People v. West CA2/5 ( 2021 )

Filed 11/30/21 P. v. West CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B307078
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 0PH01927)
v.
ANTHONY E. WEST,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert M. Kawahara, Commissioner. Reversed
and remanded.
Heather E. Shallenberger, under appointment by Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Blythe J. Leszkay and Peggy Z. Huang,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Anthony West appeals from the
order following his contested parole revocation hearing. He
argues the trial court erred when it overruled his demurrer to the
petition for revocation because it did not, as required by law,
provide an adequate discussion of why intermediate sanctions
short of parole revocation would not be appropriate. We agree
and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On August 2, 1995, defendant was convicted of first-degree
murder and sentenced to a life term without the possibility of
parole. On October 3, 2018, defendant was released on a life-
term parole.1 Under his conditions of parole, defendant was
prohibited from engaging in unlawful conduct, including having
an alcoholic beverage in his car. Defendant’s parole conditions
also warned him that any parole violations would “subject him to
arrest and/or incarceration in a county jail or returned to state
prison.”
On March 6, 2020, while riding in his car with his sister
and adult niece, Adrianna Penn, defendant noticed Penn had
brought an alcoholic beverage into his car. Defendant told Penn
that his parole prohibited him from having alcohol in his car,
stopped at a nearby restaurant, and gave Penn and his sister 20
minutes to dispose of the alcohol. Later, defendant smelled
alcohol again and noticed Penn still had the drink. While
stopped at a parking lot, defendant pleaded with Penn to remove
the alcohol from his car, then placed his hands behind her ears
just below the angle of her jaw, and moved his hands and body in
a pulling, tugging motion. During this motion, defendant
1 The record does not explain how or why the California
Department of Corrections and Rehabilitation released defendant
on parole.
2
grabbed Penn’s braids for approximately 10 seconds until his
sister told him to stop. Penn screamed, began crying, and
exclaimed that defendant had pulled her hair out. Penn then
exited the car. Defendant had indeed removed a braid from
Penn’s head.
On March 17, 2020, the Division of Adult Parole Operations
(Parole Operations Division), which is part of the Department of
Corrections and Rehabilitation, filed a petition for revocation.
The petition alleged that defendant had violated his parole
conditions by committing battery.2
We describe first the process that led to the filing of a
petition to revoke defendant’s parole. When a parole violation
occurs, the Parole Operations Division “may impose additional and
appropriate conditions of supervision, including rehabilitation and
treatment services and appropriate incentives for compliance, and
impose immediate, structured, and intermediate sanctions.” (Pen.
Code, § 3000.08 subd. (d); People v. Osorio (2015) 235 Cal.App.4th
1408, 1413 (Osorio) disapproved on another ground in People v.
DeLeon (2017) 3 Cal.5th 640.) If the Parole Operations Division
determines, “following application of its assessment processes, that
intermediate sanctions . . . are not appropriate, the [Parole
Operations Division] shall . . . petition . . . to revoke parole.’ ”
(People v. Perlas (2020) 47 Cal.App.5th 826, 832-833 (Perlas).) The
parole revocation petition “must include a written report detailing
the terms and conditions of parole and how they were violated, the
parolee’s background, and the parole agency’s recommendation to
2 The petition was subsequently amended to allege defendant
attempted to dissuade a witness after his physical altercation
with Penn by offering his sister $300 to not press charges. The
court ultimately found the evidence was insufficient to sustain
that allegation.
3
the court.” (Perlas, at p. 833; § 3000.08 subd. (f); Williams v.
Superior Court (2014) 230 Cal.App.4th 636, 652.) California Rules
of Court, rule 4.541 requires the supervising agency to include in
the report “the reasons for that agency’s determination that
intermediate sanctions without court intervention . . . are
inappropriate responses to the alleged [parole] violations.” (Cal.
Rules of Court, rule 4.541(e); Perlas, at p. 833.) The specific
reasons need “to be ‘individualized to the particular parolee, as
opposed to a generic statement.’ ” (Perlas, p. 833; Williams, at
p. 655.)
A parole agent enters all violations into the parole violation
decision making instrument (PVDMI), which “ ‘assesses the
parolee’s risk level using the [California Static Risk Assessment
(CRSA)] and the severity of the violation . . . to determine the
appropriate response level.’ ” (Osorio, supra, 235 Cal.App.4th at
p. 1414.) Parole agents “may recommend overriding the [PVDMI]
based on stabilizing or destabilizing factors, including the lack of
an appropriate program alternative in the community.” (Ibid.)
According to the evaluation attached to the revocation
petition, defendant’s CRSA score was “LOW.” The PVDMI-
recommended response level was “LEAST TO MOST
INTENSIVE: CONTINUE ON PAROLE WITH REMEDIAL
SANCTIONS.” The parole agent and her supervisor did not
follow the recommendation. Their recommended response was
“PETITION FOR REVOCATION DUE TO PAROLEE’S
FAILURE TO COMPLY WITH HIS OR HER CONDITIONS OF
PAROLE OR INVOLVEMENT IN CRIMINAL BEHAVIOR,” and
“RETURN TO CUSTODY FOR 0 DAYS.”
The parole agent’s evaluation stated: “Intermediate
sanctions have been considered. However, they have been
deemed not appropriate at this time. Remedial sanctions were
4
considered, such as placement at the Fred Brown Residential
Drug Treatment Facility. However, [remedial sanctions were
also] deemed inappropriate due to West’s supervision level as a
Life Parole participant, previous convictions supported by his
criminal history record and serious nature of the current charge,
Battery.” The evaluation also described defendant’s positive
progress while on parole preceding the incident.3 But the
evaluation then explained: “It appears West’s involvement in the
current matter suggests the prior prison period (twenty-five
years) has been unsuccessful in deterring ongoing criminal
conduct. As documented above, West’s involvement in the
current matter is serious in nature, in that the victim could have
been seriously injured or worse, if not for the involvement of a
third party. Based on the above, it appears West has once again
elected to involve himself in unlawful activities, therefore,
subjecting the community to serious public safety concerns.
Subsequently, a recommendation for referral to the Los Angeles
County Superior Central Arraignment Court per [Penal Code
section 3000.08] is submitted.”
On April 6, 2020, defendant demurred to the petition,
arguing that the petition was insufficient on its face as it did not
set forth sufficient reasons to override the PVDMI
recommendation of remedial sanctions per the California Rules of
Court, rule 4.541.
3 The evaluation stated defendant had addressed “his mental
health requirements and housing needs by participating in the
Telecare Program,” completed the required one-year transitional
housing program, and “continues to participate in the Peer
Reentry Navigation Network Meetings.”
5
Following a hearing on April 9, 2020, the court overruled
the demurrer.4
On August 5, 2020, the trial court found true by a
preponderance of the evidence the allegation that defendant
committed battery, but expressed it did not believe defendant
should be returned to state prison. The court revoked parole and
remanded defendant to the custody of the California Department
of Corrections and Rehabilitation.5
On August 10, 2020, defendant filed a timely notice of
appeal from the order of revocation.
DISCUSSION
1. The Standard of Review
On appeal, defendant argues the court erred in overruling
his demurrer to the petition for revocation because it failed to
demonstrate the Parole Operations Division had adequately
considered intermediate sanctions before petitioning to revoke his
probation, as required by Penal Code section 3000.08.
4 There is no Reporter’s Transcript and no court reporter
present. Defendant made no effort to obtain a settled statement
on appeal. (Cal. Rules of Court, rule 8.346(a).)
5 Defendant did not ask the court to impose a lesser sanction
than the return of defendant to California Department of
Corrections and Rehabilitation custody, nor did the court have
that power. Defendant was a life-term parolee. By statute, if the
court finds a person who has been sentenced to a life-term for
first-degree murder 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.” (Pen.
Code, §§ 3000.08 subd. (h); 3000.1.) A lesser, court-ordered
sanction is not authorized.
6
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. Manfredi (2008)
169 Cal.App.4th 622, 635.) On appeal, we review the order
overruling a defendant’s demurrer de novo. (Osorio, supra,
235 Cal.App.4th at p. 1412.) “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.” (Id.
at p. 1412; Perlas, supra, 47 Cal.App.5th at p. 832.) Here the
pleaded facts in question are not those involving the underlying
battery but the adequacy of the Parole Operations Division’s
report and recommendation.6
2. The Parole Operations Division’s Discussion of Why
Intermediate Sanctions Would Not Suffice Is
Inadequate
“Once a parole violation occurs, the supervising parole
agency—here, the Department—may do one of two things. The
Department may impose additional conditions of supervision and
‘intermediate sanctions.’ (Pen. Code, § 3000.08, subd. (d).)
However, if the Department ‘has determined, following
application of its assessment processes, that intermediate
sanctions . . . are not appropriate, the supervising parole agency
shall . . . petition . . . the court in the county in which the parolee
is being supervised . . . to revoke parole.’ (Id., § 3000.08, subd.
(f).) The petition must include a written report detailing the
terms and conditions of parole and how they were violated, the
parolee’s background, and the Department's recommendation to
the court. (Ibid.) The court may then return the parolee to
6 Defendant does not argue that there was insufficient
evidence that he violated his parole as the underlying battery
was essentially uncontested.
7
parole supervision, revoke parole, or refer the parolee to a reentry
court. (Ibid.)
“California Rules of Court, rule 4.541 describes the
minimum requirements for the written report included with a
petition to revoke probation. (Cal. Rules of Court, rule 4.541(c).)
The rule also requires the Department to include in the report
‘the reasons for that agency’s determination that intermediate
sanctions without court intervention . . . are inappropriate
responses to the alleged [parole] violations.’ (Id., rule 4.541(e).)”
(Osorio, supra, 235 Cal.App.4th at pp. 1412-1413.)
The discussion of why intermediate sanctions were deemed
inappropriate that accompanied the revocation petition in this
case was inadequate. The parole agent’s evaluation did a
serviceable job of summarizing defendant’s history and
background, including his prior compliance with the terms of his
parole. But on the key question of why something short of parole
revocation and return to custody was not appropriate, the
evaluation at bottom relied on two things: the nature of
defendant’s offense that resulted in his life-term commitment
(before commutation) and the more recent battery that defendant
committed.
This focus on the two offenses—particularly when used to
overrule the PVDMI assessment that instead accounts for a
multiplicity of factors—can render a revocation decision
vulnerable to the charge that the Parole Operations Division did
not provide what the law requires: an explanation of its decision
that reflects individualized consideration of a particular
defendant. (People v. Williams (Nov. 23, 2021, A159914)
___ Cal.App.5th ___ [2021 WL 5460724] [“The explanation of why
intermediate sanctions are inappropriate must ‘be “individualized
to the particular parolee, as opposed to a generic statement” ’ ”]
8
(Williams); cf. Perlas, supra, 47 Cal.App.5th at p. 834 [holding a
parole violation report’s discussion of intermediate sanctions
adequate when the recommendation to revoke parole was
consistent with, not contrary to, PVDMI analysis].)
The Parole Operations Division’s discussion of intermediate
sanctions as to defendant here is not only vulnerable to this
charge but inadequate because of it. The evaluation
accompanying the revocation petition includes no discussion of
the undisputed factor – rarely seen in parole proceedings – that
defendant was intent on complying with the conditions of his
parole and became embroiled in a physical confrontation only
after his pleas to have others respect the conditions of his parole
went ignored. Indeed, not only does the evaluation make no
mention of this, it includes at least one statement that appears
inconsistent with defendant’s undisputed motive to comply with
his parole conditions (the evaluation’s statement that “[i]t
appears [defendant’s] involvement in the current matter suggests
the prior prison period (twenty-five years) has been unsuccessful
in deterring ongoing criminal conduct.”) Particularly when
viewed in light of the PVDMI analysis that recommended a lesser
sanction, the explanation here for why intermediate sanctions
would not be appropriate was insufficiently individualized and
the demurrer should have been sustained on that basis.
(Williams, supra, ___ Cal.App.5th ___ [2021 WL 5460724]; see
also § 3000.08, subd. (f) [written report accompanying revocation
petitions must discuss, among other things, “the circumstances of
the alleged underlying violation”]; Cal. Rules of Court, rule
4.541(c)(2) [written report must describe “the circumstances of
9
the alleged violations, including a summary of any statement
made by the supervised person . . . .”].)7
We shall remand, however, to give the trial court the
opportunity to decide whether the Parole Operations Division
should be granted leave to amend so as to cure the deficiencies in
its discussion of intermediate sanctions—assuming, of course, the
division determines to pursue revocation of parole for an incident
that developed out of defendant’s apparent desire to avoid
violating the conditions of his parole. (See Perlas, supra,
47 Cal.App.5th at p. 835.)
DISPOSITION
The order revoking parole and remanding defendant to the
custody of the Department of Corrections and Rehabilitation is
reversed. The cause is remanded for further proceedings
consistent with this opinion.
RUBIN, P. J.
WE CONCUR:
BAKER, J. KIM, J.
7 Defendant argues that his conduct was “inappropriate,”
that he did not intend to remove the braid, and “the situation
leading to the battery is unlikely to reoccur.” To the extent
defendant is claiming that he should be excused for a “minor”
battery and parole ought not be revoked, that issue is not before
us.
10