Opinion
A149669
04-05-2017
THE PEOPLE, Plaintiff and Respondent, v. BOBBY GEROME ROSTON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Mendocino County Super. Ct. No. SCUKCRPA2016874031)
Bobby Gerome Roston appeals from an order revoking and reinstating his parole (Pen. Code, § 1203.2, subd. (a)). He contends there is insufficient evidence his parole violations were "willful." We disagree and affirm.
All undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2011, Roston was convicted of making criminal threats (§ 422) and sentenced to state prison. He was released in 2013. In 2015 — and while on parole — Roston was convicted of sexual battery (§ 243.4, subd. (a)) and sentenced to county jail. In a "Notice and Conditions of Parole" form, Roston agreed to abide by parole conditions requiring him to: (1) refrain from travelling more than 50 miles from his residence "without the prior approval of [his] parole agent"; (2) "participate in continuous electronic monitoring, i.e. Global Positioning System (GPS) technology"; and (3) charge the GPS device twice per day and not to "allow [the] GPS device to go dead . . . for any reason whatsoever."
In early September 2016, Roston was released from county jail and a GPS device was placed on his ankle. A few days later, the Department of Corrections and Rehabilitation filed a petition to revoke Roston's parole, alleging he travelled more than 50 miles from his residence without informing his parole agent, and that he allowed his GPS device to go "into Dead Battery Status." According to the petition, Roston was "familiar with his requirements to maintain his GPS device but his actions indicate he is unwilling to abide by his parole terms." The petition further alleged Roston had "sustained numerous violations of parole" since 2013 and that his "most recent parole violation for theft charges resulted in a new law violation and [Roston] was given a local sentence for petty theft."
A July 2016 allegation that Roston had disabled his GPS tracking device was dismissed.
At an October 2016 parole revocation hearing, Roston's parole agent, Jennifer Farley, testified she met with Roston after he was released from jail on September 9, 2016. The GPS device was on Roston's ankle. Agent Farley told Roston — who lived in Mendocino County — that he could charge his GPS device at the parole office in Ukiah. Roston understood Agent Farley and "indicated he could charge the device." Two days later, Agent Farley received an alert from the GPS monitoring system that Roston's GPS device had died. Roston's last known location was in Santa Rosa, more than 50 miles from the Ukiah parole office. Roston did not tell Agent Farley he was going to Santa Rosa.
Law enforcement officers found and arrested Roston. Parole Agent Ken Garcia transported Roston from Sonoma County to the Mendocino County jail, a distance of approximately 60 miles. Roston told Agent Garcia the GPS device died because he "was out of the area and he could not find a place to plug in and charge the device." Roston knew the GPS device needed to be charged. He claimed "he was riding in a suburban" going to a Hopland casino and "had fallen asleep in the vehicle and unbeknownst to him [the driver] decided to go to the Sonoma County area and go to a casino in Sonoma County . . . he woke up and said that he wasn't supposed to be there in Sonoma County and was a little upset . . . because he knew he wasn't supposed to be there."
At the conclusion of the parole revocation hearing, defense counsel argued Roston "was unable to comply with parole conditions because of circumstances beyond his control" and, as a result, his parole violations were not willful. According to defense counsel, Roston "fell asleep in a vehicle and when he awoke he was in Santa Rosa. This was not something that was done on his own volition." In response, the prosecutor argued Roston's "excuses" were not credible, noting: "he's not a 19 or 21-year old guy. He is a sex offender who's an experienced man."
The court agreed with the prosecutor and concluded Roston's "failure to charge [the GPS device], if the excuse was it was kind of beyond your control because you couldn't charge it where you were, if that was a valid excuse kind of an exception, it would swallow the rule if the person could allege that. And I think the parole officer described how she instructed [Roston], the charger was available. And I have trouble believing that he just fell asleep and ended up in Sonoma County with an uncharged device on his ankle. I think that there's a preponderance of the evidence here that supports a violation that he was beyond 50 miles from the center of the 50-mile radius. . . . [¶] And I think his admission when he was picked up suffices to show that he was aware of the restriction and he was in violation of the restriction. So I do find the violation of his parole . . . ." The court revoked and reinstated Roston's parole and imposed a 180-day custodial sanction.
DISCUSSION
Roston contends there is insufficient evidence he willfully violated parole. The Attorney General claims the appeal is moot because Roston has completed his custodial time. We consider the merits of the appeal and conclude sufficient evidence supports the court's conclusion the parole violations were willful. (See, e.g., People v. Hronchak (2016) 2 Cal.App.5th 884, 888-889 [deciding appeal notwithstanding the defendant's completion of period of incarceration required by parole revocation order].)
"If the court finds the parolee has violated the conditions of parole, it may (1) return the person to parole supervision with modifications of conditions, if appropriate, (2) revoke parole and order the person to confinement in county jail, or (3) refer the person to reentry court or an evidence-based program." (Williams v. Superior Court (2014) 230 Cal.App.4th 636, 652; see § 3000.08, subd. (f).) Whether to revoke parole lies within the trial court's "very broad discretion." (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) The facts supporting revocation must be proved by a preponderance of the evidence. (Id. at p. 441; see also § 3044, subd. (a)(5).)
"Parole and probation revocation hearings are equivalent in terms of the requirements of due process. [Citations.]" (People v. Rodriguez, supra, 51 Cal.3d at p. 441.) --------
To justify revocation, a parole violation must be willful. (People v. Cervantes (2009) 175 Cal.App.4th 291, 295.) In criminal law, willfulness requires " 'simply a purpose or willingness to commit the act . . .' without regard to motive, intent to injure, or knowledge of the act's prohibited character. [Citation.] The term[ ] impl[ies] 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; People v. Hagedorn (2005) 127 Cal.App.4th 734, 744, fn. 6.)
We review the order revoking parole for abuse of discretion (People v. Butcher (2016) 247 Cal.App.4th 310, 318) but the court's factual finding of a willful violation for substantial evidence. (People v. Urke (2011) 197 Cal.App.4th 766, 773.) "The standard is deferential: 'When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . .' " (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, italics omitted.)
Here, substantial evidence supports the court's determination Roston willfully violated parole. Roston — who had violated parole on several occasions — knew he was required to charge his GPS device and to stay within a 50-mile radius unless he notified his parole agent. Roston did not charge his device before embarking on his trip, and he did not notify his parole agent when he arrived in Santa Rosa. This evidence supports an inference Roston's parole violations were willful. (In re Jerry R., supra, 29 Cal.App.4th at p. 1438.)
Roston's reliance on People v. Galvan (2007) 155 Cal.App.4th 978 (Galvan) and People v. Zaring (1992) 8 Cal.App.4th 362 (Zaring) does not alter our conclusion. In Galvan, the appellate court concluded the defendant's failure to timely report to the probation office was not willful because he was immediately deported after being released from custody. (Galvan, at p. 980.) In Zaring, the defendant was 22 minutes late to court due to child care issues; the appellate court determined the violation was not willful because it was a "last minute unforeseen circumstance as well as a parental responsibility common to virtually every family," not "the result of irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court." (Zaring, at p. 379.)
Here and in contrast to Galvan, there was no physical impossibility preventing Roston from complying with his parole conditions. And unlike Zaring, Roston had no responsibility — parental or otherwise — preventing him from charging his GPS device and notifying his parole agent of his whereabouts. Roston did not have to travel to a casino. He did not have to take a friend's car to get there. He did not have to fall asleep on the way to the casino. There may have been an unforeseen circumstance, but the circumstance was "the result of [Roston's] irresponsibility." (Zaring, supra, 8 Cal.App.4th at p. 379.) The trial court determined Roston's explanation for the incident was not credible, and we will not disturb that finding on appeal. The court did not err by concluding Roston willfully violated parole. (People v. Jones (1990) 224 Cal.App.3d 1309, 1315.)
DISPOSITION
The order is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.