Opinion
A157069
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. VANDRICK ANDRE JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR344205)
California's Department of Corrections and Rehabilitation, Division of Adult Parole Operations (the department) petitioned to revoke defendant Vandrick Andre Jones's parole for violation of his parole conditions. The trial court found that defendant had violated a condition of his parole by possessing firearm ammunition, sentenced him to 180 days in jail, and returned him to parole. On appeal, defendant contends that he was denied his due process right to adequate notice because the trial court found him in violation of parole for a violation that was not included in the parole revocation petition and the department's parole revocation report. Although we agree that the written notice was inadequate, we affirm because any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
BACKGROUND
Defendant was paroled on November 29, 2018. The conditions of his parole prohibited him from engaging in new criminal conduct (condition No. 4) and "own[ing], us[ing], hav[ing] access to, or hav[ing] under [his] control . . . any type of firearm . . . or any ammunition which could be used in a firearm" (condition No. 5).
On March 29, 2019, the department filed a petition to revoke defendant's parole under Penal Code sections 1203.2 and 3000.08 using a standard form petition for revocation (Judicial Council Forms, form CR-300). In the space asking to identify the "specific terms and conditions" (capitalization and boldface omitted) of parole that had been violated, the department wrote: "See Attached Parole Violation Report."
All further statutory references are to the Penal Code unless otherwise specified.
The parole violation report alleged three violations based on new crimes (carjacking, kidnapping, and robbery) and one violation based on possession of a firearm. It also alleged one violation for "possession of ammunition for a firearm." The report stated that, on March 21, 2019, defendant forced a victim to drive him around at gunpoint and to assist with the theft of a phone. Defendant ultimately fled from the victim's car into a backyard in the Rio Vista area. With respect to the violation alleging possession of ammunition, under the "circumstances of the charge," the report stated: "According to Police report #119-0305[,] [o]n 3/21/19, [a]fter the subject was located hiding in the backyard he was detained and arrested. The Rio Vista Police searched the backyard on Yosemite St., Rio Vista for the firearm that was witnessed to be in possession of the [s]ubject. The Officer noticed a small black tarp-style bag in the middle of the south side yard. The Officer moved the bag and uncovered a .40 caliber Glock 23. During the process of rendering the weapon safe the Officer observed a live round (WIN 40 S&W[)] eject the weapon. [H]e then observed the magazine to be loaded with an unknown number of rounds. The weapon and the ammunition rounds were taken and put into evidence." The trial court summarily revoked defendant's parole pending a formal revocation hearing.
At the contested revocation hearing, deputy sheriff James Currie, a sheriff of 26 years and firearms instructor, testified that he responded to a call for assistance from the Rio Vista Police Department and used his canine to search a backyard at 145 Tahoe Drive in Rio Vista on March 21, 2019. His canine detected defendant hiding between an outbuilding and a wooden fence. Currie detained and searched defendant, and he recovered a single, live .40 caliber bullet from the front pocket of defendant's pants. Defense counsel objected to Currie's initial identification of the bullet as a live .40 caliber bullet, and the court required the prosecution to lay a foundation before admitting this testimony. Defense counsel cross-examined Currie about defendant's arrest, his discovery of the bullet, his failure to extensively examine the bullet, his lack of knowledge regarding whether the bullet was tested, and his failure to record the incident with his body camera.
Defendant's parole agent next testified. He identified defendant and stated that defendant's conditions of parole prohibited him from possessing ammunition. On cross-examination, the parole agent acknowledged that he prepared the parole revocation report, which did not list the bullet found in defendant's pocket as a violation. In closing remarks, defense counsel argued there was insufficient evidence that the bullet was live; he questioned Deputy Currie's credibility; and he noted, "this violation is not listed in the report that the parole agent did."
The trial court found that defendant violated a condition of his parole by possessing ammunition. The court imposed a jail term of 180 days, with 45 days of credit for time served, and reinstated defendant's parole with all prior conditions to remain in effect.
Defendant timely appealed.
DISCUSSION
Defendant claims his due process rights were violated because the trial court found a parole violation based on testimony that he was arrested with ammunition in his pocket and he did not receive written notice of this parole violation. The Attorney General responds that defendant waived this argument by failing to timely object or seek a continuance, and, alternatively, that defendant was afforded sufficient notice of the violation.
The parties contend that this appeal is moot because defendant has served his 180-day jail sentence. We decline to reconsider our denial of the Attorney General's motion to dismiss on mootness grounds. We note that courts have recognized the mootness of an appeal from a parole revocation order where the defendant was no longer in confinement or under parole supervision when the appeal was heard. (See e.g., People v. DeLeon (2017) 3 Cal.5th 640, 645-646.) However, defendant's parole supervision was set to last until October 2021, and his time in custody affects his parole term. (§ 3000, subd. (b)(6) ["Time during which parole is suspended because the prisoner . . . has been returned to custody as a parole violator shall not be credited toward any period of parole unless the prisoner is found not guilty of the parole violation"]; People v. Ellison (2003) 111 Cal.App.4th 1360, 1368-1369 [notwithstanding completion of sentence, appeal not considered moot where the sentence may have negative collateral consequences].)
We first address forfeiture. The Supreme Court has recognized that the failure to timely object to inadequate notice in a criminal proceeding forfeits a due process claim. (People v. Cole (2004) 33 Cal.4th 1158, 1205 [defendant forfeited his inadequate notice claim: "Defendant never objected at trial to any lack of notice that the prosecution would attempt to prove lying in wait. Neither did defendant move for a continuance when the prosecution first indicated it might proceed on that theory, or move to reopen the taking of evidence when the prosecutor asked the court to instruct the jury on that theory"]; People v. Seaton (2001) 26 Cal.4th 598, 641 [assuming defendant had a right to pretrial notice of the prosecution's theory of felony murder, defendant forfeited his due process claim because he did not object to lack of notice or seek a continuance to respond to the theory after learning of it].)
Defendant's sole objection in this case appears untimely. There is some force to his argument that the necessity of an objection was not immediately apparent because Currie could have been setting the scene for the discovery of the loaded firearm mentioned in the revocation report, and it was not apparent that the prosecution was proceeding only on the unnoticed violation until after the prosecution rested. However, the manner in which defense counsel cross-examined the witnesses shows that counsel in fact understood the prosecution was proceeding on the unnoticed violation. Counsel did not object based on lack of notice during testimony, after the prosecution rested, or even immediately after declining to call his own witnesses. Instead, he waited until the end of his closing remarks. People v. Partida (2005) 37 Cal.4th 428, 438, and People v. Gomez (2010) 181 Cal.App.4th 1028, 1033, relied on by defendant, are inapposite, as the defendants in those cases asserted timely state-law evidentiary objections that allowed them to argue on appeal that admission of the objectionable evidence had the additional legal consequence of violating the right to due process. We nonetheless decline to resolve the forfeiture question because, even in the event of forfeiture, we may exercise our discretion to address the issue on the merits to forestall a claim of ineffective assistance of counsel. (See People v Lua (2017) 10 Cal.App.5th 1004, 1014; People v. Riel (2000) 22 Cal.4th 1153, 1192.)
Defendant suggests that he objected under section 3000.08, subdivision (f), which requires a written parole revocation report to set forth "the circumstances of the alleged underlying violation." In fact, he did not specifically mention procedural due process or section 3000.08. However, his objection that the violation was not included in the revocation report seems to have conveyed the concern of unfairness as a result of inadequate notice to the judge.
A defendant facing parole revocation is not entitled to the full panoply of rights applicable to a criminal prosecution. (Morrissey v. Brewer (1972) 408 U.S. 471, 480.) Nonetheless, the following minimum due process requirements apply to a final parole revocation hearing: "(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole." (Id. at p. 489; People v. DeLeon (2017) 3 Cal.5th 640, 653-654 (DeLeon); People v. Vickers (1972) 8 Cal.3d 451, 458 [stating that Morrissey is binding for parole revocation proceedings and finding that similar due process protections apply to probation revocation].) Written notice of each claimed parole violation is required so that the defendant has a fair opportunity to prepare and defend. (See People v. Toro (1989) 47 Cal.3d 966, 975 [the purpose of the due process notice requirement is to afford an accused a reasonable opportunity to prepare and present his defense and not to be taken by surprise], dictum disapproved of on other grounds by People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; Cohen, The Law of Probation and Parole (2d ed. 1999), § 23:38 ["If probationers or parolees are not told where, when, how, and to whom the violation occurred, they may be unable to investigate the claim and prepare their cases"].)
Here, defendant had written notice of a parole violation based on his alleged possession of a loaded .40 caliber Glock 23 presumably found near the location of his arrest. The act of possession to which Currie testified at the parole revocation hearing—a .40 caliber bullet found in defendant's pocket during arrest—is factually distinct. Two acts of possessing ammunition might have resulted in two violations of defendant's conditions of parole, but only one violation was noticed in writing.
The parole revocation report documents the search for the firearm in a backyard on Yosemite Street in Rio Vista, and Currie testified that he detained and arrested defendant in a backyard on Tahoe Drive in Rio Vista.
We agree with defendant that the authorities relied on by the Attorney General are distinguishable. In State v. Turnball (1977) 114 Ariz. 289 (Turnball), a probation revocation petition alleged that the defendant violated the condition of his probation that he "shall not possess or use any narcotics, including marijuana or dangerous drugs," and stated that a toxicology urinalysis report had indicated the defendant used morphine. (Id. at p. 808.) At the revocation hearing, the court excluded the urinalysis from evidence, but the defendant's probation officer testified that the defendant admitted to using "dope." (Id. at p. 809.) The appellate court rejected the defendant's argument that failure to provide him with written notice of the probation officer's testimony constituted a denial of due process. (Ibid.) The defendant had written notice of the violation, and, while differing evidence was used as proof, "The instance of narcotics use to which the [defendant] admitted to his probation officer and about which the officer testified is the same factual event which the petition alleged to substantiate the violation." (Ibid.) Unlike Turnball, this case deals with two distinct alleged violations, and one lacked notice.
The Attorney General cites, but does not discuss, Martineau v. Perrin (1st Cir. 1979) 601 F.2d 1201. The revocation petition there alleged a parolee violated his parole conditions by having sexual relations with a woman not his wife and by being absent from his residence without permission on a particular night. (Id. at p. 1205.) The evidence established that the woman, not the parolee, was married and the parolee was absent from home on a night other than the one alleged. (Ibid.) The court found the petition carelessly worded, but the technical and non-prejudicial variances did not offend due process where the parolee had actual notice of the substance of the charges as demonstrated by his lack of surprise or request for a continuance. (Ibid.) We address prejudice, infra.
Nor are we persuaded by the Attorney General's reliance on People v. Felix (1986) 178 Cal.App.3d 1168 and People v. Dominguez (1973) 35 Cal.App.3d 18. In Felix, when the defendant objected to testimony regarding unnoticed probation violations, the trial court indicated it would entertain a motion to continue so that the defendant had additional time to prepare. (Felix, at p. 1172.) The defendant did not seek a continuance, and the appellate court rejected his inadequate notice argument because the trial court had assured appropriate due process safeguards when it offered the defendant the opportunity to request extra time to answer the new allegations. (Ibid.) In Dominguez, the appellate court affirmed the revocation of an offender's probation based on a new conviction that violated the "obey all laws" probation condition; although written notice was not provided, the probationer and his counsel were present at the sentencing hearing on the new conviction when the court set the probation revocation hearing because of the new conviction and gave him 20 days to prepare, and defendant never objected. (Dominguez, at pp. 21-23.) Defendant here was not offered or given a continuance upon receiving actual notice that the parole violation at issue would be the basis for revocation.
The delayed timing of defendant's objection may well have played a role in this.
Nonetheless, a procedural due process violation is not subject to automatic reversal. Instead, to reverse a parole revocation order, there must be prejudice, measured by whether the error was harmless beyond a reasonable doubt. (See In re La Croix (1974) 12 Cal.3d 146, 154 [evaluating the failure to hold a parole prerevocation hearing under Chapman]; DeLeon, supra, 3 Cal.5th at pp. 659-660 [indicating Chapman would apply to same]; In re Coughlin (1976) 16 Cal.3d 52, 61 [citing In re La Croix and stating petitioner failed to show prejudice from purported delay in holding probation revocation hearing].)
Defendant does not argue that he was prejudiced by the lack of written notice, and, on this record, we find that he was not. Defendant briefly posits that, secure in the knowledge that the bullet found in his pocket was not being offered as a ground for revocation, his counsel had no cause to vigorously cross-examine Currie or call defendant as a witness. These assertions are disingenuous in light of defense counsel's detailed cross-examination of Currie regarding the discovery and identification of the bullet and defendant's concession that it was apparent that the prosecution was relying solely on the pocket possession violation by the close of the prosecution's case. Defendant did not express surprise or testify. In closing remarks, defense counsel argued that the evidence did not establish the bullet was live and challenged Currie's veracity because he had no body-camera footage, but the court credited Currie's testimony and found the evidence sufficient. On this record, any error in the department's failure to provide written notice of the allegation regarding the bullet in defendant's pocket was harmless beyond a reasonable doubt.
DISPOSITION
The order is affirmed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
TUCHER, J.