We are happy to announce that we have resumed normal office hours from 9:30 AM to 5:30 PM Monday through Thursday, to assist you with your essential legal matters and needs. For the short term we will remain closed on Fridays. We encourage clients to try and communicate with us by phone and email. If you do need to come into the office, we require face masks and we are maintaining social distancing.

Parole violation of lifetime parolees requires written report by parole agency

People v. Williams (Cal. Ct. App., Nov. 23, 2021, No. A159914) 2021 WL 5460724, at *1–2

Summary: Williams,  was convicted of murder in 1995 and sentenced to 30 years to life in prison and was released on lifetime parole in 2018. In 2019, he was charged with two misdemeanors, and the district attorney filed a petition to revoke his parole. The  trial court determined that Williams had committed one of the charged offenses and remanded him to prison, the required sanction whenever a court finds that a lifetime parolee has violated parole. (Pen. Code, § 3000.08, subd. (h) (section 3000.08(h).)

Williams appealed claiming that the trial court erred by refusing to refer the matter to the parole agency for a written report before ruling on the petition. Under the plain terms of section 1203.2, subdivision (b)(1) (section 1203.2(b)(1)), a court is required to receive a parole agency’s written report before ruling on a parole revocation petition initiated by a district attorney. There is no implied exception to this requirement when such a petition is filed against a lifetime parolee such as Williams, because the report is not pointless even though a court has no discretion to impose intermediate sanctions.

Williams conceded that this appeal is moot because he has since been paroled again. (See People v. DeLeon (2017) 3 Cal.5th 640, 645–646, 220 Cal.Rptr.3d 784, 399 P.3d 13 [finding of “parole violation does not constitute a disadvantageous collateral consequence for purposes of assessing mootness”].)

But the Court of Appeal agreed with him that the issue is of continuing public interest and likely to recur yet evade appellate review. Therefore, the Court  decided the issue for the guidance of future proceedings. (People v. Gregerson (2011) 202 Cal.App.4th 306, 321, 135 Cal.Rptr.3d 188; see, e.g., DeLeon, at p. 646, 220 Cal.Rptr.3d 784, 399 P.3d 13; People v. Castel (2017) 12 Cal.App.5th 1321, 1325, 219 Cal.Rptr.3d 829 (Castel).)

Facts: Williams was released from prison in June 2018 and placed on lifetime parole, as required based on his indeterminate sentence for murder. (§ 3000.1, subd. (a)(1).) On December 1, 2019, a Rohnert Park police officer pulled over the vehicle in which Williams was a passenger. The officer performed a parole search and found a methamphetamine pipe in Williams’s jacket. During the booking process at jail, the officer discovered Williams had a credit card in a different name in his wallet.

The  Sonoma County District Attorney filed a complaint charging Williams with two misdemeanors, petty theft of lost property and possession of drug paraphernalia. The district attorney also filed a petition to revoke parole under sections 1203.2 and 3000.08, alleging that Williams violated his parole conditions by committing the misdemeanors. The trial court summarily revoked parole and set a parole violation hearing.

On the date set for the violation hearing, Williams moved to continue the hearing because the trial court had failed “to refer the petition to the parole agency for a written report to justify the reasons why intermediate sanctions were not employed,” as required under section 1203.2(b)(1). The court noted it was “a somewhat novel issue” whether section 1203.2(b)(1) requires “a report from parole regarding intermediate sanctions on a person who is on a lifetime grant of parole.” The court decided to go forward with the evidentiary portion of the hearing and despite indicating it would not make findings on whether Williams violated his parole conditions, the trial court found that Williams had possessed drug paraphernalia and therefore violated parole.

The trial court concluded that section 1203.2(b)(1) did not require it to obtain a written report. Although the court acknowledged the statute’s “mandatory shall language” and the absence of “an exception for a lifetime parolee,” it concluded that it would be “an absurd result” to have to refer Williams’s case to parole for a report. The court explained that if it did so, the resulting report would “be of zero utility because I can’t exercise any discretion based on the recommendations contained therein.” The court therefore remanded Williams to prison custody “for further proceedings regarding any parole revocation.” Williams appealed the order.

On June 30, 2020, the Board of Parole Hearings found Williams suitable for parole, and he was released from prison.

The Law Governing Petitions to Revoke Parole

When parolees convicted of certain offenses, including murder, are released from prison, they are placed on parole under the supervision of CDCR. (§ 3000.08, subds. (a), (i); Castel, supra, 12 Cal.App.5th at p. 1325, 219 Cal.Rptr.3d 829; see § 667.5, subd. (c)(1).)

Either the parole agency or the district attorney may file a petition to revoke parole. (§ 1203.2, subds. (a), (b)(1); Castel, at p. 1325, 219 Cal.Rptr.3d 829.) “[T]he district attorney generally seeks parole revocation as the result of parolees’ criminal conduct,” whereas the parole agency tends to do so as a result of “more minor or technical violations.” (People v. Zamudio (2017) 12 Cal.App.5th 8, 16–17, 218 Cal.Rptr.3d 543 (Zamudio).) “Although it is possible for [the parole] agency to file a revocation based on allegations of criminal conduct, by and large the two [types of petitions] involve different degrees of parole violations.” (Castel, supra, 12 Cal.App.5th at pp. 1327–1328, 219 Cal.Rptr.3d 829.)

Petitions filed by the parole agency:
Upon learning of a potential parole violation supported by good cause, the parole agency “may impose additional and appropriate conditions of supervision, including rehabilitation and treatment services and appropriate incentives for compliance, and impose immediate, structured, and intermediate sanctions for parole violations, including flash incarceration in a city or a county jail.” (§ 3000.08, subd. (d).) But if the parole agency concludes “following application of its assessment processes … that intermediate sanctions up to and including flash incarceration are not appropriate,” it must file a petition to revoke parole in the trial court. (§ 3000.08, subd. (f).)

Every revocation petition filed by the parole agency must “include a written report that contains additional information regarding the petition, including the relevant terms and conditions of parole, the circumstances of the alleged underlying violation, the history and background of the parolee, and any recommendations.” (§ 3000.08, subd. (f); Cal. Rules of Court, rule 4.541(c).) In addition, the report “must include the reasons for that agency’s determination that intermediate sanctions without court intervention as authorized by Penal Code section[ ] 3000.08(f) … are inappropriate responses to the alleged violations.” (Rule 4.541(e).) “Pursuant to … section 3015, [CDCR] has developed a parole violation decisionmaking instrument (PVDMI), a form used to determine what sanctions should be imposed for a parole violation, and whether a petition to revoke parole should be filed.” (People v. Osorio (2015) 235 Cal.App.4th 1408, 1412, 185 Cal.Rptr.3d 881 (Osorio), disapproved on another ground by DeLeon, supra, 3 Cal.5th at p. 646, 220 Cal.Rptr.3d 784, 399 P.3d 13.) The explanation of why intermediate sanctions are inappropriate must “be ‘individualized to the particular parolee, as opposed to a generic statement.’ ” (Perlas, supra, 47 Cal.App.5th at pp. 829, 832–833, 261 Cal.Rptr.3d 234 [holding these requirements were satisfied in proceeding against lifetime parolee].)

Revocation petition filed by the district attorney: May be submitted without an accompanying report by the parole agency. “[B]y its terms section 3000.08 applies only to parole revocation petitions filed by the ‘supervising parole agency.’ Similarly, rule 4.541 expressly applies to ‘supervising agency petitions for revocation of … parole ….’ (Rule 4.541(a).) Accordingly, the district attorney is not obligated to file revocation petitions with the written report mandated by those provisions, nor must the petition state why intermediate sanctions are not considered appropriate.” (Zamudio, supra, 12 Cal.App.5th at p. 15, 218 Cal.Rptr.3d 543.)

A written  report need not accompany the petition but is still required. Section 1203.2(b)(1) provides that after a petition is filed, “[t]he [trial] court shall refer … the petition to the … parole officer. After the receipt of a written report from the … parole officer, the court shall read and consider the report and … the petition and may modify, revoke, or terminate the supervision of the supervised person … if the interests of justice so require.” Thus, once the court receives a DA-initiated petition, it must refer the petition to the parole agency for a written report, and it must consider that report before ruling on the petition. (Ibid.; Zamudio, supra, 12 Cal.App.5th at p. 15, 218 Cal.Rptr.3d 543.)

Even if not required by statute or the California Rules of Court, the best practice would be for the parole officer to address the appropriateness of intermediate sanctions to assist the court in exercising its discretion in the interest of justice. Such an assessment would also serve as a check on potentially overzealous deputy district attorneys or parole officers.” (Zamudio, at p. 15, 218 Cal.Rptr.3d 543; accord People v. Kurianski (2020) 54 Cal.App.5th 777, 781, 269 Cal.Rptr.3d 192 (Kurianski).)

Once the court finds that a lifetime parolee has violated parole, revocation is “mandatory.” (Perlas, supra, 47 Cal.App.5th at p. 836, 261 Cal.Rptr.3d 234.)

A Trial Court Must Refer a Parole Revocation Petition Filed by the District Attorney to the Parole Agency for a Written Report in Cases Involving Lifetime Parolees.

Section 1203.2(b)(1) requires a written report from the parole agency when the district attorney files a revocation petition. “The court shall refer its motion or the petition to the … parole officer. After the receipt of a written report from the … parole officer, the court shall read and consider the report and either its motion or the petition and may modify, revoke, or terminate the supervision of the supervised person upon the grounds set forth in subdivision (a) if the interests of justice so require.” (§ 1203.2(b)(1).)

The plain language of section 1203.2(b)(1) requires a trial court to refer any revocation petition, no matter who files it, to the parole agency for a written report. Not only does the statute state without qualification that the court “shall” refer the petition to the parole agency, the court’s subsequent actions on the petition occur “after the receipt of [the] written report.” (§ 1203.2(b)(1).) Nor is there any express exception to the written-report requirement in proceedings involving lifetime parolees. Section 3000.08(h), which requires remand to prison in the case of lifetime parolees, does not apply until “the court determines that the [lifetime parolee] has committed a violation of law or violated his or her conditions of parole.” Section 1203.2(b)(1) directs a court to obtain a written report before it considers the petition, however, so by its terms section 3000.08(h) does not require a different procedure in the case of a lifetime parolee.

Although a written report will have limited utility in many such cases, “the Legislature’s directive is clear, and we are not at liberty to alter it.” (People v. Wiley, supra, 36 Cal.App.5th at p. 1069, 249 Cal.Rptr.3d 196.) The trial court here erred by not obtaining a report from the parole agency before determining whether Williams violated his parole.

Contact Information