People v. Reese

THE PEOPLE, Plaintiff and Respondent, v. ROBERT JACK REESE, Defendant and Appellant.

2d Crim. No. B297703

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

May 28, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 2014038497)

(Ventura County)

On March 11, 2017, Robert Jack Reese began a three-year period of postrelease community supervision (PRCS). (Pen. Code,¹ § 3450 et seq.) Over the next two years, he habitually absconded from supervision and regularly violated its terms. After a hearing on his ninth PRCS revocation petition (tied to his 15th set of violations overall), the trial court entered an order extending supervision by 98 days, to June 17, 2020. Reese challenges that order, contending: (1) prosecutors forfeited the right to request an extension in the ninth revocation petition because they did not do so in the previous eight petitions, (2) section 654 prohibits the extension of the supervision period, and (3) the extension violates due process.² We affirm.

FACTUAL AND PROCEDURAL HISTORY

Reese pled guilty to carrying a concealed dirk or dagger (§ 21310). He also admitted that he had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served four prior prison terms (§ 667.5, subd. (b)). The trial court suspended imposition of sentence, and released Reese on felony probation.

After he violated the terms and conditions of probation, the trial court sentenced Reese to two years eight months in state prison. Reese was released on March 11, 2017, and began three years of PRCS. He was directed to report to his probation officer within two days of release.

First revocation petition: Reese failed to report as directed, and "absconded from supervision." The trial court issued a warrant for his arrest on March 17, and police arrested him two weeks later. On April 3, Reese waived the right to a PRCS revocation hearing, admitted four violations (failure to report to probation, failure to submit to drug testing, failure to submit to alcohol testing, and failure to participate in treatment programs), and agreed to serve 90 days in county jail. That same day the court discharged the warrant and reinstated PRCS without extending its expiration date. The revocation petition filed after reinstatement said that Reese's "[s]upervision [was] scheduled to expire on: 3-27-20 (including 16 days of tolled time)."

Second revocation petition: Reese "absconded from supervision" again on May 22. The trial court issued a warrant for his arrest on May 24, and police arrested him on June 12. The next day Reese admitted that he again failed to report to probation, failed to submit to drug and alcohol testing, and failed to participate in treatment programs. He waived his right to a PRCS revocation hearing, and agreed to serve 90 days in jail. The court reinstated PRCS, but again did not change its expiration date. The subsequently filed revocation petition stated that Reese's "[s]upervision [was] scheduled to expire on: 4-15-20 (including 35 days of tolled time)."

In July, Reese again violated the terms of his PRCS. This time the probation agency did not file a revocation petition but instead imposed 10 days of flash incarceration.

Third revocation petition: Reese "resumed his previous behavior and absconded from supervision" again in August. The trial court issued a warrant for his arrest on August 22. After his arrest, Reese waived his right to a PRCS revocation hearing; admitted that he failed to report to his probation officer, failed to inform the officer of his address, used marijuana, failed to submit to drug testing, and failed to participate in treatment programs; and agreed to serve a 120-day jail sentence. The court reinstated PRCS without extending its term on September 11. The revocation petition filed September 26 stated that "[s]upervision [was] scheduled to expire on: 5-4-20 (including 54 days of tolled time)."

Reese violated his PRCS terms in November and again in early December. He served a 10-day period of flash incarceration after each violation. The trial court revoked PRCS for 11 days in December, and reinstated it without extending its expiration date.

Fourth revocation petition: Police cited Reese for misdemeanor battery on December 26. He then "resumed his previous behavior and absconded from supervision" by skipping two meetings with his probation officer later that week. He also used marijuana. He waived his right to a hearing, and agreed to serve 120 days in county jail. The PRCS revocation petition said that "[s]upervision [was] scheduled to expire on: 5-15-20 (including 65 days of tolled time)." The trial court approved the disposition without changing the PRCS expiration date.

Fifth revocation petition: Police cited Reese for misdemeanor trespassing on February 28, 2018. He "absconded from supervision" the next day, something that had become "a consistent pattern for" him by that point. The trial court issued a warrant for his arrest on March 9 and revoked PRCS. After the probable cause hearing, the probation agency filed a revocation petition, which stated that "[s]upervision [was] scheduled to expire on: 5-24-20 (including 74 days of tolled time)." The court discharged the warrant on March 19, and reinstated PRCS without extending its expiration date. Ten days later it found Reese in violation of his PRCS terms because he failed to report to probation, violated the law, used marijuana, and failed to submit to drug and alcohol testing. It ordered him to serve a 135-day jail sentence.

The trial court revoked PRCS on May 29 after Reese violated its terms again. After he completed a 10-day period of flash incarceration on June 11, the court discharged the warrant and reinstated PRCS on the same terms and conditions.

Sixth revocation petition: Reese failed to report to the probation agency as directed following his release from jail. Police arrested him for impersonating a police officer a few days later. The probation agency filed a PRCS revocation petition on July 3, which stated that "[s]upervision [was] scheduled to expire on: 6-5-20 (including 86 days of tolled time)." At the July 12 revocation hearing, Reese admitted that he failed to report to his probation officer and violated the law. He also admitted that he possessed drug paraphernalia, did not submit to drug or alcohol testing, used alcohol, and did not provide his name to police officers. The trial court accepted Reese's admissions and ordered him to serve 170 days in jail. It left unchanged the PRCS terms and conditions.

Seventh revocation petition: Reese failed to report to his probation officer on September 18, and "resumed his pattern of absconding thereafter." The trial court issued a warrant for his arrest on September 26. On October 8 Reese waived his right to a PRCS revocation hearing; admitted his failure to report, his marijuana and methamphetamine use, and his refusal to submit to drug testing; and agreed to serve 140 days in jail. The court discharged the warrant on October 9 and reinstated PRCS without extending its expiration date. The revocation petition filed three days later said that "[s]upervision [was] scheduled to expire on: 6-17-20 (including 98 days of tolled time)."

In December, Reese accrued two more PRCS violations, and served two more 10-day periods of flash incarceration.

Eighth revocation petition: Reese failed to report to his probation officer on January 7, 2019, and refused to submit to drug testing. Four days later he waived his right to a revocation hearing, admitted his violations, and agreed to a 90-day jail sentence. The PRCS revocation petition once again stated that "[s]upervision [was] scheduled to expire on: 6-17-20 (including 98 days of tolled time)." The trial court approved the disposition without changing the terms and conditions of supervision.

Ninth revocation petition: The probation agency established probable cause for two additional PRCS violations on March 1: that Reese failed to report to his probation officer and failed to submit to drug testing. It filed another revocation petition, which again said that Reese's "[s]upervision [was] scheduled to expire on: 6-17-20 (including 98 days of tolled time)." This petition also included a "tolled time calculator" that set forth the seven time periods during which PRCS had been revoked and the period of supervision was tolled: March 17 to April 3, 2017 (16 days); May 24 to June 13, 2017 (19 days); August 22 to September 11, 2017 (19 days); December 1 to 13, 2017 (11 days); March 9 to 19, 2018 (nine days); May 29 to June 11, 2018 (12 days); and September 26 to October 9, 2018 (12 days). On March 20, the trial court found Reese in violation of the terms of supervision, and ordered him to serve a 90-day jail sentence. It extended his PRCS expiration date by 98 days, to June 17, 2020.

DISCUSSION

PRCS tolling

Subject to exceptions not applicable here, each person released from prison is subject to PRCS. (§ 3451, subd. (a).) The period of supervision may not exceed three years unless supervision is tolled and the corresponding PRCS expiration date is extended. (§ 3455, subd. (e).) Revocation of PRCS "toll[s] the running of the period of supervision." (§ 1203.2, subd. (a).) But tolling does not happen automatically. (People v. Johnson (2018) 29 Cal.App.5th 1041, 1050 (Johnson).) Rather, it occurs only if the trial court orders it and extends the PRCS expiration date. (Ibid.) The issue presented in this appeal is whether the court properly did so here. We conclude that it did.

Forfeiture

Reese disagrees, contending prosecutors forfeited the right to request extension of his PRCS...