Opinion
A169267
09-26-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CRI-23005307
BROWN, P. J.
Defendant Michael Jackson was convicted in 1989 of second-degree murder and sentenced to an indeterminate term of 17 years to life in prison. He was released on a three-year term of parole in November 2021. In February 2023, after an alleged domestic violence incident involving his girlfriend, his parole agent advised him that the California Department of Corrections and Rehabilitation, Division of Adult Parole Operations (Department) was imposing a new special condition of parole prohibiting him from contacting or attempting to contact his girlfriend. In November 2023, Jackson's parole was revoked based on a finding that he had violated the special condition and he was remanded to the custody of the Department pursuant to Penal Code section 3000.08, subdivision (h).
All undesignated statutory references are to the Penal Code.
On appeal, Jackson does not challenge the sufficiency of the evidence in support of his parole violation. Rather, he contends that (1) the court erred in overruling his demurrer, which had argued that the revocation petition failed to allege, as required by statute, individualized reasons showing why intermediate sanctions were inappropriate responses to the alleged violation and (2) the order revoking his parole must be reversed because the special condition was not served as required by the Department's operations manual and the condition was unconstitutionally vague and overbroad. In supplemental briefing, he contends the trial court erred by remanding him to the custody of the Department because section 3000.08, subdivision (h), the mandatory remand provision, is inapplicable to parolees who are not serving lifetime parole.
We affirm the trial court's finding that Jackson violated the special condition of his parole but agree that the trial court erred in remanding him to the Department's custody. Accordingly, we remand the matter to the trial court so that it may impose a proper remedy for Jackson's parole violation.
BACKGROUND
The record describes Jackson's commitment offense as follows: "On 1/15/1988, at approximately 0230 hours, Jackson was involved in an argument with a female resident of an apartment building where he hung out at. The victim and another male separated Jackson from the female resident and walked Jackson out onto the driveway to calm him down. The victim then re-entered his apartment. Jackson later knocked on the victim's door but was not let in. Jackson became upset and later came back to the victim's apartment where he was let inside. While inside, Jackson shot the victim. The victim was able to walk outside and down the street while being followed by Jackson who shot the victim several more times. The victim fell to the ground and started to crawl before collapsing face down. The victim died as a result of being shot by Jackson."
Following his parole in November 2021, Jackson completed a transitional housing program and established a stable residence in San Francisco. He obtained employment with Urban Alchemy, where he worked with homeless people to keep the streets clean and safe. He regularly tested for drug and alcohol while on parole and he never received a positive test. He did not complete, however, the substance abuse treatment program to which he had been referred by his parole agent.
Jackson began dating his girlfriend not long after he was released on parole in November 2021. In October 2022, Jackson was involved in a domestic violence incident involving his girlfriend where she was arrested as the dominant aggressor. In February 2023, Jackson was arrested following a second domestic violence incident involving his girlfriend.
On February 23, 2023, following Jackson's arrest for the second domestic violence incident, the Department imposed the following special condition of parole: "You shall not contact or attempt to contact [girlfriend]. 'No contact' means no contact in any form, whether direct or indirect, personally, by telephone, in writing, electronic media, computer, or through another person, etc. and includes unnecessarily traveling past, or loitering near where you know or reasonably should know she frequents, resides, is employed, or attends classes." On that date, Jackson signed a document entitled "Special Conditions of Parole" which included the above condition.
On April 13, the Department filed a petition to revoke Jackson's parole on the grounds that he had violated a general condition of parole barring criminal conduct and the special condition prohibiting him from contacting his girlfriend. The petition alleged that on April 9, 2023, officers responded to a domestic dispute at Jackson's home after Jackson's girlfriend called 911. At that time, Jackson's girlfriend told the responding officer that Jackson had picked her up in his car from her mother's home and brought her to his apartment. She told the officer that she and Jackson had gotten into an argument and he pushed her when she tried to leave.
On November 2, 2023, Jackson demurred to the petition on the ground that it and the report that accompanied the petition failed to provide an adequate, individualized basis for the parole agency's rejection of intermediate sanctions as required by statute. The trial court overruled the demurrer, finding that the petition and the report sufficiently alleged that the Department considered intermediate sanctions other than revocation and the reasons they rejected those options.
At the evidentiary hearing on the parole violation, the officer that responded to the April 9 incident testified consistently with the allegations in the petition set forth above. Jackson testified that when his girlfriend came to his apartment he tried to explain that they could not be around each other. When she became upset, he decided to leave but as he moved towards the door, she ran up to him and they collided, causing her to fall. Jackson's girlfriend confirmed that she arrived uninvited at Jackson's apartment and that he told her she could not be there. When she tried to block him from leaving the apartment, he pushed past her, causing her to fall backwards. She acknowledged previously telling the officer that Jackson picked her up and brought her to his apartment but claimed that she had not told the officer the truth.
The trial court found that Jackson had not violated the general condition of his parole but, relying on the officer's statement that Jackson's girlfriend reported that Jackson had picked her up and brought her to his apartment - a statement that the court expressly found credible - the court found that Jackson had violated the special condition. The court revoked Jackson's parole and remanded him to the custody of the Department.
Jackson timely filed a notice of appeal.
DISCUSSION
I. The court did not err in overruling Jackson's demurrer.
Section 3000.08, subdivision (f), requires a supervising parole agency to determine, prior to filing a petition to revoke parole, that "intermediate sanctions up to and including flash incarceration are not appropriate." California Rules of Court, rule 4.541(e), requires that the written report included with a petition to revoke parole include, among other things, "the reasons for that agency's determination that intermediate sanctions without court intervention . . . are inappropriate responses to the alleged [parole] violations." While the explanation of why intermediate sanctions are inappropriate must "be 'individualized to the particular parolee, as opposed to a generic statement,'" rule 4.541 does not require "that the supervising agency list and reject any specific intermediate sanction in a petition seeking revocation." (People v. Perlas (2020) 47 Cal.App.5th 826, 833, 835 (Perlas).)
" '" '[A] demurrer raises an issue of law as to the sufficiency of the accusatory pleading, and it tests only those defects appearing on the face of that pleading.' [Citation.]" [Citations.] On appeal, we review the order overruling [a] defendant's demurrer de novo." (Perlas, supra, 47 Cal.App.5th at p. 832.) "A defendant's right to be informed of the charges against him or her is satisfied when he or she is advised sufficiently to enable him or her to prepare and present a defense and is not taken by surprise." (Id. at p. 835 [parole violation report provided sufficient notice to withstand demurrer where the report demonstrates intermediate sanctions were properly considered and includes specific reasons for determination that intermediate sanctions were inappropriate].)
Here, the parole violation report detailed Jackson's criminal history, the terms and conditions of his parole, his performance on parole and the alleged parole violation. The report disclosed that the parole-violation decision-making instrument used by the Department recommended continuing Jackson on parole with remedial sanctions and no additional custody time. Nevertheless, the Department recommended Jackson's parole be revoked and that he be remanded to custody. Under the heading of "Evaluation," the report explained that the Department "considered referring Jackson to the Day Reporting Center or STOP as an intermediate sanction to address this violation. However, due to the seriousness of Jackson's criminal history, and pattern of parole violations concurrent with his commitment offense, there is a significant concern to the safety of the community. Therefore, given Jackson's continued noncompliance to participate in parole services, [the Department] recommends that this matter be referred to the Court for revocation proceedings."
The petition and report do not include the full program title of either the "Day Reporting Center" or the "STOP" program although defense counsel's comments at the hearing on the demurrer suggest STOP is an acronym for "specialized treatment for optimized programming." The Day Reporting Center was later described as a "substance abuse treatment program" and the STOP program as providing housing resources for people with a history of substance abuse.
Contrary to Jackson's argument, the above statement is sufficient to withstand demurrer. The report alleges that the Department considered intermediary sanctions for the alleged parole violations and provided the Department's reasons for seeking parole revocation rather than imposing those intermediary sanctions. Although the phrase "pattern of parole violations" lacks precision, it was sufficient to give Jackson notice that the Department was relying on his involvement in three domestic violence incidents (Oct. 2022, Feb. 2023, &Apr. 2023), along with his overall criminal history and his commitment offense to reject sanctions other than revocation.
Jackson's arguments that the specific intermediary sanctions considered were inappropriate and that the reasons proffered by the Department for the rejection of intermediary sanctions were factually unsupported do not form a basis for sustaining a demurrer. As the trial court explained, these matters cannot be determined from the face of the petition. Accordingly, the court did not err in overruling Jackson's demurrer.
We note briefly that Jackson's arguments were subsequently addressed at the evidentiary hearing. Jackson's parole agent testified regarding the Department's decision to seek revocation rather than other intermediate sanctions and defense counsel argued in closing that the intermediate sanctions considered were not appropriate and that other appropriate sanctions were not considered. On appeal, Jackson does not address the agent's hearing testimony or argue that the trial court erred in rejecting his argument at the hearing that the Department failed to comply with its obligations under section 3000.08, subdivision (f), and California Rules of Court, rule 4.541(e). Accordingly, we have no occasion to consider the merits of that claim.
II. Jackson had notice of the special condition.
Section 3067, subdivision (a), provides that an inmate eligible for release "shall be given notice that he or she is subject to terms and conditions of his or her release from prison." California Code of Regulations, title 15, section 2510 similarly requires that a parolee "shall be informed of the . . . conditions of parole." "Special conditions may be established and imposed by the department . . . and are in addition to the general conditions of parole." (Cal. Code Regs., tit. 15, § 2513.)
Under section 81010.15, subdivision (c) of the Department's Operations Manual (manual), all special conditions of parole "shall be specified in writing with the reason for their imposition and must be issued to the offender in writing prior to becoming effective." (Cal. Dept. of Corrections &Rehabilitation, Dept. Operations Manual (electronic ed. Jan. 1, 2024) Adult Parole Operations, § 81010.15, subd. (c) [<https://www.cdcr.ca.gov/operations-manual/dom >(as of Sept. 26, 2024)].) In addition, the manual provides that "[a] verbal instruction requiring or prohibiting specific behavior that will be in effect for five calendar days or more shall be confirmed in writing within five business days after notifying the offender." (Id., § 81010.18.) "If the verbal or written instruction is permanent, a new [Notice of Conditions] and modified [Special Conditions of Parole] shall be served to the offender within five business days from the date of verbal instruction." (Ibid.) Section 81010.15.4 of the manual sets forth the process for serving an offender with notice of special conditions: "(1) Print a copy of the . . . Special Conditions of Parole (SCOP) . . . and review them with the offender. If necessary, use the [Department] approved translator service in a language the offender understands. [¶] (2) Instruct the offender to initial and sign appropriate boxes in the . . . SCOP. [¶] (3) If the offender refuses to sign, write 'refused to sign' and initial and date in place of the offender's signature. [¶] (4) Provide a copy of the . . . SCOP to the offender. [¶] (5) Document in the automated ROS any reasonable accommodations and modifications provided and effective communication methods used."
Here, Jackson's parole agent testified that the special condition was imposed on February 23, 2023. He explained that in his presence, Jackson signed the document listing the newly imposed condition. The agent conceded that he did not give Jackson a copy of the signed document. The agent indicated that "serving" Jackson fell "through the cracks." The agent confirmed, however, that he told Jackson during the February 23 meeting that the condition meant "stay-away and no contact in any form" with his girlfriend and that he reiterated this "at least twice" when he saw Jackson after that date. At the hearing, Jackson recalled looking at the document before signing it but testified that his parole agent "really didn't explain" it.
Initially, we note that the Attorney General does not challenge Jackson's assertion that sections 81010.15, subdivision (c), and 81010.18 apply to the imposition of the special condition at issue in this case or dispute that the manual required that Jackson be given a printed copy of the document he signed. Accordingly, for purposes of our discussion we assume, without deciding, that the sections cited applied and required service in conformity with section 81010.15.4.
Like the trial court, however, we are not persuaded that compliance with the Department's operations manual is "an absolute legal requirement for the validity of a special condition." As the Attorney General argues, the manual is not a formally adopted statute or regulation promulgated by the Department. Nor are we persuaded, contrary to Jackson's argument, that the above provisions of the manual should be regarded as the Department's interpretation of the statutory and regulatory notice requirements.
In this respect, Jackson's reliance on Dix v. Superior Court (1991) 53 Cal.3d 442, 460 is misplaced. In that case, the court noted that its construction of section 1170, subdivision (d), as conferring on the director of the Department a broad power to recommend recall and resentencing of a criminal defendant at any time and for any otherwise lawful reason, was consistent with the provision in the Department's operations manual that authorizes the director of the Department to "recommend recall at any time, . . . 'based on changes in the inmate's situation or significant new information that was not considered by the court in pronouncing sentence.'" (Dix, at pp. 459, 460.) In the course of explaining its statutory interpretation, the court pointed to the Department's operations manual and observed, "Unless unreasonable or clearly contrary to the statutory language or purpose, the consistent construction of a statute by an agency charged with responsibility for its implementation is entitled to great deference." (Id. at p. 460.) The sections of the manual relied on by Jackson here, however, do not purport to interpret what type of notice is legally required under the applicable statute and/or regulation. Rather, they merely set forth procedures for implementing the requirement that a parolee be notified of the conditions of parole. (§ 3067, subd. (a) [parolee "shall be given notice"]; Cal. Code Regs., tit. 15, § 2510 [prisoner "shall be informed" of the conditions of parole].)
More importantly, like the trial court, we are "satisfied that Mr. Jackson had knowledge" of the condition. Although Jackson argues in his reply that he did not receive "written notice" of the condition, he does not deny that he was presented the document in writing, signed the document, and had actual notice of the condition. As such, any failure to comply with the requirement of the manual that he be given a written copy of the condition after he signed it cannot be considered prejudicial.
III. The condition is not unconstitutionally vague or overbroad.
Jackson challenges the special condition as unconstitutionally vague and overbroad. "Although the two objections are often mentioned in the same breath, they are conceptually quite distinct. A restriction is unconstitutionally vague if it is not' "sufficiently precise for the [parolee] to know what is required of him, and for the court to determine whether the condition has been violated."' [Citation.] A restriction failing this test does not give adequate notice - 'fair warning' - of the conduct proscribed. [Citations.] A restriction is unconstitutionally overbroad, on the other hand, if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.] The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights - bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153; People v. Austin (2019) 35 Cal.App.5th 778, 787 [parole conditions, like conditions of probation, may be challenged as vague and overbroad].)
Jackson contends the special condition is unconstitutionally vague on its face because it did not reasonably specify the scope of the prohibited conduct. He argues that the condition failed to reasonably specify whether a violation required his "affirmative action" to contact his girlfriend, or whether any contact between him and his girlfriend was sufficient to run afoul the condition. At the same time, however, he suggests that "[a]s reasonably interpreted, [the special condition] only prohibited appellant from taking affirmative steps to contact Jones." The Attorney General agrees that the condition focuses solely on Jackson's behavior, not his girlfriend's behavior, so that no reasonable parolee would believe that "accidental or contact initiated by [her] would be prohibited."
Contrary to Jackson's suggestion, this interpretation of the condition is not at odds with the parties' assertions in the trial court. This issue was not raised in the trial court, and the parties took no relevant position on the interpretation of the condition. Although the condition was referred to by the parties generally as a "stay-away" or "no contact" order, the dispute clearly centered on whether Jackson affirmatively violated the order. In finding that he violated the condition, the trial court focused on the evidence that Jackson had picked up his girlfriend and brought her to his apartment, thereby rejecting Jackson's position that the contact was accidental or initiated by his girlfriend.
Jackson also argues that the condition is unconstitutionally overbroad as applied because it "severely impinged on [his] fundamental right to intimate association." Recognizing that his failure to raise this argument in the trial court might be deemed a forfeiture of the argument on appeal, Jackson also argues that his defense counsel provided ineffective assistance by failing to raise the claim below. We agree that his overbreadth claim is forfeited to the extent he claims the challenged condition is overbroad as applied to him. (In re Sheena K. (2007) 40 Cal.4th 875, 881.)
His claim for ineffective assistance of counsel fares no better. To prevail on a claim of ineffective assistance of counsel, the defendant bears the burden to show that: (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient performance was prejudicial - i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; People v. Jones (2010) 186 Cal.App.4th 216, 235.) Defendant has not satisfied his burden of proving that the failure to raise the argument in the trial court was prejudicial because he cannot establish on the limited record before us that the condition was unconstitutionally overbroad as applied.
In People v. Jungers (2005) 127 Cal.App.4th 698, 704, the court recognized that "conditions that restrict constitutional rights must be carefully tailored and 'reasonably related to the compelling state interest' in reforming and rehabilitating the defendant." Finding that the "elimination of domestic violence" and "encouraging nonviolent intimate relationships" are compelling state interests, the court held that a condition curtailing defendant's rights of association and marital privacy "legitimately and reasonably operated to accomplish the needs of the state in addressing domestic violence by rehabilitating" defendant and protecting the victim. (Id. at pp. 704, 705.)
The same is true in this case. The record reflects that the condition was imposed following Jackson's involvement in two domestic violence incidents with his girlfriend in a period of less than six months. That Jackson may have been both a victim and an aggressor in the prior domestic violence does not establish that the no-contact condition is overbroad. Prohibiting him from associating with his girlfriend, who also would have been involved in the criminal activity, is reasonably related to reducing his future criminality. (See People v. Wardlow (1991) 227 Cal.App.3d 360, 367 ["Conditions of probation prohibiting an individual from associating with other persons including spouses and close relatives, who have been involved in criminal activity have generally been upheld when reasonably related to rehabilitation or reducing future criminality" (italics added)]; People v. Celestine (1992) 9 Cal.App.4th 1370, 1375 [upholding probation condition prohibiting defendant from contact with other drug users, including his girlfriend].) Accordingly, on this record, we cannot conclude that the condition was not reasonably related to the compelling state interests of preventing domestic violence and rehabilitating Jackson, and narrowly tailored to that purpose.
The fact that the petition to revoke Jackson's parole, filed after the February incident, was dismissed due to a lack of evidence does not establish that there was not probable cause to support his arrest following that incident. Although conceivably the lack of evidence to support the petition might have some relevance to whether the Department abused its discretion by imposing a condition unsupported by sufficient evidence, Jackson has not raised that argument on appeal. Nor could he so argue, given his failure to raise it in the trial court and the limited record before us.
IV. The court erred in remanding Jackson to custody.
Section 3000.08 governs available sanctions to remedy parole violations. Under section 3000.08, subdivisions (f) and (g), upon a finding that a parolee has violated the conditions of parole, a trial court generally has the discretion to modify or revoke parole, including the authority to sentence the person to county jail for up to 180 days, or refer the person to a reentry court or other evidence-based program. Under section 3000.08, subdivision (h), however, "if 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." (See People v. Reed (2024) 103 Cal.App.5th 43 (Reed) [when § 3000.08, subd. (h) is triggered, the options available under subds. (f) &(g) are no longer available].)
As relevant here, section 3000.1, subdivision (a)(1) provides: "In the case of any inmate sentenced under Section 1168 for any offense of first or second degree murder with a maximum term of life imprisonment, the period of parole, if parole is granted, shall be the remainder of the inmate's life." In 2020, however, the Legislature enacted section 3000.01, which applies to persons who, like Jackson, were released from state prison after July 1, 2020. (Stats. 2020, ch. 29, § 18.) As relevant here, section 3000.01, subdivision (b)(2), provides, with two exceptions not applicable in the present case (§ 3000.01, subd. (d)), that "notwithstanding any other law," "[a]ny inmate sentenced to a life term shall be released on parole for a period of three years" (§ 3000.01, subd. (b)(2)).
In Reed, Division Three of this court held that where the parole term of a person serving a life sentence has been reduced to three years under section 3000.01, the person can no longer be considered a "lifetime parolee" under section 3000.1, with the result that the mandatory remand provision (§ 3000.08, subd. (h)) is not triggered. (Reed, supra, 103 Cal.App.5th at pp. 51, 53.) Relying on Reed, Jackson argues that because he was serving a three-year parole term under section 3000.01, he is not a person to whom section 3000.1 applies and thus, the court erred in remanding him to custody under section 3000.08, subdivision (h).
The Attorney General contends that Reed was wrongly decided. The Attorney General writes: "Section 3000.01's plain text demonstrates the Legislature only intended to shorten the parole periods of certain offenders, not eliminate the provision in section 3000.08[, subdivision ](h) requiring first and second degree murderers to be returned to prison for annual parole consideration hearings as a sanction for violating their parole conditions or the law." The Attorney General argues that section 3000.1's application to a parolee does not depend on the length of a defendant's parole term but is based solely on the offense of conviction: "Under section 3000.1 it is the type of criminal - first and second degree murderers - not the length of their parole period, that is the relevant factor for determining if a parolee who violates the law or his parole is subject to mandatory remand under section 3000.08[, subdivision ](h)." The Attorney General suggests that sections 3000.1 and 3000.01 can be harmonized by allowing section 3000.01 to shorten the length of the defendant's parole term while leaving intact the remainder of the consequences of falling within the scope of section 3000.1, including the automatic remand provision found in section 3000.08, subdivision (h). In other words, the Attorney General contends that a parolee can be both a person subject to section 3000.1 and a person subject to section 3000.01. We disagree.
Section 3000.1 does not impose general consequences for being sentenced to a life term for a conviction for murder. It imposes a term of parole for those persons and sets forth provisions governing that term of parole. Section 3000.01 imposes an alternate term of parole for a subset of persons sentenced to a life term. As the court reasoned in Reed, for persons "sentenced to life for murder who were released on parole on or after July 1, 2020 . . ., the two statutes impose conflicting terms of parole. [Citations.] Hence, only one of the two statutes can control, and the Legislature signaled its intent for the later-enacted statute - section 3000.01 - to preempt the conflicting, preexisting statute by including 'notwithstanding any other law' in section 3000.01, subdivision (b)." (Reed, supra, 103 Cal.App.5th at p. 53.) As the court also noted in Reed, the Legislature created two express exemptions to the provisions of section 3000.01 (§ 3000.01, subd. (d)), demonstrating that had it intended to create an additional exemption for those convicted of second degree murder with a maximum term of life imprisonment, it could have done so. (Reed, at p. 53.) Because Jackson's term of parole is governed by section 3000.01, not section 3000.1, he does not satisfy the initial condition for mandatory remand under section 3000.8, subdivision (h): He is not a person on parole to whom section 3000.1 applies.
Accordingly, the order remanding Jackson to the custody of the Department must be reversed and the matter remanded for the court to determine what penalty to impose for Jackson's violation of parole as provided by section 3000.08, subdivisions (f) and (g).
DISPOSITION
The finding that Jackson violated his parole is affirmed but the order revoking Jackson's parole is reversed. The matter is remanded for the court to determine what penalty to impose for Jackson's violation of parole, as provided by section 3000.08, subdivisions (f) and (g).
WE CONCUR: STREETER, J. DOUGLAS, J. [*]
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.