People v. Osorio CA4/3

Filed 3/30/15 P. v. Osorio 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G048876

v. (Super. Ct. No. P00023)

JESUS FRANCISCO OSORIO, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Gregg L. Prickett, Judge. Reversed. Request for judicial notice. Granted. Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Collette C. Cavalier and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent. * * *

INTRODUCTION After defendant Jesus Francisco Osorio violated a condition of his parole, he was arrested and jailed. The California Department of Corrections and Rehabilitation, Division of Adult Parole Operations (the Department) recommended that defendant’s parole be revoked. Defendant demurred to the petition for revocation. The trial court overruled the demurrer, revoked defendant’s parole, credited him with time served, and then reinstated him on parole. We reverse because the trial court erred in overruling the demurrer to the petition for revocation of parole. The petition was insufficient as a matter of law.

STATEMENT OF FACTS AND PROCEDURAL HISTORY In January 2011, defendant pled guilty to one count of second degree robbery and one count of street terrorism, and was sentenced to two years in prison. Defendant began serving a three-year parole term in November 2011. One of the conditions of defendant’s parole was to not associate with anyone he knew or reasonably should have known was a member or associate of a gang. On July 2, 2013, defendant stopped his bike to talk to two men he knew were gang members. Defendant admitted he knew he was violating his parole by associating with members of the “Lopers” criminal street gang. Defendant was arrested for the parole violation, and was jailed until his parole revocation hearing. A petition for revocation of parole was filed on July 15, 2013. At the arraignment hearing on July 18, defendant filed a demurrer and motion to dismiss. The trial court overruled the demurrer, found probable cause for the petition for revocation, and set an evidentiary hearing. At the parole revocation hearing on August 8, the court found defendant in violation of parole, revoked parole, and sentenced defendant to 73 days in jail. The court credited defendant with time served, as well as good conduct credits, and reinstated his parole. Defendant timely appealed.