People v. Watkins CA2/7 ( 2020 )

Filed 11/18/20 P. v. Watkins CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B299603
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 9PH03913)
v.
EDWARD GENE WATKINS,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Keith Borjon, Judge. Affirmed.
Heather E. Shallenberger, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Heidi Salerno, Deputy Attorney General
for Plaintiff and Respondent.
Edward Gene Watkins appeals from an order revoking and
reinstating his parole upon completion of a 180-day jail sentence
after the court found at a combined probable cause/parole
revocation hearing that Watkins had violated a condition of his
parole by failing to wear a GPS (Global Positioning System)
monitoring device. Watkins contends his appointed counsel
provided ineffective assistance by failing to request a continuance
after the People successfully amended the petition to revoke at
the start of the hearing to add the allegation regarding the
monitoring device. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Watkins’s Parole
On May 31, 2019 Watkins reported to his parole officer
following his release from county jail the previous day. He signed
a set of parole conditions, including numbers 4, “You shall not
engage in conduct prohibited by law”; 68, “You shall participate
in continuous electronic monitoring, GPS technology”; and
74, “You shall not tamper with the device or cover the device with
any material that you know or reasonably should know, will
interfere with the GPS system.” Watkins was advised in writing
that a violation of any of the conditions of parole “may result in
1
parole revocation with or without a criminal conviction.”
1
According to the People’s petition for revocation, Watkins
had been convicted of indecent exposure in July 2017 and
sentenced to three years in prison. He was released on parole in
November 2018 and reincarcerated in county jail soon after for
violating parole.
2
2. Watkins’s Arrest for Indecent Exposure
On June 1, 2019 Watkins was arrested for indecent
exposure after a witness observed him walking naked on a
highway in Lancaster.
3. The People’s Petition To Revoke Watkins’s Parole and the
Combined Probable Cause/Probation Revocation
Hearing
On June 7, 2019 the Department of Corrections and
Rehabilitation, Division of Adult Parole Operations (the People)
filed a petition for revocation of parole alleging Watkins had
violated his parole by committing an indecent exposure offense.
Watkins denied the allegation at his arraignment on June 14,
2019. His motion to dismiss his appointed counsel was denied
the same day following a Marsden hearing,2 and the court set a
probable cause hearing for June 21, 2019.
On June 21, 2019 the People and defense counsel stipulated
to holding a combined probable cause/parole revocation hearing.
The People also moved, without a defense counsel objection, to
amend the petition to add an allegation that Watkins had
violated his parole by tampering with his electronic ankle
monitor (Pen. Code, § 3010.10) and to dismiss the indecent
exposure allegation in the interest of justice. The court granted
both requests.
Watkins denied the new allegation and told the court that,
despite his counsel’s wishes, he did not want to go forward with
the hearing on the new allegation that day: “I don’t know
nothing about no ankle bracelet. At first it was indecent
exposure. Now it’s ankle bracelet. I’m trying to put it off ‘til,
2
People v. Marsden (1970) 2 Cal. 3d 118.
3
like, you know, next week.” The court told Watkins, “Your
attorney has decided to proceed with this hearing. So she gets to
overrule you on that. You don’t have a choice on that.” After a
short delay in the proceedings to allow Watkins to compose
himself, Watkins asked one more time for permission to address
the court directly. The court agreed, and Watkins stated, “I was
willing to prove that charge [indecent exposure] innocent. Now
all of a sudden they’re dropping. It’s another one I knew nothing
about. So I was, like, ‘Let’s get time to get prepared for this next
week. It’s all in the same day. It’s too sudden for me.’ And she’s
[his counsel] like, ‘No, you can’t.’” The court told Watkins his
counsel was ready and the hearing would proceed.
According to the evidence presented at the hearing, a little
after 4:00 p.m. on May 31, 2019 Watkins arrived at the office of
his parole agent to be fitted with the GPS monitor on his ankle.
At 10:56 p.m. the same day, Watkins’s ankle monitor “went into
master tamper,” indicating the device had been removed. A short
time later, in the early hours of June 1, 2019, a witness reported
to the Los Angeles County Sheriff’s Department in Lancaster
that he had seen Watkins on the road. Watkins was naked.
Sheriff’s deputies testified they found Watkins’s ankle monitor on
the ground 20 yards from where the witness had seen Watkins.
Sheriff’s deputies located Watkins and arrested him.
Watkins testified at the hearing in his own defense. He
stated he did not remove his ankle monitor. He could not figure
out how his ankle monitor had been removed, if it had been
removed at all, and believed he was being “set up” to violate his
parole. His counsel argued in closing that, having undertaken
the effort to make his parole appointment to be fitted with the
4
monitor, it made no sense that Watkins would remove the
monitor only a few hours later.
At the end of the hearing the court stated, “I’m sure
Mr. Watkins believes he had his ankle bracelet on—his ankle
monitor on. However, I’m crediting the testimony of [his parole
agent] as well as [the deputies who arrested him] and find both
probable cause and by a preponderance of the evidence that
you’re in violation of the terms and conditions of your release to
community supervision. In particular, a master tamper
allegation, [Penal Code section] 3010.10, allegation, failure to
participate in GPS monitoring and supervision.” The court
revoked Watkins’s parole and ordered that it be reinstated on the
3
condition Watkins serve 180 days in county jail.
DISCUSSION
1. Governing Law and Standard of Review
The right to counsel at a parole revocation hearing, when it
exists at all, derives not from the Sixth Amendment guarantee,
which does not apply to parole proceedings, but as a matter of
due process. (See Gagnon v. Scarpelli (1973) 411 U.S. 778, 790
3
Although Watkins has completed the 180-day jail sentence,
he remains on parole for his July 2017 offense. Because there
continue to be consequences to Watkins that flow from the court’s
revocation order—the extension of his time on parole—his appeal
is not moot. (See Pen. Code, § 3000, subd. (b)(6) [“Time during
which parole is suspended because the prisoner . . . has been
returned to custody as a parole violator shall not be credited
toward any period of parole unless the prisoner is found not
guilty of the parole violation”]; cf. People v. DeLeon (2017)
3 Cal. 5th 640, 645-646 [appeal from a parole reovcation order is
moot where the defendant has served his time and is no longer
under parole supervision].)
5
[although there is no absolute constitutional right to counsel at
parole revocation hearings, “the decision as to the need for
counsel must be made on a case-by-case basis”; sometimes
“fundamental fairness—the touchstone of due process—will
require that the State provide at its expense counsel for indigent
probationers or parolees”].) The California Supreme Court has
held a due process right to counsel should be presumed at a
parole revocation hearing when, as here, the parolee contests the
violation occurred. (In re Love (1974) 11 Cal. 3d 179, 186; accord,
People v. Ojeda (1986) 186 Cal. App. 3d 302, 307-308.)
When the right to appointed counsel is constitutionally
required as a matter of federal due process, it includes the right
to effective assistance of counsel. (See In re Sanders (1999)
21 Cal. 4th 697, 715 [due process right to appointment of attorney
on the first appeal as a matter of right also entitles appellant to
“constitutionally effective legal assistance”].) Under those
circumstances, the question whether counsel provided
constitutionally inadequate assistance for due process purposes is
evaluated under the same standard applied in Sixth Amendment
right-to-counsel cases as stated in Strickland v. Washington
(1984) 466 U.S. 668, 687-688. (See Smith v. Robbins (2000)
528 U.S. 259, 285 [Strickland test applies to Fourteenth
Amendment due process right to effective appellate counsel];
In re Reno (2012) 55 Cal. 4th 428, 493 [same].) That is, to prevail
on a claim of ineffective assistance of counsel, the defendant must
demonstrate his counsel’s performance was legally deficient—
there was no rational tactical purpose for counsel’s decision—and
that it is reasonably probable that, but for that deficiency, the
defendant would have received a more favorable outcome.
6
(People v. Rices (2017) 4 Cal. 5th 49, 80; People v. Mickel (2016)
2 Cal. 5th 181, 198; see Strickland, at p. 687.)
“On direct appeal, if the record ‘“sheds no light on why
counsel acted or failed to act in the manner challenged,”’ we must
reject the claim ‘“unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no
satisfactory explanation.”’” (People v. Caro (2019) 7 Cal. 5th 463,
488; accord, People v. Mickel, supra, 2 Cal.5th at p. 198 [“a
reviewing court will reverse a conviction based on ineffective
assistance of counsel on direct appeal only if there is affirmative
evidence that counsel had ‘“‘no rational tactical purpose’”’ for an
action or omission”].) Thus, “except in those rare instances where
there is no conceivable tactical purpose for counsel’s actions,
claims of ineffective assistance of counsel should be raised on
habeas corpus, not on direct appeal.” (People v. Lopez (2008)
42 Cal. 4th 960, 972; accord, People v. Sepulveda (2020)
47 Cal. App. 5th 291, 301.)
2. Watkins Has Not Demonstrated His Counsel Was
Constitutionally Ineffective
Watkins contends, and the People do not dispute, he had a
federal due process right to the effective assistance of counsel at
his parole hearing. Assuming he did, Watkins has not
demonstrated his counsel’s performance at the hearing was
legally deficient. While the record is clear Watkins wanted a one-
week continuance, it is silent as to the reason his counsel did not
request one. It is conceivable that delay was unnecessary, as the
issue required little preparation: Watkins insisted he had not
removed, and could not explain what had happened, to his GPS
device; and the People asserted it had been removed and found
near the location Watkins was last seen. In addition, Watkins
7
does not suggest, and the record does not reveal, what, if
anything, would have been gained by a week’s continuance.
Accordingly, even if Watkins’s counsel had performed below the
standard of care by failing to request a continuance, a proposition
not affirmatively demonstrated by the record on appeal, nothing
in this record remotely suggests the decision to go forward with
the hearing was prejudicial.
DISPOSITION
The order revoking and reinstating Watkins’s parole on the
condition he serve 180-days in jail is affirmed.
PERLUSS, P. J
We concur:
SEGAL, J.
FEUER, J.
8