Filed 12/11/17 P. v. Smolkin CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
ANATOLY SMOLKIN,
Defendant and Appellant.

A150585

(Solano County
Super. Ct. No. FCR323474)

Anatoly Smolkin was convicted by a San Francisco jury of multiple counts of stalking (Pen. Code, § 646.9, subd. (a)) against 11 different victims; multiple violations of restraining orders (§ 646.9, subd. (b)); making criminal threats (§ 422) against nine different victims; making threats to an executive officer (§ 69); battery on a peace officer (§ 243, subd. (b)); disruptive presence at a school (§ 626.8, subd. (a)); and 15 counts of contempt of court by violating a civil harassment restraining order (§ 166, subd. (a)(4)). The case apparently involved Smolkin calling, e-mailing, and threatening 23 individuals over a two-month period after his employment was terminated. In April 2013, the trial court sentenced Smolkin to a total determinate term of seven years in state prison. The court imposed a 10-year criminal protective order prohibiting Smolkin from entering the City of San Francisco. No appeal was taken.
Smolkin was released on parole to Solano County on March 30, 2016. On April 6, Smolkin received and acknowledged both general and special conditions of parole. One special condition of parole, paralleling the protective order restriction, was that Smolkin not enter the City of San Francisco “based on previous offenses as noted in the subject’s criminal history.” The general conditions advised Smolkin that if he violated any conditions of parole “or violate[d] any law” he would be subject to arrest and incarceration “regardless of whether new charges are filed.”
Following an evidentiary hearing on September 16, 2016, the trial court found Smolkin in violation of his parole conditions, reinstating parole on the same terms and conditions as previously ordered, conditioned on service of a 180-day term in county jail. We affirmed on appeal. (People v. Smolkin, supra, A149514.) The proceeding at issue in this appeal, a second petition for revocation of parole, was filed on December 16 in the Solano County Superior Court. The petition alleged Smolkin failed to inform his parole agent of his current address or residence after release from custody on November 21, and he failed to stay away from the city of San Francisco.
A contested revocation hearing was held on January 6, 2017. The trial court found Smolkin in violation of his parole, reinstated parole on the same terms and conditions previously imposed, with the further condition that Smolkin serve an additional 180 days in the county jail with 30 days’ credit for time served and 30 days of local conduct credit.
Assigned counsel submitted a Wende brief, certifying an inability to identify any issues for appellate review. Counsel also submitted a declaration confirming Smolkin was advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.) We find no arguable issues and therefore affirm.
BACKGROUND
Parole Agent Joe Luzadas testified at the revocation hearing that he was Smolkin’s parole supervisor. Following sentencing on his prior parole violation, Smolkin was released from Solano County Jail on November 21, 2016. He reported to the parole office in Solano County on November 22. Smolkin was notified on his release from jail that if he stayed or resided in a motel, he was obligated as a condition of parole to provide his address and location to his parole agent. Smolkin did not provide or disclose his current residence or address as required, instead he wrote on an address form “To be determined. It’s Thanksgiving weekend and everything is full.” On November 28, Luzadas unsuccessfully attempted to contact Smolkin by calling his cell phone and by contacting his last reported address of record at a motel, but Smolkin was not there. Smolkin never provided his residence address to the parole office following his release from custody. A further condition of parole was that Smolkin was to stay 35 miles away from the city of San Francisco. Smolkin was arrested in San Francisco on December 8.
Smolkin testified that he reported to the parole office in Vallejo following his releases from custody on November 4, 17 and 21, 2016. Smolkin said he provided his parents’ address in Lafayette following his November 17 release and was residing there. Smolkin contended that he left a telephone message for his parole agent that his phone had been seized by the San Francisco Police Department. Smolkin admitted he was arrested in North Beach in San Francisco on December 8.
Defense counsel argued that Smolkin had not willfully violated his parole conditions and he had provided his residence address to parole authorities on November 17, 2016. Counsel asserted the San Francisco restriction was overbroad and unconstitutional. The court found Smolkin in violation of his parole conditions and ordered that he serve 180 days in the county jail, with custody credit for 30 days served and 30 days of local conduct credit.
DISCUSSION
“[R]evocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. [Citation] . . . Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” (Morrissey v. Brewer (1972) 408 U.S. 471, 480.)
“If the court finds the parolee has violated the conditions of parole, it may (1) return the person to parole supervision with modifications of conditions, if appropriate, (2) revoke parole and order the person to confinement in county jail, or (3) refer the person to reentry court or an evidence-based program.” (Williams v. Superior Court (2014) 230 Cal.App.4th 636, 652, disapproved on other grounds in People v. DeLeon (2017) 3 Cal.5th 640, 653; see § 3000.08, subd. (f).) Whether to revoke parole lies within the trial court’s “very broad discretion.” (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) The facts supporting revocation must be proved by a preponderance of the evidence. (Id. at p. 441; see § 3044, subd. (a)(5).) We review the order revoking parole for abuse of discretion (People v. Butcher (2016) 247 Cal.App.4th 310, 318), but the court’s factual findings for substantial evidence (People v. Urke (2011) 197 Cal.App.4th 766, 773).
In the trial court, Smolkin objected that the condition prohibiting him from entering the City of San Francisco was overbroad and vague. Smolkin, as in his prior appeal, fails to provide a record adequate to assess the validity of this condition. The constitutionality of a parole condition is a fact-specific inquiry. A special condition of parole will be upheld if it has a rational basis and is reasonably related to the nature of the offense and the history and characteristics of the offender. (See In re Stevens (2004) 119 Cal.App.4th 1228, 1234 [“[c]onditions of parole must be reasonably related to the compelling state interest of fostering a law-abiding lifestyle in the parolee”]; United States v. T.M. (9th Cir. 2003) 330 F.3d 1235, 1239–1240.)
Smolkin was represented throughout the revocation proceedings by competent counsel. No abuse of the trial court’s discretion is shown, and no arguable issues are presented.
DISPOSITION
The judgment is affirmed.





_________________________
BRUINIERS, J.


WE CONCUR:


_________________________
SIMONS, Acting P. J.


_________________________
NEEDHAM, J.