People v. Vanderbilt

1

THE PEOPLE, Plaintiff and Respondent, v. ROBERT VANDERBILT, Defendant and Appellant.

A168503

California Court of Appeals, First District, Third Division

August 14, 2024

NOT TO BE PUBLISHED

(City & County of San Francisco Super. Ct. No. CR123005377)

TUCHER, P. J.

Defendant Robert Vanderbilt appeals an order revoking his parole and remanding him to the custody of the California Department of Corrections and Rehabilitation (CDCR). (Pen. Code, § 3000.08; statutory references are to this code unless otherwise indicated.) Defendant contends that (1) his demurrer to the revocation petitions filed against him should have been sustained, and (2) his due process rights were violated at his parole revocation hearing. We reject defendant's first contention but conclude the trial court did not determine whether there was good cause to admit the parole agency's reports into evidence without affording defendant an opportunity to confront witnesses against him. (See Morrissey v. Brewer (1972) 408 U.S. 471 487-489 (Morrissey).) Accordingly, we reverse the appealed order and remand for further proceedings.

BACKGROUND

In May 1996, defendant was convicted of first degree murder and sentenced to life in prison with the possibility of parole. On December 28, 2022, he was granted parole and released from prison to be supervised for a period of three years. Less than four months later, CDCR's Division of Adult Probation Operations (DAPO) petitioned the superior court to revoke defendant's parole.

The April 2023 Petition

In a petition filed April 18, DAPO reported that it had probable cause to find defendant committed two violations of the conditions of his parole. The petition indicated that if the court determined the violations occurred, defendant's remand to the custody of CDCR for future parole consideration was mandatory due to his status as a lifetime parolee. (§§ 3000.08, subd. (h) (§ 3000.08(h)) 3000.1.) The petition was signed by Carla Cortes defendant's parole agent of record.

A report attached to the petition provided additional information about defendant and the alleged violations. Defendant's commitment offense for first degree murder was for shooting and killing a man with whom defendant had been" 'feuding for a long time.'" His criminal history also includes felony convictions for narcotics offenses, assault to commit robbery, and sex offenses. Following his release on parole, defendant was subject to Global Positioning System (GPS) monitoring and special registration requirements due to convictions for rape of a 14 year-old victim, and assault with intent to commit rape of a 16 year-old.

The first alleged parole violation was of a special condition restricting defendant's contact with minors, which precluded him from being within 300 feet of places where children congregate, including schools. DAPO reported that on April 11, Agent Cortes reviewed GPS data, which showed that defendant had been outside an elementary school for about half an hour on the afternoon of April 8. Defendant was employed as a paratransit driver and his employer confirmed to Cortes that defendant was working on April 8 and on his lunch break during the period that GPS data placed him near the school. Cortes's investigation revealed further that a few minutes after the time defendant was located near the school, he logged in to pick up a client at a location approximately 776 feet away from the school, but his GPS monitor did not record him stopping at the logged location. Cortes also learned from defendant's employer that defendant's duties included transporting minor passengers with disabilities.

The second parole violation alleged in the April 2023 petition was of a special condition requiring defendant to submit to a search of his electronic devices at any time by any parole agent or law enforcement officer. On April 11, after defendant was placed under arrest for violating the condition to stay away from schools, Cortes asked defendant to provide the password to his cell phone and defendant refused stating" 'I am going to jail, I am not giving you my password.' "

The report stated that DAPO uses a parole violation decision making instrument (PVDMI), which produced a recommendation to continue defendant on parole with remedial sanctions. However, in the evaluation section of its report, DAPO stated reasons for requesting revocation. After defendant was released from prison on parole, he was placed in a residential reentry program at Episcopal Community Services. DAPO agents worked "diligently" with defendant. He was offered assistance from "multiple State Funded Programs" to address his criminogenic needs, attempt to redirect his life, and assist his reintegration back into society. After defendant violated parole, DAPO considered intermediate sanctions, such as referring him back for residential reentry treatment, to a day reporting center, and for mental health treatment. But "due to the seriousness of [defendant's] criminal history and prior convictions" for sexual assault and murder, DAPO concluded there was "a significant concern to the safety of the community."

On April 20, 2023, the superior court held a hearing on the April 2023 petition. A transcript of that hearing is not in the appellate record, but the court's minute order reflects that counsel was appointed to represent defendant, who waived instruction and arraignment on the petition and denied the parole violation allegations. The court ordered that defendant's parole be administratively revoked. It also ordered defendant to "provide appropriate release, for release of cell phone," and continued the matter to April 28 for a prehearing conference on a motion by defendant to be released from custody.

At the April 28 hearing, defendant requested release from custody. Defense counsel submitted letters of support, argued that defendant had done well in his program and was employed full time, and that any difficulties he had complying with all terms and conditions of parole were "relatively insignificant relative to the progress he's made and the issues that he has to overcome." The People opposed the release request on two grounds. First, because defendant was a "lifer parolee," if the alleged violations were proven, the court would be required to return him to prison, the People argued. Second, the prosecutor had been advised DAPO intended to file another revocation petition alleging additional violations. The court noted that these issues and other concerns raised by the agency had been discussed in chambers prior to the hearing and continued the matter for the new petition to be filed.

The May 2023 Petition

On May 9, DAPO filed a second petition to revoke defendant's parole, again signed by Agent Cortes. According to this petition, on May 4, DAPO established probable cause for an additional violation of parole as detailed in an attached report. Defendant was subject to a special condition of parole which stated: "You shall inform all persons with whom you have a significant relationship; e.g., dating and/or roommate(s), about your criminal history, and you will inform your parole agent about the relationship." DAPO reported that on April 21, defendant's residential program director notified Cortes that defendant's girlfriend A.C had picked up defendant's belongings. Several days later, defense counsel provided Cortes with the password for defendant's phone, which contained information indicating defendant was in a romantic relationship with A.C., including photographs and videos. Cortes and Agent Muniz contacted A.C., using the phone number in defendant's phone. A.C. confirmed her romantic relationship with defendant, reported that she has minor children, and noted that she had known defendant since the 1980's and reconnected with him after he was released on parole.

Like the violations alleged in the April 2023 petition, DAPO's evaluation of this additional violation included consideration of the PVDMI recommended response level, which was to continue defendant on parole with remedial sanctions. However, DAPO was "extremely concerned" that the relationship between defendant and A.R. had been concealed. Agent Muniz and a DAPO Unit Supervisor had both recognized A.R. from her photographs as an employee of the state prison system. Cortes subsequently determined that A.R. had worked at a prison during the same time defendant was incarcerated there. Moreover, A.R. had not reported her relationship with defendant, in contravention of department policy. A perceived "[o]ver- familiarity" between an institutional employee and parolee posed "a serious safety concern," DAPO reported.

On May 11, the court held a hearing on the second petition. Defendant waived arraignment, denied the alleged violation, and reserved the right to demur. The court again administratively revoked parole, and then granted a defense request to continue the matter until the next day so that the two petitions could be handled together. On May 12, the court scheduled a parole revocation hearing for June 5, 2023. On May 26, defendant filed a demurrer and motion to dismiss the petitions, which was set to be heard on shortened time at the June 5 hearing. Defendant argued the revocation petitions were deficient because DAPO failed to consider intermediate sanctions or provide reasons for seeking the most severe sanction of revocation.

On June 1, the People filed a motion to continue the revocation hearing on the ground that two "necessary and critical witnesses" were unavailable on June 5 and that both would be available after June 8. In a supporting declaration the assistant district attorney stated that Agents Cortes and Muniz had "pre-scheduled time-off," but they both confirmed they were...