Filed 1/29/16 P. v. Carbajal CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068327
Plaintiff and Respondent,
v. (Super. Ct. No. SPV00513)
GEORGE CARBAJAL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County, Poli Flores, Jr.,
Judge. Affirmed.
Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Seth M.
Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
This is an appeal from an order revoking parole for George Carbajal, and the
imposition of an 89-day sentence with credit for time served. The appellate briefing is
based entirely on issues never raised in the trial court, and for which there is no
developed trial court record from which we could rationally resolve the hypothetical
issues raised on this appeal. Accordingly, we will find all of the contentions to be
forfeited and find there is no basis for the predictable claim of ineffective assistance of
trial counsel for failure to raise issues deemed important by appellate counsel.
In July 2006, Carbajal was convicted of second degree burglary (Pen. Code,
§ 459) and sentenced to two years in prison. Carbajal was released from prison, on
parole in July 2007. Carbajal absconded from parole on numerous occasions and had a
number of separate parole violations. As a result, Carbajal's discharge date had been
tolled until March 2016.
In March 2015 parole authorities filed a petition to again revoke Carbajal's parole.
A contested hearing followed and the court ultimately revoked parole and imposed an 89-
day sentence.
Carbajal appeals contending the policy of the El Centro parole office to require
him, as a homeless parolee, to report in person weekly at the parole office was unlawful
for multiple reasons. Appellate counsel argues, for the first time on appeal, that the
reporting policy constituted an "underground" regulation in violation of the
Administrative Procedure Act (Gov. Code, § 11340, et. seq.; Reilly v. Superior Court
(2013) 57 Cal.4th 641, 649); the policy is unreasonable and violates the Fourteenth
Amendment; and that the issues have not been forfeited because they present only pure
questions of law. Finally, counsel contends that if the issues are deemed forfeited, trial
counsel was ineffective under the Sixth and Fourteenth Amendments for not raising them
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in the trial court. As we have previously observed, we find the "substantive" issues have
been forfeited. We will also find Carbajal has not met his burden to show that trial
counsel was ineffective or that any alleged failing by trial counsel caused Carbajal
prejudice.
STATEMENT OF FACTS
We have already discussed the history of Carbajal's parole difficulties. When he
was again placed on parole in El Centro, his agent placed several conditions on his
activities. Relevant here is that because Carbajal was homeless he was to report in person
each week until he acquired stable housing. He was also required to call each day, but
weekly appearances would forgive any failure to call.
On October 13, 2014, Carbajal signed an acknowledgement of his conditions of
parole. Carbajal did not report in any fashion after November 2014. He was arrested
when he attempted to cross the border into the United States from Mexico.
DISCUSSION
A. Alleged Underground Regulation
Carbajal contends, for the first time on appeal, that the conditions imposed on him
by the El Centro agent amounted to an underground regulation subject to the
Administrative Procedure Act. He contends it was a regulation of general application and
was subject to the adoption procedures of the Act. (Gov. Code, § 11342.600; Tidewater
Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 571.) In order to challenge a
regulation, the issue of its improper adoption must be timely raised. (Reilly v. Superior
Court, supra, 57 Cal.4th at p. 649.) Failure to timely raise such objection forfeits the
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issue for appellate review. (People v. Taylor (2009) 174 Cal.App.4th 920, 937; People v.
Medina (2009) 171 Cal.App.4th 805, 817-819.)
Carbajal contends the issue should not be forfeited because it presents only a
question of law. We disagree. Since the issue was never raised, we have no information
on the source of the policy followed by the agent in this case. We do not know its
"general application," or even if such policy exists outside of the El Centro office.
Without knowing the factual circumstances such as the source of the policy, the full text
of any such policy or the scope of its application, we can only speculate as to whether it
was an "underground regulation." We decline to speculate on a barren record and find
this contention has been forfeited.
B. The Reporting Requirements Were Reasonable
Carbajal contends, again for the first time on appeal, that the weekly reporting
requirement was unreasonable because he was homeless. Again we find the issue has
been forfeited. The absence of discussion of this issue in the trial court deprives us of a
record from which we could assess the issue of reasonableness.
In any event, nothing on the record before us raises any concern regarding the
reasonableness of the parole policy. Carbajal had repeatedly absconded from parole.
Although he has had periods in which he was homeless, it has never impaired his
mobility. As exemplified by his last arrest, he had not reported to the El Centro office for
months, but was able to travel to Mexico whenever he wished to do so. The fact Carbajal
was still on parole after being released from prison in 2007 demonstrates his ability to
travel and his lack of interest in complying with the conditions of his parole.
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Appellate counsel seeks to compare the weekly reporting requirement for Carbajal
with other reporting requirements he has located in the parole regulations. We decline to
engage in such comparative analysis on a record that provides an inadequate basis for
such review.
The state may impose any condition on a parolee that is reasonably related to
parole supervision. (In re Hudson (2006) 143 Cal.App.4th 1, 9.) Reasonable conditions
include the requirement to periodically report to the parole agent. (Terhune v. Superior
Court (1998) 65 Cal.App.4th 864, 874.)
Given the lengthy and dismal history of noncompliance with parole conditions by
Carbajal, and the absence of any record to demonstrate otherwise, we are satisfied the
parole conditions in this case were proper and reasonable.
C. Ineffective Assistance of Counsel
Carbajal contends the failure of trial counsel to raise the current challenges to his
parole conditions amounted to ineffective assistance of counsel. Carbajal recognizes that
the Sixth Amendment right to counsel does not apply to parole proceedings. He argues
that although there is no absolute right to counsel in parole proceedings, often principles
of fundamental fairness will require counsel in a specific case. (Gagnon v. Scarpelli
(1973) 411 U.S. 778, 781.) The California courts have interpreted Gagnon as creating a
presumption for the right to counsel where necessary to a fair revocation process. (In re
Love (1974) 11 Cal.3d 179, 186.) Thus any right to counsel in parole proceedings arises
from the due process clause of the Fourteenth Amendment. From that premise, Carbajal
argues due process is denied where counsel provides ineffective representation. He urges
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this court to apply the standards set forth in the Sixth Amendment cases arising from
Strickland v. Washington (1984) 466 U.S. 668 (Strickland).
We will not pause to examine in depth the extent to which the Strickland standards
should be applied to the actions of counsel in parole revocation proceedings. Even if we
applied Strickland to this case we would find no ineffective assistance. Under Strickland,
supra, 466 U.S. 668 the burden is on the defendant to prove counsel's performance was
not only defective, but that in the absence of the error the client likely would have
obtained a different result. Carbajal does not even come close on either of the Strickland
prongs.
Trial counsel vigorously challenged the validity of keeping Carbajal on parole for
years beyond the normal discharge time. Counsel forced parole authorities to present
further proof justifying their calculations. On this record counsel employed a very
legitimate strategy to represent the client. We must afford considerable deference to
counsel's tactical choices.
We cannot say, on the record before us, that there would be even the hint of merit
to the underground regulation issue, since there is nothing in the record on which we
could base such analysis. Nor can we say that the current claim that requiring a homeless
parolee to report once a week is unduly burdensome or unreasonable. As the court
observed in People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267, where the record
does not explain why a motion or objection was not made, it is often difficult to assess
the representation by counsel. The appropriate remedy in such cases may be by writ of
habeas corpus where the reasons for nonaction can be explored and evaluated. In any
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event this record does not support a claim of ineffective assistance of counsel even if
such claim might arise from the due process clause.
DISPOSITION
The order revoking parole is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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People v. Carbajal CA4/1
Combined Opinion