Opinion
A167519
08-13-2024
THE PEOPLE, Plaintiff and Respondent, v. STEVE BADUE, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 23SF003131A)
Petrou, J.
Steve Badue appeals an order revoking his parole for failure to maintain his GPS monitoring device. Badue asserts due process requires remand for an evidentiary hearing to determine how his State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) and California Static Risk Assessment (CSRA) scores were calculated. As any error in the calculation of those scores was harmless, we affirm.
Factual and Procedural Background
In 1993, Badue was convicted of misdemeanor indecent exposure (Pen. Code, § 314, subd. 1). In 1997, he was convicted of felony indecent exposure (§ 314, subd. 1). As a result of those convictions, he was required to register as a sex offender pursuant to section 290, subdivision (c)(1).
All further statutory references are to the Penal Code.
The indecent exposure convictions qualify Badue as a "tier one offender" subject to registration for a minimum of 10 years; the required registration period was extended through the period relevant to this appeal due to his multiple subsequent convictions for failure to register as a sex offender and tolled during his subsequent periods of incarceration. (§ 290, subds. (d)(1)(A) & (e).)
Badue was convicted of several offenses in 2021 and sentenced to two years in prison based on an incident when he was intoxicated in public and "failed to comply with a police officer's directions; struggled against officers trying to take him into custody, causing one of them to stumble, strike a light pole with her head, and suffer injuries; and spat on an officer's pants and boot." (People v. Badue (Nov. 15, 2022, A162813) [nonpub. opn.].) As relevant here, those convictions included one count of resisting an executive officer in the performance of the officer's duties (§ 69), with a great bodily injury enhancement (§ 12022.7, subd. (a)), and one count of resisting and causing serious bodily injury to a peace officer (§ 148.10). (People v. Badue (Nov. 15, 2022, A162813) [nonpub. opn.].) Both convictions qualified as serious felonies under section 1192.7, subdivision (c)(8), and violent felonies under section 667.5, subdivision (c)(8), making Badue subject to parole upon release from prison. (§ 3000.08, subd. (a)(1) &(2).)
In August 2021, Badue was released on parole. Badue was required to register as a sex offender based on his prior indecent exposure convictions; as a registered sex offender, he was subject to mandated GPS monitoring as a condition of parole pursuant to section 3010.10, subdivision (a). The parole conditions required continuous GPS monitoring and required Badue to charge the GPS device twice daily and contact his parole agent immediately if the device vibrated and/or made an audible tone. Badue signed the Notice and Conditions of Parole containing these conditions, acknowledging he was informed of and understood them.
In May 2022, the trial court revoked Badue's parole for absconding parole supervision and returned him to custody for 180 days. In October 2022, the court revoked his parole for disabling his GPS tracking device and again returned Badue to custody.
In January 2023, after Badue was released from custody, he reported to the parole office to have a new GPS device secured on him. The GPS device was properly functioning at that time. After Badue's May 2022 parole revocation for disabling his GPS device, he was again advised that he needed to contact his parole agent if his battery died.
The following week, Badue's parole agent was notified that Badue's GPS device had entered "Dead Battery" mode. The parole agent attempted to reach Badue but was unable to locate him. When Badue failed to charge the GPS device or contact his parole agent, the court issued a warrant for his arrest. Badue was arrested three weeks later.
In February 2023, the parole agent filed a petition to revoke Badue's parole based on his failure to charge the GPS device. The petition listed Badue's SARATSO score, as calculated by the STATIC-99 risk assessment scale, as "High" (see § 290.04), and his CSRA score, an actuarial tool that computes the likelihood of re-offending, as "HIGH-VIOLENT" (see Cal. Code Regs., tit. 15, § 3768.1).
After a March 17, 2023 contested revocation hearing, the court found Badue violated parole by failing to maintain his GPS device and ordered him to serve 180 days in jail. Badue appealed.
Discussion
The only issue raised on appeal is whether due process requires remand for an evidentiary hearing as to how Badue's SARATSO and CSRA scores were derived.
Badue raised a second issue in his opening brief as to whether he had a federal constitutional right to have a jury determine whether he violated parole, but conceded that issue in his reply brief. (See People v. Schaffer (2020) 53 Cal.App.5th 500, 512-513 [parole revocation and sentence under California parole scheme are" 'entirely harmonious with the Fifth and Sixth Amendments' "].)
The Attorney General avers that Badue's SARATSO and CSRA scores were properly calculated, and that any error in their calculation was harmless. In reply, Badue contends he would not be subject to parole in the first place if he were not classified as a high-risk sex offender. Rather, he asserts he would be subject to post release community supervision (PRCS), relying on section 3000.08, subdivisions (a) and (b). Badue is incorrect.
Section 3000.08 provides that certain prisoners are subject to parole upon release, and all other prisoners "shall" be placed on PCRS. (§ 3000.08, subds. (a) &(b).) Among those individuals subject to parole are those serving a sentence for: "[a] serious felony as described in subdivision (c) of Section 1192.7"; "[a] violent felony as described in subdivision (c) of Section 667.5"; or "[a]ny crime for which the person is classified as a high-risk sex offender." (§ 3000.08, subd. (a)(1), (2), &(4); People v. Toussain (2015) 240 Cal.App.4th 974, 984 (Toussain).)
Although no criminal statute "automatically 'classifies' someone as a high-risk sex offender, . . . the statutory scheme as a whole governing sex offenders" supports the conclusion that "section 3000.08, subdivision (a)(4), requires parole supervision for all registered sex offenders released from prison, regardless of the person's current commitment offense, if [the California Department of Corrections and Rehabilitation] has classified the person as high risk based on the person's SARATSO score." (Toussain, supra, 240 Cal.App.4th at pp. 981-982.)
For the appeal before us, we need not address the propriety of Badue's SARATSO and CSRA scores or whether they raise due process concerns because, contrary to his assertion, he would be subject to parole independently of those scores. The offenses underlying Badue's parole term include one count of resisting an executive officer in the performance of the officer's duties (§ 69), with a great bodily injury enhancement (§ 12022.7, subd. (a)), and one count of resisting and causing serious bodily injury to a peace officer (§ 148.10), each of which is both a "serious" and "violent" felony for purposes of section 3000.08, thereby subjecting him to parole. (§ 3000.08, subd. (a)(1) &(2); see §§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8).)
Hence, although Badue is correct that his "High" risk SARATSO score would subject him to parole under section 3000.08, subdivision (a)(4), (Toussain, supra, 240 Cal.App.4th at p. 982), he erroneously asserts he has "never been convicted of a violent, or even serious, felony." Regardless of his SARATSO and CSRA scores, Badue was subject to parole based on the convictions underlying his parole term.
Badue was also required to participate in GPS monitoring due to his sex offender registration requirement, which stemmed from his indecent exposure convictions. (See § 3010.10, subd. (a).) GPS monitoring was a condition of parole independent of either Badue's SARATSO or CSRA scores.
In sum, any error in the calculation of Badue's SARATSO and CSRA scores was harmless as-independent of those scores-he was subject to parole and subject to GPS monitoring as a condition of that parole. We need not, and do not, reach his assertion that the determination of those scores raises due process concerns. Likewise, we do not address the Attorney General's alternative arguments regarding Badue's due process claim.
Disposition
The order is affirmed.
WE CONCUR: TUCHER, P.J., FUJISAKI, J.