People v. Gonzalez

• Decision Date: 09 January 2017
• Docket Number: G052436
• Citation: 7 Cal.App.5th 370,212 Cal.Rptr.3d 575
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Oswaldo Ivan GONZALEZ, Defendant and Appellant.

7 Cal.App.5th 370

212 Cal.Rptr.3d 575

The PEOPLE, Plaintiff and Respondent,

v.Oswaldo Ivan GONZALEZ, Defendant and Appellant.

G052436

Court of Appeal, Fourth District, Division 3, California.

Filed January 9, 2017

Wayne C. Tobin, Newbury Park, 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.

OPINION

FYBEL, J.

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 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 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 section 5150(a) hold.¹ 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 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 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...