People v. Johnson

45 Cal.App.5th 379

258 Cal.Rptr.3d 639

The PEOPLE, Plaintiff and Appellant,

v.Raheen JOHNSON, Defendant and Respondent.

D075097

Court of Appeal, Fourth District, Division 1, California.

Filed February 18, 2020

Summer Stephan, District Attorney, Mark A. Amador, Chief Deputy District Attorney, Linh Lam and Elizabeth M. Renner, Deputy District Attorneys, for the Plaintiff and Appellant.

Angela Bartosik, Chief Deputy Primary Public Defender, and Shannon L. Kitten, Deputy Public Defender, for Defendant and Respondent.

IRION, J.

In this parole revocation proceeding, the People appeal from the trial court's order (1) granting Raheen Johnson's motion to dismiss the petition to revoke parole filed by the Division of Adult Parole Operations of the California Department of Corrections and Rehabilitation (DAPO); and (2) transferring Johnson from parole supervision to postrelease community supervision (PRCS). The People, through the San Diego County District Attorney, appeal from the trial court's order, contending, among other things, that the trial court did not have the authority, in the context of a parole revocation proceeding, to transfer Johnson's supervision to PRCS. According to the People, a parolee may challenge his classification as an offender subject to parole supervision only by exhausting his administrative remedies with the California Department of Corrections and Rehabilitation (CDCR) and then, if necessary, filing a petition for writ of habeas corpus. The People also contend that even if the trial court had authority to transfer Johnson to PRCS, the transfer was barred by Penal Code section 3000.08, subdivision (l), which permits a transfer to PRCS only if the parolee has not yet served 60 days on parole supervision.¹ As we will explain, we conclude that the trial court had the authority to transfer Johnson's supervision to PRCS, and further that the trial court properly concluded that the transfer was not barred by the 60-day time limit in section 3000.08, subdivision (l). We accordingly affirm the trial court's order.

I.FACTUAL AND PROCEDURAL BACKGROUND

On January 17, 2018, Johnson was convicted of possessing child pornography (§ 311.11, subd. (a)) and was sentenced to a 16-month prison term. Johnson was released to parole supervision on July 25, 2018, with a parole discharge date of July 24, 2021. Because of Johnson's conviction for possessing child pornography, he was required to register as a sex offender (§ 290, subd. (c)), and the conditions of Johnson's parole included numerous special conditions related to sex offenders and required that he wear a GPS monitoring device. (§ 3008, subd. (a) [requirement of "intensive and specialized parole supervision" for high risk sex offenders]; § 3010.10 [as a condition of parole, a person required to register as a sex offender is required to be monitored by a GPS monitoring device].)

On August 2, 2018, DAPO filed a petition to revoke Johnson's parole, alleging Johnson violated the terms and conditions of parole by (1) violating his curfew; (2) entering a private residential property without permission of his parole officer; (3) entering or loitering within 250 feet of the perimeter of places where children congregate; and (4) failing to properly charge his GPS device. Johnson was arrested for the parole violations on July 27, 2018, two days after his release from prison.

On August 3, 2018, Johnson admitted that he violated the terms of his parole, and he accepted an offer of 90 days in jail as a sanction. Johnson was released from jail on September 10, 2018.

DAPO filed a second petition to revoke Johnson's parole on September 18, 2018. According to the petition, Johnson violated the terms and conditions of his parole by (1) absconding from parole supervision by failing to report to his parole officer within 24 hours of his release from jail; (2) failing to comply with GPS monitoring because he failed to report to his parole officer within 24 hours to have a GPS device affixed; and (3) providing a false name to a police officer who detained him for failing to have valid trolley fare. Johnson was arrested for the parole violations on September 12, 2018, two days after his release from jail. DAPO recommended that the trial court return Johnson to custody for the maximum permitted period of 180 days. ( § 3000.08, subd. (g).)

On September 19, 2018, Johnson filed a form rejecting DAPO's offer of disposition and requesting an evidentiary hearing ("the offer and waiver form"). The offer and waiver form stated that Johnson was "challenging jurisdiction" and requested that his parole officer and a representative of CDCR be present at the evidentiary hearing "regarding [his] Static 99 Score." A minute order from a September 19, 2018 hearing, at which counsel for Johnson appeared and at which a parole officer was present, also reflects Johnson's request that the parole officer and a representative of CDCR be present at a future evidentiary hearing concerning his "Static 99 score."

On October 30, 2018, Johnson filed a motion to dismiss DAPO's petition to revoke parole. In that motion Johnson asserted that DAPO lacked jurisdiction over him because, under the applicable standards, he should have been placed on PRCS to be supervised by the county probation department (§ 3450 et seq.), rather than released on parole to be supervised by the state's DAPO.

To understand the basis for Johnson's motion to dismiss, the following background is necessary.

"A defendant sentenced to state prison is subject to a mandatory period of supervision following release, either parole supervision by the state (§ 3000 et seq.), or postrelease community supervision by a county probation department (§ 3450 et seq.)." ( People v. Cruz (2012) 207 Cal.App.4th 664, 672, 143 Cal.Rptr.3d 742.) Parole supervision applies only to certain categories of persons, including, as relevant here, persons released from prison after serving a prison term for "[a]ny crime for which the person is classified as a high-risk sex offender." ( § 3000.08, subd. (a)(4).)² Unless a defendant is required by statute to be released on parole, "all other offenders released from prison shall be placed on [PRCS]." ( § 3000.08, subd. (b).)

"The Legislature has not defined the term high-risk sex offender as used in section 3000.08, subdivision (a)(4). But CDCR has defined the term in [a] regulation ( Cal. Code Regs., tit. 15, § 3582, subd. (a) ) and its written sex offender management policy. CDCR has determined a sex offender with a Static-99R score of four or greater is designated as a high-risk sex offender and therefore subject to parole supervision." ( People v. Toussain (2015) 240 Cal.App.4th 974, 983-984, 193 Cal.Rptr.3d 48 ( Toussain ).) The Static-99R is "an actuarial instrument that calculates a defendant's risk of reoffense based on the number of sex offenses, sentencing dates, and convictions for nonsexual violence" and that "also takes into account the defendant's age at the time of evaluation and whether any sex offenses were against unrelated victims or strangers." ( People v. Roa (2017) 11 Cal.App.5th 428, 437, 217 Cal.Rptr.3d 604 [describing predecessor Static-99].)³

On June 21, 2018, prior to Johnson's release from prison, CDCR evaluated Johnson using the Static-99R and assigned him a score of four, which classified Johnson as a high risk sex offender. As a result of the Static-99R score, CDCR determined that Johnson should be placed on parole supervision when he was released from prison. There is no evidence in the record that Johnson was informed of his Static-99R score or the reason for being placed on parole supervision.

In the course of representing Johnson on the second petition to revoke parole, counsel for Johnson obtained records from CDCR, including Johnson's Static-99R scoring sheet. After receiving the records on September 20, 2018, counsel concluded that CDCR had assigned an incorrect Static-99R score to Johnson. On behalf of Johnson, counsel sent an appeal to CDCR on the required form by mailing it on September 21, 2018. In a second level review, CDCR partially granted and partially denied the appeal in a decision dated October 12, 2018, which Johnson received on October 23, 2018. Specifically, CDCR determined that based on subsequently obtained information about Johnson's criminal history—showing no "prior sex offense charges"—Johnson's score on the Static-99R should have been two, which meant that he was not a high risk sex offender required to be released to parole supervision rather than to PRCS.⁴

However, despite CDCR's acknowledgment that Johnson was not a high risk sex offender, CDCR concluded that Johnson was required to remain on parole supervision, rather than being transferred to PRCS, because he had already served more than 60 days on parole supervision since his release from prison on July 25, 2018. CDCR cited section 3000.08, subdivision (l) which states, "Any person released to parole supervision pursuant to subdivision (a) [governing parole supervision] shall, regardless of any subsequent determination that the person should have been released pursuant to subdivision (b) [governing PRCS], remain subject to subdivision (a) after having served 60 days under supervision pursuant to subdivision (a)." (Italics added.) Noting that it received Johnson's appeal on September 24, 2018, which was 61 days after Johnson was released from prison on July 25, 2018, CDCR informed Johnson that he had "served 60 days of parole supervision prior to your score being reassessed," and that he was therefore required to remain under parole supervision. CDCR's decision stated that if Johnson was dissatisfied with the result, he could submit the appeal for a third level review within the relevant timeframe.⁵

Johnson filed his motion to dismiss the parole revocation petition in the trial court after receiving CDCR's decision. Johnson argued that DAPO's petition to revoke parole "should be dismissed based on parole...