Filed 11/7/18 P. v. Tway CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Edward W. Hall, Commissioner. Affirmed.

Arielle N. Bases, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Michael D. Butera and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Jeffrey Michael Tway pleaded guilty to failing to register as a sex offender. The trial court imposed a two-year prison term. While Tway was released on parole, the Department of Corrections and Rehabilitations Division of Adult Parole Operations (the Department) filed a petition to revoke his parole. The Department alleged that Tway had violated two parole conditions: using methamphetamine and disabling his GPS tracking device. The court found the allegations to be true, revoked Tway’s parole, and committed him to county jail for 180 days.

Tway argues that the trial court erred by failing to sustain his demurrer to the revocation petition, there was insufficient evidence to support a “willful” GPS parole violation, and the court abused its discretion by imposing a 180-day jail term.

We disagree and affirm the judgment.

I

FACTS AND PROCEDURAL BACKGROUND

On December 18, 2014, Tway pleaded guilty to failing to register as a sex offender. (Pen. Code, § 290.018, subd. (b).)[1] The trial court imposed a two-year prison sentence.

On February 18, 2016, Tway was released on parole for three years. Tway signed a document acknowledging various parole conditions. One of the conditions stated: “You shall not use, possess, or distribute any narcotic or controlled substance . . . .” Another condition stated: “You shall participate in continuous electronic monitoring, i.e., global positioning system (GPS) technology.” Specifically, the condition provided: “You shall charge the GPS device at least two times per day (every 12 hours). For at least 1 full hour for each charging time.” (Italics added.)

Prior Parole Violations

On July 26, 2016, Tway entered a motel or hotel room without prior approval from his parole agent. The agent gave Tway a verbal reprimand.

On September 13, Tway admitted using narcotics. The parole agent referred Tway to a community based support group.

On October 2, a police officer found pornographic materials on Tway’s cell phone. The trial court revoked Tway’s parole and committed him to jail for 45 days.

On October 23, Tway was released from jail and was ordered to report to the Department within 24 hours. Tway failed to report. After three days, Tway’s parole agent obtained an arrest warrant. Two days later, a police officer arrested Tway, who admitted using methamphetamine. The trial court revoked Tway’s parole and committed him to jail for 90 days.

On December 11, Tway was released from jail, but again failed to report to the Department. Three days later, Tway reported and told an agent: “I messed up I started using and I didn’t want to go back to jail.” The trial court revoked Tway’s parole and committed him to jail for 120 days.

On February 21, 2017, Tway failed to charge the GPS tracking device as instructed. The following day, Tway failed to report to a treatment program. Two days later, Tway admitted to “using meth and drinking.” The trial court revoked Tway’s parole and committed him to jail for 135 days.

The Instant Parole Violations

On June 4, 2017, at 8:16 a.m., Tway’s GPS device set off an alarm indicating that the battery was low. Between 8:16 a.m. and 10:04 a.m., Tway charged the device seven separate times for a total of 73 minutes, but each charging time was less than one hour (43, 5, 12, 4, 3, 4, and 2 minutes, respectively). At 2:38 p.m., the GPS device started to buzz continually, indicating that the battery was low. At 9:16 p.m., the GPS device went into “critical battery” condition.

On June 5, at 1:17 a.m., the battery in Tway’s GPS device went dead. Shortly thereafter, Parole Agent Millicent Golz located Tway at a bus stop near his last tracked location. Golz confirmed that the GPS device’s battery had gone dead. Tway told Golz that he had been using methamphetamine for two days.

Court Proceedings

On June 9, the Department filed a petition for parole revocation. The petition alleged two parole violations: 1) disabling a GPS tracking device; and 2) using methamphetamine. “Given [Tway’s] poor parole performance and inability to charge his monitor sufficiently so that he may be monitored in the community,” the Department recommended that Tway be returned to custody for 180 days.

On June 19, Tway filed a demurrer. The trial court found probable cause to support the revocation petition and overruled Tway’s demurrer.

On July 14, there was a hearing on the parole revocation. The trial court heard testimony from Golz and reviewed exhibits concerning the GPS device. After hearing arguments from the parties, the court found Tway’s alleged parole violations to be “willful” and found them to be proven true by a preponderance of the evidence. The court revoked parole and committed Tway to jail for 180 days.

II

DISCUSSION

Tway argues that the trial court erred by failing to sustain his demurrer to the revocation petition, there was insufficient evidence to support a “willful” GPS parole violation, and the court abused its discretion by imposing a 180-day jail term.

We shall address Tway’s arguments. But as a preliminary matter, we will first address the Attorney General’s argument concerning mootness.

A. Mootness

The Attorney General argues that Tway’s appeal is moot because “it is undisputed that [he] has completed the 180-day confinement ordered as a result of his parole revocation and is no longer incarcerated.” We disagree.

A question becomes moot when a court is unable to grant any effectual relief or render an opinion that affects the matter at issue. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 566.) A case that was justiciable at an earlier point may become moot on appeal. (In re A.Z. (2010) 190 Cal.App.4th 1177, 1180-1181 [defendant’s death mooted his appeal].) But the fact that a defendant has completed his incarceration ordinarily does not moot an appeal. This is because a criminal conviction is likely to have continuing collateral consequences. (In re Byrnes (1945) 26 Cal.2d 824, 828 [although defendant “served the full terms of imprisonment . . . that fact does not bar his right to an appeal . . . for the purpose of clearing his name”].)

However, the same concerns regarding collateral consequences do not ordinarily attach to a defendant’s parole revocation. (See Spencer v. Kemna (1998) 523 U.S. 1 (Spencer); see also People v. DeLeon (2017) 3 Cal.5th 640 (DeLeon).) In Spencer, the United States Supreme Court held that a petitioner’s writ of habeas corpus seeking to invalidate a parole revocation was moot; the petitioner had already completed the term of imprisonment underlying the revocation order. (Spencer, supra, 523 U.S. at pp. 12-14.) The Court reasoned that a defendant with a parole revocation on his or her record does not face the same “collateral consequences” as a criminal conviction. (Id. at p. 14.) Similarly, the California Supreme Court in DeLeon held that a “defendant’s appeal from a parole revocation order was moot[].” (DeLeon, supra, 3 Cal.5th at pp. 645–646.) At the time of the defendant’s appeal, he had completed the jail term imposed for the parole violation and he had been discharged from parole. As a result, “a reviewing court’s resolution of the issues could offer no relief regarding the time he spent in custody or the parole term that has already terminated.” (Id. at p. 645.)

At this point in time, Tway has now completed his 180-day jail sentence imposed for the instant parole violations. However, Tway continues to be on active parole (in February 2016, Tway was released and placed on parole for three years). Further, under California law, a defendant’s parole period can be extended up to four years based on any parole violations. (See § 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”]; see also § 3000, subd. (b)(6)(A) [“in no case may a prisoner subject to three years on parole be retained under parole supervision . . . for a period longer than four years”].)

Here, if we had reversed the parole revocation order, Tway may have been eligible for release from parole at an earlier point in time. Thus, Tway’s appeal is not moot because we have the capacity to grant effectual relief or render an opinion that affects the matter at issue. (See Lester v. Lennane, supra, 84 Cal.App.4th at p. 566.)[2]

B. Demurrer

Tway argues that the trial court improperly overruled his demurrer to the petition to revoke parole. We disagree.

“‘[A] demurrer raises an issue of law as to the sufficiency of the accusatory pleading, and it tests only those defects appearing on the face of that pleading.’” (People v. Manfredi (2008) 169 Cal.App.4th 622, 626; Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1090 [“A demurrer to a criminal complaint lies only to challenge the sufficiency of the pleading and raises only issues of law”].) On appeal, we review a trial court’s order overruling a defendant’s demurrer de novo. (Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 524.)

When a parole violation occurs, the Department may impose “intermediate sanctions.” (§ 3000.08, subd. (d).) However, if the Department “has determined . . . that intermediate sanctions . . . are not appropriate, the supervising parole agency shall . . . petition . . . the court in the county in which the parolee is being supervised . . . to revoke parole.” (§ 3000.08, subd. (f).) “The petition must include a written report detailing the terms and conditions of parole and how they were violated, the parolee’s background, and the Department’s recommendation to the court.” (People v. Osorio (2015) 235 Cal.App.4th 1408, 1412–1413, disapproved on other grounds in People v. DeLeon (2017) 3 Cal.5th 640, 646.) The petition also “must include the reasons for that agency’s determination that intermediate sanctions without court intervention . . . are inappropriate responses to the alleged violations.” (Cal. Rules of Court, rule 4.541(e); see also Williams v. Superior Court (2014) 230 Cal.App.4th 636, 652.)

Here, the Department filed a petition to revoke Tway’s parole. The petition included Tway’s current custody status, the date of the upcoming hearing, and other basic information. The petition also referred to a second attached document, a “Parole Violation Report.” Within that report, the Department alleged two parole violations: 1) Tway’s disabling of his GPS tracking device; and 2) Tway’s admitted use of methamphetamine. The Department recommended Tway’s parole be revoked and that the trial court impose a 180-day jail term.

The Parole Violation Report included the following narrative section: “EVALUATION: Intermediate sanctions have been considered. However, they have been deemed not appropriate at this time. Subject is currently on parole for the commitment offense of Failure to Register as PC 290. Subject was released from state prison on 2/18/16. He has prior convictions [the report listed seven of them]. Subject has three prior parole violations, for use of methamphetamine which he was referred to community based support meetings and entering a motel/hotel room without prior approval from the parole agent, for which subject received a verbal reprimand. Subject’s adjustment on parole has been poor, he made little effort to remain in the community. Subject was most recently referred to the Day Reporting Center (DRC) to assist in his parole reintegration. Subject had failed to report to the DCR for three days in a row prior to his arrest. [¶] Given his poor parole performance and inability to charge his monitor sufficiently so that he may be monitored in the community, the [Department] is requesting the subject be remanded to custody.”

The petition to revoke Tway’s parole included all of the required information, including the Department’s alleged reasons why it decided that intermediate sanctions were not appropriate: the nature of Tway’s conviction offense (failure to register as a sex offender), and the nature of the underlying violations (disabling of the GPS tracking device and methamphetamine use). Thus, we find that the trial court properly overruled Tway’s demurrer to the petition.

Tway argues that the petition included no “discussion regarding why appellant’s current violation cannot be addressed with intermediate sanctions.” He is mistaken. The Department alleged that the two current violations could not be addressed with intermediate sanctions because of Tway’s “poor parole performance and inability to charge his monitor so that he may be monitored in the community.” Tway also argues that the Department “failed to describe which intermediate sanctions were allegedly considered and why they were deemed inappropriate.” But that level of detail is not required in a pleading document. In short, the Department satisfied its pleading obligations.

Finally, Tway argues that his parole agent testified at the hearing that “she did not discuss any intermediate sanctions with her supervisor. Therefore . . . no intermediate sanctions were every properly considered.” But the parole agent testified after the Department had filed its petition. So Tway’s argument is really a challenge to the trial court’s ultimate ruling regarding his parole revocation, rather than the adequacy of the Department’s pleading document. (See People v. Biane (2013) 58 Cal.4th 381, 388 [“A demurrer is not a proper means of testing the sufficiency of the evidence supporting an accusatory pleading”].)

In sum, the Department met its pleading obligations. Thus, the trial court properly overruled Tway’s demurrer.

C. Sufficiency of the Evidence

Tway argues there was insufficient evidence to support the trial court’s finding that his disabling of the GPS device was willful. We disagree.

When a defendant challenges a finding of a parole (or probation) violation based upon sufficiency of the evidence, our task is to decide “whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.” (People v. Kurey (2001) 88 Cal.App.4th 840, 848–849, fns. omitted.)

Findings are “based upon a preponderance of evidence” that may include hearsay from parole agents. (§ 3044, subd. (a)(5).) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge . . . to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)

In order to revoke parole, the evidence must support the conclusion that the violation of the terms of parole was willful. (People v. Galvan (2007) 155 Cal.App.4th 978, 982.) “The word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” (§ 7, subd. (l), italics added.)

In the case of an alleged omission, the term “willfulness” requires proof that the person knew of his duty to act; a failure to act cannot be intentional unless the person knew he was under such a duty. (People v. Davis (2005) 126 Cal.App.4th 1416, 1436.) If a person’s inability to comply was “because of circumstances beyond his or her control” it is not a “willful” violation. (See People v. Cervantes (2009) 175 Cal.App.4th 291, 295.) However, a person’s “[l]ack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787.)

Here, Tway’s parole condition concerning the GPS device specifically provided that: “You shall charge the GPS device at least two times per day (every 12 hours). For at least 1 full hour for each charging time.” (Italics added.) Tway signed a document indicating that: “I have read . . . and understand the conditions of parole as they apply to me.” Tway’s parole agent Golz also testified that she had gone over the GPS terms with him.

The unchallenged exhibits showed that on the morning of June 4, 2017, Tway charged the GPS device seven separate times for a total of 73 minutes, but each charging time was less than one hour, in violation of the GPS parole terms. The last charge was for two minutes (from 10:02 a.m. to 10:04 a.m.). At 2:38 p.m., the GPS device started to buzz continually, indicating that the battery was low. And at 9:16 p.m., the GPS device went into “critical battery” condition. But Tway never charged the GPS device after 10:04 a.m., in violation of his additional parole obligation to charge the device every 12 hours. Indeed, as one would anticipate, the battery finally died and the GPS device became inoperable at 1:17 a.m., the following day.

Although there was evidence that Tway was homeless, there was no evidence that Tway was prevented from charging the GPS device. Golz testified that parolees have the ability to charge GPS devices at “the behavioral institution” in Santa Ana, where Tway was located, or at local businesses such as Starbucks. In short, there was evidence that Tway knew he was required to charge the GPS device, and he had the ability to do so, but he failed to comply. Thus, there is sufficient evidence that Tway willfully rendered the device disabled, as alleged in the revocation petition.

Tway argues that Golz testified that she did not check the device’s “maintenance records.” Tway theorizes that because he charged the device for a total of 73 minutes “it is reasonably probable that had the GPS device been working properly, the charges would have been enough to keep the GPS from dying.” There is no evidence in the record to support Tway’s notion in this regard. But in any event, our task in a substantial evidence review is not to reweigh the evidence presented at the hearing. Having found substantial evidence to support the trial court’s ruling, we must affirm.

D. Abuse of Discretion

Tway argues that the trial court abused its discretion by imposing a 180-day jail sentence for a “de minimis” parole violation. We disagree.

A “trial court has broad discretion when it comes to sentencing.” (People v. Groomes (1993) 14 Cal.App.4th 84, 87.) It is well settled that where a sentencing determination is committed to the discretion of the trial court, that sentence will rarely be disturbed on appeal. (Brown v. Newby (1940) 39 Cal.App.2d 615, 618 [“An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge”].) A court’s sentencing determinations “will not be disturbed unless there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice.” (People v. Wall (2017) 3 Cal.5th 1048, 1069.)

“The Legislature finds that continuous electronic monitoring has proven to be an effective risk management tool for supervising high-risk persons on parole who are likely to reoffend where prevention and knowledge of their whereabouts is a high priority for maintaining public safety.” (§ 3010, subd. (e).) “Whenever a parole officer . . . has reasonable cause to believe that the individual is not complying with the rules or conditions set forth for the use of continuous electronic monitoring . . . , the officer supervising the individual may, without a warrant of arrest, take the individual into custody for a violation of parole.” (§ 3010.7.)

“A person who is required to register as a sex offender . . . shall not remove, disable, render inoperable, or knowingly circumvent the operation of . . . an electronic, GPS, or other monitoring device affixed to his or her person as a condition of parole . . . .” (§ 3010.10, subd. (b), italics added.) Generally, the Department must consider “less restrictive sanctions for an alleged parole violation” before seeking revocation. (People v. Osorio, supra, 235 Cal.App.4th at p. 1413.) And ordinarily, “upon revocation of parole, a parolee may be housed in a county jail for a maximum of 180 days per revocation.” (§ 3056, subd. (a).) However, in the event that there is “a violation of [section 3010.10] subdivision (b), the parole authority shall revoke the person’s parole and require that he or she be incarcerated in a county jail for 180 days.” (§ 3010.10, subd. (e), italics added.)

Tway is a registered sex offender. The trial court found that Tway willfully failed to charge his GPS tracking device, thereby rendering it inoperable. The court was required to impose a 180-day county jail term for Tway’s parole violation under section 3010.10, subdivision (e). Thus, the court plainly did not abuse its discretion.

In any event, even if a 180-day jail term were not required by statute, we would find Tway’s punishment to be well within the trial court’s discretion. The evidence showed that Tway had violated his parole on seven prior occasions. And within the prior eight months, the court had imposed four jail terms with progressively harsher punishments for each violation (45, 90, 120, and 135 days, respectively). Under these circumstances, a 180-day jail term cannot plausibly be considered arbitrary or capricious.

Tway argues that his GPS parole violation was “de minimis.” We reject that description. The Legislature has found “that continuous electronic monitoring has proven to be an effective risk management tool for supervising high-risk persons on parole . . . .” (§ 3010, subd. (e).) Tway further cites People v. Buford (1974) 42 Cal.App.3d 975 (Buford), for the proposition that: “In rare cases in which there is proof of technical but de minimis violations of the conditions of probation, appellate courts have reversed the revocation on grounds of abuse of discretion.” But Tway has totally mischaracterized the Buford opinion.

In Buford, a jury found defendant guilty of three counts of child molestation. (Buford, supra, 42 Cal.App.3d. at p. 978.) The trial court granted defendant probation for a period of five years. (Ibid.) About a year later, the probation department filed a petition for revocation, alleging defendant: 1) failed to report to probation; 2) failed to maintain employment; 3) changed his residence without notification; and 4) failed to register as a sex offender. (Id. at p. 986.) The trial court presided over a hearing in which a probation officer testified, but his testimony was based on a report prepared by a different officer. (Id. at pp. 982-983.) As to the alleged failure to report, the probation officer “testified that he did not recall having explained to [defendant] his duty to report on a regular monthly basis, and that [defendant] had never missed a prearranged meeting with [the probation officer].” (Id. at p. 985.) As to the alleged failure to maintain employment and changing of residence without notice, the probation officer was “not sufficiently familiar with” defendant’s file or record. (Id. at pp. 984-985.) And as to the alleged failure to register as a sex offender, the probation officer “had never discussed with [defendant] whether or not he had registered, although the sentencing court clearly directed the probation officer to do so.” (Id. at p. 987.) The Court of Appeal reversed, concluding “that the trial court, upon the evidence before it, improperly revoked [defendant’s] probation.” (Ibid.)

In Buford, supra, 42 Cal.App.3d 975, it is apparent that the appellate court reversed the trial court’s probation revocation order because there was insufficient evidence to support it. But in this case, unlike Buford, there is substantial evidence to support the trial court’s finding that Tway willfully violated the conditions of his parole.

In sum, the trial court did not abuse its discretion when it imposed a statutorily required (and otherwise reasonable) 180-day jail term.

III

DISPOSITION

The judgment is affirmed.

MOORE, ACTING P. J.

WE CONCUR:

IKOLA, J.

GOETHALS, J.