California Court of Appeal Feb 28, 2024 No. E080236Unpublished
Filed 2/28/24 P. v. Carson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E080236
v. (Super.Ct.No. BPR2201157)
WILLIAM LEROY CARSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Gary Polk, Judge.
Affirmed.
Eric Multhaup, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Heather B.
Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant William Carson appeals from the trial court’s finding that
he violated his parole conditions by failing to report to his parole agent within one
working day of his release from custody. We affirm.
Citing People v. DeLeon (2017) 3 Cal.5th 640 (DeLeon), the People contend defendant’s
challenge to the parole revocation is moot, and we are unable to grant any effective relief
because he has already completed the 150-day county jail term for his October 2022
parole violation.
Defendant had 84 days of custody credits on November 18, 2022, the day he was
ordered to serve the 150-day term. As a parolee confined to county jail (§ 4019, subd.
(a)(5)), he was eligible to earn two days of custody credits for every four days he served
in jail after November 18, 2022. (§ 4019, subds. (b), (c).) We note the court informed
him his release date would be December 25. As the People concede, the record does not
show he was released from custody. However, since well over 150 days have passed
since the November 18 hearing, it is reasonable to assume he has served the 150-day jail
term for his parole violation. Thus, it appears we are unable to grant any effective relief
that would ameliorate that punishment. (See Schaffer, supra, 53 Cal.App.5th at p. 506.)
However, defendant asserts that, in DeLeon, the record showed the defendant in
that case not only served his parole revocation term, but also that his parole had been
terminated. (See DeLeon, supra, 3 Cal.5th at p. 645.) Defendant argues the People here
have not shown that his parole has been terminated, and he points out that the Riverside
County Sheriff’s website “shows that as of September 14, 2023, [he] is in custody at the
Robert Presley Detention Center.” Because of defendant’s extensive criminal history
reflected in the record, it is unclear if his parole period in the instant case has been
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terminated and/or why he is currently in custody. Even if his parole period has not been
terminated and his appeal is not moot, defendant’s claim that the evidence did not support
a finding that he violated his parole has no merit.
A. Relevant Law
Upon a finding that a person has violated the conditions of his parole, a court has
the authority to “[r]evoke parole and order the person to confinement in a county jail.”
(§ 3000.08, subd. (f)(2).) Confinement shall not exceed a period of 180 days.
(§ 3000.08, subd. (g).) “Parole revocation determinations shall be based upon a
preponderance of evidence admitted at hearings including documentary evidence, direct
testimony, or hearsay evidence offered by parole agents, peace officers, or a victim.”
(§ 3044, subd. (a)(5).) We review an order revoking parole for abuse of discretion and
review the court’s factual findings for substantial evidence.2 (People v. Butcher (2016)
247 Cal.App.4th 310, 318 (Butcher); People v. Urke (2011) 197 Cal.App.4th 766, 772.)
“Under that standard, our review is limited to the determination of 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
2 “In 2012 the Legislature amended section 1203.2 to incorporate parole into the statutes governing revocation of probation, mandatory supervision, and postrelease community supervision.” (DeLeon, supra, 3 Cal.5th at p. 647.) “Together, sections 1203.2 and 3000.08 establish a statutory framework for parole revocation.” (Ibid.; see People v. Rodriguez (1990) 51 Cal.3d 437, 441 [“Parole and probation revocation hearings are equivalent in terms of the requirements of due process.”].)
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judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.”
(People v. Kurey (2001) 88 Cal.App.4th 840, 848-849 (Kurey).)
B. Substantial Evidence Supports the Court’s Finding That Defendant Violated
His Parole
At the outset, we note that, during closing arguments, defense counsel stated
defendant “acknowledges that he was 15 minutes late, and it is a violation.” Thus,
defendant apparently admitted he was in violation of his parole, and defense counsel
argued that defendant still had the GPS affixed to him on the day he was required to.
However, defendant now claims there was an “absence of evidence that a parole violation
occurred.” Assuming arguendo defendant has not waived his argument, we conclude
there was substantial evidence to support the court’s finding of a violation.
The prosecution only had to prove that defendant violated his probation by a
preponderance of the evidence. (See § 3044, subd. (a)(5).) The agent testified that when
he reviewed the JIMS website on October 11, 2022, it reflected that defendant was
released from custody on October 6.3 Defendant claims the JIMS report on the website
was hearsay and therefore could not be considered substantial evidence. However,
hearsay evidence offered by parole agents is admissible at parole revocation hearings.
3 In his reply brief, defendant argues that the agent did not provide documentation for this assertion and that the prosecutor did not comply with the Evidence Code requirements for the admission of business records and records by public employees. However, defendant failed to make this argument in his opening brief. “Withholding a point until the reply brief deprives the respondent of an opportunity to answer it, however. Hence, a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before.” (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) No good cause is shown here.
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(Ibid.) In any event, the agent also testified that, when he made the field contact with
defendant, defendant said he was released from jail on October 6. Furthermore, the court
took judicial notice that defendant was in court for a revocation hearing on a different
case on October 6, was found to be in violation of his parole supervision, and was
released from custody the same day. At that point, defense counsel even agreed that
defendant was released on October 6. Accordingly, defendant was required to report to
the parole office on the next working day. It is undisputed that he did not report on
Friday, October 7. Thus, there was substantial evidence that defendant was in violation
of the parole condition requiring him to report to his parole agent “ ‘on the first working
day following [his] release’ ” from custody.
Defendant points out that the parties disputed whether he was released from
custody on October 6 or October 7, 2022, and he asserts that neither party presented any
substantial evidence as to the actual date of his release. However, he then goes on to
argue that he was released “sometime during the morning hours of October 7,” and he
complied with his obligation since he reported to the parole office and had a GPS device
placed on him on October 10. Assuming defendant was released from custody on the
morning of October 7, he was still in violation of his parole condition. With an October
7, release date, he would have been required to report on “the first working day”
thereafter, which was Monday, October 10. Section 3010.10, subdivision (a), also
required him to report to his parole agent “within one working day following release from
custody” to have a GPS device affixed to him. (§ 3010.10, subd. (a).) The agent testified
that the parole office’s hours of operation were 8:00 a.m. to 5:00 p.m. Defendant did not
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report to the parole office until after business hours on October 10. The agent testified he
reported at 6:00 p.m. Defendant testified he arrived there at 5:15 p.m. or 5:20 p.m., and
the front door was locked. Whichever time it was, the working day was over. Defense
counsel acknowledged at the revocation hearing that defendant “was 15 minutes late, and
it [was] a violation.”
Defendant next argues that nothing in his parole conditions or section 3010.10
“provide for a witching hour of 5:00 p.m. as a drop-dead cutoff” for reporting to the
parole office. He contends that “[c]ommon sense tells us that if a parolee reported at 5:15
and there was a Parole Officer available to handle the installation of the GPS device, the
parolee would be in compliance.” As the court noted, the person who gave defendant a
GPS device after hours on October 10, 2022 was not his parole officer and not familiar
with his file. Furthermore, assuming defendant was released on the morning of October
7, he had a full working day to report to his parole agent that day, and, after having an
entire weekend out of custody, another full working day to report on October 10.
Nonetheless, as the trial court commented, defendant did not ensure compliance with the
reporting condition, even though he had just been granted credit for time served on
another revocation. We also note the agent’s testimony that the circumstances of
defendant’s previous parole violation were similar to this violation, where his GPS
battery died and he waited until after hours to go to the office. The agent observed that
defendant seemed to be developing a pattern where he would wait until the office was
closed before he reported. The agent testified that defendant knew when the office
closed, which was 5:00 p.m.
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As with so many other government deadlines, including court appearances,
appearing after business hours is not compliance with an action which must be completed
by a specified date. For example, no one could reasonably suggest that appearing for
court, after the court has closed for the day, constitutes an appearance that day. Thus, the
more reasonable interpretation of compliance within a working day means prior to the
close of that business day.
Viewing the evidence in a light favorable to the judgment, as we must, we
conclude there was substantial evidence to support the court’s finding that defendant
violated his parole. (See Butcher, supra, 247 Cal.App.4th at p. 318; Kurey, supra,
88 Cal.App.4th at pp. 848-849.) Thus, the court properly revoked his parole and
sentenced him to 150 days in jail.4
4 As respondent points out, the court could have imposed a maximum of 180 days in jail, but chose to give defendant 150 days. (§ 3000.08, subds. (f)(2), (g).)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
MILLER Acting P. J.
CODRINGTON J.
17
AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the trial court's finding that the defendant violated his parole conditions by failing to report to his parole agent within the required timeframe. The court concluded that reporting after business hours on the deadline day did not constitute compliance with the reporting requirement.
Issues
Whether substantial evidence supported the trial court's finding that the defendant violated his parole conditions.
Whether reporting to a parole office after business hours on the required reporting day constitutes a violation of parole conditions.
Disposition. affirmed
Quotations verified verbatim against the opinion
“We conclude there was substantial evidence to support the court’s finding that defendant violated his parole.”
“As with so many other government deadlines, including court appearances, appearing after business hours is not compliance with an action which must be completed by a specified date.”
“Thus, the more reasonable interpretation of compliance within a working day means prior to the close of that business day.”