People v. Osorio
| Decision Date | 30 March 2015 |
| Docket Number | G048876 |
| Citation | 235 Cal.App.4th 1408,185 Cal.Rptr.3d 881 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jesus Francisco OSORIO, Defendant and Appellant. |
Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Collette C. Cavalier and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
After defendant Jesus Francisco Osorio violated a condition of his parole, he was arrested and jailed. California's Department of Corrections and Rehabilitation, Division of Adult Parole Operations (the Department) recommended that defendant's parole be revoked. Defendant demurred to the petition for revocation. The trial court overruled the demurrer, revoked defendant's parole, credited him with time served, and then reinstated him on parole.
We reverse because the trial court erred in overruling the demurrer to the petition for revocation of parole. The petition was insufficient as a matter of law.
In January 2011, defendant pled guilty to one count of second degree robbery and one count of street terrorism, and was sentenced to two years in prison. Defendant began serving a three-year parole term in November 2011. One of the conditions of defendant's parole was to not associate with anyone he knew or reasonably should have known was a member or associate of a gang.
On July 2, 2013, defendant stopped his bike to talk to two men he knew were gang members. Defendant admitted he knew he was violating his parole by associating with members of the “Lopers” criminal street gang. Defendant was arrested for the parole violation, and was jailed until his parole revocation hearing.
A petition for revocation of parole was filed on July 15, 2013. At the arraignment hearing on July 18, defendant filed a demurrer and motion to dismiss. The trial court overruled the demurrer, found probable cause for the petition for revocation, and set an evidentiary hearing. At the parole revocation hearing on August 8, the court found defendant in violation of parole, revoked parole, and sentenced defendant to 73 days in jail. The court credited defendant with time served, as well as good conduct credits, and reinstated his parole. Defendant timely appealed.
Is defendant's appeal moot?
In her respondent's brief, the Attorney General argues that defendant's appeal is moot because he had completed the period of incarceration and had been returned to parole. In supplemental briefing requested by this court, the Attorney General also argues that this appeal is moot due to postjudgment developments in the case. The Attorney General filed a request for judicial notice of paperwork from the Department, reflecting defendant's discharge from parole in December 2014. These documents are official acts of the executive department of the State of California, and therefore subject to discretionary judicial notice by this court. (Evid. Code, §§ 452, subd. (c), 459, subd. (a).)
Postjudgment evidence is generally not admissible on appeal (In re Zeth S. (2003) 31 Cal.4th 396, 405, 2 Cal.Rptr.3d 683, 73 P.3d 541 ), but it may be considered to determine whether it renders an appeal moot (In re Josiah Z. (2005) 36 Cal.4th 664, 676, 31 Cal.Rptr.3d 472, 115 P.3d 1133 ). The Attorney General contends that because defendant has been discharged from parole, his appeal is moot. We grant the Attorney General's request for judicial notice, but deny the request to dismiss defendant's appeal.
We have discretion to decide a case that, although moot, poses an issue of broad public interest that is likely to recur. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1086, 12 Cal.Rptr.3d 356, 88 P.3d 81.) This is such a case. In In re Law (1973) 10 Cal.3d 21, 23, 109 Cal.Rptr. 573, 513 P.2d 621, the petitioner was on parole, having been convicted of forgery. The petitioner was arrested for committing grand theft auto while on parole. (Ibid. ) The petitioner was placed on a parole hold, and argued he had a right to be released on bail from the parole hold. (Ibid. ) Before the petitioner's appeal was heard, he was convicted, and the prison authority revoked his parole on the forgery conviction. (Id. at p. 24, 109 Cal.Rptr. 573, 513 P.2d 621.) The Supreme Court concluded that although the petitioner's contention was moot, it raised an issue of broad public interest that was likely to recur, and it therefore heard the case. (Id. at pp. 23–24, 109 Cal.Rptr. 573, 513 P.2d 621.)
We recognize that in Spencer v. Kemna (1998) 523 U.S. 1, 18, 118 S.Ct. 978, 140 L.Ed.2d 43, the Supreme Court refused to reverse the district court's determination that a defendant's habeas corpus petition, challenging his parole revocation, was moot because he had completed his term of imprisonment underlying the parole revocation, and it was therefore not certain that he would suffer any injury due to any error on the parole revocation. Under California's penal system, any future interactions between defendant and the justice system will likely bring to light defendant's parole revocation. Should defendant suffer a further criminal conviction, the parole revocation may be used as part of his sentencing determination. The parole revocation also may be used against defendant in other noncriminal arenas, such as employment decisions or child custody matters. In short, we cannot say with reasonable certainty that defendant's release from parole moots his claim that the demurrer to the petition for revocation should have been sustained.
A parole revocation order is a postjudgment order affecting the substantial rights of the party, and is therefore appealable. (Pen. Code, § 1237, subd. (b).) The issues defendant raises on appeal are matters of broad public interest that are likely to recur. Therefore, we exercise our discretion to consider the merits of this appeal, despite any argument that defendant's appeal is moot.
The trial court erred in overruling defendant's demurrer to the parole revocation petition.
(People v. Manfredi (2008) 169 Cal.App.4th 622, 626, 86 Cal.Rptr.3d 810 ; see Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1090, 40 Cal.Rptr.2d 402, 892 P.2d 1145 [].) On appeal, we review the order overruling defendant's demurrer de novo. We exercise our independent judgment as to whether, as a matter of law, the petition alleged sufficient facts to justify revocation of defendant's parole. (Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 524, 25 Cal.Rptr.3d 649.)
There is no dispute that defendant violated a condition of his parole by associating with known gang members on July 2, 2013. Once a parole violation occurs, the supervising parole agency—here, the Department—may do one of two things. The Department may impose additional conditions of supervision and “intermediate sanctions.” (Pen. Code, § 3000.08, subd. (d).) However, if the Department “has determined, following application of its assessment processes, that intermediate sanctions ... are not appropriate, the supervising parole agency shall ... petition ... the court in the county in which the parolee is being supervised ... to revoke parole.” (Id., § 3000.08, subd. (f).) The petition must include a written report detailing the terms and conditions of parole and how they were violated, the parolee's background, and the Department's recommendation to the court. (Ibid. ) The court may then return the parolee to parole supervision, revoke parole, or refer the parolee to a reentry court. (Ibid. )
California Rules of Court, rule 4.541 describes the minimum requirements for the written report included with a petition to revoke probation. (Cal. Rules of Court, rule 4.541(c).) The rule also requires the Department to include in the report “the reasons for that agency's determination that intermediate sanctions without court intervention ... are inappropriate responses to the alleged [parole] violations.” (Id., rule 4.541(e).)
The language of both Penal Code section 3000.08, subdivision (f) and California Rules of Court, rule 4.541(e) makes clear that less restrictive sanctions for an alleged parole violation must be considered before revocation of parole is sought.
Pursuant to Penal Code section 3015, the Department has developed a parole violation decisionmaking instrument (PVDMI), a form used to determine what sanctions should be imposed for a parole violation, and whether a petition to revoke parole should be filed.
According to the Department, [¶] ... ...
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