People v. Schaffer

53 Cal.App.5th 500

267 Cal.Rptr.3d 666

The PEOPLE, Plaintiff and Respondent,

v.Andras Peter SCHAFFER, Defendant and Appellant.

E073302

Court of Appeal, Fourth District, Division 2, California.

Filed August 14, 2020

Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Michael Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FIELDS, J.

I. INTRODUCTION

Any person who is required to register as a sex offender ( Pen. Code, § 290¹ ) and who is released on parole upon the condition they wear a global positioning system (GPS) device, or other electronic monitoring device (§ 3010.10, subd. (a)), is prohibited from removing, disabling, or rendering the device inoperable (§ 3010.10, subd. (b).) If a parolee violates this provision, the parolee is required to be incarcerated in a county jail for 180 days. (§ 3010.10, subd. (e).)

Defendant and appellant, Andras Peter Schaffer, was convicted and sentenced to three years in state prison in 2015 for failing to register as a sex offender. (§ 290.018, subd. (b).) He was released on parole in 2016 on the condition he wear a GPS monitoring device and charge it, at least twice daily. He appeals from the July 18, 2019 superior court order, finding by a preponderance of the evidence that he violated his parole by failing to keep his GPS monitoring device charged and ordering him to serve 180 days in county jail. (§ 3010.10, subds. (b), (e).)

Relying on the plurality opinion in United States v. Haymond (2019) ––– U.S. ––––, 139 S.Ct. 2369, 204 L.Ed.2d 897 ( Haymond ), defendant claims he had a Fifth and Sixth Amendment right to have a jury determine whether he violated his parole based on proof beyond a reasonable doubt, and the court violated that right by denying his request to allow a jury to determine whether he violated his parole. As we explain, defendant did not have a right to have a jury determine whether he violated his parole, and the reasoning of the Haymond plurality does not apply to defendant's case.

II. FACTS AND PROCEDURE

A. Defendant's Commitment Offense and Alleged Parole Violation

On June 29, 2015, defendant was convicted of failing to register as a sex offender (§ 290.018, subd. (b)) (the "commitment offense") and was sentenced to three years in state prison. After serving over 13 months in state prison, defendant was released on parole on August 7, 2016. As a condition of his parole, defendant was required to continually wear a GPS monitoring device and to charge the device at least twice daily, or every 12 hours, for one hour.

On June 6, 2019, the DAPO² petitioned to revoke defendant's parole. (§ 1203.2.) According to DAPO's parole violation report, defendant violated the terms of his parole 17 times and was returned to custody eight times between September 12, 2016, and January 1, 2019. His parole violations included failing to charge his GPS monitoring device, disabling the device, using methamphetamine, failing to participate in sex offender treatment, failing to register as a sex offender, and loitering within 250 feet of places where children congregate.

On May 25 to 26, 2019, the DAPO confirmed that defendant's GPS device was in "dead battery" status for over 19 hours, from around 8:35 p.m. on May 25, 2019 until 3:54 p.m. on May 26, 2019, and from 8:38 p.m. to 9:41 p.m. on May 26. A "dead battery alert" indicates that the parolee's whereabouts cannot be tracked because the parolee has not charged their GPS monitoring device.

On May 31, 2019, defendant was located and taken into custody. On July 9, 2019, defendant's counsel asked the court to conduct a jury trial on defendant's alleged parole violation, based on the then-recent plurality decision in Haymond, supra , 139 S.Ct. 2369. The court denied the request.

At defendant's parole revocation hearing on July 18, 2019, his parole agent testified that, during a May 31 interview, defendant admitted to the parole agent that he was in downtown Victorville on May 25, used narcotics, then became lost on his way home. He was then unable to charge his GPS monitoring device, and it went into dead battery status. Based on defendant's GPS tracks, the parole agent determined that, on May 25, before his GPS battery went dead, defendant was behind a retail store or strip mall in "a high crime and high drug area" of Victorville.

Defendant testified that, on Friday, May 24, 2019, he attended a class in Apple Valley. On the way back to his home, he "caught the wrong bus" and became lost. He did not have a phone, his wallet, or any money. He stayed up all night then fell asleep by a wall next to a grocery store. He claimed he did not know why he was in Victorville on May 25. The next day, someone helped him, and he borrowed money for his bus fare home. When he arrived home, he immediately put his GPS device on a charger.

B. The Court's Ruling on Defendant's Alleged Parole Violation

At the conclusion of the July 18, 2019 parole revocation hearing, the court found that defendant was using drugs in Victorville when he allowed his GPS monitoring device to go into dead battery status. The court noted that defendant's parole history was "replete" with drug use and that defendant had six prior parole violations concerning his GPS monitoring device alone. The court told defendant, "[S]o you know what the drill is for [keeping your GPS monitoring device] charged.... [M]y suspicion is just what you told the [parole] officer: That you got out there, you used drugs, you couldn't find [your way] back because you'd been using drugs, so you didn't charge for over a day. That's not allowable."

The court expressly found by a preponderance of the evidence that defendant violated the term of his parole that required him to "participate in continuous electronic monitoring" by failing to "properly charge" his GPS monitoring device. The court revoked defendant's parole, reinstated him on parole, and ordered him to serve 180 days in local custody, "half time, with credits of 49 [days (§ 4019) ] already served." The court also noted that, if it had discretion to impose a lesser punishment for the parole violation, it still would have imposed the 180-day jail term based on defendant's commitment offense and record of parole violations.

III. DISCUSSION

Defendant claims he had a Fifth and Sixth Amendment right to have a jury determine, based on proof beyond a reasonable doubt, that he violated his parole on May 25 to 26, 2019, by failing to keep his GPS monitoring device charged. He claims the court's finding by a preponderance of the evidence that he violated his parole must be vacated and the matter remanded to the superior court with directions to allow a jury to determine beyond a reasonable doubt whether he violated his parole.

A. Mootness

Before we address the merits of defendant's federal constitutional claim, we address the People's request that we dismiss defendant's appeal as moot. An appeal may be dismissed as moot when, pending the appeal and through no fault of the appellant, an event occurs that renders it impossible for the reviewing court to grant the appellant any effective relief for the claims raised on appeal. ( People v. DeLeon (2017) 3 Cal.5th 640, 645, 220 Cal.Rptr.3d 784, 399 P.3d 13.) But a reviewing court has discretion to consider a moot claim if it is of continuing public interest, is likely to recur, and might otherwise evade appellate review. ( People v. Morales (2016) 63 Cal.4th 399, 409, 203 Cal.Rptr.3d 130, 371 P.3d 592.)

As the People point out and defendant concedes, there are two reasons why we are unable to grant defendant any effective relief for his federal constitutional claim. First, by the time this appeal is decided defendant will have completed his 180-day county jail term for his May 25-26, 2019 parole violation. Defendant had 49 days of custody credits on July 18, 2019, the day he was ordered to serve the 180-day term, leaving him with 131 days to serve. As a parolee confined to county jail (§ 4019, subd. (a)(5)), defendant was eligible to earn two days of custody credits for every four days he served in jail after July 18, 2019. (§ 4019, subds. (b), (c).) Even if defendant did not earn any additional custody credits after July 18, 2019, he would have served his 180-day term by November 26, 2019, 131 days after July 18. Thus, as the parties agree, defendant has served his 180-day jail term for his May 25 to 26, 2019 parole violation, and we are unable to grant him any effective relief that would ameliorate his punishment.

Second, the record shows that, before the court determined that defendant violated his parole by failing to keep his GPS monitoring device charged on May 25 to 26, 2019, defendant's parole period was scheduled to expire on August 4, 2020, four years after he was released from state prison on parole. His four-year parole period cannot be extended, regardless of the outcome of this appeal. (§ 3000, subd. (b)(6).)

Subject to exceptions not applicable here, a person, like defendant, who committed a crime (their commitment offense) after July 1, 2013, and served at least one year and one day in state prison for the offense, is required to be on parole for three years following their release from state prison. (§ 3000, subd. (b)(2)(B).) The three-year parole period is suspended during the time the parolee is in custody for any parole violation. (§ 3000, subd. (b)(6).) Defendant's three-year parole period was ostensibly extended to four years based on the eight times he was returned to custody before his current parole violation. But, subject to exceptions not applicable here, "in no case may a prisoner subject to three years on parole be retained under parole supervision or in custody for a period longer than four years from the date of his or her initial parole." (§ 3000, subd. (b)(6)(A).) Thus, defend...