Opinion
C089027
06-15-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALAN GIBBS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 180000073)
Appointed counsel for defendant Robert Alan Gibbs has asked this court to review the record to determine whether there are any arguable issues on his appeal from the judgment finding him in violation of parole. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Following receipt of defendant's supplemental brief, we directed counsel for the parties to brief certain issues, which we detail post. We now affirm.
BACKGROUND
This appeal is from entry of judgment after defendant's January 24, 2019 parole violation hearing. The petition had alleged that defendant violated parole by: twice failing to report to the parole office as instructed; failing to maintain his electronic-in-home detention equipment as instructed; and possessing a knife with a blade exceeding two inches in length.
Following a contested hearing wherein parole agents and defendant testified, the trial court sustained the allegations that defendant had failed to report to the parole office as instructed and had possessed a prohibited knife, and found defendant in violation of parole. The court ordered defendant to comply with his parole terms and conditions and imposed 120 days in jail, with a total of 88 days credit. Defendant timely appealed.
The court found defendant had substantially complied with instructions to maintain his home monitoring equipment, and did not sustain that allegation.
Counsel filed a Wende brief, and defendant subsequently filed a supplemental brief, pro se, that sought to challenge the propriety of special conditions limiting his access to Shasta County and requiring that he reside in Fresno County. Defendant also challenged the propriety of the trial court's finding he possessed a knife. We directed counsel for both parties to address the following questions:
Defendant does not challenge the conditions he was found to have violated at the revocation hearing from which he appeals. --------
"1) Is a judgment resulting from a parole revocation hearing (such as here) the proper subject of review pursuant to [Wende]? (See, inter alia, People v. Serrano (2012) 211 Cal.App.4th 496.)
"2) Assume the answer to the preceding question is 'no.' Does defendant's filing of a supplemental brief in this case cure any error by counsel in seeking Wende review rather than seeking to withdraw from the case? Explain.
"3) Assume Wende review is appropriate in this case and defendant's supplemental brief is considered. Are defendant's arguments concerning the propriety of his administrative placement and associated parole conditions (see Special Conditions 42, 104, 105) precluded by his failure to file an administrative appeal with the California Department of Corrections and Rehabilitation?
"4) Assume Wende review is appropriate in this case and defendant's supplemental brief is considered. May defendant properly claim error in his administrative placement and residency parole conditions given that these conditions were not found to be violated in the challenged judgment?"
Both counsel submitted briefing on these issues. Although the parties' positions differ as to the availability of Wende review in an appeal from a parole violation, they agree that defendant's supplemental briefing cured any error in seeking Wende review. The Attorney General argues failure to exhaust administrative remedies, and defendant claims the futility exception thereto. We agree with the parties that the appeal should not be deemed abandoned, and with the Attorney General that defendant has failed to exhaust his administrative remedies, precluding the review of the special conditions he seeks here.
DISCUSSION
I
Wende Review
An order revoking parole is appealable as a postjudgment order affecting a defendant's substantial rights. (People v. Osorio (2015) 235 Cal.App.4th 1409, 1412, overruled in part on other grounds in People v. DeLeon (2017) 3 Cal.5th 640, 646; Pen. Code, § 1237, subd. (b).) However, whether the protections afforded by Wende and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 apply to such an order is an open question. The Anders/Wende procedures address appointed counsel's representation of an indigent criminal defendant in the first appeal as a matter of right and courts have been loath to expand their application to other proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th 952; People v. Serrano, supra, 211 Cal.App.4th 496; People v. Dobson (2008) 161 Cal.App.4th 1422; People v. Taylor (2008) 160 Cal.App.4th 304; People v. Thurman (2007) 157 Cal.App.4th 36; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.) While we question the propriety of applying Wende review to parole revocation determinations (see Serrano, at p. 501), we decline to decide the issue here. Defendant's filing of a supplemental brief raised substantive issues on appeal; it would be inappropriate to dismiss his appeal as abandoned.
II
Exhaustion of Administrative Remedies
Defendant challenges the propriety of special conditions limiting his access to Shasta County and requiring that he reside in Fresno County. There seems no dispute but that defendant remains subject to the challenged conditions. Further, there appears no dispute that defendant has not exhausted his administrative remedies, although he claims an exception to the requirement.
A failure to exhaust administrative remedies deprives the reviewing court of jurisdiction. (People v. Wright (2004) 122 Cal.App.4th 659, 664-665 [a prerequisite to the court jurisdiction to consider a prisoner's challenge under both state and federal law is exhaustion of administrative remedies]; see also In re Hudson (2006) 143 Cal.App.4th 1, 7-8 [explaining administrative review process that must be completed prior to challenging a condition of parole].)
Defendant claims futility, but we disagree that he has demonstrated this exception to the requirement. (See In re Hudson, supra, 143 Cal.App.4th at p. 7 [listing exceptions to exhaustion requirement, including that the aggrieved party can establish what the outcome would have been].) Although defendant objected to the challenged special conditions and presented reasons for wanting to stay in Shasta County, that does not establish the outcome of any administrative appellate decision. To the contrary, testimony from a parole agent at the violation hearing established that: (1) the administration would consider new information learned at the violation hearing; (2) defendant was told he could appeal his administrative placement and provided the necessary forms; and (3) defendant was told he must first report to Fresno and then engage in the administrative appeal process. Accordingly, defendant has not established an exception to the exhaustion requirement and we lack jurisdiction to consider his challenge to the special conditions.
III
Defendant's Possession of the Knife
Finally, defendant challenges the propriety of the finding that he violated parole by possessing a knife, arguing that his attorney should have called his friend to explain the surrounding circumstances.
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.) The court may revoke parole or probation if it has reason to believe the defendant has violated a condition thereof. (Pen. Code, § 1203.2, subd. (a); People v. Urke (2011) 197 Cal.App.4th 766, 772.) Proof of a violation need be only by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) While we review a trial court's revocation determination for an abuse of discretion (People v. Butcher (2016) 247 Cal.App.4th 310, 318), we review the court's factual finding of a parole violation for substantial evidence (see ibid.; Urke, 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.)
The evidence presented at the violation hearing established that defendant was forbidden from possessing a knife in excess of two inches and nonetheless reported to the parole agent with a knife that was three inches long in his pocket. Defendant testified to inadvertence in bringing the knife with him and explained that he had the knife at home for emergencies. This is ample evidence to support the trial court's factual finding that defendant possessed a knife in contravention of his parole conditions. (People v. Butcher, supra, 247 Cal.App.4th at p. 318.) Although defendant now proffers evidence of surrounding circumstances, that proffer is outside the record and, even if considered, is inconsequential to the propriety of the court's supported parole violation finding on appeal. (See People v. Superior Court (Jones), supra, 18 Cal.4th at p. 681 [factual conflicts must be resolved in favor of the challenged determination].) We see no error.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Robie, Acting P. J. /s/_________
Krause, J.