Opinion
A168503
08-14-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT VANDERBILT, Defendant and Appellant.
NOT TO BE PUBLISHED
(City & County of San Francisco Super. Ct. No. CR123005377)
TUCHER, P. J.
Defendant Robert Vanderbilt appeals an order revoking his parole and remanding him to the custody of the California Department of Corrections and Rehabilitation (CDCR). (Pen. Code, § 3000.08; statutory references are to this code unless otherwise indicated.) Defendant contends that (1) his demurrer to the revocation petitions filed against him should have been sustained, and (2) his due process rights were violated at his parole revocation hearing. We reject defendant's first contention but conclude the trial court did not determine whether there was good cause to admit the parole agency's reports into evidence without affording defendant an opportunity to confront witnesses against him. (See Morrissey v. Brewer (1972) 408 U.S. 471, 487-489 (Morrissey).) Accordingly, we reverse the appealed order and remand for further proceedings.
BACKGROUND
In May 1996, defendant was convicted of first degree murder and sentenced to life in prison with the possibility of parole. On December 28, 2022, he was granted parole and released from prison to be supervised for a period of three years. Less than four months later, CDCR's Division of Adult Probation Operations (DAPO) petitioned the superior court to revoke defendant's parole.
The April 2023 Petition
In a petition filed April 18, DAPO reported that it had probable cause to find defendant committed two violations of the conditions of his parole. The petition indicated that if the court determined the violations occurred, defendant's remand to the custody of CDCR for future parole consideration was mandatory due to his status as a lifetime parolee. (§§ 3000.08, subd. (h) (§ 3000.08(h)), 3000.1.) The petition was signed by Carla Cortes, defendant's parole agent of record.
A report attached to the petition provided additional information about defendant and the alleged violations. Defendant's commitment offense for first degree murder was for shooting and killing a man with whom defendant had been" 'feuding for a long time.'" His criminal history also includes felony convictions for narcotics offenses, assault to commit robbery, and sex offenses. Following his release on parole, defendant was subject to Global Positioning System (GPS) monitoring and special registration requirements due to convictions for rape of a 14 year-old victim, and assault with intent to commit rape of a 16 year-old.
The first alleged parole violation was of a special condition restricting defendant's contact with minors, which precluded him from being within 300 feet of places where children congregate, including schools. DAPO reported that on April 11, Agent Cortes reviewed GPS data, which showed that defendant had been outside an elementary school for about half an hour on the afternoon of April 8. Defendant was employed as a paratransit driver and his employer confirmed to Cortes that defendant was working on April 8 and on his lunch break during the period that GPS data placed him near the school. Cortes's investigation revealed further that a few minutes after the time defendant was located near the school, he logged in to pick up a client at a location approximately 776 feet away from the school, but his GPS monitor did not record him stopping at the logged location. Cortes also learned from defendant's employer that defendant's duties included transporting minor passengers with disabilities.
The second parole violation alleged in the April 2023 petition was of a special condition requiring defendant to submit to a search of his electronic devices at any time by any parole agent or law enforcement officer. On April 11, after defendant was placed under arrest for violating the condition to stay away from schools, Cortes asked defendant to provide the password to his cell phone and defendant refused, stating" 'I am going to jail, I am not giving you my password.' "
The report stated that DAPO uses a parole violation decision making instrument (PVDMI), which produced a recommendation to continue defendant on parole with remedial sanctions. However, in the evaluation section of its report, DAPO stated reasons for requesting revocation. After defendant was released from prison on parole, he was placed in a residential reentry program at Episcopal Community Services. DAPO agents worked "diligently" with defendant. He was offered assistance from "multiple State Funded Programs" to address his criminogenic needs, attempt to redirect his life, and assist his reintegration back into society. After defendant violated parole, DAPO considered intermediate sanctions, such as referring him back for residential reentry treatment, to a day reporting center, and for mental health treatment. But "due to the seriousness of [defendant's] criminal history and prior convictions" for sexual assault and murder, DAPO concluded there was "a significant concern to the safety of the community."
On April 20, 2023, the superior court held a hearing on the April 2023 petition. A transcript of that hearing is not in the appellate record, but the court's minute order reflects that counsel was appointed to represent defendant, who waived instruction and arraignment on the petition and denied the parole violation allegations. The court ordered that defendant's parole be administratively revoked. It also ordered defendant to "provide appropriate release, for release of cell phone," and continued the matter to April 28 for a prehearing conference on a motion by defendant to be released from custody.
At the April 28 hearing, defendant requested release from custody. Defense counsel submitted letters of support, argued that defendant had done well in his program and was employed full time, and that any difficulties he had complying with all terms and conditions of parole were "relatively insignificant relative to the progress he's made and the issues that he has to overcome." The People opposed the release request on two grounds. First, because defendant was a "lifer parolee," if the alleged violations were proven, the court would be required to return him to prison, the People argued. Second, the prosecutor had been advised DAPO intended to file another revocation petition alleging additional violations. The court noted that these issues and other concerns raised by the agency had been discussed in chambers prior to the hearing and continued the matter for the new petition to be filed.
The May 2023 Petition
On May 9, DAPO filed a second petition to revoke defendant's parole, again signed by Agent Cortes. According to this petition, on May 4, DAPO established probable cause for an additional violation of parole as detailed in an attached report. Defendant was subject to a special condition of parole which stated: "You shall inform all persons with whom you have a significant relationship; e.g., dating and/or roommate(s), about your criminal history, and you will inform your parole agent about the relationship." DAPO reported that on April 21, defendant's residential program director notified Cortes that defendant's girlfriend A.C. had picked up defendant's belongings. Several days later, defense counsel provided Cortes with the password for defendant's phone, which contained information indicating defendant was in a romantic relationship with A.C., including photographs and videos. Cortes and Agent Muniz contacted A.C., using the phone number in defendant's phone. A.C. confirmed her romantic relationship with defendant, reported that she has minor children, and noted that she had known defendant since the 1980's and reconnected with him after he was released on parole.
Like the violations alleged in the April 2023 petition, DAPO's evaluation of this additional violation included consideration of the PVDMI recommended response level, which was to continue defendant on parole with remedial sanctions. However, DAPO was "extremely concerned" that the relationship between defendant and A.R. had been concealed. Agent Muniz and a DAPO Unit Supervisor had both recognized A.R. from her photographs as an employee of the state prison system. Cortes subsequently determined that A.R. had worked at a prison during the same time defendant was incarcerated there. Moreover, A.R. had not reported her relationship with defendant, in contravention of department policy. A perceived "[o]ver- familiarity" between an institutional employee and parolee posed "a serious safety concern," DAPO reported.
On May 11, the court held a hearing on the second petition. Defendant waived arraignment, denied the alleged violation, and reserved the right to demur. The court again administratively revoked parole, and then granted a defense request to continue the matter until the next day so that the two petitions could be handled together. On May 12, the court scheduled a parole revocation hearing for June 5, 2023. On May 26, defendant filed a demurrer and motion to dismiss the petitions, which was set to be heard on shortened time at the June 5 hearing. Defendant argued the revocation petitions were deficient because DAPO failed to consider intermediate sanctions or provide reasons for seeking the most severe sanction of revocation.
On June 1, the People filed a motion to continue the revocation hearing on the ground that two "necessary and critical witnesses" were unavailable on June 5 and that both would be available after June 8. In a supporting declaration, the assistant district attorney stated that Agents Cortes and Muniz had "pre-scheduled time-off," but they both confirmed they were available after June 8, and that defense counsel had indicated she would not object to a short continuance provided that the June 5 date was preserved for a prehearing conference.
The June 5, 2023 Hearing
At the June 5 hearing, the superior court overruled defendant's demurrer, denied the People a continuance, and conducted an evidentiary hearing. The demurrer it denied because it found the report sufficiently showed DAPO had considered other options before deciding on revocation.
The decision to deny the continuance was more complicated. Defendant opposed any continuance. Citing section 3044, subdivision (a)(2) (section 3044(a)(2)), defendant argued the court was required to deny the continuance because defendant had a statutory right to an evidentiary hearing within 45 days after his arrest. He acknowledged stipulating to the June 5 hearing date, which was beyond the 45-day window, but opposed any further continuance. The People argued they had made efforts to subpoena Agent Cortes and her unavailability justified a brief continuance because she was the agent of record, and the other parole agent involved in the case, Agent Muniz, was also unavailable that day. The People argued further that a brief continuance would not prejudice defendant.
Section 3044, which codifies procedural rights of a parolee at proceedings before the Board of Parole Hearings or its successor in interest, states that a "parolee shall be entitled to an evidentiary revocation hearing no later than 45 days following his or her arrest for violation of parole." (§ 3044(a)(2).).
The trial court found that the subpoena for Cortes to appear was defective because the date of issuance had been left blank. The court also questioned whether Agent Cortes's testimony was necessary, as another DAPO agent, Agent Lugar, was present in court. Moreover, the court opined that defendant could be prejudiced, as his liberty interest was at stake. The prosecutor stated that he had been advised Agent Cortes would return from vacation the next day and could appear then. But the court responded that Cortes was unavailable "today" and the subpoena was deficient, so it began the evidentiary hearing.
The People called Agent Lugar, who testified he was DAPO's court representative and routinely appeared in court to answer questions regarding the agency's position in a given case. Lugar was familiar with defendant's case, had reviewed the petitions several times and discussed the matter with Cortes, who was defendant's agent of record. Cortes was on vacation and "not available currently," Lugar testified, although she was expected back at work the next day. Lugar identified the May 2023 petition filed against defendant, and testified he was one of two agents in the office responsible for filing such petitions. Lugar testified about information in the petition, including the conditions of defendant's parole. He explained that the condition requiring defendant to report significant relationships (condition 13) was a "very key tool" the agency used to monitor sex offenders and to make sure they were complying with all conditions of their parole.
When the prosecutor asked Lugar whether the parole violation report documented evidence that defendant violated condition 13, the defense lodged a hearsay objection, which the court sustained. The prosecution responded that parole reports are not excluded by the hearsay rule, citing section 1203.2. After an off-the-record discussion, the court observed that there is a due process confrontation right at a parole revocation hearing that "may not be as absolute" as the Sixth Amendment right to confrontation, and because defendant's hearsay objection implicated this confrontation right, the court was required to assess the reliability of proffered hearsay, its importance to the issues being tried, and the consequences to defendant of revocation. Throughout the remainder the hearing, the court and counsel discussed these issues.
The prosecutor made three primary arguments in support of admitting the parole reports and permitting Lugar to testify about the agency's investigation. First, the People invoked section 1203.2, which states that the superior court "shall" receive, "read," and "consider" the parole officer's report prior to ruling on a revocation petition. (§ 1203.2, subd. (b)(1).) Second, the prosecutor pointed out that the defense had relied on section 3044 to oppose a continuance, and that statute also provides for admission of hearsay evidence offered by parole agents: "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) (§ 3044(a)(5))), italics added.) Third, the prosecutor argued that admitting the reports would not violate due process because they were "extraordinarily reliable hearsay."
Defendant argued that the court was required to balance his statutory procedure rights and his due process confrontation right against the quality and necessity of the hearsay. He argued that admitting hearsay testimony of an agent with no personal knowledge of the events would eviscerate his rights, and that the reports themselves were not reliable. Defendant argued further that section 1203.2 was unconstitutional to the extent it permitted a parole violation to be established solely on the basis of a report because he was entitled to "an actual hearing where he gets to confront and crossexamine witnesses." In response to this last point, the prosecutor reiterated that Cortes would be available the next day if the defendant wished to crossexamine her.
After hearing the parties' respective arguments, the trial court heard Lugar's testimony that both revocation reports were prepared in the regular course of DAPO business at or near the time of the events recorded therein. The court admitted both reports into evidence, but reserved ruling on defendant's objection that portions of them constituted inadmissible hearsay. Under cross-examination, Lugar testified he had no personal knowledge regarding the incidents or investigations that were documented in the reports. Under redirect, Lugar testified that Cortes was trustworthy and her reports were reliable. After Lugar completed his testimony, the People renewed their request for a continuance. The court denied the request, citing the defective subpoena, leaving the People to rest their case as they had no additional evidence to offer that day. The defense did not call any witness or offer evidence regarding the alleged violations.
After the close of evidence, the trial court made a tentative ruling before inviting argument. As a preliminary matter, the court found that section 3044(a)(5) required the court to consider Agent Lugar's hearsay testimony. The court then found that the agency reports contained sufficient evidence to establish that defendant violated parole by refusing to provide his phone password to DAPO and by failing to report his romantic relationship with A.R. The court found insufficient evidence to establish a violation of the condition requiring defendant to stay 300 feet away from areas where children congregate, including schools, because the reported incident occurred on a Saturday and there was no evidence children were nearby.
Opposing the tentative, defense counsel argued that section 3044(a)(5) only allows hearsay testimony from the parole officer who prepared the parole violation report and, without Cortes's testimony, the parole reports were unreliable hearsay. Counsel also argued that in weighing the respective interests of the parties, the court had to rule in favor of defendant's right to confrontation because the prosecution was seeking to remand defendant to prison "on a life sentence." When questioned by the court, defense counsel conceded that Cortes could testify about hearsay in her own report but opposed a recess so that Cortes could be cross-examined the next day.
Turning to the substantive charges, the defense argued that even if conduct alleged in the petition was true, the alleged violations were too insignificant to justify revocation, and that the agency failed its duty to consider less severe remedial measures. Defense counsel argued forcefully that defendant had rehabilitated himself and was a good person, and urged the court to find, in the interests of justice, that defendant had not violated the conditions of his parole.
After the matter was submitted, the court adopted its tentative ruling, concluding that defendant violated two parole conditions. The court also found that because the defendant had violated parole, the court had no choice but to remand him to CDCR. (Citing §§ 3000.1, 3000.08.)
DISCUSSION
Defendant seeks reversal of the order revoking his parole on three independent grounds, contending the trial court (1) erred by overruling defendant's demurrer; (2) failed to afford procedural due process during the revocation proceeding; and (3) abused its discretion by revoking defendant's parole for minor violations.
I. The Demurrer
" '" '[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.'" '" (People v. Perlas (2020) 47 Cal.App.5th 826, 832 (Perlas).) We review de novo an order overruling a demurrer. (Ibid.) "We exercise our independent judgment as to whether, as a matter of law, the petition alleged sufficient facts to justify revocation of [a] defendant's parole." (People v. Osorio (2015) 235 Cal.App.4th 1408, 1412 (Osorio), disapproved on other ground in People v. DeLeon (2017) 3 Cal.5th 640, 646 (DeLeon).)
"[S]ections 1203.2 and 3000.08 establish the statutory framework for parole revocation proceedings." (Department of Corrections &Rehabilitation v. Superior Court (2023) 94 Cal.App.5th 1025, 1036 (Escobedo).) Pertinent here, the parole agency has a statutory duty to file a revocation petition if it concludes that intermediate sanctions are not appropriate under the circumstances. (Ibid.; § 3000.08, subd. (f) (§ 3000.08(f).) This duty is codified in section 3000.08(f): "If the supervising parole agency has determined, following application of its assessment processes, that intermediate sanctions up to and including flash incarceration are not appropriate, the supervising parole agency shall, pursuant to Section 1203.2, petition . . . the court . . . to revoke parole."
By the same token, however, section 3000.08(f) "authorizes the supervising parole agency to petition to revoke parole only after the agency has determined that intermediate sanctions are not appropriate." (People v. Zamudio (2017) 12 Cal.App.5th 8, 13.) Relatedly, an agency-filed petition must be accompanied by a written report containing relevant information about the parolee, including an explanation as to why intermediate sanctions without court intervention are inappropriate. (Id. at p. 14; Escobedo, supra, 94 Cal.App.5th at p. 1036.) Minimum requirements for this report are set forth in rule 4.541 of the California Rules of Court (rule 4.541), which 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. . . are inappropriate responses to the alleged violations." (Rule 4.541(e).)
In the present case, the parole reports accompanying the revocation petitions minimally satisfied the requirements of section 3000.08(f) and rule 4.541(e). They summarized defendant's criminal history, including his serious sexual assault convictions that were particularly relevant to the parole conditions he was alleged to have violated. They reported that the PVDMI recommendation was to continue parole with remedial sanctions. However, the reports also stated that DAPO considered and rejected intermediate sanctions, briefly providing reasons for this election. Importantly, "[t]here is no requirement in rule 4.541 that the supervising agency list and reject any specific intermediate sanction in a petition seeking revocation." (Perlas, supra, 47 Cal.App.5th at p. 835.)
Defendant argues the parole agent's "generic" statement that intermediate sanctions were considered did not justify DAPO's decision to seek revocation. We disagree that DAPO's explanation was generic. The report explained that defendant's prior sex offenses were for rape and assault of minors, and that these crimes as well as defendant's current murder conviction meant that violating conditions requiring him to stay away from schools, to provide access to electronic devices, and to report significant relationships posed real and "significant" concern about "the safety of the community." This concern was exacerbated because the incidents occurred even as defendant received extensive services and support from DAPO agents, the agency noted.
For similar reasons, we reject defendant's contention that as a matter of law the alleged parole violations were technical and not sufficiently serious to justify overriding the PVDMI recommendation to continue defendant on parole with remedial sanctions. The petition allegations themselves do not compel us to accept defendant's view of these matters. We think the present case is materially different from Osorio, supra, 235 Cal.App.4th 1408, which involved a defendant whose parole was revoked for the single offense of stopping his bike to talk briefly to two men he knew were gang members. (Id. at p. 1410.) The Osorio court found that the defendant's demurrer to the revocation petition should have been sustained given the relatively minor nature of the parole violation "as described by the parole agent," and the apparent lack of any explanation for seeking the sanction of revocation. (Id. at p. 1415.) Here, the petitions contained factual allegations about defendant, his history, and his current violations which, if proven true, could be accepted as reasonable justification for the agency's decision to seek revocation instead of imposing intermediate sanctions. Perhaps the trial court, after a full revocation hearing, would reach a different conclusion, but it is enough for present purposes that we conclude defendant has failed to show error in the overruling of his demurrer.
II. Due Process
Defendant argues his due process rights were violated during the revocation proceeding conducted in this case because (1) he was not afforded a preliminary hearing, and (2) he was denied the right to confront and crossexamine Agent Cortes.
A. Overview of Legal Principles
"It is well established that neither parole nor probation revocations are part of a criminal prosecution, and thus 'the full panoply of rights due a defendant in [a criminal] proceeding does not apply.'" (People v. Gray (2023) 15 Cal.5th 152, 163 (Gray), quoting Morrissey, supra, 408 U.S. at p. 480.) It is equally well settled that the liberty interest of a parolee falls within the protection of the due process clause of the Fourteenth Amendment, and that the "termination" of such liberty "calls for some orderly process, however informal." (Morrissey, at p. 482.)
In Morrissey, supra, 408 U.S. 470, the high court held that due process affords parolees the right to two hearings during a revocation proceeding. At the initial hearing, "conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available," the court must conduct "some minimal inquiry" to establish that probable cause exists to believe a parole violation occurred. (Id. at pp. 485-487.) At the second hearing, the parolee receives written notice of the claimed violations; is appraised of evidence against him or her; has the opportunity to present evidence; and may confront and examine adverse witnesses absent a specific finding by the neutral factfinder that there is good cause for not allowing confrontation. (Id. at pp. 487-489.)
B. The Initial Hearing Requirement
Defendant contends he was not afforded a preliminary hearing to establish probable cause for either revocation petition. The People disagree, contending that the prerevocation hearings conducted in this case afforded the minimal due process protections required by Morrissey, and in any event there was no prejudice.
" '[I]n all instances of alleged parole violations within this state a parolee who has not waived his right is entitled to a prerevocation hearing as mandated by Morrissey' [citation], if the parolee is in custody for the parole violation." (DeLeon, supra, 3 Cal.5th at p. 654.)" 'Such an inquiry should be seen as in the nature of a "preliminary hearing" 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.'" (Ibid.) The procedure is informal, but the determination must be made by "someone uninvolved in the case." (Ibid.) Due process requires notice to the parolee, and a chance to appear and speak on his or her own behalf, and the parolee" 'may bring letters, documents, or individuals who can give relevant information to the hearing officer.'" (Ibid.) "At the parolee's request, witnesses to the parole violation must generally be available for questioning." (Ibid.) Formal findings are not required, but the hearing officer must prepare a summary of what occurred and state reasons for its probable cause determination. (Ibid.)
Here, the record reflects that the superior court held multiple prerevocation hearings, before multiple judges, but it does not appear that any of those hearings constituted a Morrissey-compliant probable cause hearing. We note, for example, that the court held a hearing on defendant's motion for release from custody and dismissal of the petitions on April 28, but that motion was not decided on the merits. (Compare with People v. Byron (2016) 246 Cal.App.4th 1009, 1017 [hearing on defendant's motion to dismiss revocation petition "tantamount" to a probable cause hearing].)
The People contend that the April 20 hearing was the functional equivalent of a preliminary hearing for the first revocation petition. The record contains only a minute order from that proceeding, which does not reflect that it was noticed as a probable cause hearing or that the court made a determination as to whether there was probable cause for the alleged violations. The People also refer us to the May 11 hearing, held two days after the second petition was filed. Neither the minute order nor the transcript of that hearing contain any determination as to whether there was probable cause for the supplemental petition. The People posit that the trial court implicitly found probable cause to believe that defendant committed the alleged parole violations by administratively revoking defendant's parole on April 20 and May 11. They overlook that due process requires the decisionmaker to prepare a summary of what occurred 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 a statement of reasons for a probable cause determination. (Morrissey, supra, 408 U.S. at p. 487; see DeLeon, supra, 3 Cal.5th at p. 654.) Here, we find no evidence these requirements were satisfied.
A violation of the procedural due process right to a prerevocation hearing to establish probable cause" 'does not necessarily mean'" the defendant" 'is automatically entitled to relief therefrom.'" (DeLeon, supra, 3 Cal.5th at p. 659.) Instead, the parolee must show the violation prejudiced him at the final revocation hearing. (In re La Croix (1974) 12 Cal.3d 146, 154 (La Croix); In re Winn (1975) 13 Cal.3d 694, 698.) "The test of prejudice is whether the denial of the constitutionally mandated hearing was harmless beyond a reasonable doubt." (DeLeon, at p. 659-660; La Croix, at p. 154.)
The People argue the extensive prerevocation proceedings, even if they did not fully comply with Morrissey's requirement for an initial hearing, afforded sufficient opportunity for defendant to speak on his own behalf, and aided by counsel to present evidence and witnesses. Indeed, he did present letters, documents and declarations in support of his request to be released. However, defendant contends the failure to conduct a hearing for the express purpose of establishing probable cause deprived him of the chance to question Agent Cortes prior to the evidentiary hearing.
As a general rule, witnesses to a parole violation must be available for questioning at the informal hearing where probable cause is established if their presence is requested by the defendant. (DeLeon, supra, 3 Cal.5th at p. 654.) It appears here that the defendant never made a request to examine witnesses at a prerevocation hearing, but then he was never provided notice that a prerevocation hearing to determine probable cause was set to occur. If the probable cause inquiry had been undertaken (as it should have been), defendant would have had the right to question Cortes. We cannot say the error was harmless beyond a reasonable doubt in a circumstance where Cortes was not available for cross-examination at the initial hearing or the revocation hearing itself.
C. Agent Cortes's Absence from Revocation Hearing
Although the Sixth Amendment provides no right to confront witnesses at a revocation hearing, due process protects the parolee's "right to confront and cross-examine adverse witnesses absent a showing of good cause." (Gray, supra, 15 Cal.5th at p. 164.) In Gray, our Supreme Court held that testimonial hearsay is not categorically admissible at a revocation hearing and does not automatically satisfy Morrissey's due process right to confrontation simply by virtue of the fact that it falls within the spontaneous statement exception to the hearsay rule. (Gray, at pp. 167-172.) In reaching this conclusion, the Court synthesized the standards for evaluating whether to admit hearsay evidence at a revocation hearing when the defendant has raised a due process objection.
Gray involved a probation revocation, but because the same rules apply to probation and parole revocation hearings, the Court "refer[red] to both types of revocation hearings." (Gray, supra, 15 Cal.5th at p. 163, fn. 2.).
Gray affirms prior authority recognizing different rules for documentary and testimonial hearsay." '[D]ocumentary hearsay evidence which does not fall within an exception to the hearsay rule may be admitted if there are sufficient indicia of reliability regarding the proffered material,' even if the trial court makes no finding of good cause to deny the right to confront and cross-examine witnesses." (Gray, supra, 15 Cal.5th at p. 165; see People v. Maki (1985) 39 Cal.3d 707.) Other types of hearsay, which have the statements of live witnesses as their source, require the court to engage in a "case-specific balancing process" to determine whether a showing of good cause has been made and to consider other circumstances relevant to the admission of the statements at issue. (Gray, at p. 166; see People v. Arreola (1994) 7 Cal.4th 1144.)
The good cause prong of the determination whether to dispense with live testimony is a" 'broad'" standard, which can be met when the declarant is unavailable under the traditional hearsay rule, when the declarant is not legally unavailable but can only be brought to the hearing" 'through great difficulty or expense,'" or when the declarant's presence would pose a risk of physical or emotional harm. (Gray, supra, 15 Cal.5th at p. 166.) Other casespecific circumstances that must be considered include the purpose of admitting the evidence and whether it is corroborated by other admissible evidence. (Ibid.)
In the present case, the trial court erred in its analysis of the hearsay evidence. To begin with, the court and both parties operated under the false assumption that section 3044 applies in revocation proceedings. It does not. (DeLeon, supra, 3 Cal.5th at p. 649.) Both sides acknowledge this fact on appeal but fail to accept their role in misleading the trial court to believe otherwise.
Contrary to one of defendant's core arguments at the June 5 hearing, there are no statutory time limits on when a revocation hearing must be held, and section 3044(a)(2) did not require the court to deny the motion for a continuance as that statute did not apply to the proceedings. Due process requires that the revocation hearing be held within a reasonable time after the parolee is taken into custody. (Morrissey, supra, 408 U.S. at p. 488; La Croix, supra, 12 Cal.3d at pp. 156-157; People v. Johnson (2013) 218 Cal.App.4th 938, 943 (Johnson).) This reasonableness standard "requires a balancing of all relevant circumstances." (La Croix, at p. 156.) In this case, the trial court's mistaken belief that section 3044(a)(2) imposed a statutory deadline precluded the court from balancing all the relevant circumstances to determine whether a one-day continuance would have been reasonable to secure Agent Cortes's testimony and, with it, to protect defendant's right to confront the primary witness against him. Instead, the court treated the continuance as a separate issue and the defect in the subpoena as dispositive in light of a perceived statutory deadline that did not apply.
Defense counsel was candid about her strategy to secure defendant's release from custody that day; the defense opposed any continuance as a violation of section 3044(a)(2) and objected that Lugar's testimony about material issues would be inadmissible hearsay due to Cortes's absence. (But see Johnson, supra, 218 Cal.App.4th at pp. 942-943 ["trial court may not dismiss a case due to failure to meet the good cause requirements for a continuance" under section 1050].).
For their part, the People invoked section 3044(a)(5) as a basis for admitting Agent Lugar's hearsay testimony. The court's erroneous conclusion that this statute required it to admit wholesale the parole agent's hearsay testimony, including much of the contents of reports that he did not prepare, once again set the court on a wrong track. Although the court appears to have acknowledged the need to conduct a case-specific balancing of interests, it did not ultimately conduct that inquiry. Thus, it did not fulfill its obligation to determine whether defendant's right to confrontation, an important due process safeguard at a revocation hearing, was required to give way to a showing of good cause in light of the relevant factors. (Gray, supra, 15 Cal.5th at p. 171.)
Adding further confusion, the court appears to have accepted the parties' all-or-nothing approach for resolving the complicated hearsay issues that arose because Cortes and Muniz were on vacation. It is not clear whether the court admitted the reports based solely on section 3044 and Lugar's testimony, or if it also relied on section 1203.2. Either way, the court did not undertake the due process analysis required by Morrissey and Gray. Aspects of the parole reports that fit the definition of documentary hearsay could properly be evaluated under a reliability test, without requiring any showing of good cause. (Gray, supra, 15 Cal.5th at pp. 165-166; see e.g., People v. Gomez (2010) 181 Cal.App.4th 1028.) For statements in the report that were testimonial in nature, the court needed to determine whether good cause for dispensing with confrontation was established and whether, on balance and in light of other relevant factors, it justified admitting the evidence without an opportunity to cross-examine the source of that information. (Gray, at pp. 166-167.) Moreover, as defendant points out on appeal, some statements in the reports involved multiple levels of hearsay, such as the statement that defendant's program director told Cortes that defendant's girlfriend had picked up his belongings. It appears the trial court did not address multiple hearsay issues separately because, once again, it was persuaded by the parties to apply section 3044.
On appeal, the parties disagree about whether there was good cause to admit the parole reports. We stop short of that question, as the superior court failed to conduct that inquiry in the first instance. It is enough for present purposes to acknowledge that Agent Cortes's hearsay statements in the reports were admitted wholesale, without case-specific findings of good cause to justify depriving defendant of a right to cross-examine her. We cannot say that this error was harmless beyond a reasonable doubt. Accordingly, we will reverse the revocation order and remand for further proceedings. (Gray, supra, 15 Cal.5th at p. 174; see e.g. People v. Liggins (2020) 53 Cal.App.5th 55, 70.)
Defendant posits that this court should dismiss the revocation petitions and reinstate him on parole because all evidence and testimony admitted against him at the June 5 hearing was inadmissible. However, a proper resolution of those issues has yet to be made, and defendant cites no authority for dismissing the petitions at this juncture. If, as he contends, too much time has passed to provide him with a timely resolution that satisfies due process, the trial court can make that determination on remand. (See In re Miller (2006) 145 Cal.App.4th 1228, 1242 [remanding for the parole board promptly to hold a new hearing or to release the petitioner].)
In his reply brief, defendant argues for the first time that a "retrial on the revocation charges would violate the double jeopardy clause" of the state and federal constitutions. Because not raised until the Reply, this issue is forfeited, but it lacks merit in any event. A revocation proceeding does not implicate the double jeopardy ban because, contrary to defendant's argument, a revocation hearing is not a criminal trial on a new charge and does not authorize criminal punishment. (In re Marco A. (1996) 50 Cal.App.4th 1516, 1522; Lucido v. Superior Court (1990) 51 Cal.3d 335, 343, fn. 5; 348; In re Coughlin (1976) 16 Cal.3d 52, 60-61.).
III. Revocation of Probation
Finally, defendant contends the trial court made an independent error by concluding that the finding defendant violated parole mandated revocation and remand to the custody of CDCR.
Generally, upon finding that a parolee has violated the conditions of parole, the trial court has discretion under section 3000.08(f) to modify or revoke parole or to refer the person to a re-entry court or other evidencebased program. (Escobedo, supra, 94 Cal.App.5th at pp. 1036-1037.) However, a different rule applies to so-called lifetime parolees, who are subject to supervision under section 3000.1. When the trial court finds a lifetime parolee has violated parole, section 3000.08(h) mandates that the court revoke parole and remand the parolee to the custody of CDCR. (Escobedo, at p. 1037; People v. Williams (2021) 71 Cal.App.5th 1029, 1040; Perlas, supra, 47 Cal.App.5th at p. 836.)
Defendant acknowledges that he was serving a maximum sentence of life in prison for murder when he was granted parole. But he argues that he is not a lifetime parolee because he was released after July 1, 2020, and was therefore subject to parole for a maximum term of three years, as provided in section 3000.01, subdivisions (a) and (b)(2). (See People v. Reed (2024) 103 Cal.App.5th 43.) This issue was not raised below, where all appeared to agree that defendant was a lifetime parolee. However, at oral argument before this court, the People acknowledged the Reed decision and its applicability here. On remand, Reed will be binding, so if the trial court finds that parole violations occurred, it will have the option to modify or revoke defendant's parole pursuant to its authority as set forth in section 3000.08, subdivisions (f) and (g). (Reed, at p. 54.) Under those provisions, the maximum term of confinement for a parole violation is 180 days in jail. (§ 3000.08, subds. (f), (g).) Absent intervening events not apparent on this record, defendant should no longer be in custody as he has served the maximum possible term of confinement for the parole violations alleged in this case.
DISPOSITION
The order revoking defendant's parole is reversed and the matter is remanded for the trial court promptly to either hold a new revocation proceeding consistent with this decision or order defendant's immediate reinstatement on parole. The court is directed to hold an initial hearing forthwith to address defendant's custody status and other issues pertaining to the efficacy of the pending petition.
WE CONCUR: PETROU, J., RODRÍGUEZ, J.