People v. Montes de Oca CA2/8 ( 2020 )

Filed 12/7/20 P. v. Montes de Oca CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B300064
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 9PH01947)
v.
WILLIAM MONTES DE OCA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Robert M. Kawahara, Judge. Affirmed.
Karyn H. Bucur, 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, Assistant
Deputy Attorney General, Michael R. Johnsen and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and
Respondent.
**********
Defendant and appellant William Montes de Oca appeals
from the court’s order revoking his parole and remanding him to
the custody of the Department of Corrections and Rehabilitation
and the jurisdiction of the Board of Parole Hearings for future
parole consideration.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted of second degree murder in
October 1988 and sentenced to life with the possibility of parole
(Super. Ct. L.A. County, No. A956489). In December 2017,
defendant was released on supervised lifetime parole. (Pen.
Code, § 3000.1.) The petition for revocation of defendant’s parole,
filed on March 21, 2019, reported the relevant terms and
conditions of parole, the circumstances of the alleged violation,
and defendant’s pertinent history and background, and explained
why his parole agent, Don Gonzales, recommended parole be
revoked. We summarize below the petition and the testimony at
the parole revocation hearing.
The terms and conditions of parole, acknowledged and
signed by defendant before his release from prison, included the
condition that he report to his parole agent on the first working
day after his release from custody and provide his residence
address, telephone number, and employment information. The
terms and conditions also required that he report to his parole
agent, in advance, any anticipated change of residence, and that
he inform his parole agent within 72 hours of any change of
employer, employment location or termination of employment.
Defendant initially was placed in a transitional housing
program that “addresse[d] anti-social cognitions and promote[d] a
positive reintegration” and he also received “other resources”
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from the Division of Adult Parole Operations (DAPO).
Mr. Gonzales spoke with defendant by cell phone and “carefully
explained” that a warrant could be issued if he failed to report.
Defendant repeatedly said, “I’ll be there, Gonzales, I’ll be there.”
Mr. Gonzales also spoke with a program representative by cell
phone, who said he further emphasized to defendant the
importance that he “absolutely needed” to check in with his
parole agent. But defendant left the program without permission
and without leaving a forwarding address.
A warrant issued and defendant was arrested for
absconding from parole supervision on January 15, 2019. He was
released from custody on January 18 “unbeknownst to DAPO”
(apparently, the county jail did not place a parole hold on
defendant’s release), and he did not report to Mr. Gonzales.
Mr. Gonzales made many unsuccessful attempts to locate
defendant, including driving through the high transient areas of
Los Angeles and speaking with a representative of the program
from which he absconded to ask if they had heard from defendant
and request that, if he arrived unannounced, they tell him to
check in with his parole agent. Mr. Gonzales submitted a second
warrant, and on March 15, 2019, defendant was arrested again.
The petition to revoke parole stated that “[i]ntermediate
sanctions have been considered. However, they have been
deemed not appropriate at this time.” The petition explained
defendant is a 52-year-old lifer parolee on parole for murder, who
left his transitional housing program “without prior approval
from DAPO and failed to provide a forwarding address.”
Defendant “is a chronic absconder.” DAPO considered referring
defendant to a residential drug treatment program as an
intermediate sanction to address this violation but concluded “his
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negative behavior has clearly escalated and has become a
lifestyle.”
The contested revocation hearing was held on April 29,
2019. Defendant did not demur to the petition or otherwise
object that the petition failed to comply with statutory
requirements.
Mr. Gonzales testified to the efforts he made to locate
defendant, including contacting the transitional housing program
defendant left without notice to see if he had been in touch with
anyone there, and looking for him on the streets. Mr. Gonzales
received no calls or messages from defendant, and defendant’s
name was not on any of the sign-in sheets at the office, indicating
defendant had not reported to the parole office sometime when
Mr. Gonzales was out in the field. Mr. Gonzales did receive a
message about a month after the second warrant issued that
might have been from defendant (the person had a similar
accent), but that person did not leave his name, saying only he
wanted to check in.
Defendant also testified. He said he tried to call
Mr. Gonzales several days after his release. Defendant also tried
to report in person, going to the office in Inglewood to explain he
“was out of the county,” and he was told Mr. Gonzales was not
there. Defendant said his original parole agent used to make
field visits, and he never had to go into any office to report.
Defendant said he left a message for Mr. Gonzales, who never
called him back.
Agent Cecelia Mann testified the parole office in Inglewood
has been closed since 2013 (six years before defendant claimed to
have reported there).
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The court found defendant’s testimony was not credible and
that he had violated the terms of parole. The court revoked
parole and remanded defendant to the custody of the Department
of Corrections and Rehabilitation and the jurisdiction of the
Board of Parole Hearings for further consideration in accordance
with Penal Code section 3000.08, subdivision (h). This appeal
followed.
DISCUSSION
Defendant contends the court erred in not requiring DAPO
to plead and prove it had considered intermediate sanctions short
of revocation, as required by Penal Code section 3000.08,
subdivision (f) and California Rule of Court, rule 4.541(e).
The contention has been forfeited. Defendant did not
challenge the petition by way of demurrer or otherwise raise any
objection on this ground in the trial court. “The forfeiture
doctrine is a ‘well-established procedural principle that, with
certain exceptions, an appellate court will not consider claims of
error that could have been—but were not—raised in the trial
court. [Citation.]’ [Citations.] Strong policy reasons support this
rule: ‘It is both unfair and inefficient to permit a claim of error
on appeal that, if timely brought to the attention of the trial
court, could have been easily corrected or avoided. [Citations.]’ ”
(People v. Stowell (2003) 31 Cal.4th 1107, 1114; see also People v.
Upsher (2007) 155 Cal.App.4th 1311, 1318 [“Objections to defects
in the form of an accusatory pleading must be made by way of
demurrer. . . . When a defendant fails to demur, ‘the claimed
defect in the information [is] waived.’ ”].)
If defendant had raised this objection below, DAPO and the
court would have had an opportunity to clarify any claimed
ambiguity as to any intermediate sanctions considered and
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rejected. Having not done so, defendant may not raise the issue
for the first time on appeal.
In any event, his contention has no merit. The petition
described above complies with the statutory requirements.
(Pen. Code, § 3000.08, subd. (f) [“The petition shall include a
written report that contains additional information regarding the
petition, including the relevant terms and conditions of parole,
the circumstances of the alleged underlying violation, the history
and background of the parolee, and any recommendations.”];
Cal. Rules of Court, rule 4.541(e) [“In addition to the minimum
contents described in (c), 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.”].) The petition adequately
alleged why DAPO concluded that, despite “diverse efforts” to
reintegrate defendant back into the community, defendant did
not “incorporate” these resources before he absconded, and he
became “a chronic absconder.”
DISPOSITION
The order revoking defendant’s parole is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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