of these conditions would necessarily require speculation about their exact scope. We are not inclined to make constitutional pronouncements on such an uncertain record. Proper analysis of claims of facial constitutionality, obviously, must be based on close scrutiny of the language of the conditions at issue. Without that language before us, any decision on the issues DiMarino presents would be an abstract exercise.
B. No. A147094: Failure to Consider Intermediate Sanctions Before the First Parole Hearing
DiMarino contends that his due process rights were violated when Colarusso did not consider intermediate sanctions, instead immediately revoking parole. If the supervising parole agency makes a good cause finding that a parole violation occurred, Penal Code section 3000.08, subdivision (d) allows the agency to assign "intermediate sanctions" or additional conditions: "[u]pon review of the alleged violation and a finding of good cause that the parolee has committed a violation of law or violated his or her conditions of parole, the supervising parole agency may impose additional and appropriate conditions of supervision, including rehabilitation and treatment services and appropriate incentives for compliance, and impose immediate, structured and intermediate sanctions for parole violations, including flash incarceration in a city or county jail."
Intermediate sanctions are not required, as section 3000.08, subdivision (f) states, "[i]f the supervising parole agency has determined, following application of its assessment processes, that intermediate sanctions up to and including flash incarceration are not appropriate, the supervising parole agency shall, pursuant to Section 1203.2, petition either the court in the county in which the parolee is being supervised or the court in the county in which the alleged violation of supervision occurred, to revoke parole."
At the hearing, DiMarino raised the lack of intermediate sanctions by pointing out that the petition was deficient in that it did not contain a report regarding why intermediate sanctions were not appropriate. The court, in response, noted that "in regards to whether a flash incarceration or not, the law clearly provides that they don't have to do that. The People can file directly. There are a myriad of ways which one can come before the Court." California Rules of Court, rule 4.541(e) (Rule 4.541(e)) requires that "a report filed by the supervising agency in conjunction with a petition to revoke parole or postrelease community supervision must include the reasons for that agency's determination that intermediate sanctions without court intervention as authorized by Penal Code sections 3000.08(f) or 3454(b) are inappropriate responses to the alleged violations."
Here, the record does not include a report stating the reasons why the parole agent did not choose to apply intermediate sanctions. Admittedly, "less restrictive sanctions for an alleged parole violation must be considered before revocation of parole is sought." (People v. Osorio (2015) 235 Cal.App.4th 1408, 1413.) "Parole's report filed with its revocation petition must state the specific reasons (individualized to the particular parolee, as opposed to a generic statement) for its determination that intermediate sanctions 'are inappropriate responses to the alleged violations.' " (Williams v. Superior Court (2014) 230 Cal.App.4th 636, 665 (Williams), quoting Rule 4.541(e).)
Despite Colarusso's failure to comply with Rule 4.541(e), we are not convinced DiMarino has been denied due process through a failure to consider intermediate sanctions. "We will not presume on [an ambiguous] record that Parole is not fulfilling its statutory duty" to consider intermediate sanctions. (Williams, supra, 230 Cal.App.4th at p. 664.) We look not only to the absence of the required sanctions report, but to Colarusso's testimony at the parole revocation hearing to assess whether the parole agency in fact considered intermediate sanctions. Colarusso was asked whether he "consider[ed] imposing intermediate sanctions," and he answered simply, "No." He was then asked whether he had used an assessment tool called a "parole violation decision-making instrument" (PVDMI), and he said yes, he had completed such an assessment for DiMarino.
The role of the PVDMI in determining the appropriate sanction for a parole violation is explained in Osorio, supra, 235 Cal.App.4th at pages 1413-1414 and cannot be overstated. A PVDMI is "a standardized tool that provides ranges of appropriate sanctions for parole violators given relevant case factors, including, but not limited to, offense history, risk of reoffense based on a validated risk assessment tool, need for treatment services, the number and type of current and prior parole violations, and other relevant statutory requirements." (Pen. Code, § 3015, subd. (b)(1).) The PVDMI "[i]dentifies the appropriate response to each violation based on the offender's risk level and the severity of the violation." (Osorio, at p. 1413.) Use of such a tool is not only authorized but mandated. (Pen. Code, § 3015; Cal. Code Regs., tit. 15, §§ 3768-3768.3.) Parole authorities are authorized to override the PVDMI-recommended response, but they must explain their reasons as part of the PVDMI protocol. (Cal. Code Regs., tit. 15, § 3768.3(d)(7)-(d)(8).)
Colarusso testified he did use the PVDMI in determining whether to petition to revoke parole or impose less severe consequences. In our opinion the use of such an assessment tool constitutes an exercise of the "consideration" to which a parole violator is entitled under Penal Code section 3000.08, subdivision (f) and Rule 4.451(e). Unlike Osorio, supra, 235 Cal.App.4th 1408, where the decision to petition for revocation of parole involved an upward deviation from the response recommended by use of the PVDMI (id. at pp. 1414-1415), here we find no indication in the record that Colarusso overrode the recommendation provided by the PVDMI. Due to the failure of DiMarino's attorney to develop a more complete record, we are left without evidence that Colarusso and his agency failed entirely to consider intermediate sanctions.
The failure to file a sanctions report alone does not call for reversal of the order revoking parole. "A statutory requirement may impose on the [government] a duty to act in a particular way, and yet failure to do so may not void the governmental action taken in violation of the duty. [Citations.] This distinction is generally expressed in terms of calling the duty 'mandatory' or 'directory.' '[T]he "directory" or "mandatory" designation does not refer to whether a particular statutory requirement is "permissive" or "obligatory," but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.' " (In re Richard S. (1991) 54 Cal.3d 857, 865.) The Rule 4.541(e) requirement to include an intermediate sanctions report in the petition to revoke is directory rather than mandatory. It appears the purpose of the requirement is to assure the court that intermediate sanctions have been considered. Here we have that assurance from Colarusso's testimony that he decided to file a petition to revoke parole only after doing an assessment via PVDMI.
Moreover, it would serve no purpose to invalidate the government's action for failure to conform to the administrative requirements stated in Rule 4.451(e). DiMarino's violation—having a sexual relationship with a woman who had minor daughters in the specific age range that DiMarino had been ordered to avoid—was a serious enough violation that the parole agent's decision to proceed with a petition to revoke was well within his discretion, and the failure to comply with Rule 4.541(e) resulted in no fundamental unfairness. We find any failure to comply with Rule 4.451(e) was harmless under the state law standard. (People v. Watson (1956) 46 Cal.2d 818, 836.) And even assuming the error implicated DiMarino's due process rights, it was nevertheless harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
III. DISPOSITION
Affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Rivera, J.