Opinion
G053069
09-22-2017
THE PEOPLE, Plaintiff and Respondent, v. ELLIOT ROLAND FAUST, Defendant and Appellant.
Kevin J. Lindsley, 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, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P-02087) OPINION Appeal from an order of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed as modified. Kevin J. Lindsley, 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, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Elliot Roland Faust appeals from the trial courts order revoking his parole and sentencing him to 180 days in custody. (See Pen. Code, §§ 1203.2, 3000.08; all statutory citations are to the Penal Code.) Faust contends there was insufficient evidence he willfully violated parole by failing to charge his GPS tracking device. He also argues a number of the terms and conditions of his parole are unconstitutional and therefore we must strike or modify them. As explained below, we affirm the order revoking parole, but direct modification of one parole condition.
I
FACTUAL AND PROCEDURAL BACKGROUND
Faust was paroled after serving a sentence for contacting a minor to commit a sexual offense. (§ 288.3, subd. (a)(2).) On November 13, 2015, Fausts parole agent filed a petition alleging Faust violated a parole condition requiring him to "charge [his GPS tracking device] at least two times per day (every 12 hours) for at least 1 full hour each charging time" (Special Condition No. 73, boldface omitted). The petition also alleged Faust violated a condition prohibiting him from being "on the property of any residence without the occupant[]s prior knowledge of [his] criminal history and then only after [his] parole agents[s] approval, this includes motel and hotel rooms" (Special Condition No. 107).
At the parole violation hearing in December 2015, Fausts parole agent, Donnell Thrower, testified that on Monday, November 9, 2015, at approximately 4:00 a.m., the company monitoring Fausts GPS tracking device notified him Fausts battery was dead. Thrower checked his computer and learned that before the battery died, Faust had received "low battery alerts" and "critical battery alerts" on his GPS device. When a GPS device goes into low battery status, it "ping[s]" and vibrates. The parolee must either charge the battery or notify the parole agent, who also "receives notification the GPS device is not working." Before November 9, Thrower had not received any information Fausts GPS device was malfunctioning.
To locate Faust, Thrower went to a Laguna Hills service station where the GPS device last tracked Faust. An attendant recalled seeing Faust in the area, and after reviewing Fausts GPS "tracks," Thrower determined Faust had been to an apartment or condo on November 8 without Throwers approval. Thrower could not determine if Faust was "inside the residence or outside the door," but Faust required pre-approval to be "on private [residential] property." Agents searched the area looking for Faust, but did not find him.
Thrower ultimately located Faust five hours later at the Day Reporting Center (DRC) in Santa Ana. While checking on other parolees, Thrower spotted Faust in the lounge area charging his GPS device. Thrower testified "[Faust] told me that he had charged the GPS device, but he was using the charger thats a loaner to [the DRC]. . . . He didnt have a charger." Faust admitted he felt or heard the low battery alerts. Thrower found a phone in Fausts shoe.
Faust was homeless, and generally stayed in the Garden Grove or Anaheim area. A homeless person can charge a GPS device at the DRC, at the parole office, and at Orange Psychological Services (similar to DRC), although these locations are not open 24 hours a day. According to Thrower, parolees also go to "public places in the community . . . to charge their" devices. For example, Faust "on numerous occasions [had] gone to Starbucks. Thats where he stays. Seventy percent of his time is spent at Starbucks."
Faust testified the agent told him to charge the device "[t]wice a day every 12 hours for an hour. No more, no less." But he could not comply with this condition "at all times," and it depended "where [his] sleeping arrangement ha[d] to be for the evening . . . ."
Faust claimed he charged his GPS device at the DRC on Sunday, November 8, for one hour. According to Faust, the DRC closed at 1:00 p.m. on weekends. He met a man at a bus stop in Santa Ana, and explained his situation. When the man asked if he was drunk, Faust explained he was "beyond exhausted," and "was going on three days of no sleep." He and the man took a bus to the mans apartment complex in Laguna Hills. Faust told the man he was not allowed inside, so the man "relinquished a chair [on the grass] outside the property," and Faust "was able to sit at that and just try to . . . collect [himself] for a little bit."
Faust slept outside the mans home for "a very short time" or "[b]arely a couple of hours." He did not call the parole agent to tell him where he was sleeping because he "didnt have a way at the time." Faust claimed he did not have the phone Thrower found on him until the morning of November 9, before he went to the DRC, explaining he acquired it from a "Jason" at a restaurant. He tried to find his way back to Orange, but "none of the buses were running" and he spent "a couple of hours . . . sitting at the bus stop." Around 8 (presumably p.m.), he asked a woman about buses and she said they did not operate on Sundays. He had never been to Laguna Hills, was not familiar with the bus schedule, and did not know buses did not run on Sundays. He sat at a bus stop outside a convenience store "all night long until the first bus showed up at" 5:00 a.m.
Faust acknowledged "a few [low battery] notifications for a couple of hours," beginning around 11:00 p.m. Because the convenience store employee was "not hospitable," Faust did not try calling the parole agent or charging his GPS device at the store. He also claimed he did not have his parole agents phone number. He was "just freaking out in Laguna Hills all night," and did not "move from that spot until [he] could get on a bus and get back to" DRC "because he knew [he] could charge there." After a bus transfer, he made his way to the Orange Police Department because the parole agent asked him to obtain proof he had registered as a sex offender. Afterward, he met a friend at a restaurant, called his mother, and eventually made his way to the DRC around 9:00 or 10:00 in the morning to plug in his GPS device.
The court rejected Fausts claim his violation of the charging condition was not willful, but rather an "accident" or "error," stating, "[h]es got a responsibility. Its not easy. I understand that, but he has to do it." The court did not find Faust violated the condition prohibiting him from being on residential property without prior approval.
II
DISCUSSION
A. Appeal is Not Moot
The Attorney General suggests Fausts appeal is moot because Fausts "period of incarceration is over," and he "has not demonstrated any collateral consequences arising from his parole revocation." We disagree. "Under Californias penal system . . . [s]hould [a] defendant suffer a further criminal conviction, the parole revocation may be used as part of his sentencing determination." (People v. Osorio (2015) 235 Cal.App.4th 1408, 1412; see People v. Hronchak (2016) 2 Cal.App.5th 884, 888-889 [deciding appeal notwithstanding the defendants completion of period of incarceration for parole violation].) Because Faust might suffer adverse future consequences from this parole revocation, the appeal is not moot. B. Substantial Evidence Supports Trial Courts Finding Faust Willfully Violated Parole
The petition alleged Faust violated the condition he "charge the GPS device at least two times per day (every 12 hours) for at least one full hour for each charging time." Faust challenges the evidence to support the trial courts finding he violated this condition: "[T]here was no testimony as to what time on November 8, 2015 the [GPS] device was charged or for how long. The prosecution did not clarify the dates or elicit the time frame on redirect. Since there was also no testimony that appellant charged the battery for less than 1 hour, no reasonable trier of fact could have found that appellant violated parole."
We review the courts factual finding of a parole violation for substantial evidence. (People v. Urke (2011) 197 Cal.App.4th 766, 773; see Williams v. Superior Court (2014) 230 Cal.App.4th 636, 650-652, disapproved on other grounds in People v. Leon (2017) 3 Cal.5th 640, 653 [Legislature amended §§ 1203.2 & 3000.08 to apply probation revocation procedures to parole revocations and established a uniform process for revoking parole, probation, and postrelease supervision for most felons]; see People v. Sanchez (2003) 113 Cal.App.4th 325, 330 [appellate court defers to trier of fact; appellant challenging the sufficiency of the evidence "bears an enormous burden"].)
In the trial court, Faust did not challenge the evidence he failed to charge his GPS device. Instead, he argued he could not charge the device because he was stuck in Laguna Hills and did not have the means to charge his device. In any event, Faust testified he last charged the device at the DRC on Sunday, November 8, before embarking on his trip. This must have occurred sometime before 1:00 p.m. because Faust testified the DRC closed around 1:00 p.m. on weekends. It is undisputed he did not charge the device again until around 9:00 or 10:00 a.m. at the DRC on Monday, November 9. Substantial evidence therefore supports the courts implied finding Faust did not charge the device for one hour within 12 hours of the previous charging.
Alternatively, Faust argues the court abused its discretion in revoking parole because his violation was "de minimis." We disagree. The Legislature has concluded continuous electronic monitoring is an effective tool for supervising high-risk persons, including sex offenders like Faust. (§ 3010, subd. (e).) The court must revoke parole and impose a jail sentence of 180 days when a registered sex offender (§ 290) knowingly circumvents the operation of a GPS device. (§ 3010.10, subd. (e).) Fausts failure to comply with the charging requirements for his GPS device rendered the tracking system inoperable, which posed a risk to public safety because it prevented the government from monitoring his compliance with other parole conditions. Consequently, Fausts de minimis claim fails.
Faust also asserts the trial court implicitly found he acted negligently rather than willfully, and thus abused its discretion by revoking parole. We assume for present purposes that, as with probation, a court may not revoke parole unless the evidence supports a conclusion the parolees "conduct constituted a willful violation of the terms and conditions of" parole. (People v. Galvan (2007) 155 Cal.App.4th 978, 982 [deportation prevented probationer from reporting to probation officer in person]; People v. Zaring (1992) 8 Cal.App.4th 362, 378-379 (Zaring) [trial court abused its discretion by revoking probation for a tardy court appearance caused by circumstances beyond probationers control].) Willful in this context also includes the failure to fulfill the condition as "the result of irresponsibility, contumacious behavior or disrespect . . . ." (Zaring, supra, 8 Cal.App.4th at p. 379; see In re Trombley (1948) 31 Cal.2d 801, 807 [willfully implies the person knows what he is doing].)
Accepting Fausts testimony at face value, the evidence reflects he left on a "very long" bus ride to a city he never had visited with no plan to charge his GPS device. Although he typically spent 70 percent of his time at Starbucks, he made no effort to find a similar location to charge his device even after the low battery alert began around 11:00 p.m. Instead, he ignored the alerts and sat at a bus stop until at least 5:00 a.m. He then allegedly went to the Orange police station, and then to a restaurant where he met some friends or acquaintances, before finally returning to the DRC to charge his device around 9:00 or 10:00 a.m. He phoned his mother, but never tried to call his parole agent to notify him of his predicament. Fausts failure to fulfill the charging condition was not caused by circumstances beyond his control. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787 [lack of diligence deemed willful where party understood obligation, had the ability to comply, and failed to comply].) The court did not abuse its discretion in determining Fausts violation warranted revocation of his parole. C. Constitutionality of Parole Conditions
Faust states "it was neither contradicted, nor argued that appellant was lying when he told Agent Thrower that he lost his charger and therefore was unable to charge his device. Thus, the violation was not willful." As noted, Thrower testified when he found Faust at the DRC, Faust "told me that he lost his - he told me that he had charged the GPS device, but he was using the charger thats a loaner to [the DRC]. . . . He didnt have a charger." This testimony does not clearly indicate that Faust told Thrower he lost his charger, and Faust never testified he lost his charger.
Faust also contends some of his parole conditions are unconstitutionally vague, overbroad, and violate his right to privacy. We decline to address the bulk of his complaints because the petition did not allege, and the trial court did not find, Faust violated any of these conditions, Faust did not raise any of these arguments in the trial court, and Faust has not moved to strike or modify the allegedly unconstitutional conditions in the trial court or administratively with parole authorities. Accordingly, we decline to address Fausts challenge to conditions 12, 18, 19, 23, 27, 32, 45, 46, 47, 48, 49, and 89.
The Attorney General notes a parolee may file a habeas corpus petition to challenge certain parole conditions after exhausting the parolees 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 promotes important interests, including giving agencies the opportunity to make a factual record, encouraging resolution, filtering out frivolous claims, and promoting judicial economy. (Id. at p. 7; Cal. Code Regs., tit. 15, §§ 3084.1-3084.3, 3084.7-3084.9.) There is no indication Faust has sought to modify his parole conditions administratively.
The Supreme Court has recently filed opinions addressing and rejecting some of Fausts contentions. (See People v. Garcia (2017) 2 Cal.5th 792, 809 [requirement that a convicted sex offender on probation participate in polygraph examinations as part of a sex offender management program and waive privilege against self-incrimination is not overbroad and does not violate probationers Fifth Amendment or privacy rights]; People v. Hall (2017) 2 Cal.5th 494, 500 [conditions include an implicit knowledge requirement and thus afford a probationer or parolee fair notice of the conduct required of him].)
The petition did allege Faust violated Special Condition Number 107, which prohibited him from being "on the property of any residence without the occupants prior knowledge of [his] criminal history and then only after [his] parole agents[s] approval, this includes motel and hotel rooms." Fausts trial counsel argued the condition was "an unconstitutional, overly broad, vague term of parole." He asserted the parole agent "didnt know how to define [] it. [¶] Private property. Well, only a residence, not just inside the house, but also a patio area and the porch." Counsel also noted his client was homeless and "he cant even go in for a drink of water if somebody offers it to him." The court ultimately found Faust did not violate this condition.
A trial court hearing a petition to revoke parole is authorized to modify parole terms. (See § 3000.08 ["Upon a finding that the person has violated the conditions of parole, the court shall have authority to do any of the following: [¶] (1) Return the person to parole supervision with modifications of conditions, if appropriate, including a period of incarceration in a county jail"]; § 1203.2, subd. (b)(1) [court may "modify, revoke, or terminate the supervision of the supervised person upon the grounds set forth in subdivision (a) if the interests of justice so require"].)
On appeal, Faust argues the condition is "overbroad because it is not narrowly drawn to prohibit the types of property and/or residences that are unacceptable. It is vague because it does not specify the type of property appellant is prohibited from being on (i.e. a public vs. private residence) and it does not describe the physical areas of a property that appellant is not allowed to be on." He therefore contends the condition violates his constitutional rights to travel and to freedom of association, and his liberty interest in obtaining shelter.
The state may impose parole conditions governing a parolees residence and living companions, and may restrict the parolees associations, right to travel, and other aspects of the parolees life. (In re E.J. (2010) 47 Cal.4th 1258, 1282-1283, fn. 10.) But a parolee retains "certain basic rights and liberty interests." (In re Taylor (2015) 60 Cal.4th 1019, 1037.) Parolees retain constitutional protection against arbitrary and oppressive official action, and parole conditions must be reasonable. (In re Stevens (2004) 119 Cal.App.4th 1228, 1234.) Where an otherwise valid condition impinges on constitutional rights, the condition must be carefully tailored and reasonably related to the compelling state interest in reformation and rehabilitation. (People v. Bauer (1989) 211 Cal.App.3d 937, 942.)
The record does not disclose the facts underlying Fausts two convictions for violating section 288.3, which prohibits contacting or communicating with a minor with the intent to commit specified sex offenses. Imposition of condition number 107 follows well-established authority allowing for close regulation of the housing and living circumstances of sex offenders. (In re E.J., supra, 47 Cal.4th at pp. 1282-1283, fn. 10.) The state has a legitimate interest in preventing Faust from having contact with minors while he is on parole. A preapproval requirement allows the parole agent to assess the likelihood children may be present or arrive at a residence and question Faust about the purpose of his visit.
Faust also complains the condition is unreasonable because it is not narrowly tailored to accomplish the states legitimate goals in supervising him]on parole and protecting the public. Faust explains "[c]ircumstances may arise in which the need for preapproval for temporary entry into a residence or motel may become oppressive because it cannot be given quickly. For example, if appellant either has an immediate need to enter a building, such as to use the restroom, or is offered shelter on an evening or weekend, it is probable that he would not be able to reach his parole officer immediately or after office hours. Moreover, given that parole officers are undoubtedly busy, it is unlikely that appellant would be able to obtain advance permission quickly even during business hours."
We agree with Faust circumstances may arise in which the need for preapproval for temporary entry into a residence or motel may become oppressive because it cannot be given quickly. For example, he may have an immediate need to enter a residence, such as to use the restroom or get a drink of water, or to obtain shelter in inclement conditions, when he cannot reach his parole agent. We may not find a condition invalid on the mere possibility it could be applied in an arbitrary manner. (See People v. Olguin (2008) 45 Cal.4th 375, 383 [presumption that probation officer will not act irrationally or capriciously with authority to disapprove a wide range of pets]; see also In re Hudson, supra, 143 Cal.App.4th at p. 11 [appellate court will not assume parole officer will unreasonably withhold permission].) But the issue is not so much arbitrary or capricious official conduct, but whether Faust is able to contact his parole officer when approval is needed. We therefore will direct the trial court to modify (or direct the court to direct the parole agent to modify) condition 107 as follows: "You must notify DAPO or your parole agent before entering any private residence or motel/hotel and obtain the agents authorization. If the parole agent is unavailable to authorize entry, you may enter the residence or motel/hotel if you have left a message for the agent explaining the reason for the visit and no minors are present. You shall not enter any private residence or motel/hotel without the occupants prior knowledge of your criminal history."
Faust therefore must continue to seek his parole agents permission before entry into a private residence or motel by notifying the agent of his interest in entering the property, either directly or by leaving a message. Allowing him to make the decision to enter wholly unguided by his parole agent either in advance or by follow up at the agents discretion is insufficient for the reasons discussed. The notice requirement serves as a reasonable means to supervise Fausts gradual reintegration into society, without unduly burdening his constitutional interests.
III
DISPOSITION
The trial courts order revoking Fausts parole and imposing a 180-day jail term is affirmed. The trial court is directed to modify condition 107 as follows: "You must notify DAPO or your parole agent before entering any private residence or motel/hotel and obtain the agents authorization. If the parole agent is unavailable to authorize entry, you may enter the residence or motel/hotel if you have left a message for the agent explaining the reason for the visit and no minors are present. You shall not enter any private residence or motel/hotel without the occupants prior knowledge of your criminal history."
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.