Opinion
E072356
10-22-2019
THE PEOPLE, Plaintiff and Respondent, v. RENE RODRIGUEZ CHAVEZ, Defendant and Appellant.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BPR1801597) OPINION APPEAL from the Superior Court of Riverside County. Judith M. Fouladi, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Dismissed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
The superior court found defendant Rene Rodriquez Chavez violated the terms of his parole by absconding from his assigned parole agent and by removing a Global Positioning System (GPS) device that he was required to continuously wear because he was a registered sex offender. The court revoked defendant's parole, ordered him to serve 180 days in county jail, and reinstated parole. Defendant appeals contending the court erred prejudicially by permitting the prosecution to introduce hearsay testimony from his parole agent, in violation of his due process rights to confront and cross-examine witnesses, without first expressly finding good cause to do so. The parties agree defendant will have completed his jail term and have been discharged entirely from parole before resolution of this appeal. We dismiss the appeal as moot.
I.
FACTS AND PROCEDURAL BACKGROUND
In the underlying case (case No. INF1301106), the People alleged defendant committed various felony and misdemeanor offenses in March and May 2013. Defendant pleaded guilty to three of those offenses, to wit, being a felon in possession of a firearm (Pen. Code, former § 29800, subd. (a)(1)), evading arrest (Veh. Code, § 2800.2), and making criminal threats (Pen. Code, § 422). In addition, defendant admitted he had served a prior prison term. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced defendant to state prison for four years, with credit for time served in pretrial custody and good conduct credits totaling 209 days. (Pen. Code, § 2933.) The court ordered defendant to pay a $280 restitution fine (Pen. Code, § 1202.4, subd. (b)); a $280 parole revocation restitution fine (Pen. Code, § 1202.45, subd. (b)); a $40 court operations assessment for each conviction, for a total of $120 (Pen. Code, § 1465.8, subd. (a)(1)); and a $30 criminal conviction assessment for each conviction, for a total of $90 (Gov. Code, § 70373). Finally, the trial court granted the People's motion to dismiss the additional counts and strike allegations in the interest of justice.
On our own motion, we deem the following records of the Superior Court of Riverside County, case No. INF1301106, to be part of the record on appeal: (1) the July 8, 2013 information; (2) the official minutes from the August 23, 2013 trial readiness conference, during which defendant pleaded guilty and was sentenced; and (3) the August 26, 2013 abstract of judgment.
Defendant was paroled from state prison in May 2015, with a scheduled discharge date of February 23, 2019. On October 7, 2015, defendant signed and initialed a notice of the conditions of his parole. Inter alia, defendant was required to: (1) inform his supervising parole agent in advance of any changes in his place of residence (condition No. 2); (2) refrain from owning, using, having access to, or control over any weapon (condition No. 5); and (3) participate in continuous monitoring by wearing a GPS device because, due to a prior sex offense conviction, he is a convicted sex offender and subject to lifetime registration pursuant to Penal Code section 290 et seq. (conditions Nos. 67-68, 70-71, 73-76).
In a petition to revoke defendant's parole filed on January 9, 2019, the Division of Adult Parole Operations for the California Department of Corrections and Rehabilitation (CDCR) alleged defendant violated the conditions of his parole by absconding from parole supervision (allegation No. 1), removing a GPS device from his ankle (allegation No. 2), and being in possession of a deadly weapon (allegation No. 3). The petition alleged that on November 15, 2018, Agent Salas (Salas) received a "Master Tamper" notification from defendant's GPS device. The agent was unable to contact or locate defendant, but he found defendant's GPS device in a dirt field. The agent requested and obtained an arrest warrant for defendant. On January 3, 2019, defendant was stopped and interviewed by an officer with the Desert Hot Springs Police Department. A "clothed body search" of defendant revealed a hatchet in his pants, and he was arrested and taken into custody. The petition requested the superior court revoke defendant's parole and reinstate it on the condition he serve 180 days in county jail.
During the hearing on the petition, Agent Leguillow (Leguillow) testified he had been defendant's supervising parole agent on and off for about four years. He further testified that in November 2018, defendant had been receiving services in Moreno Valley but was removed from his program. On November 14, the "agent of record," who was supervising defendant at that time, instructed defendant to report to the parole unit in Bermuda Dunes, but defendant failed to comply. Leguillow testified that on November 15, "the agent of record" received a tamper notification and went out to Moreno Valley to find defendant. The agent found defendant's GPS device in a dirt field but could not find defendant. The device had been taken apart and the straps had been removed. The field was not in the area defendant had been known to frequent. The agent then requested and obtained a warrant for a "parolee at large."
Defendant's attorney objected to the prosecutor's line of questioning for lack of foundation and lack of personal knowledge. Counsel argued, "It appears that Agent Leguillow is simply parroting what another agent may or may not have done in this case. I don't believe the foundation has been laid as far as Agent Leguillow's personal knowledge as to any of these, I guess, actions or conduct." The prosecutor responded, "My understanding is, I mean, he has testified as to the actions that were taken, and hearsay is admissible." The court interjected, "Hearsay is admissible. That is correct. But maybe you can ask some preliminary questions with regard to how Agent Leguillow was aware of this information."
Leguillow testified he received an e-mail from Salas "the next day," (Nov. 16). Salas informed Leguillow that defendant had been instructed to report to the parole office; the next morning, defendant's GPS device was discovered "unattached to Mr. Chavez"; and Salas requested a warrant for defendant's arrest. Leguillow testified defendant had been under Salas's supervision for about a week while defendant was in a program in Moreno Valley, but that supervision automatically reverted to Leguillow once Salas requested and obtained the warrant. An officer with the Desert Hot Springs Police Department located defendant in an unincorporated area and discovered a hatchet or small axe in defendant's pants. Defendant was outside his approved area. The hatchet or axe had a metal blade, and Leguillow described it as a weapon. After receiving the arrest report, Leguillow completed a parole revocation report.
"The ax, like the machete and the straight razor, is an implement whose unfortunate utility as a weapon sometimes overshadows its value as a tool." (People v. Foranyic (1998) 64 Cal.App.4th 186, 190.)
On cross-examination, Leguillow testified he had been defendant's parole agent during November 2018, except for the week defendant was supervised by Salas. Leguillow was not present when defendant had been instructed to report to the parole unit in Bermuda Dunes. He did not personally participate in the efforts to find defendant after Salas received the tamper notification because he was not defendant's parole officer at that time. Nor was he present when the GPS device was found. Leguillow learned of the efforts to locate defendant and of the discovery of the GPS device when Salas e-mailed him the next day. The e-mail from Salas had not been provided to defendant or to the prosecutor. Leguillow was not involved in the arrest of defendant either, and he did not speak to the arresting officer.
Defense counsel once again objected that Leguillow's testimony came entirely from "other sources," and he was merely "parroting" what was written in Salas's e-mail and in the arrest report. Counsel argued the testimony violated defendant's right to cross-examine witnesses. "At this point, Your Honor, I believe it's impacting Mr. Chavez's rights to cross-examination, his rights to confrontation, due process, as far as Agent Leguillow really wasn't involved in any of the incidents here. I don't believe he has any personal knowledge of this. I understand that hearsay can come in, to certain extents, in these types of proceedings, but there still needs to be some type of indicia of reliability to those statements. And without, really, any information about where these statements come from, we haven't received the information from the e-mail that was submitted from Agent Salas to Agent Leguillow that has what Agent Salas actually said."
The court asked, "Wouldn't . . . there be an indicia of reliability . . . given the fact that two parole agents working within the same unit, or within the same location, are exchanging information about Mr. Chavez?" Defense counsel argued the e-mail from Salas to Leguillow was never produced, and defendant had only learned of the e-mail communication during Leguillow's testimony. Because Leguillow was merely "parroting . . . what other people have done in this case," counsel argued he did not know if there was or was not an indicium of reliability. The court responded, "I think that it is appropriate that Agent Leguillow would be able to receive information from a fellow agent, i.e., Agent Salas, about some communications that Salas would have had with Leguillow's own parolee." The court also indicated the fact Salas's e-mail had not been produced went to the weight of Leguillow's testimony, and not to its admissibility. "I think that what is more . . . persuasive is Agent Leguillow's four-year supervision of Chavez, and [that he] would be in the position of acquiring information from all forms of other sources about his parolee." The court stated it was not persuaded the hearsay communication between Salas and Leguillow (and, presumably, the hearsay statements contained in the arrest report) was "inherently unreliable." Therefore, the court overruled defendant's objections.
On further cross-examination, Leguillow testified the only information he had about the circumstances of defendant's arrest came from his review of the arrest report. He did not actually see the hatchet or view a photograph of it, and he had no information about its size other than what was written in the report.
The court found the People had proven allegations Nos. 1 and 2 by a preponderance of the evidence but had not proven allegation No. 3. Therefore, the court granted the petition to revoke defendant's parole, ordered defendant to serve 180 days in county jail with 69 days of credit, and reinstated parole.
The minutes incorrectly state the court revoked but reinstated defendant's community supervised release under the Postrelease Community Supervision Act of 2011. (Pen. Code, § 3450 et seq.) Although parole and community supervised release are similar in many respects, they are different. (People v. Superior Court (Rangel) (2016) 4 Cal.App.5th 410, 421.) The court's oral ruling prevails over the discrepant minute order. (People v. Hartley (2016) 248 Cal.App.4th 620, 637 ["When there is a discrepancy between the record of the court's oral pronouncement of judgment and the clerk's minute order, the oral pronouncement controls."].)
Defendant timely appealed.
II.
DISCUSSION
"A trial court's order revoking parole 'is a postjudgment order affecting the substantial rights of the party, and is therefore appealable.'" (People v. Wagner (2016) 2 Cal.App.5th 774, 778; see Pen. Code, § 1237, subd. (b).) Defendant argues his due process rights to confront and cross-examine witnesses during his parole revocation hearing were violated because the trial court permitted the prosecutor to admit hearsay testimony without first expressly finding good cause to do so. (Morrissey v. Brewer (1972) 408 U.S. 471, 489 [due process rights of parolees during revocation hearings include "right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)"]; People v. Winson (1981) 29 Cal.3d 711, 719 ["Confrontation may be denied if the trier-of-fact finds and expresses good cause for doing so." (Italics added.)].) The People contend defendant's appeal is moot and should be dismissed because he was scheduled to be discharged from parole on July 10, 2019. We agree with the People and dismiss the appeal as moot.
We reserved a ruling on the People's July 17, 2019 request for judicial notice of a CDCR parolee fact sheet, which indicates defendant's scheduled discharge date of July 10, 2019. (Cal. Rules of Court, rule 8.252(a).) Defendant does not oppose the People's request for judicial notice and concedes "his parole period will have terminated" before this appeal is decided. The CDCR fact sheet is a judicially noticeable official act of the executive branch of the State of California. (Evid. Code, §§ 452, subd. (c), 459, subd. (a); see People v. Osorio (2015) 235 Cal.App.4th 1408, 1411 [CDCR records reflecting parolee's discharge date are subject to discretionary judicial notice in support of People's argument that appeal from parole revocation is moot], disapproved on another ground in People v. DeLeon (2017) 3 Cal.5th 640, 646 (DeLeon).) We now grant the People's request.
Normally, an appeal by a parolee challenging a condition of parole or the revocation of parole becomes "technically moot" if the defendant is discharged before the appeal is decided. (People v. Morales (2016) 63 Cal.4th 399, 409 (Morales); see People v. Navarro (2016) 244 Cal.App.4th 1294, 1298 ["Navarro's release from parole eliminated any effect our decision may have had on him"].) "'"[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [opposing party], an event occurs which renders it impossible for this court, if it should decide the case in favor of [defendant], to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal"' as moot." (DeLeon, supra, 3 Cal.5th at p. 645.)
In DeLeon, the superior court revoked the defendant's parole, sentenced him to 180 days in custody, and reinstated parole. (DeLeon, supra, 3 Cal.5th at p. 644.) The defendant appealed, arguing the court erred by not first conducting a preliminary hearing on the parole revocation petition. (Ibid.) The Supreme Court noted the defendant had already completed his county jail term, and defense counsel informed the court the defendant had been discharged from parole well before the Court of Appeal issued its decision. (Id. at p. 645.) "DeLeon's appeal is technically moot because a reviewing court's resolution of the issue could offer no relief regarding the time he spent in custody or the parole term that has already terminated." (Ibid.) The defendant argued his appeal was not moot because he faced "disadvantageous collateral consequences from the fact that he was found in violation of his parole." (Ibid.) Relying on the reasoning of the United States Supreme Court in Spencer v. Kemna (1998) 523 U.S. 1 (Spencer), our Supreme Court provided some guidance on the type of consequences of a parole revocation that will establish a live controversy on appeal. (DeLeon, at p. 645.)
In Spencer, "the court considered whether the defendant's appeal from a parole revocation was mooted by the fact that he had completed the entire term of imprisonment underlying the revocation. [Citation.] Interpreting the case-or-controversy requirement of article III, section 2 of the federal Constitution [citation], the court held that a violation of parole does not result in civil disabilities resembling those that stem from a criminal conviction [citation]. The court further rejected the argument that the defendant faced 'collateral consequences' from the potential use of the parole violation in a future proceeding. [Citation.] This possibility did not show an injury in fact. First, it was contingent upon the defendant again violating the law, a circumstance that was wholly within his control. Second, a prior parole violation did not mandate a particular consequence, but was simply one factor among many that could be considered in a discretionary decision by the parole authority." (DeLeon, supra, 3 Cal.5th at pp. 644-645.) "Spencer's analysis is persuasive, and we adopt it. The trial court's finding that DeLeon violated his parole does not involve the same collateral consequences that attach to a criminal conviction. Future consequences will not arise unless there is additional criminal conduct. Even then, his parole violation is just one of many factors a court may consider in deciding whether to grant probation, or what sentence to impose. Under these circumstances, [defendant's] parole violation does not constitute a disadvantageous collateral consequence for purposes of assessing mootness." (DeLeon, at p. 646.)
Our Supreme Court disapproved of two Court of Appeal decisions to the extent they concluded a parolee's appeal was not moot, despite his discharge from parole because he might face disadvantageous collateral consequences in future criminal proceedings, when seeking employment, or in child custody proceedings. (DeLeon, supra, 3 Cal.5th at p. 646, disapproving People v. Gonzalez (2017) 7 Cal.App.5th 370, 380-381 and People v. Osorio, supra, 235 Cal.App.4th at p. 1412.)
Our Supreme Court left open "the possibility that, under other circumstances, a defendant could demonstrate sufficiently concrete consequences to avoid a finding of mootness, even if the term of imprisonment has already concluded. Instead, we hold that the consequences DeLeon has identified are simply too speculative to support the conclusion that a legally sufficient controversy exists." (DeLeon, supra, 3 Cal.5th at p. 646, fn. 2, italics added.) Although the court held the appeal was moot, it nonetheless exercised its discretion to address the merits of the appeal—whether the transfer of parole revocation hearings from the Board of Parole Hearings to the superior court made a probable cause hearing unnecessary—because the issue was likely to recur, might otherwise evade review, and was of continuing public interest. (Id. at p. 646.)
Defendant concedes he will have already completed his jail term and have been discharged from parole before this appeal is resolved, but he argues his appeal presents a live controversy and is not moot because he has "suffered consequences that are not speculative." According to defendant, the erroneous revocation of his parole resulted in him serving 180 days in jail (presumably only 111 days after application of credit for the time he spent in custody following his arrest for violation of parole) that he would not have otherwise served. Citing Penal Code section 2900.5, subdivision (a), and People v. Morris (2015) 242 Cal.App.4th 94, defendant argues the days he was wrongly in custody must be treated as excess custody credits to offset the fines and fees imposed upon him when he pleaded guilty and was sentenced.
When defendant committed the offenses in this case in 2013, Penal Code section 2900.5, subdivision (a), read: "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, credited to the period of confinement pursuant to Section 4019, and days served in home detention pursuant to Section 1203.018, shall be credited upon his or her term of imprisonment, or credited to any fine on a proportional basis, including, but not limited to, base fines and restitution fines, which may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine on a proportional basis, including, but not limited to, base fines and restitution fines." (Stats. 2011, ch. 15, § 466, italics added.)
We are not persuaded. True, the courts have held the operative version of Penal Code section 2900.5, subdivision (a) (see ante, fn. 6) requires excess custody credits be used to reduce or altogether offset punitive fines. (People v. Pinon (2016) 6 Cal.App.5th 956, 966-967 & fn. 7; People v. Morris, supra, 242 Cal.App.4th at 101-103.) But, defendant's argument rests on the implicit assertion that his obligation to pay punitive fines is a disadvantageous collateral consequence of the allegedly wrongful revocation of his parole. Not so. The punitive fines imposed on defendant were a direct consequence of his long final, and presumptively valid, conviction by guilty plea. (See People v. Walker (1991) 54 Cal.3d 1013, 1022 [restitution fine is "direct consequence" of guilty plea defendant must be advised of], overruled on another ground by People v. Villalobos (2012) 54 Cal.4th 177, 183; People v. Sorenson (2005) 125 Cal.App.4th 612, 620 [applying rule from Walker to parole revocation restitution fine].)
At most, application of Penal Code section 2900.5, subdivision (a), to defendant would result in an offset of his $280 restitution fine and $280 parole revocation restitution fine. The $120 court operations assessment and the $90 criminal conviction assessment fee are not punitive. (People v. Pinon, supra, 6 Cal.App.5th at p. 967, fn. 7.) --------
Defendant would have been obligated to pay his punitive fines even if he had successfully completed his parole and it had not been revoked and reinstated on the condition he serve time in county jail. In other words, defendant's obligation to pay fines is not a concrete negative consequence "attributable to his parole revocation." (Spencer, supra, 523 U.S. at p. 14, italics added.) And, applying Penal Code section 2900.5, subdivision (a), to offset those fines would not be a disadvantageous collateral consequence attributable to defendant's parole revocation, either. To the contrary, it would be a direct, advantageous consequence of a reversal of the revocation order.
Finally, defendant argues that, even if his appeal is moot, we should exercise our discretion to decide its merits because it involves "important questions that affect the public interest and are capable of repetition yet evade review." That exception to the mootness doctrine is usually reserved for issues of first impression. (See, e.g., DeLeon, supra, 3 Cal.5th at p. 646; Morales, supra, 63 Cal.4th at p. 409; People v. Hronchak (2016) 2 Cal.App.5th 884, 889 [exercising discretion to decide merits of technically moot appeal from parole revocation order because it presented "a significant issue of first impression"].) Resolution of the issue in this appeal—whether the superior court violated defendant's due process rights to confront and cross-examine witnesses by admitting hearsay testimony without an express finding of good cause—merely requires application of well-settled law and does not require this court to decide a novel issue important to the wider public.
III.
DISPOSITION
The appeal is dismissed as moot.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.