People v. Zamudio, B271406

• Decision Date: 15 May 2017
• Docket Number: B271406
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Raymond ZAMUDIO, Defendant and Appellant.

12 Cal.App.5th 8

218 Cal.Rptr.3d 543

The PEOPLE, Plaintiff and Respondent,

v.Raymond ZAMUDIO, Defendant and Appellant.

B271406

Court of Appeal, Second District, Division 7, California.

Filed May 15, 2017

Wayne C. Tobin, Newbury Park, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, P.J.

After overruling Raymond Zamudio's demurrer to the petition for revocation of parole filed by the Los Angeles County District Attorney's Office and denying his motion for an assessment whether imposition of intermediate sanctions would be appropriate, the superior court found Zamudio in violation of the conditions of his parole, revoked parole and ordered it restored after Zamudio had served 150 days in county jail. On appeal Zamudio contends the ability of a district attorney to petition for revocation of parole without first completing certain procedural steps and including in the petition information required when a revocation petition has been filed by the supervising parole agency violates his and other parolees' right to equal protection of the law under the state and federal constitutions. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts in this case are undisputed. On September 4, 2013 Zamudio was convicted of making a criminal threat (Pen. Code, § 422 )¹ and sentenced to a two-year state prison term. On April 29, 2014 he was released on parole.

On January 16, 2016 Zamudio assaulted the mother of his children. One month later the district attorney's office petitioned to revoke Zamudio's parole pursuant to section 1203.2 and requested issuance of an arrest warrant. The petition for revocation consisted of a completed copy of Judicial Council form CR-300, a one-page attachment describing the domestic violence incident and a two-page list of Zamudio's juvenile and adult criminal history offenses. No other documents were filed with the petition.

On February 16, 2016 the superior court found probable cause to support revocation, preliminarily revoked parole pending a full hearing and issued an arrest warrant. The arrest warrant was recalled once Zamudio appeared in court. He was remanded into custody.

Zamudio demurred to the petition and filed a "motion for sanctions," that is, a motion to require consideration by the supervising parole agency of the imposition of intermediate sanctions before pursing parole revocation. Zamudio argued the district attorney's parole revocation petition violated his right to equal protection because it did not comply with section 3000.08 and California Rules of Court, rule 4.541 (rule 4.541 ), as required for parole revocation petitions filed by the California Department of Corrections and Rehabilitation, Division of Adult Parole Operations, the supervising parole agency.²

After the superior court overruled the demurrer and denied the motion for sanctions on March 16, 2016, Zamudio waived his right to a parole revocation hearing and admitted the violation. The court revoked parole supervision and ordered it reinstated on the same terms and conditions as before upon Zamudio's completion of 150 days in county jail (with 46 days of custody credits).

Zamudio filed a timely notice of appeal, challenging the ruling on his demurrer and motion for sanctions. (See People v. Osorio (2015) 235 Cal.App.4th 1408, 1412, 185 Cal.Rptr.3d 881 (Osorio ) [parole revocation order is a postjudgment order affecting the substantial rights of the party and appealable under § 1237, subd. (b) ].) The superior court granted Zamudio's request for a certificate of probable cause.

Zamudio's appointed appellate counsel filed an opening brief in which no issues were raised. (See People v. Wende (1979) 25 Cal.3d 436, 441, 158 Cal.Rptr. 839, 600 P.2d 1071.) After independently examining the record, we asked the parties to submit supplemental briefing addressing whether the superior court had erred in overruling Zamudio's demurrer and denying his motion, given that section 3000.08, subdivision (f), and rule 4.541(e) require certain minimum information be provided in a petition to revoke parole, including a written report by the supervising parole agency explaining "the reasons for that agency's determination that the intermediate sanctions without court intervention ... are inappropriate responses to the alleged [parole] violations." (See Osorio, supra, 235 Cal.App.4th at p. 1413, 185 Cal.Rptr.3d 881.)³

DISCUSSION

1. Governing Law

The Legislature in 2011 enacted and amended " ‘a broad array of statutes concerning where a defendant will serve his or her sentence and how a defendant is to be supervised on parole,’ " referred to generally as the realignment legislation. (Williams v. Superior Court (2014) 230 Cal.App.4th 636, 650, 178 Cal.Rptr.3d 685.) The overall purpose of the realignment legislation was to decrease recidivism and improve public safety, while at the same time reducing corrections and related criminal justice spending. (People v. Cruz (2012) 207 Cal.App.4th 664, 679, 143 Cal.Rptr.3d 742 ; see § 17.5 [legislative findings and declarations regarding recidivism].)

As enacted by the realignment legislation, new section 3000.08 and an amended version of section 1203.2 became central elements of the system for parole supervision and revocation. Together with rule 4.451, these statutes provide the framework for parole eligibility, enforcement of parole supervision conditions and procedures to revoke parole in the event of a violation.

If a parole violation occurs, section 3000.08, subdivision (d), permits the supervising parole agency to impose additional conditions of supervision and "intermediate sanctions" without court intervention: "Upon review of the alleged violation and a finding of good cause that the parolee has committed a violation of law or violated his or her conditions of parole, the supervising parole agency may impose additional and appropriate conditions of supervision, including rehabilitation and treatment services and appropriate incentives for compliance, and impose immediate, structured, and intermediate sanctions for parole violations, including flash incarceration in a city or a county jail."⁴

Section 3000.08, subdivision (f), authorizes the supervising parole agency to petition to revoke parole only after the agency has determined that intermediate sanctions are not appropriate: "If the supervising parole agency has determined, following application of its assessment processes, that intermediate sanctions up to and including flash incarceration are not appropriate, the supervising parole agency shall, pursuant to Section 1203.2, petition ... the court in the county in which the parolee is being supervised ... to revoke parole." (See Osorio, supra , 235 Cal.App.4th at p. 1413, 185 Cal.Rptr.3d 881 ["less restrictive sanctions for an alleged parole violation must be considered before revocation of parole is sought"]; People v. Hronchak (2016) 2 Cal.App.5th 884, 891, 206 Cal.Rptr.3d 483 [same].)

Section 3000.08, subdivision (f), requires a petition to revoke parole filed by the supervising parole agency to include a written report containing relevant information regarding the parolee and the recommendation to revoke parole and directs the Judicial Council to adopt forms and rules of court to implement it. Rule 4.541(c), in turn, describes the minimum requirements for the written report included with the supervising parole agency's petition to revoke; and rule 4.451(e) provides, in addition to those minimum contents, the petition "must include the reasons for that agency's determination that intermediate sanctions without court intervention ... are inappropriate responses to the alleged violations."

Section 1203.2, as amended by the realignment legislation, governs the procedure for revocation of various forms of supervision, including both probation and parole. As pertinent here, section 1203.2, subdivision (b)(1), authorizes the "parole officer, or the district attorney" to petition to modify or revoke parole. That subdivision further provides, upon filing of a petition, "[t]he court shall refer ... the petition to the ... parole officer. After the receipt of a written report from the ... parole officer, the court shall read and consider the report and ... the petition and may modify [or] revoke" parole supervision "if the interests of justice so require." Subdivision (g) of section 1203.2 expressly provides that nothing in the section "affect[s] the authority of the supervising agency to impose intermediate sanctions, including flash incarceration, to persons supervised on parole pursuant to Section 3000.08."

If a parolee is found in violation of the conditions of parole, a court is authorized to (1) return the parolee to parole supervision with a modification of conditions, if appropriate, including a period of incarceration in county jail of up to 180 days for each revocation (§ 3000.08, subds. (f)(1), (g)); (2) revoke parole and order the person to confinement in the county jail for up to 180 days (§ 3000.08, subds. (f)(2), (g)); (3) refer the parolee to a reentry court pursuant to section 3015 or other evidence based program in the court's discretion (§ 3000.08, subd. (f)(3)); or (4) place the parolee on electronic monitoring as a condition of reinstatement on parole or as an intermediate sanction in lieu of returning the parolee to custody (§ 3004, subd. (a)).

2. Zamudio's Challenge to the Sufficiency of the Parole Revocation Petition Was Properly Denied

In the superior court Zamudio first argued in his demurrer that the district attorney's petition to revoke parole was deficient because it did not include the minimum information required by section 3000.08, subdivision (f), and rule 4.541(c) and (e). (See Osorio , supra , 235 Cal.App.4th at p....