People v. Horace CA2/1

Filed 10/28/15 P. v. Horace CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B262382

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 5PH00045) v.

MARCEL HORACE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Jacqueline H. Lewis, Judge. Reversed. ______ Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent. ______

Marcel Horace appeals from the order entered after the trial court found him in violation of his parole, revoked and reinstated parole on the same terms and conditions and sentenced him to 180 days in county jail. Because we conclude the evidence does not support the finding of a willful violation of parole, we reverse the order. FACTUAL AND PROCEDURAL BACKGROUND “A person who is required to register as a sex offender pursuant to Section 290 shall not remove, disable, render inoperable, or knowingly circumvent the operation of, or permit another to 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, when he or she knows that the device was affixed as a condition of parole.” (Pen. Code, § 3010.10, subd. (b).) Horace complied with Penal Code section 290’s registration requirement. Yet, on January 5, 2015, the Division of Adult Parole Operations filed a petition for revocation of parole, alleging that Horace had violated conditions of parole by (1) absconding parole supervision and (2) disabling his GPS device when he allowed it to “transition into dead battery” status between December 23 and 30, 2014. (See Pen. Code, § 3000.08, subd. (f).) The trial court found probable cause to support a revocation of parole and preliminarily revoked parole. The trial court held a contested parole revocation hearing on February 11, 2015. According to the evidence presented at that hearing, on May 13, 2014, Horace was released on parole under the supervision of Brian Bowers, a parole agent in the County of Los Angeles. As conditions of parole, Horace was required to wear a global positioning system (GPS) device, pursuant to Penal Code section 290, and to charge the device for at least one hour at least two times per day (every 12 hours). Soon after, while on parole, Horace was stabbed. He spent several months in the hospital, much of the time in a coma, and had two heart surgeries. On November 28, Horace got out of the hospital. Bowers attached Horace’s GPS device and reviewed with him the conditions of his parole. Bowers believed that Horace understood them. After his discharge from the hospital, Horace lived with his ex-wife and complied with the charging requirement for his GPS device.