People v. Carpenter CA1/2 ( 2014 )

Filed 9/25/14 P. v. Carpenter CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A141175
v.
RICHARD AMOS CARPENTER, (Humboldt County
Super. Ct. No. CR1400625)
Defendant and Appellant.
Defendant Richard Carpenter was required by the conditions of his parole to wear
a Global Positioning System (GPS) device and charge it twice a day for one hour each
time. The trial court found him in violation of his parole after he traveled away from
home without his charger, allowed the battery to die, and failed to contact his parole
officer. Defendant contends the trial court’s finding must be reversed because the
evidence did not demonstrate a willful violation. We disagree, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2010, defendant was released from state prison on parole, at which time he
signed a form identifying “special conditions of parole” with which he was required to
comply. The form itself set forth one such condition: “You are ordered to participate in
Global Positioning System (GPS) as directed by a parole agent. You are ordered to
comply with all zone and curfew restrictions, equipment charging requirement, and
equipment care instructions with GPS participation in accordance with the instructions of
a parole agent. You may be charged criminally with theft or vandalism and fined for the
cost of the equipment’s replacement in the event that it is not returned, lost, stolen and/or
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damaged.” An addendum listed many other conditions of defendant’s parole, including
condition number 75—expressly initialed by defendant—which provided, “You shall
charge the GPS device at least two times per day (every 12 hours) for at least 1 full hour
for each charging time.”
On February 7, 2014, the California Department of Corrections and Rehabilitation,
Division of Adult Parole Operations, filed a Penal Code section 3000.08 petition for
parole revocation, alleging that defendant violated a condition of his parole by disabling
his GPS. The attached parole violation report alleged a violation of Penal Code 3010.10,
subdivision (a), which provides that a person required to register as a sex offender
pursuant to Penal Code section 290 shall not remove or disable, or permit another to
remove or disable, a GPS.
A contested parole revocation hearing was held on February 24. The sole witness
was Parole Officer Daniel Munoz, who testified as follows:
A GPS is a device a parolee wears strapped around his or her ankle that provides a
“minute-by-minute, 24-hour tracking of where the parolee is.” It allows the parole
officer to determine a parolee’s whereabouts “during the day, during the night, where
he’s sleeping.”
The GPS device is battery operated, requiring twice daily charging for at least one
hour each time, with a full charge lasting 12 to 16 hours. The charger is a small device—
“two inches, two and a half inches, maybe about three inches wide and about [an] inch
and a half deep”—with a six foot cord that “clips on” the device. The parolee is provided
a charger that he or she is to use. When a battery is running low, the device will vibrate
to alert the parolee the device requires charging. Munoz will also receive a text from the
“Satellite Tracking of People” program (STOP) advising that a parolee’s battery charge is
low. This gives him an opportunity to contact the parolee and advise that the device
needs to be charged. If a battery dies, Munoz receives a telephone call and text from
STOP advising that the parolee’s battery is dead.
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The GPS device can be disabled by cutting off the strap or letting the battery run
out. If either of those situations occurs, the parole department can only determine where
the parolee’s last track was.
When Munoz took over supervision of defendant, defendant had already been
wearing a GPS device per the terms of his parole. Munoz discussed with defendant the
need to keep his device charged.
In January 2014, Munoz received a notice that the battery on defendant’s GPS had
died, and Munoz again discussed with defendant the importance of keeping the device
charged.
On the early morning of February 1, 2104, Munoz received another notification
that defendant’s device was not charged. Unable to contact defendant, Munoz reviewed
defendant’s tracking record and saw that his last track was on Highway 299. He believed
defendant was heading home, so he contacted the Hoopa Valley Tribal Police, informing
them defendant was in violation of his parole and requesting they arrest him on a parole
violation if he was located. Defendant was arrested on February 3.
Munoz spoke with defendant after his arrest. Defendant told him he went to
Eureka to meet a friend who was being released from the local jail. The release was
delayed, however, and did not happen until around 7:00 p.m. Defendant had planned to
take public transportation home, but by that time buses had stopped running, so he and
his friend stopped to eat and then hitchhiked to Hoopa, arriving home late. Defendant
had not brought his charger with him, and he claimed he had not felt his device vibrate.
Munoz asked why defendant did not try to contact him, and defendant responded that he
did not know.
At the conclusion of the hearing, the court found the parole violation true. The
court ordered defendant reinstated on parole, modifying the terms to include 180 days in
county jail.
This timely appeal followed.
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DISCUSSION
In 2011, the Legislature made significant changes to the sentencing and
supervision of persons convicted of felonies, shifting many responsibilities to county
authorities and requiring state courts to conduct parole revocation hearings in certain
cases, such as that before us. (People v. Cruz (2012) 207 Cal. App. 4th 664, 669–672;
Pen. Code, §§ 17.5, 3000.08.) Under the new laws, parole revocation is indistinguishable
from probation revocation in terms of the requirements of due process. (Stats. 2012,
ch. 43, § 2(b) [Legislature amended Penal Code sections 1203.2 and 3000.08 with the
intent to “simultaneously incorporate the procedural due process protections held to apply
to probation revocation procedures”]; Gagnon v. Scarpelli (1973) 411 U.S. 778, 782;
People v. Rodriguez (1990) 51 Cal. 3d 437, 441; see also Morrissey v. Brewer (1972)
408 U.S. 471, 488–489 [state parole revocations require observance of certain specified
minimal due process requirements, including holding an informal factual hearing, written
notice of alleged parole violations, an opportunity to be heard and present witnesses, and
a decision by a neutral hearing officer].)
In a probation revocation hearing, a trial court has broad discretion to determine
whether to revoke probation. (People v. Rodriguez, supra, 51 Cal.3d at p. 443; People v.
Kurey (2001) 88 Cal. App. 4th 840, 848-849.) “A trial court abuses its discretion by
revoking probation if the probationer did not willfully violate the terms and conditions of
probation.” (People v. Galvan (2007) 155 Cal. App. 4th 978, 983.) A trial court’s finding
of a probation violation will be upheld when it is supported by substantial evidence.
(People v. Kurey, supra, 88 Cal.App.4th at p. 848.)
Because, as noted, parole revocation is indistinguishable from probation
revocation in terms of due process, defendant urges us to apply here the standard
applicable a probation violation—namely, that a parole violation must be willful. And,
he argues, the trial court’s finding that he violated a condition of his parole by failing to
charge his GPS was unsupported by substantial evidence because there was no evidence
of willful conduct. Assuming that a willful violation is required, we conclude there was
substantial evidence that defendant’s failure to charge his GPS was willful.
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Defendant had used the GPS device since his parole in 2010, a period exceeding
three years, so there can be no doubt he knew how to charge it. When Munoz became
defendant’s parole officer in 2013, he discussed with defendant the importance of
keeping the device charged. In January 2014, defendant failed to comply with this
requirement, letting the battery die, and Munoz again counseled defendant on his
obligation to charge the device. Despite this, defendant went on an excursion without his
charger, a pocket-size device that was easily portable. When the excursion purportedly
took longer than defendant anticipated, his GPS battery died, he failed to contact Munoz,
and he offered no explanation for this failure. This evidence supports a finding that
defendant’s conduct was irresponsible, contumacious, and disrespectful of the court’s
authority—and thus willful. (See People v. Zaring (1992) 8 Cal. App. 4th 362, 379
[reversing finding that defendant’s probation violation was willful because record did not
support a finding that her “conduct was the result of irresponsibility, contumacious
behavior or disrespect for the orders and expectations of the court”].)
Defendant concedes that “[s]ubstantial evidence shows the battery on [his] GPS
device ran out”, but he claims the evidence “merely show[ed] that due to unexpected
circumstances, [he] failed to charge his device before the charge expired.” Contrary to
his characterization, however, defendant did not face unforeseen circumstances that
rendered him incapable of complying with the parole condition. (See People v. Galvan,
supra, 155 Cal.App.4th at pp. 983–984 [the finding that defendant willfully failed to
timely report to probation was unsupported because defendant had been immediately
deported upon his release, rendering it impossible for him to comply with that condition];
People v. Cervantes (2009) 175 Cal. App. 4th 291, 295 [“Where a probationer is unable to
comply with a probation condition because of circumstances beyond his or her control
and defendant’s conduct was not contumacious, revoking probation and imposing a
prison term are reversible error.”].) Rather, it was reasonably foreseeable that
defendant’s return home could be delayed for a host of reasons, be it trouble with the
public transportation on which he intended to rely or, as it turned out, a delay in his
acquaintance’s release from custody. Yet he took no steps to guard against such a
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situation. He could have simply brought his charger with him, gone home when his
friend’s release was delayed, or, at the very least, contacted Munoz when his battery ran
out of charge. Instead, he did nothing. Under these circumstances, we must conclude
that substantial evidence supported the trial court’s finding. As the court in People v.
Sorden (2005) 36 Cal. 4th 65, 72 observed when considering whether defendant’s failure
to register as a sex offender was willful, “life is difficult for everyone” and those who
have “legally mandated” obligations must “learn to cope by taking the necessary
measures to remind themselves to discharge” their duties.1
DISPOSITION
The order is affirmed.
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
1
At the contested revocation hearing, the court and parties discussed whether a
violation of Penal Code section 3010.10, which prohibits a registered sex offender from
tampering with a GPS device, needed to be charged as a separate offense. In his opening
brief, defendant argues that the section did not apply. The trial court expressly stated it
was not relying on this section when imposing the 180-day jail term, and we therefore
need not determine its applicability.
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