Opinion
F070903
01-18-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID HARRISON, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14RV0041B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Peña, J.
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Michael David Harrison (appellant) was found to have violated a condition of his parole. His parole was revoked, and he was returned to custody. On appeal, he claims the parole condition in question is void for vagueness as applied to him, and he did not violate it in any event. We affirm.
STATEMENT OF THE CASE
On June 27, 2009, appellant was convicted of commission of a lewd or lascivious act on a child 14 or 15 years old by a person at least 10 years older (Pen. Code, § 288, subd. (c)(1)), oral copulation with a minor (§ 288a, subd. (b)(1)), and two counts of oral copulation with a person under 16 years old by a person over 21 years of age (§ 288a, subd. (b)(2)). He was sentenced to five years eight months in prison.
All statutory references are to the Penal Code.
On August 8, 2011, appellant was found to have violated the conditions of his parole by using cell phone numbers for sexual arousal or stimulation, possessing pornographic material, using an electronic message board, failing to register pursuant to section 290, failing to inform all persons with whom he had a significant relationship of his criminal history, having contact with minor males, and placing or answering classified personal solicitations for relationships with a stranger. Appellant was returned to custody for five months.
On February 27, 2012, appellant was found to have violated the conditions of his parole by associating with prohibited persons and being present in a prohibited area. He was returned to custody for 150 days.
On February 27, 2013, appellant was found to have violated the conditions of his parole by committing petty theft. Appellant was continued on parole, allowed to remain in the community, and referred to local treatment.
On April 24, 2014, the California Department of Corrections and Rehabilitation (CDCR) filed a petition for revocation of appellant's parole (§ 3000.08). The petition alleged appellant violated the conditions of his parole by viewing or possessing pornographic material, using an electronic bulletin board system, using a computer for a purpose that might further sexual activity, placing or answering an advertisement seeking a relationship with a stranger, and failing to inform his parole agent of any significant dating or romantic relationship. On May 2, 2014, appellant admitted the parole violations and was returned to custody for 135 days.
On June 24, 2014, CDCR imposed special conditions on appellant's parole. Special condition No. 37 provided: "You shall not reside in a residence with any person also required to register pursuant to PC Section 290, unless he or she is legally related to you by blood, marriage, or adoption. This does not include treatment programs and/or board and care facilities with the appropriate use permit." Appellant acknowledged, in writing, the special conditions, including No. 37.
On September 2, 2014, CDCR filed a petition for revocation of appellant's parole. The petition alleged appellant violated the conditions of his parole by possessing a cell phone, using an electronic board system to include e-mail, viewing or having access to pornographic material, and placing or answering a personal advertisement. On September 8, 2014, appellant admitted violating parole and was returned to custody for 135 days.
On December 18, 2014, CDCR filed the petition for revocation of appellant's parole at issue in the present case. The petition alleged appellant violated the conditions of his parole by possessing pornographic material and residing with another section 290 registrant. On January 9, 2015, a contested revocation hearing was held. Appellant was found to have violated parole condition No. 37 and was returned to custody for 180 days.
Appellant's request to act as his own attorney was granted on December 24, 2014.
FACTS
I
PROSECUTION EVIDENCE
On December 15, 2014, Kings County Sheriff's Detectives Souza and Ferrier went to the area of Lacey Boulevard and Avenue 9 1/4 in Hanford. There were some tents in a field there that had been stockpiling trash, and the sheriff's department had received some complaints about the situation.
When the detectives announced themselves, appellant opened a tent. He indicated he was on parole and required to register pursuant to section 290. A search of the tent revealed a notepad on top of appellant's bed. On the notepad was an Internet address for Facebook. Phillip Martin, appellant's roommate who was not on parole or probation, consented to a search of his area. Martin voluntarily informed Souza that there were two pornographic magazines near the pillow on his bed. Martin admitted, and Souza confirmed, that Martin also was required to register pursuant to section 290.
Appellant and Martin both indicated to Souza that they lived in the tent together. Martin's bed and property were toward the south end of the tent, while appellant's bed and property were on the north side. Given where Souza found the magazines, he believed appellant had knowledge of their presence. Souza telephoned appellant's parole agent, and determined through her that "290's" — meaning appellant and Martin — should not be living together.
Guadalupe Capozzi was a parole agent assigned to the GPS sex offender unit. As such, she supervised appellant. As part of that supervision, she went over the specific terms and conditions of his parole with him. Although she was not his parole agent when he was released initially, she went over the conditions with him when he was rereleased and new conditions were created on June 24, 2014. Condition No. 27 prohibited him from associating with any sex offender except when approved in writing by a parole agent. Condition No. 37 prohibited him from living with another person who was required to register as a sex offender pursuant to section 290. Conditions No. 45 and No. 46 stated he was not to possess or have access to any pornographic material. Capozzi went over those specific terms with appellant, who placed his initials next to each condition and also signed the document listing all the conditions, indicating he understood them.
A copy of the written and signed parole conditions was admitted into evidence.
Capozzi directed Souza to arrest appellant because appellant and Martin were living together in the tent, which they both admitted. Capozzi was unaware of that fact and would not have approved them living together. As for the magazines, Capozzi did not know if they belonged to appellant. She "[a]bsolutely" believed he knew they were there, however, because of appellant's violation history and lifestyle, and her experience with appellant.
Appellant had been part of Capozzi's caseload for about 22 months at the time of the revocation hearing.
With respect to parole condition No. 37, Capozzi considered a tent to be a place in which an entire family could live successfully. It was considered a residence. Capozzi did not give appellant permission to live with Martin nor, to her knowledge, were they ever living in the same residence together when appellant was in a sober living home.
Capozzi was familiar with code sections prohibiting a parolee from living in a single family dwelling with another section 290 registrant.
II
DEFENSE EVIDENCE
Martin had known appellant for about three years as of the date of the revocation hearing. On December 15, 2014, the two were in separate locations inside the tent when the sheriff's detectives woke them up and questioned them about why they were there. They had been residing in the tent for about three days. A pornographic magazine was in Martin's property, underneath "a bunch of stuff" in the corner behind Martin's bed. The magazine belonged to Martin. He had had it for a couple of weeks. He never told appellant about it or had any reason to believe appellant knew it was there. He had never known appellant to view any type of pornographic magazine, Web site, or video.
DISCUSSION
At the conclusion of the revocation hearing, appellant argued that a tent was not a "residence" as defined in the Penal Code; hence, it did not violate the conditions of his parole for him to live in it with Martin for three days. The court found the tent was indeed a residence, Martin was a section 290 registrant and appellant knew it, and so appellant violated parole condition No. 37. Appellant now raises several claims of error centering around the finding the tent was a residence.
I. Parole condition No. 37 is not void for vagueness as applied to appellant.
Appellant contends condition No. 37 — that he not "reside in a residence" with another section 290 registrant — is void for vagueness as applied to him, because he could not have known sharing a tent in an open field with such a person constituted "resid[ing] in a residence" in violation of the parole condition. We disagree.
" '[T]he void for vagueness doctrine applies to conditions of probation. [Citations.] An order must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated. [Citation.]' [Citation.]" (In re Ramon M. (2009) 178 Cal.App.4th 665, 677.) These principles apply equally to parole conditions. (In re Stevens (2004) 119 Cal.App.4th 1228, 1233; see People v. Navarro (2016) 244 Cal.App.4th 1294, 1300.)
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. [Citations.]' [Citation.] The vagueness doctrine bars enforcement of ' "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." [Citation.]' [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890; see, e.g., Connally v. General Const. Co. (1926) 269 U.S. 385, 393; People v. Castenada (2000) 23 Cal.4th 743, 751.)
"Two principles guide the evaluation of whether a law or, in this case a [parole] condition, is unconstitutionally vague. First, 'abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a law's meaning, giving facially standardless language a constitutionally sufficient concreteness.' [Citation.]" (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) Thus, we must determine not whether the challenged parole condition " 'is vague in the abstract but, rather, whether it is vague as applied to this appellant's conduct in light of the specific facts of this particular case.' [Citation.]" (Ortiz v. Lyon Management Group, Inc. (2007) 157 Cal.App.4th 604, 613.)
"Second, only reasonable specificity is required. [Citation.] Thus, a [parole condition] 'will not be held void for vagueness "if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources." ' [Citation.]" (People v. Lopez, supra, 66 Cal.App.4th at p. 630.) " 'It is impossible, given the complexities of our language and the variability of human conduct, to achieve perfect clarity in criminal statutes. Reasonable specificity exists if the statutory language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understandings and practices." [Citations.]' [Citation.] ' "[S]tatutes are not automatically invalidated as impermissibly vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. [Citation.]" [Citation.]' [Citation.] Moreover, ' "[o]ffenders cannot complain of the vagueness of a statute if the conduct with which they are charged falls clearly within its bounds [citation]." [Citation.]' [Citation.]" (People v. Hagedorn (2005) 127 Cal.App.4th 734, 746.) " 'Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.' [Citation.]" (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117.)
Finally, "[w]hether a term of [parole] is unconstitutionally vague . . . presents a question of law, which we review de novo. [Citation.]" (People v. Martinez (2014) 226 Cal.App.4th 759, 765.) Failure to object on that ground in the trial court does not, as the Attorney General implicitly concedes, forfeit review of the issue on appeal. (Id. at pp. 765-766; see People v. Navarro, supra, 244 Cal.App.4th at p. 1300.)
Because "residence" is subject to differing interpretations, "it is now well established that ' "residence" is a term of varying import and its statutory meaning depends upon the context and purpose of the statute in which it is used. [Citations.]' [Citation.]" (People v. McCleod (1997) 55 Cal.App.4th 1205, 1217.) The fundamental purpose of parole conditions is to help offenders reintegrate into society as constructive individuals, thus preventing them from recidivating, and to protect the public. (§ 3000, subd. (a)(1); In re Stevens, supra, 119 Cal.App.4th at p. 1233; see United States v. Kebodeaux (2013) 570 U.S. ___, ___ [133 S.Ct. 2496, 2504]; People v. Denne (1956) 141 Cal.App.2d 499, 507-508.)
"[R]eside" has been variously defined as "to dwell permanently or continuously : have a settled abode for a time" (Webster's 3d New Internat. Dict. (1986) p. 1931) and "[t]o live in a place for an extended or permanent period of time" (American Heritage Dict. (2d college ed. 1985) p. 1051). "[R]esidence" has been variously defined as "the act or fact of abiding or dwelling in a place for some time : an act of making one's home in a place . . . a temporary or permanent dwelling place, abode, or habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit" (Webster's 3d New Internat. Dict., supra, p. 1931), "[t]he place in which one lives; dwelling" (American Heritage Dict., supra, p. 1051), and "[t]he place where one actually lives" (Black's Law Dict. (9th ed. 2009) p. 1423, col. 2) or "[a] house or other fixed abode" (ibid.). This court has noted that residing in a jurisdiction is not the same as having a place of residence there. (People v. Williams (2009) 171 Cal.App.4th 1667, 1673.)
"A [parole] condition should be given 'the meaning that would appear to a reasonable, objective reader.' [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 382.) By the time No. 37 was added to the conditions of appellant's parole, appellant had violated parole on multiple occasions in ways that were directly related to his potential commission of additional sex offenses. Condition No. 37 clearly was an attempt to reintegrate him into society as a law-abiding citizen by seeking to remove a means of temptation from his path, and to protect the public. Read in the context of that purpose (see People v. Turner (2007) 155 Cal.App.4th 1432, 1436), and taking into account that appellant's parole agent went over that specific condition with appellant (see In re Sheena K., supra, 40 Cal.4th at p. 891) and appellant was also prohibited from associating with other sex offenders without written approval from his parole agent, a reasonable, objective person would understand condition No. 37 to prohibit appellant from living in his tent with another sex offender. Accordingly, the condition is not void for vagueness as applied to appellant.
Appellant points to subdivision (g) of section 290.011, which provides: "For purposes of the [Sex Offender Registration Act (§§ 290-290.024)], 'transient' means a person who has no residence. 'Residence' means one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there, such as a shelter or structure that can be located by a street address, including, but not limited to, houses, apartment buildings, motels, hotels, homeless shelters, and recreational and other vehicles." Under this definition, appellant says, he had no residence, as his tent was not a shelter or structure that had an address or could be located by a street address.
Assuming appellant is correct that he had no residence under the foregoing definition, that definition applies to sex offender registration requirements, not parole conditions. (See People v. Gonzales (2010) 183 Cal.App.4th 24, 36.) The purpose of mandatory sex registration is "to make sex offenders deemed likely to recidivate readily available for police surveillance and 'to notify members of the public of the existence and location of sex offenders so they can take protective measures.' [Citation.]" (Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 379; accord, Wright v. Superior Court (1997) 15 Cal.4th 521, 527; People v. North (2003) 112 Cal.App.4th 621, 628.) This is markedly different than the purpose of parole and its attendant conditions.
Absent an express reference to section 290.011 in condition No. 37, a reasonable, objective person would not read the definition of "residence" contained in subdivision (g) of that statute into appellant's parole condition, particularly in light of the nonassociation mandate contained in condition No. 27. Appellant's challenge to condition No. 37 fails.
II. Appellant's tent was a residence.
Appellant next contends he did not violate condition No. 37 because his tent was a transient location, not a residence. For the reasons stated ante, and because we are concerned with a parole condition and not, for instance, an allegation appellant failed to register as required by section 290 et seq., his reliance on statutes forming part of the Sex Offender Registration Act is unpersuasive.
Appellant points to section 3003.5, subdivision (a), which provides: "Notwithstanding any other provision of law, when a person is released on parole after having served a term of imprisonment in state prison for any offense for which registration is required pursuant to Section 290, that person may not, during the period of parole, reside in any single family dwelling with any other person also required to register pursuant to Section 290, unless those persons are legally related by blood, marriage, or adoption. For purposes of this section, 'single family dwelling' shall not include a residential facility which serves six or fewer persons."
That the Legislature has prescribed the foregoing condition for every sex offender parolee does not mean the parole authority is precluded from imposing a broader restriction on a particular parolee, based on the circumstances and history of that individual. It is apparent, from conditions No. 38 and No. 39, that CDCR did so in appellant's case. Condition No. 38 prohibited appellant from "resid[ing] within one-half mile of any public or private school (kindergarten and grades 1 to 12, inclusive) specific to PC 288 or 288.5," while condition No. 39 prohibited him from "resid[ing] within 2,000 feet of any public or private school (kindergarten and grades 1 to 12, inclusive), or parks where children regularly congregate per PC Section 3003.5(b)." Moreover, in contrast to condition No. 39, condition No. 37 only referred to section 290, the general registration statute, and did not track the "single family dwelling" language of subdivision (a) of section 3003.5. Under the circumstances, section 3003.5 does not preclude appellant's tent from being a residence within the meaning of parole condition No. 37.
In our view, appellant's tent was indeed a residence within the meaning of condition No. 37. The evidence showed it was a fully enclosed, private area in which appellant kept his bed and other belongings. Since he kept his bed there, it is clear he anticipated returning there every night during his curfew period. The tent was his "residence" within the common, everyday understanding of that term.
Parole condition No. 41 required appellant to "be in [his] approved residence" from 8:00 p.m. to 6:00 a.m. Parole condition No. 69 required him to observe an 8:00 p.m. to 6:00 a.m. curfew "and remain within [his] approved residence." Condition No. 105 extended this curfew from 4:00 p.m. to 8:00 a.m. on Halloween, and again required appellant to "remain within [his] approved residence." If appellant's tent were not a residence for purposes of the special conditions of parole, the curfew provisions would have been superfluous.
III. There is sufficient evidence appellant's violation of parole condition No. 37 was willful.
Appellant says there was no evidence he knew or reasonably should have known the tent he shared with Martin was a residence in which he was residing with Martin; hence, he cannot be held to have violated condition No. 37 because there is no evidence he willfully did so. His claim lacks merit.
Appellant cites criminal statutes (including § 290.018, subd. (b)) that require an accused willfully violate the statute in order to be convicted of a crime. (See, e.g., People v. Aragon (2012) 207 Cal.App.4th 504, 509.) Here, of course, appellant was not accused of having committed a crime. Nevertheless, we will assume — as does the Attorney General — a parole violation must be willful in order for parole to be revoked as a result. (See People v. Coria (1999) 21 Cal.4th 868, 876; People v. Galvan (2007) 155 Cal.App.4th 978, 982.) --------
"The word 'willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage." (§ 7, subd. (1).) The term implies "that the person knows what he is doing, intends to do what he is doing, and is a free agent. [Citation.] Stated another way, the term 'willful' requires only that the prohibited act occur intentionally. [Citations.]" (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438; accord, People v. Hagedorn, supra, 127 Cal.App.4th at p. 744, fn. 6.)
"Parole revocation determinations shall be based upon a preponderance of evidence admitted at hearings including documentary evidence, direct testimony, or hearsay evidence offered by parole agents, peace officers, or a victim." (§ 3044, subd. (a)(5); cf. People v. Rodriguez (1990) 51 Cal.3d 437, 441, 447.) To assess whether substantial evidence supports the determination, we review the whole record in the light most favorable to the trial court's ruling to determine whether there is evidence that is reasonable, credible, and of solid value such that any rational trier of fact could have found the violation of parole conditions by a preponderance of the evidence. We presume in support of the lower court's finding the existence of every fact the trier could reasonably have deducted from the evidence. (See People v. Zamudio (2008) 43 Cal.4th 327, 357.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' " the finding. (Ibid.)
The fact the parole agent went over condition No. 37 with appellant, coupled with the existence of the nonassociation and curfew conditions, gives rise to a reasonable inference appellant knew his tent was his residence for purposes of condition No. 37. The evidence also supports a reasonable inference he knew he was residing in it with another section 290 registrant. Hence, sufficient substantial evidence supports a determination appellant's violation of condition No. 37 was willful.
DISPOSITION
The order revoking parole is affirmed.