Filed 6/15/16 P. v. Honaker CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B266246
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 5PH03586)
v.
DAVID HONAKER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Robert M.
Kawahara, Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_______________________
Defendant David Honaker appeals from a postjudgment order revoking his parole
and sentencing him to 100 days in jail.1 Based on our independent review of the record
pursuant to People v. Wende (1979) 25 Cal.3d 436, 442, we affirm the order.
FACTUAL AND PROCEURAL BACKGROUND
Viewed in accordance with the usual rules of appeal (People v. Zamudio (2008)
43 Cal.4th 327, 357) the evidence established defendant was sentenced to 6 years, 8
months in prison following his conviction for burglary in March 2010.2 He was released
on parole on May 8, 2014. Defendant was still on parole when he tested positive for
methamphetamine on October 27, 2014. Subsequently, defendant failed to report to his
parole officer and the parole officer was unable to locate defendant. Defendant was
arrested for being a parolee-at-large on May 6, 2015.
On May 14, 2015, the Division of Adult Parole Operations (DAPO) filed a
Petition for Revocation of Parole (the Petition), which alleged parole violations for:
(1) absconding parole supervision and (2) methamphetamine use. The Petition
referenced an attached Parole Violation Report (the Report).
The Report includes a section captioned “Evaluation” and another captioned
“Recommendation From Supervising Agency.” In the evaluation section, the Report
states: “Intermediate sanctions have been considered. However, they have been deemed
not appropriate at this time. Parolee continues to use drugs and participated in criminal
activity. [Defendant] has demonstrated that he is unwilling to be supervised by DAPO.
Agent recommends a referral for revocation.” The recommendation section states the
tool used for the recommendation is the “Parole Violation Decision Making Instrument
Tool” (PVDMI). It includes two subsections: (1) “Instrument Recommended Response
1 A parole revocation order is appealable as a postjudgment order affecting the
defendant’s substantial rights. (People v. Osorio (2015) 235 Cal.App.4th 1408, 1412;
Pen. Code, § 1237, subd. (b).)
2 Defendant had previous convictions for car theft in 2004 (36 months in prison)
and first degree burglary in 2005 (6 years, 8 months in prison).
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Level” and (2) “California Department of Corrections and Rehabilitation Recommended
Response Level.” In the “Instrument Recommended Response Level” subsection, the
box is checked for “Least to most intensive: continue on parole with remedial sanctions.”
In the “California Department of Corrections and Rehabilitation Recommended Response
Level” subsection, the report recommends defendant be returned to custody for 135 days.
Defendant demurred to the Petition on both procedural and substantive grounds.
There were two prongs to his procedural argument. First, defendant argued that under
Osorio, supra, 235 Cal.App.4th 1408, the Petition did not comply with Penal Code
section 3000.08 and California Rules of Court, rule 4.541 because there was no indication
that the parole agent’s revocation recommendation had been reviewed by a supervisor.3
Second, the Petition did not adequately explain why “intermediate” sanctions were not
appropriate. Substantively, defendant argued there was no showing that intermediate
measures were not appropriate.
Defendant’s demurer was heard on May 15, 2015. Defendant argued intermediate
sanctions were appropriate because, until he stopped reporting following the positive
drug test, he was reporting “perfectly” and there were no C.O.P.’s (continued on parole);
from the fact that he was not arrested during the time he was not reporting, defendant
argued it was reasonable to infer he did not commit any new crimes. The prosecutor
countered that absconding “is among the most serious” of parole violations. But for
defendant absconding, intermediate sanctions could have been imposed after defendant’s
positive drug test. But because defendant absconded, DAPO could reasonably conclude
intermediate sanctions were not appropriate since defendant “might go back into
absconding status overnight and not be able to benefit from supervision and, more
importantly, place the entire community at risk of further criminality.”
The trial court overruled the demurer. It concluded that, absent a disagreement
between a parole agent and his or her supervisor over the recommended sanction, there is
3 The Petition was manually signed by Parole Agent Derick Kennon; the Report was
electronically signed by Kevin White both as both the Parole Agent and the Unit
Supervisor.
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no requirement that a petition be signed by the parole agent and his her supervisor; even
assuming there was any such requirement, the fact that the Petition and Report were
signed by different people was sufficient. Reasoning that the Report states that its
recommendation was based on the PVDMI, the trial court found the Petition and attached
Report satisfied the requirement for a reasonable explanation as to why intermediate
sanctions are not appropriate and it was not necessary to include the full PVDMI analysis
in the Petition or Report.
After the trial court overruled the demurer, defendant admitted the absconding and
methamphetamine use violations. The trial court revoked defendant’s parole and
sentenced him to serve 100 days in county jail; it ordered defendant’s parole reinstated
upon the completion of his jail sentence.
Defendant filed notice of appeal from the order overruling his demurrer to the
Petition. Defendant’s request for a certificate of probable cause was granted that day.
We appointed separate counsel to represent defendant on appeal. After
examination of the record, appointed counsel filed an opening brief which contained an
acknowledgment that counsel had been unable to find any arguable issues and requesting
that we independently review the record pursuant to Wende, supra, 25 Cal.3d 436. We
advised defendant that he had 30 days within which to personally submit any contentions
or issues which he wished us to consider. Defendant did not file a supplemental brief.
We have examined the entire record and are satisfied that appointed counsel fully
complied with her responsibilities and that no arguable issues exist. (Wende, supra,
25 Cal.3d at p. 441.)
DISPOSITION
The order is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J. GRIMES, J.
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