California Court of Appeal Aug 13, 2015 No. D066921Unpublished
Filed 8/13/15 P. v. Martin CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066921
Plaintiff and Respondent,
v. (Super. Ct. No. PLAK7901)
TODD DAVID MARTIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Margie G.
Woods, Judge. Affirmed.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kimberly
A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Todd David Martin was sentenced to three years' parole
following conviction for possessing illegal drugs. Because defendant has a history of
sexual assault, one of his parole conditions prohibited him from being near sites where
children congregate, such as public parks. The court found defendant violated this parole
condition when he went paddle boarding at a public beach. In so finding, the court noted
Mr. Martin would like to see that happen. [¶] Until that time, Mr. Martin, bottom line is
you can't access the ocean via any beach, because a public beach is akin to a place where
children congregate.
The court sentenced defendant to 150 days in jail and reinstated the same parole
conditions as before. Defense counsel did not make any request for a modification of the
parole conditions at the hearing.
DISCUSSION
The court, in response to a petition to revoke parole, may "[r]eturn the person to
parole supervision with modifications of conditions, if appropriate, including a period of
incarceration in county jail." (Pen. Code, § 3000.08, subd. (f).) Decisions regarding
conditions for parole are reviewed for abuse of discretion. (People v. Martinez (2014)
226 Cal.App.4th 759, 764.) Abuse of discretion by the court may be demonstrated by
showing the ruling was " 'arbitrary, capricious or exceeds the bounds of reason.' " (Ibid.)
Abuse of discretion can also be found if the court exercised its discretion based upon
erroneous views regarding its scope. (People v. Sandoval (2007) 41 Cal.4th 825, 847-
848.)
A claim regarding an error in sentencing generally is not preserved for appeal if
trial counsel fails to object. (People v. Scott (1994) 9 Cal.4th 331, 355-356.) However,
such a claim can still be made on appeal if a defendant can show that trial counsel's
failure to object was a professional error under Strickland v. Washington (1984) 466 U.S.
668. To find professional error, a defendant must demonstrate that trial counsel's failure
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to act is not justifiable by any conceivable trial strategy and that the error prejudiced the
defendant. (Id. at pp. 689-690; People v. Lewis (1990) 50 Cal.3d 262, 288.)
Parole agents are accorded broad supervisory powers over parolees to mitigate the
risk parolees pose to the public. (People v. Denne (1956) 141 Cal.App.2d 499, 508-509.)
Legal standards regarding parole usually parallel those used in evaluating probation.
(Lucido v. Superior Court (1990) 51 Cal.3d 335, 345, fn. 7.) The law grants probation
officers significant discretion in deciding what level of supervision is appropriate to
enforce the terms of probation set out by the court. (See People v. Kwizera (2000) 78
Cal.App.4th 1238, 1240-1241; Pen. Code, § 1202.8, subd. (a).) The court "may leave to
the discretion of the probation officer the specification of the many details that invariably
are necessary to implement the terms of probation." (People v. O'Neil (2008) 165
Cal.App.4th 1351, 1358-1359.) "Probation officers have wide discretion to enforce
court-ordered conditions, and directives to the probationer will not require prior court
approval if they are reasonably related to previously imposed terms." (In re Pedro Q.
(1989) 209 Cal.App.3d 1368, 1373.)
Defendant claims the court failed to modify his parole conditions because the
court erroneously believed that doing so was beyond its discretion. In support of this
claim, defendant cites language from the court's ruling stating that it believed an
exception giving defendant the ability to swim in the ocean might be beneficial, but the
creation of any exception was "up to the [parole] agent."
We conclude the language relied on by defendant to show the court allegedly
believed it lacked discretion to modify his conditions of parole is at best ambiguous. This
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language can be interpreted simply as the court making a recommendation to the agent
regarding the supervision or enforcement of the condition. It does not sufficiently
demonstrate that the court wished to alter the condition but believed it could not. In the
absence of clear evidence to the contrary, we will presume the court was aware of its
discretion.
In any event, a modification of the parole condition is not necessary to permit
defendant to access the beach for the purpose of swimming in the ocean. The condition
requires defendant to stay away from areas where children congregate. It does not
facially ban defendant from visiting the beach at all times and under all circumstances.
Defendant's parole agent used his discretion to set the level of supervision best
suited to enforce the condition by barring defendant from visiting the beach. However,
the agent could conceivably allow defendant to visit the beach under certain
circumstances, while still enforcing the court-imposed condition that defendant stay away
from places where children congregate. For example, defendant might be permitted to
visit the beach during hours when schools are in session or other times when minors
would likely not be present. Furthermore, the parole agent would have had the discretion
to allow defendant's visit on Labor Day if the agent agreed with defendant's assessment
that children do not congregate at the part of the beach accessed by defendant.
Because the parole condition as it stands would allow defendant to visit the beach
under certain circumstances, trial counsel's failure to request a modification at the hearing
was not prejudicial error. Even if this claim of abuse of discretion is cognizable on
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appeal without us first finding professional error, the court's ruling is not erroneous, but
well within its discretion.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
O'ROURKE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court did not abuse its discretion in maintaining the defendant's parole conditions, as the record did not demonstrate the court believed it lacked the authority to modify them, and the existing conditions already allowed for potential flexibility by the parole agent.
Issues
Whether the trial court abused its discretion by allegedly failing to recognize its authority to modify parole conditions.
Whether the defendant's trial counsel provided ineffective assistance by failing to request a modification of parole conditions.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We disagree and conclude the court properly exercised its broad discretion.”
“In the absence of clear evidence to the contrary, we will presume the court was aware of its discretion.”
“Because the parole condition as it stands would allow defendant to visit the beach under certain circumstances, trial counsel's failure to request a modification at the hearing was not prejudicial error.”