Opinion
H043946
01-24-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LEE HICKS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 16CR05235)
Defendant Johnny Lee Hicks, after having been previously convicted of second degree robbery, was released from prison on parole in March 2015. After he failed to comply with an order that he report immediately to the Salinas parole office and participate in an outpatient drug treatment program, the court found defendant to have violated parole after a contested hearing on October 29, 2015. Defendant appealed, and this court affirmed the order of the trial court. (People v. Hicks (Oct. 25, 2017, H043000) [nonpub. opn.] (Hicks I).)
In August 2016, a new parole revocation petition was filed based upon defendant's failure to report to the parole office and failure to complete a substance abuse treatment program. After a contested hearing, the court found defendant to be in violation of parole and sentenced him to 120 days, with 28 days' credit for time served. On appeal, defendant contends that the court erred in finding the parole violation. Defendant claims that his homelessness, poverty, and unspecified mental health problems made it impossible for him to comply with his obligations to report to the parole office and complete the substance abuse treatment program. He contends that as a result of these circumstances, any noncompliance with his obligations to report to the probation office and to complete a substance abuse treatment program was not willful. Finding no abuse of discretion, we will affirm the order.
I. PROCEDURAL BACKGROUND
Some of the procedural background recited herein is taken from the appellate record filed in Hicks I. On April 28, 2017, this court granted defendant's request that we take judicial notice of the record in Hicks I in the instant appeal.
Defendant was convicted on October 23, 2013, of second degree robbery (Pen. Code, § 212.5, subd. (c)), and was sentenced to 32 months in prison. He was released from prison on three-year parole on March 6, 2015. The record reflects that between March and September 2015, defendant habitually absconded, having violated parole on at least six occasions.
Defendant and the Attorney General state in their appellate briefs that defendant was convicted of attempted second degree robbery (Pen. Code, §§ 212.5, subd. (c), 664), but the record before us does not show that the conviction was for the attempted commission of the crime.
All further statutory references are to the Penal Code unless otherwise stated.
A parole revocation hearing was held on September 29, 2015. After defendant admitted the violation, the trial court ordered defendant to serve 10 days in jail, with 10 days' credit for time served. Two of the additional terms the court imposed were that defendant, upon his release from custody, report immediately to the parole office and participate in an outpatient drug treatment program.
Defendant was rearrested on October 7, 2015, for failing to report to parole, and a new petition to revoke parole was thereafter filed. After a contested hearing on October 29, 2015, the trial court found that defendant had willfully failed to report to parole. It ordered defendant to serve 90 days in jail, with 23 days' credit for time served. Defendant filed an appeal from the order, and this court affirmed the October 29, 2015 order on October 25, 2017.
Although there was evidence that defendant also failed to comply with the condition that he participate in an outpatient drug treatment program, the record does not reflect that the court made any specific finding as to defendant's violation of that term and condition.
On August 4, 2016, a new petition to revoke probation was filed. It was alleged in the petition that defendant violated the terms of his parole in two respects. First, defendant's parole agent contacted him on July 26, 2016 at the Metro station in Watsonville and instructed him to report to the Salinas parole office on July 27, 2016, by 9:00 a.m. Defendant failed to report or contact his assigned parole agent by the designated date and time. Second, defendant signed parole conditions on June 17, 2016, specifying that he was required to enroll in and successfully complete a substance abuse treatment program as directed by his parole agent or other appropriate parole authority. Defendant entered the STAR outpatient substance abuse program (STAR program) at the Salinas parole office on July 22, 2016. Defendant's participation in the program was terminated six days later because he exceeded the number of allowed absences. The trial court revoked defendant's parole on August 8, 2016. After a contested hearing on August 24, 2016, the court found that defendant had violated the terms of his parole, and it sentenced him to 120 days, with a credit for 28 days served. Defendant filed a timely notice of appeal from the order.
II. DISCUSSION
A. Standard of Review
Determinations concerning parole revocation are "based upon a preponderance of evidence" that may include hearsay evidence from peace officers, parole agents, or victims. (§ 3044, subd. (a)(5).) In order to revoke parole, the evidence must support the conclusion that the violation of the terms of parole was willful. (See People v. Galvan (2007) 155 Cal.App.4th 978, 982 [revocation of probation must be based upon finding of willful violation of probation terms].) " '[T]he terms "willful" or "willfully," when applied in a penal statute, require only that the illegal act or omission occur "intentionally," without regard to motive or ignorance of the act's prohibited character.' [Citation.]" (People v. Atkins (2001) 25 Cal.4th 76, 85.) Where the inability to comply with the condition was "because of circumstances beyond his or her control and defendant's conduct was not contumacious," it is an abuse of discretion to find a willful violation. (People v. Cervantes (2009) 175 Cal.App.4th 291, 295 (Cervantes).)
The trial court has broad discretion in deciding whether to revoke parole or probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443 [probation revocation]; In re Miller (2006) 145 Cal.App.4th 1228, 1234-1235 [parole revocation].) When the appellant challenges a finding of a probation (or parole) violation based upon sufficiency of the evidence, the reviewing court's role is to decide "whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.) The Supreme Court has summarized a reviewing court's duties in addressing a substantial evidence challenge as follows: "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403; see also People v. Young (2005) 34 Cal.4th 1149, 1181.)
B. No Abuse of Discretion in Revoking Parole
1. August 24 , 2016 Hearing
Defendant appeared with appointed counsel at the parole revocation hearing on August 24, 2016. Parole Agent Jaime Valdez testified that one of his duties is to supervise a caseload, and that defendant was one of the parolees on that caseload. Defendant was required to enter and complete a substance abuse treatment program as a condition of parole. He entered a STAR program at the Salinas parole office on July 22, 2016, under which he was required to attend five days a week for four weeks. Defendant attended the program for at least one session He was terminated from the program on July 28, 2016, because he had been absent for four sessions.
On July 26, 2016—prior to defendant's termination from the STAR program—Officer Valdez contacted defendant in Watsonville and offered to drive him to the Salinas parole office to attend the STAR program. Defendant declined, stating that he had a doctor's appointment that day Officer Valdez instructed defendant that he needed to report to the Salinas parole office by 9:00 a.m. the next day and to provide proof of his doctor's appointment. At the time, defendant told Officer Valdez that he planned to get a ride to Salinas the next morning from his friend who drove a cab.
Defendant did not report to the Salinas parole office on July 27, 2016. Nor did he call Officer Valdez that day or at any other time to explain his failure to appear.
Defendant called no witnesses at the hearing. After argument of counsel, however, the court gave defendant the opportunity to speak without being sworn as a witness.
After hearing the evidence, the trial court found that defendant had violated the terms of his parole. The court noted that defendant had failed to stay in the STAR program and that he had had four absences in a matter of days. The court ordered defendant to serve 120 days in custody, with 28 days' credit for time served. (The People had requested that defendant serve 180 days in jail for the violation.)
2. Analysis of Claim of Error
Defendant challenges the trial court's order, contending that there was no substantial evidence to support the finding that he willfully violated parole. He asserts that because he "is indigent and suffers from mental disability[, i]t is thus no surprise that [he] failed to show up in Salinas by 9:00 a.m." on July 27, 2016. Defendant argues further that his failure to attend sessions at the STAR program that resulted in his termination from the program "was not willful because he lacked the ability to get to Salinas." The Attorney General disagrees, contending that "substantial evidence supports the court's finding that [defendant's] violating parole was wholly of his own volition."
The Attorney General, although ultimately addressing the merits of defendant's challenge, argues that the appeal "may be deemed moot because [defendant] would have served his 120-day sentence" before the appeal may be heard. We disagree. The Fourth District Court of Appeal, Division Three, has recently stated succinctly the reason an appellate claim such as the one asserted here is not moot: "Under California's penal system, any future interactions between defendant and the justice system will likely bring to light defendant's parole revocation. Should defendant suffer a further criminal conviction, the parole revocation may be used as part of his sentencing determination. The parole revocation also may be used against defendant in other noncriminal arenas, such as employment decisions or child custody matters. In short, we cannot say with reasonable certainty that defendant's release from parole moots his claim that the demurrer to the petition for revocation should have been sustained." (People v. Osorio (2015) 235 Cal.App.4th 1408, 1412.) --------
In support of the court's conclusion that defendant had willfully violated the terms of his parole, there was uncontroverted evidence that defendant did not comply with his obligation to enroll and complete the five-days-per week, four-week STAR program. Although he attended the first session on July 22, 2016, he was absent for four sessions thereafter during the first week. And there was also no evidentiary conflict that defendant failed to personally appear at the Salinas parole office by 9:00 a.m. on July 27, 2016, as instructed by Officer Valdez. Defendant did not appear that day, and he did not call Officer Valdez—either that day or at any later time—to explain his failure to appear.
Defendant claims on appeal that his noncompliance could not have been willful because his poverty and mental health issues made it impossible for him to comply with the parole conditions. But there was evidence that defendant did comply by attending at least one session of the STAR program in the Salinas parole office. Further, he advised Officer Valdez on January 26, 2016, that he could comply with the officer's instruction to report to the office by 9:00 a.m. the next day because defendant had a friend who could take him there.
Moreover, notwithstanding appellate counsel's reliance upon defendant's mental health issues to negate the willfulness component of his noncompliance with parole conditions—e.g., the argument that defendant's "mental health problems have rendered him unable to [be] mentally present to make appointments"—there is little evidence in the record concerning the nature and extent of any such mental health issues, and no evidence that they precluded defendant's compliance with the parole conditions. At best, the record shows that on cross-examination, Officer Valdez testified that, in his opinion, defendant had mental health issues But no evidence was presented in the record as to what those mental health issues may have been, or the degree to which they may have impacted defendant's conduct, including his ability to comply with identified parole conditions. There is therefore no basis for the appellate claim that the court erred in finding that defendant had willfully violated probation because it did not properly consider defendant's alleged mental health issues that he claims prevented his compliance with the specified parole conditions. (See People v. Tran (1996) 47 Cal.App.4th 759, 772 (Tran) [in sufficiency of evidence challenge, court's factual findings through inferences must be evidence-based and not be "a mere speculation as to probabilities without evidence"], internal quotations omitted.)
Defendant cites Cervantes, supra, 175 Cal.App.4th 291 in support of his position that the evidence does not support a finding that he willfully violated parole. In Cervantes, the appellate court held that the trial court erred in concluding the defendant had willfully violated probation by failing to appear at a scheduled hearing where such appearance was made impossible by his having been placed in the custody of the federal Immigration and Customs Enforcement Agency. (Id. at pp. 295-297.) Here, unlike in Cervantes, there were no circumstances that rendered it impossible for defendant to report to the Salinas parole office as instructed or to participate in and complete the STAR program.
Defendant also argues briefly that People v. Zaring (1992) 8 Cal.App.4th 362 (Zaring) supports his position that his noncompliance was not willful and that based upon his circumstances, it "was not a reasonable expectation" that he could "make timely daily appearances in Salinas at the parole office, the STAR program, or both." In Zaring, the defendant probationer, after being ordered by the court to appear the next week at 8:30 a.m. for a further hearing upon threat of imprisonment for noncompliance, arrived 22 minutes late to court (id. at pp. 365-366), which was 35 miles from her home (id. at p. 379). The defendant testified she had been late because prior child care arrangements she had made for the morning had gone awry due to the caretaker's illness, and the defendant's transportation (through her mother-in-law) was delayed until the children could be taken to school. (Id. at p. 376.) The court found a probation violation based upon the defendant's failure to appear " 'on time' " for the prior hearing. (Id. at p. 367.) The appellate court held that the defendant's late arrival to court because of the "last[-]minute unforeseen circumstance as well as a parental responsibility common to virtually every family" was not a willful violation of any term of probation. (Id. at p. 379.) Zaring does not support defendant's claim of error. Here, no such "last[-]minute unforeseen circumstance" or "[common] parental responsibility" (ibid.) was the cause of defendant's noncompliance with the terms of his parole. There were no obligations or unexpected developments that prevented defendant from complying with Officer Valdez's instruction to report to the Salinas parole office by 9:00 a.m. on July 27, 2016, or the condition that defendant enroll in and complete a substance abuse program.
Lastly, defendant argues that the parole department should have done more to facilitate defendant's compliance with the parole conditions, urging that although the record does not reflect the reason defendant's case was reassigned from Officer Jordan to Officer Valdez, "[i]t appears . . . that Salinas Parole has been treating [defendant] like a hot potato, tossing him from one to another, and that the court below has tolerated that." There is nothing in the record to support this assertion, and it must be viewed as mere speculation which cannot be considered in assessing defendant's sufficiency-of-the-evidence challenge. (Tran, supra, 47 Cal.App.4th at p. 772.)
The trial court's determination that defendant had willfully violated the terms of his parole was supported by substantial evidence. We therefore find no abuse of discretion.
III. DISPOSITION
The order of August 24, 2016, determining that defendant violated the terms of his parole is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.