Opinion
C080157
02-06-2017
THE PEOPLE, Plaintiff and Respondent, v. STANLEY GOLAB, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SPP00326)
Defendant Stanley Golab appeals from a parole revocation. He contends substantial evidence does not support the finding that he willfully violated a parole condition requiring him to "actively participate" in sex offender treatment. We disagree.
I. BACKGROUND
A. The Petition to Revoke Parole
In May 2015, as a condition of parole, defendant was ordered to participate in an outpatient sex offender treatment program and to "actively participate" in the program. Two months later, a petition to revoke parole was filed. The petition alleged that while attending his second individual treatment session, defendant was uncooperative and failed to participate in treatment as directed. He used profanity and was ultimately asked to leave. The clinician holding the session described the session in a discharge final report:
The revocation petition was signed under penalty of perjury by defendant's parole officer. That officer did not testify at the revocation hearing. --------
"[Defendant] has made no progress, he demonstrates anger with complete lack of respect for the treatment process. On July [14, 2015,] [defendant] was scheduled for an individual session at 5:45 [p.m]. In my opinion the early portion of the meeting was difficult. [Defendant] complained about the location of the meeting indicating it was less than ideal for therapy. Within the first 10 minutes, [defendant] had been warned about his foul language and his elevated voice. In an attempt to get back to his treatment, I asked [defendant] about information in regards to his offense [for sexual battery]. [Defendant] informed me that he never committed any crime, and that law makers, religious leaders and [a] host of various groups conspired to frame him. After being warned for [a] third time about profanity and his loud tone he yelled louder and used more profanity. I calmly asked [defendant] to please excuse himself from the session and informed him that I would contact [his parole agent] and explain what happened. [Defendant,] for nearly 5 minutes[,] refused to leave[,] initially sitting [quietly]. [Defendant,] after being asked to leave[,] stood up and said 'fuck this treatment, this treatment is stupid' as he walked out [he] called me a 'fucking bitch' and slammed the door and left. In my opinion [defendant] should seek help from another provider."
Defendant was arrested the day of the second individual session. B. The Revocation Hearing
Three witnesses testified at the revocation hearing: a parole agent (though not defendant's), the clinician, and defendant's fiancée. Defendant's parole agent did not testify.
1. The Parole Agent
Lance Nystrom, a parole agent with the California Department of Corrections, explained that he did not supervise defendant, but assisted defendant's assigned agent in arresting defendant.
Agent Nystrom testified that defendant had signed special conditions of parole, requiring him to actively participate in sex offender treatment. Defendant had not complied with these conditions. "[Defendant] assumes that if he shows up and attends . . . [¶] . . . then that's considered participation. [But] he was instructed that he has to participate, actively participate in the training and counseling, not just show up and be there."
When asked the basis of his opinion that defendant had not actively participated, the agent responded, "Because I read . . . the referral letter from . . . [the clinician] . . . what she wrote, is what I base my opinion on." Agent Nystrom did not speak to the clinician, but defendant's assigned parole agent did.
As to defendant's mental health, Agent Nystrom testified, "from everything I've been told, he's not mentally unstable" and "this is all just his way of manipulating the system to work for him."
2. The Clinician
Tammy Brown, the sex offender treatment clinician, testified she had met defendant twice. They had met for one 50-minute session and a second session that terminated early. She had been provided with defendant's background by another clinician. She was told defendant had "mental health issues," and defendant had been placed in individual sessions because he had not been able to maintain in a group setting. While in a group setting, he had been "very argumentative" and was "fighting the system" and "in denial about his offenses."
During the first individual session with Brown, defendant was "kind of open" to talking about his mental health issues. He told her he was schizophrenic. But when asked about who he saw for treatment, he shut down. "[H]e was headed in the right direction, but all of a sudden he got argumentative and shut down." Defendant was also in denial about his past offenses (involving 16-and 17-year-old victims).
At the second session, defendant arrived on time. Defendant was wearing a buttoned-up shirt, jeans, bucket hat, and flip-flops. In Brown's opinion, he was well dressed and well groomed. On appearance alone, he appeared to be taking the process seriously.
Defendant began the session by complaining about the venue: "Why are we having therapy in this house? Why did they convert this house into a therapeutic session? This isn't a place for a therapy to be going on." When Brown asked about his offenses and "what he had going on," defendant got loud, and used profanity. He said he had not committed any crimes but was framed "by legislation and religious groups and various other groups."
After defendant started to use a lot of profanity and got very loud, Brown asked him to lower his voice and not use profanity. Defendant refused. The third time Brown asked him to lower his voice, defendant raised his voice higher and used more profanity. Brown then asked him to leave the session. Defendant sat for five minutes, saying nothing while Brown continued to ask him to leave. When defendant finally got up to leave, he said, "fuck this treatment, this treatment is stupid." Defendant slammed the door and called Brown a "fucking bitch."
Brown called defendant's parole agent to tell him she was terminating the session early. Brown testified that, when she called, she was not intending to permanently sever her relationship with defendant, just to end the session. She also testified that defendant never said he was unwilling to continue participating in treatment, but Brown believed, based on his "nonverbal communication," that he "didn't want to be in treatment and he was refusing to take treatment while it was offered." The second session lasted only about 15 minutes, and Brown did not fear for her safety.
On cross-examination, Brown agreed that individuals suffering from mental health issues need a different approach and agreed individuals can react to treatment by being upset. When asked if defendant's going off subject and belief that he had been framed were symptoms of schizophrenia, she answered: "There are a few, yes." But when asked if defendant was perhaps not in the right state of mind to be answering questions, she disagreed and said, "No. He was in the right state of mind. He was just being manipulative."
As to defendant's denial of his offenses, Brown conceded it might take more than two therapy sessions to overcome denial. When asked what training she had for when someone denies guilt, she answered, "Keep talking about the offense and what has happened and what has led up to it and the victims and the empathy and the offense." She added, "You can be in denial and still be manipulative."
3. Defendant's Fiancée
Defendant's fiancée testified for defendant at the hearing. She had taken defendant to his therapy sessions. After leaving the second individual session early, defendant told his fiancée that Brown had asked him about things he did not agree with. He had not, however, expressed problems with other therapists. C. The Trial Court's Finding and Sentencing
The trial court found a willful failure to participate, explaining:
"What I'm seeing here is not initially what I thought I was dealing with. What I thought I was dealing with was a manifestation that he wasn't going to participate in any treatment with [Brown] or anybody else. At the end, obviously, this session, this hearing has indicated not only did he not necessarily manifest that, although I guess it could be interpreted that way, I don't believe [Brown] indicated that she figured she would never see him again.
"She indicated she called, she called basically an end to the session because he wasn't participating and then, but never indicated—at least that I recall in my notes—that she was not going to see him again. And she called his parole officer to let him know that, you know, this particular session was ending. There was just no participation going on. The reasons for that really don't matter to me.
"I am going to find there is a violation of failing to participate."
The court then imposed a 120-day sentence.
II. DISCUSSION
On appeal, defendant contends substantial evidence does not support the finding that he willfully failed to actively participate in his sex offender treatment program. We disagree. A. We Will Exercise Our Discretion to Consider Defendant's Appeal
Preliminarily, we note that defendant has completed the term of imprisonment imposed for his parole revocation. Nevertheless, we will exercise our discretion to consider his challenge to the revocation. (See People v. Osorio (2015) 235 Cal.App.4th 1408, 1412 [a parole revocation may be used as part of a future sentencing determination and may also be used in noncriminal matters, such as employment decisions or child custody matters].) B. Substantial Evidence Supports the Trial Court's Order
The procedural due process protections that apply to probation revocation also apply to parole revocation. (Williams v. Superior Court (2014) 230 Cal.App.4th 636, 651.) As such, a court may, in the interest of justice, revoke parole or probation if it has reason to believe the defendant has violated a condition of probation or parole. (Pen. Code, § 1203.2, subd. (a); People v. Urke (2011) 197 Cal.App.4th 766, 772 (Urke).) Proof of a violation need be made only by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) We review the trial court's revocation order for an abuse of discretion. (People v. Butcher (2016) 247 Cal.App.4th 310, 318.) But we review the trial court's factual finding of a willful violation for substantial evidence. (See ibid.; Urke, supra, at p. 773.) "The standard is deferential: 'When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . .' " (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, italics omitted.)
Here, defendant's appellate claim fails because he largely ignores the fact that there is evidence in the record to support the trial court's determination. Instead, he essentially argues that the evidence also supported the opposite conclusion. Defendant argues he participated to the best of his ability, given his mental health limitations, and that the clinician had "less than stellar therapeutic skills." Given his interpretation of the evidence, defendant also asserts various subsidiary arguments based on the terms of his parole condition: (1) that Agent Nystrom offered no evidence of a willful failure to "actively participate," (2) there was no evidence he knew what was required of him in order to "actively participate," and (3) the trial court never found a willful violation. We are not persuaded.
The record, and the testimony of Brown in particular, provides evidence of a failure to participate. As such, our opinion does not turn on defendant's understanding of what the term "actively" meant in the context of his second individual session. This is, in part, because the record before the trial court demonstrated defendant had already been removed from group sessions after being "very argumentative" and "fighting the system." Further, once placed in individual sessions this behavior continued. Defendant began his most recent session by questioning its location. When Brown tried to redirect him to the treatment, he responded with loud profanities. When repeatedly asked to lower his voice and not use profanity, defendant instead raised his volume and continued to use profanity. When Brown finally asked him to leave the session, he refused for five minutes. And when defendant ultimately complied and left, he said, "fuck this treatment, this treatment is stupid." He slammed the door and called Brown a "fucking bitch." This evidence supports the conclusion that defendant had a pattern of intentionally not participating in his sex offender treatment. Brown also explained that his nonverbal communication conveyed that defendant "didn't want to be in treatment and he was refusing to take treatment while it was offered to him." We find this record contains substantial evidence supporting the trial court's finding of a willful failure to participate.
III. DISPOSITION
The trial court's order revoking defendant's parole is affirmed.
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RENNER, J.
We concur:
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BLEASE, Acting P. J.
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NICHOLSON, J.