People v. Muhammad CA1/5

Filed 7/23/21 P. v. Muhammad CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, A160396 Plaintiff, v. (Alameda County Super. Ct. No. 19-CR-018578) GOLDIE MUHAMMAD, Defendant and Respondent; DEPARTMENT OF CORRECTIONS AND REHABILITATION, Real Party in Interest and Appellant.

This case presents facts and legal issues nearly identical to those in our recently issued opinion, People v. Wilson (July 20, 2021, A160394) __ Cal.App.5th __ (Wilson). Here, as in Wilson, the defendant invited the trial court to exercise its authority under Penal Code section 1203.21 to modify the residency restriction imposed as a condition of his parole, and the trial court accepted that invitation. For the reasons set forth in Wilson, we agree with real party in interest and appellant Department of Corrections

1 All undesignated section references are to the Penal Code.

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and Rehabilitation (CDCR) that the trial court exceeded its statutory authority because, at the time of the modification, there was no pending parole revocation proceeding or alleged parole violation. BACKGROUND In 2003, defendant and respondent Goldie Muhammad (Defendant) was convicted of two counts of lewd and lascivious acts with a child under age 14 (§ 288, subd. (a)). After serving a state prison term, Defendant was released to parole in 2017. CDCR determined that Defendant was a “high risk” sex offender and imposed the following residency restriction as a condition of his parole: “You shall not reside within one-half mile of any public or private school (kindergarten and grades 1 through 12, inclusive) pursuant to PC Section 3003(g).”2 In 2019, Defendant filed a motion for relief under section 1203.2, subdivision (b)(1) (section 1203.2(b)(1)), inviting the trial court to “act on its [own] motion and modify the conditions of his parole to exclude the residence restriction[] . . . .”3 Defendant argued he was currently homeless because he was unable to reside in any home available to him, this result was harmful and contrary to the purposes of parole, and the residency restriction was therefore invalid as applied to him. CDCR opposed the motion, arguing the trial court was not authorized to modify Defendant’s parole conditions under