Opinion
B312361
10-17-2022
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY CLARK, Defendant and Appellant.
Christopher Muller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Marc A. Kohm and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Nos. A760105/0PH06483, Robert M. Kawahara. Affirmed.
Christopher Muller, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Marc A. Kohm and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
CURREY, J.
INTRODUCTION
After defendant and appellant Robert Clark violated a condition of his parole, California's Department of Corrections and Rehabilitation, Division of Adult Parole Operations (the Department) recommended his parole be revoked. Clark demurred to the petition for revocation. The trial court overruled the demurrer and revoked Clark's parole. On appeal, Clark contends the court erred in overruling his demurrer. We disagree and affirm.
PROCEDURAL BACKGROUND
In 1986, a jury convicted Clark of murder (Pen. Code, § 187) and arson (§ 451, subd. (b)). The trial court sentenced him to 25 years to life in state prison. He served approximately 30 years in state prison and was paroled in 2016. On October 26, 2020, the Department filed a parole revocation petition in the trial court. The petition alleged Clark had violated the conditions of his parole by failing to report to his parole officer from March 2020 until his arrest on a bench warrant in October 2020. On January 11, 2021, Clark filed a demurrer requesting that the petition be dismissed because it failed to provide an adequate basis for the parole agency's rejection of intermediate sanctions, as required by Penal Code sections 3000.08 and 3015, and California Rule of Court, Rule 4.541. The trial court overruled the demurrer. Following a contested revocation hearing, the court found Clark had violated parole by absconding supervision. The court remanded Clark to the custody of the Department with release to be determined by the Board of Parole Hearings. Clark timely appealed.
All undesignated statutory references are to the Penal Code.
FACTUAL BACKGROUND
A. Clark's Performance on Parole
On October 10, 2016, Clark acknowledged and signed his notice of conditions of parole, which included the following condition:
Unless other arrangements are approved in writing, you shall report to your parole agent on the first working day following your release. The name, address, and telephone number of the parole agent responsible for your parole supervision shall be documented on the CDCR Form 611 (Rev. 08/12), Release Program Study, which is incorporated by reference as part of this Notice. You shall inform your supervising parole agent of your residence, employment, education, and/or training. Any change or anticipated change to your residence shall be reported to your parole agent in advance. You shall inform your parole agent within 72 hours of any change to your employment location, employer, or termination of employment.
After being released, Clark had three parole violations. On November 27, 2017, he voluntarily admitted using alcohol. On October 30, 2019, he voluntarily admitted using alcohol and cocaine and was referred to a structured treatment program named First to Serve as part of his continuing parole. Finally, a few weeks after entering the structured program, on November 7, 2019, he voluntarily admitted to the use of methamphetamine and cocaine.
On April 9, 2020, Clark's parole agent attempted to contact him at his listed phone number, but the number was disconnected. His parole agent called First to Serve and learned that Clark had been discharged from the program on March 13, 2020, for not complying with the program rules. After being released from First to Serve, Clark did not report to the parole office. Because his whereabouts were unknown, a warrant was issued. Clark was arrested on October 19, 2020.
B. Parole Violation Report
In the parole violation report, Clark's parole officer noted he had considered and rejected the imposition of intermediate sanctions. The report explained:
[Clark] is currently on parole for PC 187 Murder 1st with a concurrent sentence for arson of an inhabited dwelling. [Clark] paroled on 10/07/16. [Clark] is a sixty-two-year-old lifer (Long Term Offender). [He] has a criminal history that includes convictions for arson of an inhabited dwelling and murder first degree. Since he paroled, [Clark] has had three parole violations for voluntarily admitting to use of alcohol, methamphetamine, and use of cocaine; [Clark] was continued on parole (COP) for all three violations. [His] last two drug violations occurred on 10/30/19 and on 11/07/19. [Clark] has not responded well to parole supervision. At his last residence of record at First Serve, [he] was discharged from the program due to being non-compliant with program rules. [He] is showing an increased pattern of parole violations. Until [Clark]'s arrest on 10/19/20, [he]absconded parole supervision for six months. [Clark] served thirty years in prison for murder. The circumstance of [Clark]'s commitment offense involved the following: [Clark] and his co-defendants stabbed the victim forty-one times in the back with the wounds penetrating six to seven inches, inflicted numerous cuts and blunt force trauma to the victim's face and head, and strangled victim with an electric cord wrapped around his neck. After murdering the victim, [Clark] and his co-defendants went out and purchased gasoline and returned to the victim where they poured gasoline on the victim and the entire house and set it on fire. [Clark]'s crime involved great violence and a high degree of cruelty. Intermediate sanctions such as a referral to the Day Reporting Center were considered but are inappropriate at this time. With [Clark]'s increasing violation pattern and the circumstances involved with [his] commitment offense, [Clark] is an imminent threat to public safety.
The parole officer recommended revocation of Clark's parole.
C. Clark's Demurrer
The court held a hearing on Clark's demurrer. Clark argued he had a minimal parole violation history related to drug and alcohol use, and the petition did not specifically and sufficiently lay out the reasons why revocation was preferable to intermediate sanctions. He argued that a structured residential drug treatment plan was a better approach than a return to prison.
The prosecution argued that intermediate measures were taken in response to Clark's three drug violations. In 2019, he was referred to a structured residential and outpatient drug program. One month after that, he received another violation, and he was eventually discharged from the program for not complying with the rules. He then absconded supervision for seven months.
The court reasoned that his violation history was not "terribly bad," but continued:
[I]f he had left the program, came back to parole in a week or even a month, you can say: Well, he is amenable to treatment at that point in time and he is really-can he be-will it be beneficial to him and would those sanctions be appropriate. In those cases, maybe it would be. But he's been away for seven months from parole. And . . . it kind of puts a lot of red flags that he's not amenable to supervision because he was out of supervision for seven months.
And, you know, the thing about the demurrer, the standard is not should he be sent back to state prison. That's not the standard. The standard is: is there some remedial action that-that's compelled to be imposed prior to him being-a petition being filed and him being sent to court to determine whether those type of sanctions are not appropriate in that they petition the court.
The court considered defense counsel's representations that Clark wanted to attend drug treatment, but reasoned:
Now, it's my understanding from the case law I read that the state of the law is that parole-it would be really nice if they can list specific articulable facts regarding the evaluation of specific programs . . . that they considered but did not think were suitable, things like that. That's all great, but the state of the law doesn't require that.
You can look at the nature of the violation itself to determine whether he should be returned-or whether the demurrer should be granted or-so that other intermediate sanctions can be imposed, and so I thought about all that and looked at all that.
But in this particular case, he's been away for seven months and that sort of-that doesn't mean that he should be returned to state prison, not at all. But whether that violation is a good basis for filing a petition, and I think it is because it does show significant issues regarding amenability to other treatment programs.
He didn't do anything for that seven months. Again, as I said before, if he returned sooner to parole or turned himself in, done something in that period of time, attended programs, certainly those things would be considered in whether or not he would be amenable to other programming short of being returned to court because those sanctions in and of itself may not be appropriate. It could be a combination of jail and a program. Certainly, he's in need of a program. I don't think there's any dispute about that.
But really, the court is bound to the purpose of the demurrer in . . . parole violation cases and in this situation. It's whether or not intermediate sanctions would be sufficient.
I find that they're not sufficient in this case. That he-he's out of supervision for [a] seven month[ ] period of time, and that does call out for judicial intervention with respect to consideration of jail sanctions. And that's really the threshold point.
And whatever-but we don't have that ultimate say as to what the sanction would be. If it's me standing sitting right here, I would say: no. Return to state prison is not an appropriate sanction, but certainly there's going to be jail sanctions and imposition of conditions, specific conditions of attendance to programs. But that's not our job or authority in these type of cases. If we find the violation to be true, then they have to be returned to the board of parole hearings and they will do further consideration as to whether he should be returned or not. And . . . that's not our jurisdiction or our purview. It's really the board of parole hearings.
So the demurrer is denied.
D. Parole Revocation Hearing
At the revocation hearing, Clark's parole officer testified that when he attempted to contact Clark at First to Serve, he was told Clark had been discharged by the program on March 13, 2020. He could not reach Clark from that point forward and only became aware of Clark's whereabouts when Clark was arrested in October 2020.
Clark testified his parole agent was not able to reach him because he had repeatedly been robbed and had his phones taken. During the months he did not reach out to his parole officer, he lived in an alley. He did not leave the alley much because he was afraid he would get robbed again, and he was afraid of the COVID-19 pandemic. He worked for the restaurant next to the alley and his girlfriend would sometimes visit.
The prosecution argued Clark absconded from parole by being absent for seven months and never reaching out to his parole officer. Clark worked and had a girlfriend, and thus would have had access to a telephone at some point during that time. Defense counsel argued that this was not a "true, willful abscond[ing]" because Clark had "agoraphobic type" behaviors after being robbed.
The court agreed with the prosecution that Clark had an opportunity to report, yet failed to do so for months. The court acknowledged Clark was doing well by working and that he had negative experiences with being robbed, but noted he was still able to report to parole during that time, and his failure to do so was a violation.
DISCUSSION
The Trial Court Did Not Err in Overruling Clark's Demurrer
A. General Legal Principles
"'"[A] demurrer raises an issue of law as to the sufficiency of the accusatory pleading, and it tests only those defects appearing on the face of that pleading." [Citation.]' [Citations.]" (People v. Osorio (2015) 235 Cal.App.4th 1408, 1412 (Osorio), disapproved on another ground in People v. DeLeon (2017) 3 Cal.5th 640, 646.) We review de novo the order overruling Clark's demurrer. (Osorio, supra, at p. 1412.) Under this standard, "[w]e exercise our independent judgment as to whether, as a matter of law, the petition alleged sufficient facts to justify revocation of defendant's parole. [Citation.]" (Ibid.)
The following recitation of general legal principles cites extensively to Osorio, a case analogous to this one, which thoroughly lays out the applicable statutes and legal framework.
"Once 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.) "The Department may impose additional conditions of supervision and 'intermediate sanctions.' (Pen. Code, § 3000.08, subd. (d).)" (Osorio, supra, at p. 1413.) Or, "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.' ([Pen. Code, § 3000.08, subd. (d)], § 3000.08, subd. (f).)" (Osorio, supra, at p. 1413.) "The petition 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. ([Pen. Code, § 3000.08, subd. (d), § 3000.08, subd. (f)].)" (Osorio, supra, at p. 1413.) "The court may then return the parolee to parole supervision, revoke parole, or refer the parolee to a reentry court. ([Pen. Code, § 3000.08, subd. (d), § 3000.08, subd. (f).)" (Osorio, supra, at p. 1413.)
"California Rules of Court, rule 4.541 describes the minimum requirements for the written report included with a petition to revoke [parole]. (Cal. Rules of Court, rule 4.541(c).) The rule also requires the Department to include in the report 'the reasons for that agency's determination that intermediate sanctions without court intervention . . . are inappropriate responses to the alleged [parole] violations.' (Id., rule 4.541(e).)" (Osorio, supra, 235 Cal.App.4th at p. 1413.)
"Pursuant to Penal Code section 3015, the Department has developed a parole violation decisionmaking instrument (PVDMI), a form used to determine what sanctions should be imposed for a parole violation, and whether a petition to revoke parole should be filed." (Osorio, supra, 235 Cal.App.4th at p. 1413.)
"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 by enabling CDCR [(California's Department of Corrections and Rehabilitation)] parole agents, Board of Parole Hearings (BPH) deputy commissioners, CDCR executive management, offenders, and the public to understand the rationale for violation responses and see them as part of CDCR's public safety strategy. [¶] . . . [¶] How the PVDMI works [¶] . . . When a parolee commits a violation of parole: [¶] . . . The parole agent enters all violations into the PVDMI. [¶] . . . The PVDMI assesses the parolee's risk level (using the CSRA [(California Static Risk Assessment)]) and the severity of the violation (based on a severity index) to determine the appropriate response level. For example: [¶] … Low CSRA risk and a least severe violation = least intensive sanction [¶] . . . Moderate CSRA risk and a moderately severe violation = moderately intensive sanction [¶] . . . High CSRA risk and a most severe violation = referral for revocation (return to custody) [¶] . . . Parole agents may recommend overriding the instrument based on stabilizing or destabilizing factors, including the lack of an appropriate program alternative in the community. [¶] . . . Unit supervisors are required to approve the agent's recommendation. If the unit supervisor disagrees, they may choose an alternative option which is more or less restrictive or, refer the case to a parole administrator for final determination. Furthermore, if the unit supervisor disagrees with the parole agent's recommendation, they will be required to document their reasons for disagreement.' (Dept. of Corrections and Rehabilitation, Why CDCR developed a Parole Violation Decision Making Instrument (PVDMI) <http://www.cdcr.ca.gov/pvdmi/index.html> [as of Mar. 30, 2015], boldface & underscoring omitted.)" (Osorio, supra, 235 Cal.App.4th at pp. 1413-1414.)
B. Analysis
Applying de novo review, we conclude the petition alleged sufficient facts to justify revocation of Clark's parole. (See Osorio, supra, 235 Cal.App.4th at p. 1412 .) It is true, as Clark points out, that his PVDMI rated him as low risk. The parole officer in his report, however, explained the reasons supporting his decision to recommend revocation over intermediate sanctions despite the low PVDMI rating. The report noted, among other things, that intermediate sanctions had already been imposed for Clark's substance-related parole violations, and Clark had responded to those sanctions by getting discharged from the First to Serve program for being non-compliant with program rules and continuing to violate parole. The report also noted more broadly that Clark had not responded well to supervision, instead absconding for a period of several months. These facts were sufficient to justify the trial court overruling Clark's demurrer.
We reject Clark's argument that the Department failed to make an individualized determination, as the parole report clearly did make such a determination based on Clark's numerous parole violations and failure to respond constructively to the imposition of prior intermediate sanctions.
We likewise reject his related contention that the Department failed to consider mitigating factors. The record does not show that the Department ignored or failed to consider mitigating factors. Rather, it shows the Department, upon weighing Clark's circumstances, concluded that parole revocation was a better option than further intermediate sanctions.
In arguing the trial court erred by overruling his demurrer, Clark cites to Osorio for several general principles of law. In Osorio, the Court of Appeal concluded the trial court erred in overruling Osorio's demurrer to the parole revocation petition. (Osorio, supra, 235 Cal.App.4th at pp. 1412-1416.) We note, however, that where (as here) the facts differ from those in Osorio, a different result may be appropriate. (See, e.g., People v. Hronchak (2016) 2 Cal.App.5th 884, 892, fn. 6 [where the court noted, "Unlike in Osorio, however, where the appellate court was plainly troubled by revocation of parole based on the relatively minor nature of the parolee's violation ('talking to two gang members for 10 minutes') and the agency's departure from the PVDMI . . ., the parole agency here adequately explained why it was departing from the PVDMI recommendation and seeking revocation and reinstatement of parole."])
DISPOSITION
The trial court's order is affirmed.
We concur: MANELLA, P.J.K, WILLHITE, J.