Opinion
H045189
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. DALE LEROY HUTTON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CR05031)
Defendant Dale Leroy Hutton appeals from an order finding he violated the conditions of his parole and, pursuant to Penal Code section 3000.08, subdivision (h), remanding him to the custody of the Department of Corrections and Rehabilitation and to the jurisdiction of the Board of Parole Hearings for the purpose of future parole consideration. On appeal, defendant contends the process used to revoke his parole violated his right to due process. Finding no error, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1995, defendant was convicted of second degree murder and sentenced to 16 years to life in prison for stabbing to death a man with whom defendant was smoking dope. Defendant was released on parole in September 2013 and was subject to a lifetime parole term under section 3000.1.
Defendant's assigned parole officer, Art Valdez, went on vacation on July 31, 2017, and returned to work the following Monday, August 7, 2017. During that time, defendant's conditions of parole were amended as a result of an admission to methamphetamine use. One amendment altered his curfew hours. Previously, defendant's conditions of parole required him to be in his residence between 9:30 p.m. and 5:30 a.m. The amended conditions required defendant to be in his residence between 8:00 p.m. and 6:00 a.m. Conditions requiring defendant to submit to continuous global positioning system (GPS) tracking also were added. One of those new GPS conditions required defendant to "charge the GPS device at least two times per day (every 12 hours) for at least 1 full hour for each charging time." Defendant already had an ankle monitor, having been placed on electronic monitoring on July 12, 2017. GPS tracking on that device was activated on the afternoon of August 1, 2017.
Art Valdez testified that the modification of defendant's conditions of parole "was related" to the fact "that he admitted to use of methamphetamines on August 1st of 2017." It is unclear whether Art Valdez was referring to drug use that occurred on August 1 or an admission that occurred on August 1. The record suggests that, on that date, defendant both admitted to prior drug use and used drugs: Art Valdez testified that, on August 1, 2017, defendant signed a statement admitting to using methamphetamine on July 29; defendant testified that he used drugs on the day the GPS tracking commenced, which was August 1, 2017.
On Friday, August 4, 2017, parole agent Jaime Valdez went to defendant's home to issue him the amended conditions of parole discussed above. Jaime Valdez read the new parole conditions aloud to defendant and defendant signed a copy of the conditions, with a notation that he disagreed with them and was signing under duress. Jaime Valdez testified that he left a copy of the conditions with defendant; defendant testified that he was not given a copy of the new conditions and was unaware that his curfew had been changed.
Over the weekend, defendant had issues with the GPS monitor. The ankle strap broke and the device vibrated and made noises he did not understand. Defendant testified that he plugged the device in everywhere he went and that he texted his parole officer, Art Valdez, about the issues. Art Valdez confirmed that he received a text from defendant on the morning of August 5 stating that the strap on his ankle monitor had broken. Art Valdez did not respond because he was on vacation.
Early on the morning of Sunday, August 6, 2017, parole agent Paul Baltazar received an alert from the company monitoring parolee GPS devices that defendant's device was no longer on his ankle. A review of the data from defendant's GPS device showed he had twice violated his new curfew. On August 4, he was away from his residence from 8:44 p.m. to 8:56 p.m. during a trip to a CVS pharmacy. On August 5, defendant left home at 8:37 p.m., went to Safeway, and returned home at 9:01 p.m. The GPS data also showed that defendant had failed to regularly charge the device, resulting in a dead battery on the morning of August 5.
Because of the alert that the GPS device was not on defendant's ankle, parole agents went to defendant's residence on August 6, 2017. The agents conducted a parole search of defendant and his residence at that time. They found a cell phone in defendant's pocket during the search. Defendant refused to give the agents his cell phone passcode. The agents arrested defendant for alleged parole violations. At some point that same day, defendant signed a statement in which he admitted to using methamphetamine "[t]he day they first put on GPS."
As to his drug use, defendant testified that he used methamphetamine "that first date that they all showed up." He acknowledged being "a little unclear of the exact date," saying: "I think it was August 1st, or it was when I signed. I told them right away. I told them. So it was on that day that I first told them that—that I had ingested methamphetamine." Later, he testified "it might have been the 29th or the 1st. But I told them that when they came in the door and I was scared, and I had—I didn't even really plan to use that because I was not going to use anymore."
At some point, agents collected a urine sample from defendant, which tested presumptively positive for methamphetamine in the field. Laboratory test results showed the sample was positive for amphetamine and methamphetamine. It is not clear when that sample was taken, nor was any evidence presented as to how long methamphetamine stays in a person's system.
Agent Jorge Vigil obtained the urine sample from defendant. Vigil testified that he went to defendant's residence on August 6, 2017 in connection with the GPS monitor alert. The prosecutor asked Vigil, "At some point in August, did you obtain a urine sample from Mr. Hutton?" Vigil confirmed that he did. Later, the following exchange took place between the prosecutor and Vigil:
"Q: And when did you conduct the urine—obtain the urine sample from Mr. Hutton?
"A[:] It was the same day.
"Q[:] So it was August 4th?
"A[:] Correct."
But Vigil never testified to any interaction with defendant on August 4. He only testified to the interaction on August 6, which suggests that he was referring to August 6 when he used the phrase "the same day." Accordingly, there is some uncertainty as to whether the methamphetaminepositive urine sample was obtained on August 4 or August 6.
On August 8, 2017, defendant admitted to parole agent Art Valdez that he is a drug addict.
On August 11, 2017, Art Valdez filed a petition for revocation of parole in Santa Cruz County Superior Court. An attached parole violation report alleged four parole violations: (1) failure to follow instructions from parole agent based on defendant's refusal to provide his cell phone passcode on August 6, 2017; (2) use of amphetamine and methamphetamine based on the drug use admission defendant signed on August 6, 2017; (3) failure to charge the GPS device; and (4) curfew violations on August 4 and 5, 2017. The report stated that "intermediate sanctions have been considered," but "they have been deemed not appropriate at this time." The report went on to describe the facts of defendant's controlling offense and to list his prior parole violations, including four violations for methamphetamine use on July 24, 2014, September 16, 2014, October 28, 2016, and August 1, 2017. The report stated that defendant's "attitude and behavior towards making the appropriate efforts to rehabilitate in the community have been poor. He has been a struggle to work with when it pertains to making sure he gets the treatment he needs." The report noted that defendant was removed from the Santa Cruz Residential Drug and Alcohol Treatment program and Janus of Santa Cruz due to poor behavior and non-compliance. The report further stated that defendant's participation in the Parole Reentry Court program had been "marginal" and that defendant had declined to attend monthly meetings of the Peer Reentry Navigation Network, which was created for the lifer parolee population. Finally, the report stated that the Parole Violation Decision Making Instrument (PVDMI) recommended that the appropriate response level for defendant's alleged parole violations was to "continue on parole with remedial sanctions."
The trial court held a parole violation hearing on August 22 and 23, 2017. As to defendant's drug use, the prosecutor argued that it did not matter whether the drug use "happened on July 31st, August 4th, August 2nd, August 5th, August 6th, or August 1st, the fact is, during that week span of time, Mr. Hutton by his own admission" used methamphetamine, in violation of the law and of his parole conditions. Among other things, defense counsel took the position that defendant's parole could not be revoked based on his admission to drug use because his conditions of parole already had been amended as a result of that admission.
The court concluded defendant did not willfully violate his parole by failing to charge his GPS device or by violating his curfew, finding that "the equipment wasn't working right" and that defendant "believed that his curfew was still 9:30" p.m. However, the court concluded that defendant did "violate the conditions of his parole by not obeying all laws and by not turning over the [cell phone] password, but most importantly and clearly, by using drugs." The trial court did not make specific findings as to when or how many times defendant used drugs. The court rejected defendant's argument that the imposition of modified parole conditions for admitted drug use barred a petition for parole revocation based on the same conduct, stating "I don't think that is like a jeopardy thing where we do that and we can't do anything else." The court remanded defendant to the custody of the Department of Corrections and Rehabilitation and the jurisdiction of the Board of Parole Hearings for the purpose of future parole consideration under section 3000.08, subdivision (h).
Defendant timely appealed.
II. DISCUSSION
A. Due Process Challenge Based on the Lack of a Probable Cause Hearing
Defendant contends the process used to revoke his parole violated his right to due process because he was not given a probable cause hearing before a neutral decision maker, as required by Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey). The Attorney General does not dispute the merits of defendant's challenge, instead arguing forfeiture and lack of prejudice.
1. Legal Principles Governing Parole Revocation
"Together, sections 1203.2 and 3000.08 establish a statutory framework for parole revocation. A parolee may be arrested, with or without a warrant, based on probable cause to believe that a parole violation has occurred. (§§ 1203.2, subd. (a), 3000.08, subd. (c).) The supervising parole agency determines if there is good cause to believe the subject has violated parole, and may impose intermediate sanctions, including 'flash incarceration' for up to 10 days. (§ 3000.08, subds. (d), (e).) If intermediate sanctions are not appropriate, the parole agency must petition the superior court to revoke parole, and provide notice to the parolee. (§§ 1203.2, subd. (b), 3000.08, subd. (f).)" (People v. DeLeon (2017) 3 Cal.5th 640, 647 (DeLeon).) "[I]f Section 3000.1 . . . applies to a person who is on parole and the court determines that the person has committed a violation of law or violated his or her conditions of parole, the person on parole shall be remanded to the custody of the Department of Corrections and Rehabilitation and the jurisdiction of the Board of Parole Hearings for the purpose of future parole consideration." (§ 3000.08, subd. (h).) Section 3000.1 applies to parolees who, like defendant were "sentenced under Section 1168 for any offense of first or second degree murder with a maximum term of life imprisonment . . . ." (§ 3000.1, subd. (a)(1).)
Morrissey "established the minimum due process protections for parolees facing revocation." (DeLeon, supra, 3 Cal.5th at p. 653.) The Supreme Court held that, first, an " 'informal' " inquiry " 'in the nature of a "preliminary hearing" ' " must be conducted "by someone uninvolved in the case" " 'to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.' " (Id. at p. 654, quoting Morrissey, supra, 408 U.S. at pp. 484-486.) "The hearing officer shall have the duty of making a summary, or digest, of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee's position." (Morrissey, supra, at p. 487.) "Second, the parolee must have an opportunity for a final hearing to determine if parole should be revoked." (DeLeon, supra, at p. 654.)
A parolee whose parole is revoked after a properly conducted revocation hearing but without a preliminary probable cause hearing is entitled to have the revocation set aside only if the denial of a preliminary hearing prejudiced the parolee at the revocation hearing. (DeLeon, supra, 3 Cal.5th at p. 659; In re La Croix (1974) 12 Cal.3d 146, 154.) "The test of prejudice is whether the denial of the constitutionally mandated hearing was harmless beyond a reasonable doubt." (DeLeon, supra, at pp. 659-660.) "Additionally, the reviewing court may restore a parolee to parole status even absent a showing of prejudice as a 'severe sanction' based on 'a showing that the Authority is unresponsive to [the] mandates of Morrissey and its progeny and must be coerced to comply therewith.' " (Id. at p. 660.)
2. Defendant Fails to Establish Prejudicial Error
The Attorney General contends defendant forfeited this due process claim by failing to object below. Defendant responds by requesting that we exercise discretion to reach the claim because he asserts, it presents a pure question of law. Alternatively, he contends trial counsel was ineffective to the extent she failed to preserve the claim for appeal. In light of that alternative argument, we will resolve defendant's claim on the merits. (People v. Marlow (2004) 34 Cal.4th 131, 150 (Marlow) [addressing merits of forfeited claim because defendant asserted ineffective assistance of counsel].)
Here, it is unclear whether defendant received a Morrissey-compliant preliminary hearing before the revocation hearing. The revocation petition states that the supervising agency established probable cause for the alleged violation on August 7, 2017. However, no summary of any informal hearing appears in the record, nor does the record establish that any such hearing was conducted by an uninvolved person, as Morrissey, supra, 408 U.S. at p. 486, requires.
Assuming defendant was deprived of a Morrissey-compliant probable cause hearing, reversal is appropriate only if that deprivation prejudiced him at the revocation hearing. Defendant offers the following theory of prejudice: at a Morrissey-compliant probable cause hearing, the hearing officer likely would have found no probable cause to believe that defendant committed two of the four alleged violations—breaking curfew and failing to charge his GPS device. (Defendant contends such an outcome was likely based on the trial court's rejection of those allegations.) Defendant theorizes that, with only two alleged violations remaining, the Division of Adult Parole Operations (DAPO) "would have likely followed the PVDMI recommendation" to continue him on parole with remedial sanctions instead of filing a revocation petition. Defendant says "[t]his is especially true since DAPO had already sanctioned [him] for 'the most important[]' violation by imposing the August 1 sanctions for the same drug use."
That theory of prejudice ignores the reasons set forth in the parole violation report for rejecting intermediate sanctions—namely, defendant's repeated drug use parole violations, removal from drug treatment programs for poor behavior and non-compliance, and poor attitude. The report makes clear that it was defendant's habitual drug use and failure to address his drug addiction that was the basis for the decision to seek parole revocation, despite the PVDMI recommendation to continue defendant on parole with remedial sanctions. The report did not cite the alleged curfew violations or the alleged failure to charge the GPS device as factors relevant to the decision that intermediate sanctions were not appropriate. Therefore, the record does not support defendant's contention that DAPO would not have sought to revoke his parole absent the curfew and GPS-charging allegations.
Nor does the record support defendant's assertion that DAPO likely would have imposed intermediate sanctions because it had already sanctioned him for the drug use allegation. The parole violation report alleged two separate instances of drug use, one of which gave rise to the amended conditions, and one of which formed the basis for the violation alleged in the revocation petition. The report described the alleged drug use violation as follows: "On 08/06/17, Hutton was questioned about his drug use and he admitted he had used methamphetamine. Hutton signed a CDC1527 Statement of Admission admitting to the use. Hutton noted on the form for the date of use as 'The day they first put GPS ingested meth.' Hutton was referencing the day he was placed on GPS monitoring which was 08/02/17." (In fact, GPS monitoring commenced on August 1, 2017.) Later, the report detailed defendant's prior parole violations, including "8/1/2017 - Use of Alcohol & Methamphetamine: Disposition enhanced supervision GPS and Referred to PRNN quarterly lifer meeting." Thus, at the time the revocation petition was filed, DAPO's position was that defendant had not been sanctioned for the drug use violation alleged in that petition. And contrary to defendant's suggestions, the evidence adduced at the revocation hearing did not definitively establish that a single drug use violation was the basis for both the modification of his conditions of parole and the parole revocation petition. The trial court found only that defendant used drugs in violation of his parole, but made no factual findings as to when and on how many occasions defendant used methamphetamine between July 29 and August 6. Given DAPO's position that defendant had not been sanctioned for the drug use violation alleged in the revocation petition, and the fact that the evidence from the revocation hearing does not conclusively refute that position, it is not likely that DAPO would have elected intermediate sanctions over revocation had a Morrissey-compliant preliminary hearing eliminated the curfew and GPS charging allegations.
The testimony indicated that defendant signed two separate statements admitting to using methamphetamine, one on August 1 and one on August 6, although neither statement appears in the record. The August 1 admission apparently related to drug use on July 29, while the August 6 admission apparently related to drug use on August 1. A urine sample taken on August 4 or August 6 tested positive for methamphetamine, but no evidence was presented as to how long the drug stays in the system so it is unclear whether that test could have reflected the admitted drug use on July 29 and/or August 1.
Defendant takes the position that the drug use that occurred on August 1 was the basis for the modification of his conditions of parole and the parole revocation petition. It is true that Art Valdez testified that the modification of defendant's conditions of parole "was related" to the fact "that he admitted to use of methamphetamines on August 1st of 2017." But as noted above, it is unclear whether Art Valdez was referring to the July 29 incident that defendant admitted in writing on August 1 or the August 1 incident that defendant admitted in writing on August 6.
Defendant does not explain how the lack of a preliminary hearing impaired his ability to rebut the drug use and pass code allegations at the revocation hearing. Given his admission at that hearing to using methamphetamine in violation of his conditions of parole, and the fact that he did not dispute that he refused to give a parole agent his cell phone his pass code, we conclude that any due process violation occasioned by the failure to hold a preliminary probable cause hearing was harmless beyond a reasonable doubt.
B. Failure to Properly Consider Intermediate Sanctions
In a second challenge to the parole revocation proceedings, defendant argues DAPO failed to properly consider whether intermediate sanctions were appropriate, thereby violating the Penal Code, the California Code of Regulations, and his due process rights. The challenge is three-fold. First, defendant contends DAPO violated California Code of Regulations, title 15, section 3768.3, subdivision (d) by adjusting the PVDMI's suggested response by more than one level and without adequate explanation. Second, he says DAPO violated section 3000.08, subdivision (f) by failing to set forth individualized reasons for its determination that alternative sanctions were inappropriate in the parole violation report. Third, defendant faults the trial court for revoking his parole despite DAPO's alleged failure to properly consider intermediate sanctions.
The Attorney General argues defendant forfeited this claim by failing to object below. Because defendant alternatively raises an ineffective assistance of counsel claim based on trial counsel's failure to object, we shall reach the merits of the claim. (Marlow, supra, 34 Cal.4th at p. 150.)
1. Standard of Review
We review the order revoking parole for abuse of discretion and the court's factual findings for substantial evidence. (People v. Butcher (2016) 247 Cal.App.4th 310, 318 [discussing standard in the context of a probation revocation hearing].) We review legal issues, including questions of statutory and regulatory interpretation, de novo. (Californians for Pesticide Reform v. Department of Pesticide Regulation (2010) 184 Cal.App.4th 887, 899.)
2. DAPO's Alleged Violations of the Governing Regulations in Deviating From the PVDMI Recommendation
a. The PVDMI
California Code of Regulations, title 15, section 3768.3 governs the use of the PVDMI, which is also referred to as "automated CDCR Form 1500." (Cal. Code Regs., tit. 15, § 3768.3, subd. (c).) Subdivision (d) of that regulation describes certain sections of the PVDMI and explains how the "responsible parole agent" is to complete each. Specifically, the agent is to complete Sections A through E with information about the parolee and the alleged violations. (Id., subd. (d)(1)-(5).) Section F, entitled "Instrument Response Level," will then "auto-populate an appropriate response level to the alleged violation." (Id., subd. (d)(6).) In Section G, "Recommended Responses," the parole agent must "select a recommended response level as provided for in Section F, or . . . select an alternative response level" and set forth factors supporting the alternative response in the "Parole Agent Override Section." (Id., subd. (d)(7)-(8).) Such "[o]verrides should not adjust the response level by more than one level." (Id., subd. (d)(8).) The parole agent then indicates "the specific program that the offender will be required to complete based on the selected response level" in Section H, entitled "Agent's Recommended Response Level." (Id., subd. (d)(9).)
"Response levels include: [¶] (A) Least Intensive. Least Intensive responses are those responses to a violation that impose a minimal sanction and are based on the severity of the violation and the risk score of the offender who committed the violation. The Least Intensive Response Level could include a verbal reprimand, the imposition of a curfew, or increased reporting instructions. [¶] (B) Moderately Intensive. Moderately Intensive responses are those responses to a violation that impose a medium-range sanction and is based on the severity of the violation and the risk score of the offender who committed the violation. The Moderately Intensive Response Level could include community service, increased urinalysis testing, or referral to a structured program. [¶] (C) Most Intensive A. Most Intensive A responses are those responses to a violation that impose a higher range sanction and are based on the severity of the violation and the risk score of the offender who committed the violation. The Most Intensive A Response Level could include a referral to an In-Custody Drug Treatment Program or placement into Mental Health Services. [¶] (D) Most Intensive B. Most Intensive B responses are those responses to a violation that impose the highest range sanction and are based on the severity of the violation and the risk score of the offender who committed the violation. The Most Intensive B Response Level would result in a recommendation for revocation by the parole agent. [¶] (E) Most Intensive C. Most Intensive C responses are those responses to a violation that impose the highest range sanction and are based on the severity of the violation and the risk score of the offender who committed the violation. The Most Intensive C Response Level would result in a recommendation for revocation by the PVDMI." (Cal. Code Regs., tit. 15, § 3768.3, subd. (d)(6).) --------
Next, the parole unit supervisor selects the "Unit Response Level" in Section I of the PVDMI. (Cal. Code Regs., tit. 15, § 3768.3, subd. (e)(1).) If the selected Unit Response Level differs from the parole agent's recommended response level, "the difference of opinion" must be "articulat[ed] . . . in the 'comments' area of Section I." (Ibid.)
Finally, the PVDMI is reviewed by the Decentralized Revocation Unit parole administrator, who is authorized to "[m]odify the response provided by the unit supervisor, documenting the change in Section J of the automated CDCR Form 1500, PVDMI . . . ." (Cal. Code Regs., tit. 15, § 3768.3, subds. (f)(1)(B) & (f)(2)(B).)
b. More Than One Level Adjustment
Here, the record does not contain the PVDMI. The parole violation report indicates that the PVDMI recommend response level was "continue on parole with remedial sanctions" and that the California Department of Corrections and Rehabilitation recommended response level was "petition for revocation due to parolee's failure to comply with his or her conditions of parole or involvement in criminal behavior."
Defendant contends DAPO violated California Code of Regulations, title 15, section 3768.3, subdivision (d)(8) by adjusting the recommended response level by more than one level. That contention fails. As an initial matter, it is not clear that DAPO's recommended response of revocation was more than one level above the PVDMI's recommended response of "continue on parole with remedial sanctions." The available response levels are set forth in California Code of Regulations, title 15, section 3768.3, subd. (d)(6). All response levels short of revocation entail continuing the parolee on parole with sanctions of varying intensity. It is not clear what level the PVDMI recommended for defendant. Regardless, California Code of Regulations, title 15, section 3768.3, subdivision (d)(8) prohibits the parole agent from adjusting the recommended response level by more than one level. But as set forth above, the parole unit supervisor and the Decentralized Revocation Unit parole administrator also are authorized to adjust the recommended response level. Here, the record does not disclose whether, as defendant assumes, it was the parole agent who recommended a deviation from the recommendation to revocation. The deviation could have been made by the parole unit supervisor, the Decentralized Revocation Unit parole administrator, or some combination of the persons authorized to adjust the recommended response level. In sum, the record does not establish any violation of California Code of Regulations, title 15, section 3768.3, subdivision (d)(8).
c. Lack of Explanation for Overriding the PVDMI
Defendant says DAPO failed to explain its reasons for overriding the PVDMI's recommended response level, as required by California Code of Regulations, title 15, section 3768.3, subdivision (d)(7)-(8). As discussed above, those portions of the regulation govern the manner in which the parole agent completes Section G of the PVDMI. Because the PVDMI is not in the record, defendant has not established that the parole agent did not complete that section in accordance with the regulation, which says nothing about the contents of the parole violation report.
3. DAPO's Alleged Violation of Section 3000 .08, Subdivision (f) by Failing to Consider Intermediate Sanctions
Section 3000.08, subdivision (f) authorizes "the supervising parole agency" to petition for parole revocation only if it "has determined, following application of its assessment processes, that intermediate sanctions up to and including flash incarceration are not appropriate . . . ." Rule 4.541 (e) of the California Rules of Court provides that "a report filed by the supervising agency in conjunction with a petition to revoke parole . . . must include the reasons for that agency's determination that intermediate sanctions without court intervention as authorized by Penal Code sections 3000.08(f) or 3454(b) are inappropriate responses to the alleged violations."
Defendant asserts that the parole violation report failed to provide any reasons for DAPO's conclusion that intermediate sanctions were inappropriate. We disagree with that reading of the report. The parole violation report describes defendant's past parole violations (many of which included drug use), his removal from drug treatment programs for poor behavior and non-compliance, and his generally poor attitude "towards making the appropriate efforts to rehabilitate in the community." It is clear from the report as a whole that those were the reasons supporting DAPO's determination that intermediate sanctions were inappropriate.
Defendant faults the report for failing "to mention what other sanctions, if any, DAPO considered" or "why flash incarceration—the sanction the Legislature encourages—was not an appropriate response. . . ." But he cites no authority requiring the agency to address specific intermediate sanctions it considered but found inappropriate. The law requires a "determin[ation]" by "the supervising parole agency. that intermediate sanctions up to and including flash incarceration are not appropriate" (§ 3000.08, subd. (f), italics added) and "a report filed by the supervising agency [that sets forth] the reasons for that agency's determination that intermediate sanctions without court intervention as authorized by Penal Code sections 3000.08(f) or 3454(b) are inappropriate responses to the alleged violations" (Cal. Rules of Court, rule 4.541(e), italics added). The parole violation report meets those requirements.
4. Alleged Trial Court Error
Defendant contends the trial court neglected its obligation to ensure that DAPO considered intermediate sanctions. That argument fails given our conclusion that DAPO did consider intermediate sanctions and committed no statutory or regulatory violations.
C. Cumulative Error
Defendant argues the cumulative effect of the alleged errors was to deprive him of his right to due process. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.' " (People v. Williams (2009) 170 Cal.App.4th 587, 646.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.' " (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) Because we have found no errors, the cumulative error doctrine has no application.
III. DISPOSITION
The postjudgment order is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.