People v. Gonzalez

Filed 1/9/17.
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G052436
v. (Super. Ct. No. R00817)
OSWALDO IVAN GONZALEZ, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Kimberly Menninger, Judge. Reversed.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Oswaldo Ivan Gonzalez appeals from a postjudgment order granting a
petition under Penal Code sections 1203.2, subdivision (b), and 3455, subdivision (a), to
revoke his postrelease community supervision (PRCS). The trial court found that
Gonzalez, who is homeless, violated the terms and conditions of PRCS by failing to
report his change of residence after he was released from a facility in which he had been
held pursuant to Welfare and Institutions Code section 5150, subdivision (a)
(section 5150(a)). The court ordered Gonzalez to serve 180 days in jail, with credit for
time served, and reinstated PRCS.
We conclude the trial court erred by finding Gonzalez violated the
condition of PRCS that he report a change of residence. The Postrelease Community
Supervision Act of 2011, Penal Code section 3450 et seq. (the PRCS Act), does not
include a definition of the word “residence.” With no definition of residence in the PRCS
Act, we turn to the definition of residence given in Penal Code section 290.011,
subdivision (g), which is part of the Sex Offender Registration Act, Penal Code
section 290 et seq. Under the broad definition of residence in section 290.011,
subdivision (g), Gonzalez was homeless and had no residence before he was placed on a
hold under section 5150(a). When he was released from the hold, he returned to the
street. Thus, he had neither a residence nor a change of residence to report. For that
reason, we reverse.
The lack of a definition of residence is a glaring omission in the PRCS Act
that leaves open issues about the reporting obligations of those persons subject to PRCS
who, like Gonzalez, are homeless. The Sex Offender Registration Act, in contrast, not
only defines “residence” but defines “transient” (Pen. Code, § 290.011, subd. (g)) and
sets forth a means by which transients can comply with registration requirements (id.,
§ 290.011, subd. (a)). We respectfully urge the Legislature to amend the PRCS Act to
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define “residence” and to address the issue of the obligations of homeless persons subject
to PRCS to report residence and changes in residence.
Our conclusion might be different if the trial court found, or the Attorney
General argued, that Gonzalez violated PRCS by not reporting, as directed, to his
probation officer. We emphasize that a person subject to PRCS, whether or not that
person is homeless, has an obligation under Penal Code section 3453, subdivision (e) to
report “as directed” by the supervising county agency. Here, the petition to revoke PRCS
alleged Gonzalez failed to report, as directed by his probation officer, after his release
from the section 5150(a) hold. The trial court did not, however, make a finding on that
allegation. On appeal, the Attorney General does not argue that Gonzalez violated the
condition of PRCS that he report as directed, and, therefore, we do not address whether
he failed to do so.
FACTS AND PROCEDURAL HISTORY
I.
The Petition to Revoke PRCS
In January 2012, Gonzalez was convicted of violating Penal Code
section 273.5, subdivision (a) (corporal injury to spouse or cohabitant) and was sentenced
to two years in prison. He was released from prison into PRCS in July 2012. His
scheduled discharge date from PRCS was December 29, 2015.
The terms and conditions of Gonzalez‟s PRCS included the following:
“RELEASE, REPORTING, RESIDENCE: Unless other arrangements are approved in
writing, you will report to your Probation Officer within two working days following any
release from custody. You will inform your Probation Officer of your residence,
employment, education, or training. Any change or anticipated changes in residence,
employment, education, or training shall be reported to your Probation Officer in
3
advance. You shall inform the Probation Officer of new employment within 3 business
days of that entry.”
In July 2015, the Orange County Probation Department (the Probation
Department) filed a petition to revoke Gonzalez‟s PRCS (the Petition). An attachment to
the Petition alleged: “According to records of the . . . Probation Department, the offender
was released from state prison on 7/1/12. He was last released from the Orange County
Jail on 4/5/15 after serving 160 days in custody for his seventh violation. The offender
reported to [the] Probation [Department] upon his release; however, on 5/9/15, he was
released from a mental health assessment. He failed to contact [the] Probation
[Department], thereafter as directed. On 6/1/15 the Court issued a bench warrant . . . due
to the offender‟s whereabouts being unknown. On 7/9/15, he was arrested by the Stanton
Police Department . . . and held on said warrant.”
II.
The Evidentiary Hearing on the Petition
An evidentiary hearing was conducted on the Petition. Gonzalez‟s
probation officer, Debby Rodriguez, testified. Rodriguez supervised Gonzalez on PRCS.
She testified that on April 30, 2015, she met with Gonzalez and reviewed the PRCS
conditions with him. She read aloud each of the terms and conditions to him. One of
those conditions was, “report as directed.” Rodriguez also reviewed with Gonzalez a
separate document called notice and conditions. He initialed each of the conditions and
signed the document in her presence. Rodriguez personally reviewed the terms and
conditions of PRCS with Gonzalez because from July 2013 until April 30, 2015, he had
absconded from supervision on several occasions.
Gonzalez appeared delusional, confused, and very lost when he met with
Rodriguez on April 30, 2015. After meeting with Rodriguez, Gonzalez was taken
directly from her office to a facility for a mental health assessment and placed on a
4
1
section 5150(a) hold. Rodriguez directed Gonzalez to report to her immediately upon
his release from the section 5150(a) hold.
Rodriguez testified that Gonzalez was released from the section 5150(a)
hold on May 9, 2015. He did not report to Rodriguez upon his release. Rodriguez
learned on May 12, 2015, from the mental health assessment provider that Gonzalez had
been released on May 9. Rodriguez did not learn of Gonzalez‟s whereabouts until he was
arrested in July 2015.
Rodriguez had been Gonzalez‟s probation officer since July 2013. As of
trial, she had met with Gonzalez in person five times. She had reviewed the notes of his
prior probation officers and saw nothing to indicate mental health concerns. Rodriguez
had made notes that in one contact with Gonzalez, he had appeared “delusional and
confused” and “very lost.” She also had reviewed a report in which the preparer had
noted that Gonzalez suffers from “mild retardation.” Another probation officer had made
a note that Gonzalez seemed “troubled.”
Rodriguez testified that a section 5150(a) hold is not the same as being in
custody. A term and condition of PRCS, however, was that Gonzalez “report as
directed.”
Rodriguez explained that the PRCS terms and conditions required Gonzalez
to inform the Probation Department of his residence. At one point, he was placed on a
global positioning system (GPS) monitor. He had stopped charging the GPS battery, but
1
Section 5150(a) states, in relevant part: “When a person, as a result of a mental health
disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace
officer, professional person in charge of a facility designated by the county for evaluation
and treatment, member of the attending staff, as defined by regulation, of a facility
designated by the county for evaluation and treatment, designated members of a mobile
crisis team, or professional person designated by the county may, upon probable cause,
take, or cause to be taken, the person into custody for a period of up to 72 hours for
assessment, evaluation, and crisis intervention, or placement for evaluation and treatment
in a facility designated by the county for evaluation and treatment and approved by the
State Department of Health Care Services.”
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on the day he was placed on the section 5150(a) hold, Rodriguez was able to find him, in
Stanton, at his last known location according to the GPS. When Rodriguez learned that
Gonzalez had been released from the section 5150(a) hold, but had not reported to her,
she went to the spot in Stanton where she had previously found him. He was not there.
Gonzalez did not report his residence to Rodriguez, and she did not know his
whereabouts. Rodriguez testified that a probationer is usually given 72 hours to notify
the Probation Department of a change in residence.
Rodriguez testified that Gonzalez was transient and had no residence. She
had asked Gonzalez specifically to contact her about his whereabouts and told him to
report to her when he was released from the section 5150(a) hold.
III.
The Trial Court’s Ruling
The trial court granted the Petition and found Gonzalez in violation of
PRCS. The court stated: “[T]here is a preponderance of evidence to support one piece of
this allegation. And I would agree with the petitioner in this respect: This is about as
difficult a case as you‟re probably going to see from a petitioner‟s side absent a flat[-]out
finding it didn‟t occur. [¶] So the court does find there‟s preponderance of the evidence
to believe the petition is true in one aspect, and that is that he did not provide any
information to probation within any reasonable amount of time; not three days prior to,
not in advance of, not three days after. He never did as to his change of residence. And
that is something that was reasonable and that he should, and appeared to have been able
to comply with.”
The trial court expressed concern over Gonzalez‟s mental health but found
there was insufficient evidence to prove that Gonzalez was unable to comply with the
terms and conditions of PRCS. The court stated: “[U]nfortunately, although we all know
he was 5150‟d, that‟s all we know. 5150 under the law is anyone who is a danger to
themselves or others. It doesn‟t really mean they don‟t understand the difference
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between reality and delusion. Those are two different issues. [¶] So whether he suffered
at all from truly what is a medical delusion, or just was a danger to himself or others,
which is the standard, is unclear to the court. [¶] So at this point there would have to be
additional information from the defense or someone who can provide it to show that that
was a defense. [¶] If there was evidence suggesting he was unable to know the
difference it would be a complete defense, because I would agree with you. It would
show he could not comply. [¶] But that was not shown. He was 5150, meaning he was a
danger to himself and others.”
The trial court revoked PRCS and ordered it reinstated with a period of 180
days‟ incarceration in jail and 68 days of credit. Gonzalez timely appealed.
DISCUSSION
I.
Statutory Framework
The PRCS Act was enacted to “improve public safety outcomes” and
facilitate certain offenders‟ “successful reintegration back into society.” (Pen. Code,
§ 3450, subd. (b)(5); see People v. Espinoza (2014) 226 Cal.App.4th 635, 641.)
Low-level offenders released from prison are subject to community supervision provided
by the probation department of the county to which the person is being released (Pen.
Code, § 3451, subd. (a)), according to a postrelease strategy developed by each county‟s
board of supervisors (id., § 3451, subd. (c)(1)). Unless his or her supervision is tolled for
reasons not relevant here, “[a] person shall not remain under supervision . . . on or after
three years from the date of the person‟s initial entry onto [PRCS].” (Id., § 3455,
subd. (e); see id., § 3456, subd. (a)(1).)
Penal Code section 3453 imposes many mandatory conditions of PRCS.
Such conditions include that “[t]he person shall report to the supervising county agency
as directed by that agency” (Pen. Code, § 3453, subd. (e)) and “[t]he person shall inform
7
the supervising county agency of any pending or anticipated changes in residence,
employment, education, or training” (id., § 3453, subd. (i)(1)). The local supervising
county agency “shall establish a review process for assessing and refining a person‟s
program of postrelease supervision” (id., § 3454, subd, (a)), and “may determine
additional appropriate conditions of supervision listed in Section 3453 consistent with
public safety” (id., § 3454, subd. (b)).
“At any time during the period of [PRCS], if a peace officer has probable
cause to believe a person subject to [PRCS] is violating any term or condition of his or
her release, the officer may, without a warrant or other process, arrest the person and
bring him or her before the supervising county agency . . . .” (Pen. Code, § 3455,
subd. (b)(1).) If the supervising county agency determines that intermediate sanctions are
not appropriate, the agency shall petition the court pursuant to Penal Code section 1203.2
to revoke, modify, or terminate PRCS. (Id., § 3455, subd. (a).) Subdivision (b) of
section 1203.2 authorizes the court or parties to bring a motion for modification,
revocation, and termination of supervision, “pursuant to this subdivision.” (Id., § 1203.2,
2
subd. (b)(1).) The petition must include a written report from the supervising county
2
Subdivision (b)(1) of Penal Code section 1203.2 continues: “The court in the county
in which the person is supervised has jurisdiction to hear the motion or petition, or for
those on parole, either the court in the county of supervision or the court in the county in
which the alleged violation of supervision occurred. A person supervised on parole or
[PRCS] pursuant to Section 3455 may not petition the court pursuant to this section for
early release from supervision, and a petition under this section shall not be filed solely
for the purpose of modifying parole. This section does not prohibit the court in the
county in which the person is supervised or in which the alleged violation of supervision
occurred from modifying a person‟s parole when acting on the court‟s own motion or a
petition to revoke parole. The court shall give notice of its motion, and the probation or
parole officer or the district attorney shall give notice of his or her petition to the
supervised person, his or her attorney of record, and the district attorney or the probation
or parole officer, as the case may be. The supervised person shall give notice of his or
her petition to the probation or parole officer and notice of any motion or petition shall be
given to the district attorney in all cases. The court shall refer its motion or the petition to
the probation or parole officer. After the receipt of a written report from the probation or
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agency that explains “the relevant terms and conditions of [PRCS], the circumstances of
the alleged underlying violation, the history and background of the violator, and any
recommendations.” (Id., § 3455, subd. (a); see Cal. Rules of Court, rule 4.541(c).)
“Upon a finding that the person has violated the conditions of [PRCS], the
revocation hearing officer shall have authority to do all of the following: [¶] (1) Return
the person to [PRCS] with modifications of conditions, if appropriate, including a period
of incarceration in a county jail. [¶] (2) Revoke and terminate [PRCS] and order the
person to confinement in a county jail. [¶] (3) Refer the person to a reentry court
pursuant to [Penal Code s]ection 3015 or other evidence-based program in the court‟s
discretion.” (Pen. Code, § 3455, subd. (a)(1)-(3).) The period of incarceration under
Penal Code section 3455, subdivision (a)(1) shall not exceed 180 days in a county jail.
(Id., § 3455, subd. (d).)
An order revoking and reinstating PRCS is appealable under Penal Code
section 1237, subdivision (b) because, we conclude, such an order affects the substantial
rights of the party. (See People v. Osorio (2015) 235 Cal.App.4th 1408, 1412 [“A parole
revocation order is a postjudgment order affecting the substantial rights of the party, and
is therefore appealable.”].)
II.
The Appeal Is Not Moot.
The Attorney General argues this appeal is moot because Gonzalez
completed his 180-day jail term and was discharged from PRCS in December 2015. “[A]
case becomes moot when a court ruling can have no practical effect or cannot provide the
parties with effective relief.” (Lincoln Place Tenants Assn. v. City of Los Angeles (2007)
parole officer, the court shall read and consider the report and either its motion or the
petition and may modify, revoke, or terminate the supervision of the supervised person
upon the grounds set forth in subdivision (a) if the interests of justice so require.”
9
155 Cal.App.4th 425, 454.) “„[A]n action that originally was based on a justiciable
controversy cannot be maintained on appeal if all the questions have become moot by
subsequent acts or events. A reversal in such a case would be without practical effect,
and the appeal will therefore be dismissed.‟” (People v. Herrera (2006) 136 Cal.App.4th
1191, 1198.) The Attorney General argues we no longer can provide Gonzalez any
effective relief.
We decline to dismiss the appeal as moot because the challenged order may
yet have “„disadvantageous collateral consequences.‟” (People v. Ellison (2003) 111
Cal.App.4th 1360, 1368-1369.) In the event Gonzalez is convicted of a new offense,
performance on PRCS likely could be considered for purposes of deciding whether to
grant probation (see Cal. Rules of Court, rule 4.414(b)(2) [prior performance on
“probation or parole” is a factor in deciding to grant or deny probation]) or as a
circumstance in aggravation in sentencing (see id., rule 4.421(b)(5) [unsatisfactory prior
performance on probation or parole is a circumstance in aggravation]; People v. Osorio,
supra, 235 Cal.App.4th at p. 1412 [“Should defendant suffer a further criminal
conviction, the parole revocation may be used as part of his sentencing determination.”]).
California Rules of Court, rules 4.414(b)(2) and 4.421(b)(5) refer only to
performance on probation or parole and do not mention PRCS. But PRCS, though not
identical, is similar to parole, the main difference being that PRCS is conducted by a
county agency rather than by the California Department of Corrections and
Rehabilitation. (People v. Lewis (2016) 4 Cal.App.5th 1085, 1089, fn. 2; People v.
Gutierrez (2016) 245 Cal.App.4th 393, 399.) It is therefore likely that performance on
PRCS would be considered by a court in considering the relevant factors under
rule 4.414(b)(2) or rule 4.421(b)(5).
If the appeal were moot, we would decline to dismiss it for the additional
reason that issues arising out of PRCS or concerning interpretation of the PRCS Act can
elude review. “We have discretion to decide a case that, although moot, poses an issue of
10
broad public interest that is likely to recur.” (People v. Osorio, supra, 235 Cal.App.4th at
p. 1411.) The maximum length of incarceration for a PRCS violation is brief (180 days)
(Pen. Code, § 3455, subd. (d)), and a person cannot be under PRCS for more than three
years (id., § 3455, subd. (e)). Thus, an appeal from an order revoking PRCS may become
subject to a mootness claim before a decision can be rendered.
III.
The Trial Court Erred by Finding Gonzalez Violated the
Condition That He Report Any Change in Residence.
A. Standard of Review
An order revoking probation is reviewed under the abuse of discretion
standard. (People v. Rodriguez (1990) 51 Cal.3d 437, 447; People v. Urke (2011) 197
Cal.App.4th 766, 773.) The trial court‟s factual findings are reviewed for substantial
evidence. (People v. Urke, supra, at p. 773.) The same standards should apply to an
order revoking PRCS.
B. Gonzalez Had No Change in Residence to Report.
“Penal Code section 1203.2, subdivision (a) authorizes a trial court to
revoke probation „if the interests of justice so require and the court, in its judgment, has
reason to believe from the report of the probation officer or otherwise that the person has
violated any of the conditions of his or her probation . . . .‟” (People v. Jackson (2005)
134 Cal.App.4th 929, 935.) A parole or probation violation must be willful to justify
revocation of parole or probation. (People v. Rodriguez (2013) 222 Cal.App.4th 578, 594
[probation revocation]; People v. Cervantes (2009) 175 Cal.App.4th 291, 295 [same];
People v. Galvan (2007) 155 Cal.App.4th 978, 982 [same].)
The Petition alleged that Gonzalez violated the condition that he report to
his probation officer within two working days following “any release from custody” and
11
that he inform his probation officer of “your residence” or of “[a]ny change or anticipated
changes in residence.” The trial court found that Gonzalez violated PRCS by not
reporting his “change of residence” after being released from the section 5150(a) hold.
The PRCS Act does not define “residence.” It has been said that
“„[r]esidence, as used in the law, is a most elusive and indefinite term.‟” (Smith v. Smith
(1955) 45 Cal.2d 235, 240.) The Sex Offender Registration Act precisely yet broadly
defines “residence” to mean “one or more addresses at which a person regularly resides,
regardless of the number of days or nights spent there, such as a shelter or structure that
can be located by a street address, including, but not limited to, houses, apartment
buildings, motels, hotels, homeless shelters, and recreational and other vehicles.”
(Pen. Code, § 290.011, subd. (g).)
In determining whether Gonzalez was required to report a change in
residence, we use the definition of residence found in Penal Code section 290.011,
subdivision (g). Under that definition, Gonzalez was not in violation of the terms and
conditions of PRCS by failing to report to the Probation Department upon his release
from the section 5150(a) hold. It was undisputed that Gonzalez was homeless, both
before and after the section 5150(a) hold. Rodriguez testified that Gonzalez was
homeless and had no residence. No evidence was presented that Gonzalez had “one or
more addresses at which [he] regularly resides.” (Pen. Code, § 290.011, subd. (g).)
Involuntary placement under a section 5150(a) hold does not turn the
treatment facility into a residence. The person subject to the hold does not “regularly
reside[]” at the treatment facility. (Pen. Code, § 290.011, subd. (g).) A section 5150(a)
hold lasts 72 hours at most. Nor does placement under a section 5150(a) hold constitute
custody. When Gonzalez was released from the facility at the end of the section 5150(a)
hold, he returned to the street. He did not change his residence because he had none.
There was no evidence that Gonzalez had been living “regularly” at “a shelter or structure
that can be located by a street address.” (Pen. Code, § 290.011, subd. (g).) In fact, when
12
Rodriguez tried to find Gonzalez at the location she had previously found him, he was not
there. Thus, Gonzalez never had a residence, and could not have had a change of
residence to report. It was error, therefore, for the trial court to find that Gonzalez‟s
failure to report to the Probation Department after his release from the section 5150(a)
3
hold was a violation of the terms and conditions of PRCS.
Issues over a homeless person‟s obligation under the PRCS Act to report
could be resolved by amending the PRCS Act to define “residence” and clarify the
reporting obligation of those persons who do not have a residence. The Sex Offender
Registration Act, unlike the PRCS Act, recognizes that a person subject to registration
might be living as a transient. (Pen. Code, § 290.011.) The Sex Offender Registration
Act defines “transient” to mean “a person who has no residence” (id., § 290.011,
subd. (g)) and sets forth a means by which transients can comply with registration
requirements (id., § 290.011, subd. (a)). The Sex Offender Registration Act requires a
transient to register within a certain timeframe after release from incarceration,
placement, commitment, or probation, and then “[b]eginning on or before the 30th day
following initial registration upon release, a transient shall reregister no less than once
4
every 30 days thereafter. (Id., § 290.011, subd. (a).) We respectfully urge the
3
The Attorney General argues that Gonzalez had “a duty to inform probation of his
current location.” The terms and conditions of PRCS required Gonzalez to report to the
Probation Department any change or anticipated change of “residence, employment,
education, or training.” The terms and conditions did not require him to report his
current location.
4
The full text of subdivision (a) of Penal Code section 290.011 is: “He or she shall
register, or reregister if the person has previously registered, within five working days
from release from incarceration, placement or commitment, or release on probation,
pursuant to subdivision (b) of Section 290, except that if the person previously registered
as a transient less than 30 days from the date of his or her release from incarceration, he
or she does not need to reregister as a transient until his or her next required 30-day
update of registration. If a transient convicted in another jurisdiction enters the state, he
or she shall register within five working days of coming into California with the chief of
police of the city in which he or she is present or the sheriff of the county if he or she is
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Legislature to amend the PCRS Act to likewise define “residence” and impose reporting
requirements for homeless persons.
A statutory condition of PRCS is that “[t]he person shall report to the
supervising county agency as directed by that agency.” (Pen. Code, § 3453, subd. (e).)
Whether homeless or not, a person subject to PRCS must comply with this condition and
violation of it can be a basis for revoking PRCS. In this case, Rodriguez testified that she
had directed Gonzalez to report to her immediately upon his release from the section
5150(a) hold. However, the trial court did not find that Gonzalez had violated PRCS by
failing to report as directed by the Probation Department after his release from the
section 5150(a) hold. The trial court‟s order granting the Petition was based on the
finding that Gonzalez failed to report a change in residence. On appeal, although the
Attorney General mentions the condition to report as directed, she does not argue
Gonzalez violated the condition of reporting as directed by the Probation Department and
does not argue that would be an alternative ground for upholding the trial court‟s
decision. Instead, the Attorney General argues that Gonzalez did not report a change in
residence.
present in an unincorporated area or city that has no police department. If a transient is
not physically present in any one jurisdiction for five consecutive working days, he or she
shall register in the jurisdiction in which he or she is physically present on the fifth
working day following release, pursuant to subdivision (b) of Section 290. Beginning on
or before the 30th day following initial registration upon release, a transient shall
reregister no less than once every 30 days thereafter. A transient shall register with the
chief of police of the city in which he or she is physically present within that 30-day
period, or the sheriff of the county if he or she is physically present in an unincorporated
area or city that has no police department, and additionally, with the chief of police of a
campus of the University of California, the California State University, or community
college if he or she is physically present upon the campus or in any of its facilities. A
transient shall reregister no less than once every 30 days regardless of the length of time
he or she has been physically present in the particular jurisdiction in which he or she
reregisters. If a transient fails to reregister within any 30-day period, he or she may be
prosecuted in any jurisdiction in which he or she is physically present.”
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DISPOSITION
The postjudgment order granting the Petition is reversed.
FYBEL, J.
WE CONCUR:
O‟LEARY, P. J.
IKOLA, J.
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