Opinion
D069924
02-10-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAYMOND BAUER, Defendant and Appellant.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Theodore M. Cropley and Stephanie H. Chow, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PLAH6893) APPEAL from a judgment of the Superior Court of San Diego County, Margie G. Woods, Judge. Affirmed. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Theodore M. Cropley and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Michael Raymond Bauer was convicted in 2013 of lewd and lascivious conduct with a child under age 14. He was granted parole in July 2015 subject to certain conditions regarding substance abuse and mental health treatment. Defendant did not challenge those conditions at the time of his release. After he violated parole a second time in December 2015 by failing to attend and participate in a required mental health treatment program, the trial court revoked his parole and sentenced him to 140 days in custody.
On appeal, defendant contends he was denied due process at the parole revocation hearing because he received inadequate notice of the basis for revocation. He maintains he received notice that the revocation was based on his failure to attend and participate in a substance abuse treatment program, yet his parole was revoked on the basis of his failure to attend and participate in a mental health treatment program. We conclude defendant received due process. Defendant also challenges on appeal the reasonableness of his substance abuse-related parole conditions. This challenge fails because defendant did not exhaust his administrative remedies by first challenging the conditions through an available administrative appeal process. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On May 31, 2013, defendant was convicted of lewd and lascivious conduct with a child under 14 years of age (Pen. Code, § 288, subd. (a)) after he fondled a seven-year-old boy's penis while in the bathroom of a fast-food restaurant. Defendant was sentenced to six years in prison.
Undesignated statutory references are to the Penal Code.
On July 23, 2015, defendant was released on parole, subject to numerous conditions. The following were among the conditions imposed by the California Department of Corrections and Rehabilitation, Division of Adult Parole Operations (Department):
"2. You shall provide an anti-narcotic test when instructed to do so by a parole agent.Defendant initialed all the conditions, but wrote "will challenge" in the margin next to conditions 2, 3, 5, and 6 (substance abuse conditions).
"3. You shall not consume, possess, or have access to any alcoholic beverages, liquors, or over-the-counter medication that contains alcohol; (e.g., Nyquil). You shall provide a urine or breath sample for the purpose of detecting the presence of alcohol.
[¶] . . . [¶]
"5. You shall not use, possess, or distribute any narcotic or other controlled substance as defined by law or any paraphernalia related to such substances, without a valid prescription.
"6. You shall enroll in and successfully complete a substance abuse treatment program as directed by your parole agent or appropriate parole authority.
[¶] . . . [¶]
"8. You shall participate in a mental health treatment program as directed by your parole agent."
On July 29, 2015—less than a week after defendant's release on parole—his parole agent filed a petition for revocation of parole alleging defendant violated a condition of his parole by making physical contact with an eight- or nine-year-old girl. On August 4, defendant admitted the violation and was returned to custody for 150 days. On October 11, after about 70 days in actual custody, defendant was re-released on parole.
Following defendant's re-release, his parole agent referred him to the BI Day Reporting Center (BI). Defendant's case manager at BI, Jaime Santiago, assessed defendant to determine his treatment needs. Defendant's assessments indicated he did not require substance abuse treatment, but did require moral recognition therapy (MRT). MRT is a three-phase, 12-step group treatment program. During phase one, which BI typically allots 60 days to complete, defendant was required to check in at BI daily, attend one group meeting per week, and complete three written assignments.
On December 4, 2015, Santiago e-mailed defendant's parole agent, Myrna Alonso, to advise her that defendant's attendance was "okay but his group attendance is bad." Agent Alonso counseled defendant on his behavior.
Less than two weeks later, on December 17, Santiago again e-mailed Agent Alonso to update her on defendant's behavior at BI. Santiago wrote, "Two words. The same." He explained that defendant was being placed on a 15-day "Progress Agreement as a result of having exceeded the maximum number of unexcused absences from groups and check-ins." Of the 68 days defendant was required to attend BI, he had accumulated 24 unexcused absences. Santiago further explained that defendant was disruptive and disrespectful during group sessions, was showing no boundaries when interacting with other participants, and was threatening to file lawsuits and grievances "if he doesn't get his way."
Four days later, on December 21, BI staff again e-mailed Agent Alonso to advise her of an incident that had occurred the previous day between defendant and a BI customer service specialist, Dawn Fisher. Reportedly, defendant interrupted a conversation between Fisher and another BI participant to discuss visibility of smoke from a wildfire in the region. When Fisher noted that anyone living in a certain area could see the smoke, defendant laughed "sinisterly and very evilly" and said, "I now know where you live." Fisher felt uncomfortable and asked defendant to leave BI, but he laughed, walked away, and would not leave until other BI staff intervened. Before he left, defendant "whispered that he was sorry and that he would never stalk" Fisher. BI staff formally documented the incident in a Department incident report form and sent it to Agent Alonso. BI would not permit defendant to return.
Agent Alonso arrested defendant. One week later, on December 28, the Department filed a petition for revocation of defendant's parole based on his "failure to attend and participate in a treatment program." (Capitalization omitted.)
The petition was also based on an allegation that defendant "threaten[ed] public officers and employees and school officials." (Capitalization omitted.) The Department ultimately dismissed that count. No issues in this appeal relate to the dismissed count.
On February 22, 2016, the trial court held a parole revocation hearing. Fisher, Santiago, and Agent Alonso testified about the events described above. Defendant represented himself and testified in his own defense. He acknowledged having a history of mental illness, but denied having any drug- or alcohol-related issues or convictions. The trial court received in evidence defendant's criminal history, which included two felony and 35 misdemeanor convictions, none of which appear on their face to be substance-abuse related. Defendant disputed Santiago's accounting of his attendance at BI and claimed to have had only seven or eight absences, four of which were excused.
Fisher also testified that when she was telling a coworker that she swam at a community college pool, defendant asked if he could come watch her. Fisher told him no. The following week, she learned defendant enrolled at the same community college "right after he learned" Fisher went there.
The trial court found defendant violated the terms of his parole by failing to attend and participate in treatment at BI. The court found that the purpose of defendant's treatment at BI was not for drugs or alcohol, but rather, to assist defendant in being "able to live peacefully out in the community" and "stay[ ] law abiding." The court revoked defendant's parole, sentenced him to 140 days in custody, and ordered that he stay away from Fisher. The court checked boxes on the form minutes indicating the "same terms and conditions" of parole would be "continued" following defendant's re-release. (Capitalization omitted.)
DISCUSSION
I. Parole Revocation
Defendant contends he was denied due process because although the Department notified him it was basing its petition to revoke parole on his failure to attend and participate in a substance abuse treatment program, the court ultimately revoked parole based on his failure to attend and participate in a mental health treatment program. Defendant also contends the Department failed to consider sanctions short of revoking parole. Neither contention has merit.
A. Background
The Department used a standard form petition for revocation (Judicial Council Forms, form CR-300). In the space asking to identify the "specific terms and conditions" (capitalization and boldface omitted) of parole that had been violated, the Department wrote: "See Attached Parole Violation Report" (Report).
The Report identified the first violation as "FAILURE TO ATTEND AND PARTICIPATE IN A TREATMENT PROGRAM." In its description of the "circumstances of [the] charge" (capitalization and bold font omitted), the Department stated that defendant's special conditions of parole—all of which were attached to the Report—required that he " 'successfully complete a substance abuse program as directed by [his] parole agent or appropriate parole authority.' " (Italics added.) The remainder of that section of the Report discusses defendant's behavior and attendance issues at BI. Specifically, the report quotes from (and attaches) Santiago's December 4 and 17 e-mails regarding defendant's behavior and attendance problems at BI. The Department also attached the December 21 e-mail and incident report regarding the incident between defendant and Fisher.
The Report states the Department's "parole violation decision making instrument" (PVDMI) recommended that the appropriate response level for defendant's parole violation was "most intensive: refer for revocation." (Capitalization and bold font omitted.) The Report's evaluation section notes that "[i]ntermediate sanctions have been considered," but were deemed inappropriate in light of (1) the nature of defendant's underlying offense; (2) his extensive criminal history; (3) his STATIC-99 score indicating a moderate/high risk of recidivism; (4) his aggressive behavior while being transported after his arrest for the parole violation; and (5) his threats to tell jail staff he is suicidal and to "create numerous lies against his [parole agent]" if she did not recommend that he be continued on parole. The Report concludes: "Due to his history and violence and his sexual [impulses] he can not control[,] a return to custody appears to be the only option."
"According to the Department, '[t]he PVDMI is part of an overall strategy designed to reduce risk of recidivism, enhance success on parole, and utilize resources in the most effective manner. Specifically, the PVDMI: [¶] . . . Relies on the principles of evidence-based and effective interventions; [¶] . . . Identifies the appropriate response to each violation based on the offender's risk level and the severity of the violation; [¶] . . . Ensures consistency and standard responses across the Division of Adult Parole Operations (DAPO); and [¶] . . . Promotes transparency . . . ." (People v. Osorio (2015) 235 Cal.App.4th 1408, 1413 (Osorio).)
The STATIC-99 is a sex offender risk assessment tool used to evaluate adult males required to register as sex offenders. (§ 290.04, subd. (b)(1); see People v. Paniagua (2012) 209 Cal.App.4th 499, 504, fn. 5.)
Defendant waived his right to a probable cause hearing and the trial court set a parole revocation hearing. Defendant requested and was granted leave to represent himself at the hearing. Sometime before the hearing, defendant sought a continuance so he could obtain discovery and secure the attendance of witnesses for cross-examination. Specifically, defendant asked that the court order Santiago, Fisher, and two other BI employees to attend the evidentiary hearing "because all these persons made statements that contributed to the alleged parole violation . . . and therefore the defendant . . . has a right to cross-examine the persons who prepared the reports which led to the parole violation charge."
Regarding his attendance and behavior, defendant requested production of BI's daily attendance sign-in sheets, certain weekly sign-in sheets for the MRT program, and declarations from BI staff substantiating their claims that defendant was disruptive and disrespectful. Defendant stated he needed this evidence so he "can or cannot prove if the statements made in regards to Violation 1, Failure to Attend and Participate in a treatment program were fabricated based on possible false information given to the defendant's parole agent by Jaime Santiago." Defendant attached to his request a copy of the Department's parole violation report on which he underlined certain passages regarding his behavior and attendance.
At the beginning of the parole revocation hearing, a question arose regarding whether defendant had properly filed and served his request for a continuance. In light of the discrepancy, the court asked defendant why he needed a continuance and advised him that a "motion to continue . . . can be done verbally." Defendant then withdrew his request for a continuance and elected "to handle it the way it is."
As noted, Santiago and Fisher testified at the hearing. Defendant questioned Santiago about attendance and record-keeping during both the Department's case and his defense case. Defendant also established by cross-examining Santiago that he "tested out" of the need for substance abuse treatment. In that vein, Santiago testified he had told defendant MRT is "not a drug program," it is "behavioral interventions." Finally, defendant testified regarding his attendance at BI.
The court found the purpose of defendant's treatment at BI was not for substance abuse, but rather, to assist defendant in being "able to live peacefully out in the community" and "stay law abiding." "As far as memory as to how often [defendant] was absent, the court [was] convinced by a preponderance of the evidence that there were times he did not appear and he should have appeared." Accordingly, the court "ma[d]e a finding that the violation . . . has been proven."
With respect to the appropriate consequence, the Department argued defendant's parole violation warranted 180 days in custody. The Department cited (1) defendant's July 2015 revocation; (2) a December 2015 reprimand for failing to charge his GPS device; (3) defendant's criminal history and conduct toward Fisher; and (4) defendant's STATIC-99 assessment indicating a moderate/high risk of recidivism. Defendant requested that the court sanction him with the 126 days of custody credits he accrued while awaiting the hearing. The court selected 140 days in custody as the appropriate sanction, recognizing defendant would be released in about five days (due to custody credits).
B. Guiding Principles
If "a parole violation occurs, the supervising parole agency—here, the Department—may do one of two things." (Osorio, supra, 235 Cal.App.4th at pp. 1412-1413.) First, the Department may "impose additional conditions of supervision and 'intermediate sanctions' without court intervention." (People v. Hronchak (2016) 2 Cal.App.5th 884, 890 (Hronchak), quoting § 3000.08, subd. (d); see Osorio, at p. 1413.) Second, "if the Department 'has determined, following application of its assessment processes, that intermediate sanctions . . . are not appropriate, the supervising parole agency shall . . . petition . . . the court in the county in which the parolee is being supervised . . . to revoke parole.' " (Osorio, at p. 1413, quoting § 3000.08, subd. (f); see Hronchak, at p. 891.)
An example of an intermediate sanction is "flash incarceration," which "is a period of detention in a city or a county jail due to a violation of a parolee's conditions of parole. The length of the detention period can range between one and 10 consecutive days . . . ." (§ 3000.08, subds. (d) & (e).) However, the Department "has chosen, as a policy, not to exercise its statutory authority to consider flash incarceration as an intermediate sanction in lieu of parole revocation." (Williams v. Superior Court (2014) 230 Cal.App.4th 636, 646 (Williams); Couzens et al., Sentencing California Crimes (The Rutter Group 2016) § 11:76, p. 11-132.)
A petition to revoke parole "must include a written report detailing the terms and conditions of parole and how they were violated, the parolee's background, and the Department's recommendation to the court." (Osorio, supra, 235 Cal.App.4th at p. 1413, citing § 3000.08, subd. (f); see Cal. Rules of Court, rule 4.541(c); Hronchak, supra, 2 Cal.App.5th at p. 891.) The report must also include "the reasons for [the Department]'s determination that intermediate sanctions without court intervention . . . are inappropriate responses to the alleged violations." (Rule 4.541(e); see Osorio, at p. 1413; Hronchak, at p. 891.) The statement of reasons must be "individualized to the particular parolee, as opposed to a generic statement." (Williams, supra, 230 Cal.App.4th at p. 665; see Hronchak, at p. 891.)
Undesignated rule references are to the California Rules of Court.
The court hearing the petition to revoke parole may "return the parolee to supervision, revoke parole, or refer the parolee to a reentry court." (Osorio, supra, 235 Cal.App.4th at p. 1413, citing § 3000.08, subd. (f)(1)-(3).) The hearing procedure must comport with the following "minimum requirements of due process": (1) written notice of the alleged parole violation; (2) disclosure of adverse evidence; (3) the opportunity to be heard, to present evidence, and to confront and cross-examine adverse witnesses; (4) a " 'neutral and detached' hearing body"; and (5) a written ruling by the factfinder. (Morrissey v. Brewer (1972) 408 U.S. 471, 489 (Morrissey); see Williams, supra, 230 Cal.App.4th at p. 648.) The Legislature intended that the petition and report requirements described above would comport with these due process requirements. (Williams, at p. 643.)
The prosecution bears the burden of establishing a parole violation by a preponderance of the evidence. (§ 3044, subd. (a)(5).) We review a trial court's revocation of parole for an abuse of discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 442.)
C. Analysis
Defendant's only due process challenge is to the sufficiency of notice regarding his alleged parole condition violation. Based on our independent review of the record, we conclude defendant received adequate notice that the Department was seeking to revoke his parole based on his failure to attend and participate in mental health treatment, not substance abuse treatment.
The petition itself refers to the Report to identify the specific parole condition violated. The Report, in turn, states the violation is defendant's "failure to attend and participate in a treatment program." (Capitalization omitted.) Although the Report's discussion of the "circumstances of [the] charge" (capitalization omitted) quotes the substance abuse treatment condition, the remainder of the discussion makes clear that the Department was referring to the mental health treatment condition, a copy of which was attached to the Report. Moreover, the e-mails attached to the Report clearly relate to defendant's performance at BI, which the trial court found was mental health (not substance abuse) treatment.
Moreover, defendant's preparation for the hearing indicates he received adequate notice. He sought attendance records for MRT, which is undisputedly a mental health treatment program. He vigorously cross-examined Santiago regarding BI's attendance records. And he testified about his own attendance. Defendant has not stated—and we cannot imagine—how he could or would have proceeded any differently had the Report quoted the mental health treatment condition instead of the substance abuse treatment condition.
In any event, the court advised defendant he could make a verbal request for a continuance. Defendant not only declined to do so, but he withdrew his previous written request. By indicating a willingness to entertain a verbal motion for a continuance, the trial court provided a constitutionally sufficient safeguard of defendant's due process rights and preserved the fundamental fairness of the proceedings. (See, e.g., People v. Felix (1986) 178 Cal.App.3d 1168, 1172 [failure to seek a continuance bars a due process challenge to the lack of notice of new charges].)
Our independent review of the record also leads us to conclude the Department considered alternative sanctions short of parole revocation. The Report specifically states "intermediate sanctions have been considered" and articulates five bases for why the Department deemed them inappropriate. Defendant does not attack the merits of those bases.
In sum, the trial court did not abuse its discretion in revoking defendant's parole.
II. Reasonableness of the Substance Abuse Conditions
Defendant asks that we direct the trial court to strike the substance abuse conditions because they are not reasonably related to his underlying offense. (See In re Stevens (2004) 119 Cal.App.4th 1228, 1234 [a parole "condition that bars lawful activity will be upheld only if the prohibited conduct either 1) has a relationship to the crime of which the offender was convicted, or 2) is reasonably related to deter future criminality"], citing People v. Lent (1975) 15 Cal.3d 481, 486.) The Attorney General contends defendant forfeited this challenge by failing to appeal the substance abuse conditions when they were first imposed by the Department upon his release from prison in July 2015. Although we do not find a forfeiture, we find defendant failed to exhaust his available administrative remedies, as required.
Defendant also asserts that because the substance abuse conditions were improper, the trial court erred by revoking his parole based on a violation of the substance abuse treatment condition. This argument lacks merit because, as just discussed, the trial court did not revoke defendant's parole on the basis of his failure to attend and participate in substance abuse treatment.
"It 'is well established' ' ". . . that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act." [Citation.] This rule "is not a matter of judicial discretion, but is a fundamental rule of procedure . . . binding upon all the courts." [Citation.]' " (Sabatasso v. Superior Court (2008) 167 Cal.App.4th 791, 795 [finding inmate challenging parole conditions had exhausted administrative remedies].) The Department's regulations "provide for a multilevel review process" for an "inmate contesting a condition of parole." (In re Hudson (2006) 143 Cal.App.4th 1, 7; see Cal. Code Regs., tit. 15, § 3084.1, subd. (a) ["Any . . . parolee . . . may appeal any . . . condition . . . by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare."]; Cal. Code Regs., tit. 15, § 3084.7 [specifying multi-level review process].)
Defendant does not assert, and has not provided a record, demonstrating that he commenced—let alone completed—his available administrative challenge to the substance abuse conditions. Accordingly, he has not exhausted his available administrative remedies.
Defendant suggests he can nonetheless challenge the substance abuse conditions because they were "reimposed" by the trial court in an appealable order at the conclusion of the parole revocation hearing. In making this argument, he distinguishes In re Shaun R. (2010) 188 Cal.App.4th 1129, in which the court did "not agree that the routine continuation of a previous order without change revives the right to appeal the merits of a previous order that has become final." (Id. at p. 1139.) He contends the situation here is more like that in In re Ana C. (2016) 2 Cal.App.5th 333, where all of the challenged conditions "were either imposed or reimposed" in a subsequent order "and are fully set forth in that order." (Id. at p. 339, fn. 4.) We disagree. The order revoking parole here merely "continued" the "same terms and conditions" of parole; it did not "reimpose" them or "fully set [them] forth." (In re Ana C., at p. 339, fn. 4.) Thus, in addition to defendant's failure to demonstrate that he exhausted his available administrative remedies, he has not identified an appealable order imposing the challenged parole conditions.
The California Supreme Court granted review in In re Ana C. (In re Ana C., supra, 2 Cal.App.5th 333, review granted Oct. 19, 2016, S237208.) Defendant cited the case in his reply brief more than one month later, but did not mention this procedural development. (See Rule 8.1115(e)(1) [citation to a Court of Appeal opinion under review by the Supreme Court must "note the grant of review and any subsequent action by the Supreme Court"].) --------
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.