Filed 4/12/18 P. v. Johnston CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

JAROLD THOMAS JOHNSTON,

Defendant and Appellant.


G055347

(Super. Ct. No. P02676)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Edward Hall, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *

1. Introduction
The trial court found that defendant Jarold Thomas Johnston (Defendant) was in violation of parole, revoked and reinstated his parole, and ordered him to serve 120 days in jail with 120 days of credit for time served. Defendant appealed from the order revoking and reinstating parole. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel identified issues to assist us in conducting our independent review. Defendant was granted 30 days in which to file a supplemental brief on his own behalf. He has not filed a supplemental brief.
We have reviewed counsel’s Wende/Anders brief and have examined the record in accordance with our obligations under Wende and Anders. Counsel has suggested three issues to assist us in our review. None has merit. We therefore affirm.
2. Background
In June 2016, Defendant was convicted of vehicle theft in violation of Vehicle Code section 10851, subdivision (a) and was sentenced to two years of formal probation. A petition for revocation of parole, filed in May 2017, alleged Defendant violated parole by (1) disabling his GPS tracking device and (2) using methamphetamine. According to the parole violation report, Defendant had been convicted in June 2007 of committing a lewd and lascivious act upon a child under 14 years of age (Pen. Code, § 288, subd. (a)) and committing a lewd and lascivious act upon a child under 14 years of age by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury (id., subd. (b)). As a consequence of those convictions, Defendant was required to register as a sex offender under Penal Code section 290.
A hearing on the petition for revocation of parole was conducted. Defendant, his girlfriend, and his parole officer testified. Defendant denied that he disabled his GPS device and claimed it had malfunctioned. He admitted that he used methamphetamine.
At the end of the hearing, the trial court found that Defendant was not in violation of parole based on the allegation he had disabled his GPS device. The court found that Defendant was in violation of parole for using methamphetamine. A condition of Defendant’s parole, which Defendant had initialed, was that he “shall not use, possess, or distribute any narcotic or other controlled substance as defined by law or any paraphernalia related to such substances, without a valid prescription.”
The trial court revoked and reinstated Defendant’s parole and ordered him the serve 120 days in jail, with 60 days of credit for actual time served and 60 days of conduct credit. Defendant timely filed a notice of appeal.
3. Discussion and Analysis of Potential Issues
Counsel suggests three potential issues to assist us in our review: (1) “Did the court act without authority because a commissioner, rather than a superior court judge, presided at the parole revocation hearing?”; (2) “Did the court abuse its discretion by denying the motion to dismiss under Penal Code [section] 3010.1?”; and (3) “Did the trial court abuse its discretion in failing to dismiss appellant’s non-violent drug use[?]”
As to the first potential issue, court commissioners have authority to conduct parole revocation hearings and make determinations at those hearings without stipulation by the parties. “Together, [Penal Code] sections 1203.2 and 3000.08 establish a statutory framework for parole revocation.” (People v. DeLeon (2017) 3 Cal.5th 640, 647.) Under Penal Code section 1203.2, subdivision (b), the court, on its own motion or by a petition, may revoke supervision, which includes parole, of a supervised person. “Court” is defined in Penal Code section 1203.2, subdivision (f)(1), to mean a “judge, magistrate, or revocation hearing officer described in Section 71622.5 of the Government Code.” The Legislature enacted Government Code section 71622.5 to provide courts with the additional judicial hearing officers necessary to implement the 2011 Realignment Act. (Gov. Code, § 71622.5, subd. (a).) Government Code section 71622.5, subdivision (b), thus authorizes the superior court to appoint judicial hearing officers to conduct parole revocation hearings. Penal Code section 3000.08, subdivision (a) provides that the “court” in the county in which the parolee is released or resides or in which an alleged violation of supervision has occurred shall hear petitions to revoke parole.
As to the second potential issue, Defendant’s trial counsel asked the court to exercise its discretion to dismiss the parole revocation petition if the court were inclined to sustain allegation one—that Johnston disabled his GPS device. Although the trial court did not dismiss the petition, the court found that Defendant was not in violation of parole based on the allegation he had disabled his GPS device.
As to the third potential issue, counsel argues that under People v. Armogeda (2015) 233 Cal.App.4th 428, the trial court could not order Defendant to serve jail time for violating parole by means of a nonviolent drug offense (here, possession of methamphetamine). The issue is moot because, while Defendant was ordered to serve 120 days in jail, he was given 120 days of credit.
We have examined the record in accordance with our obligations under Wende and Anders, and we find no arguable issues on appeal. Defendant himself has not filed a supplemental brief raising any issues for our review. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.)



4. Disposition
The order granting the parole revocation petition is affirmed.



FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.