People v. Williams

Filed 4/9/20

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D074647

Plaintiff and Respondent,

v. (Super. Ct. No. PLAN2829)

ARNELL WILLIAMS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Kathleen

Lewis, Judge. Affirmed.

Law Office of Christine M. Aros and Christine M. Aros for Defendant and

Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,

Steve Oetting, Paige Hazard and Warren J. Williams, Deputy Attorneys General, for

Plaintiff and Respondent.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part B.
 Defendant Arnell Williams appeals from the trial court's order denying his motion

(motion) to dismiss the petition for revocation (petition) filed by the California

Department of Corrections and Rehabilitation (CDCR). Defendant contends the court

erred when it confirmed the prerelease determination of CDCR that he was a "high-risk

sex offender" requiring him to be supervised by parole under Penal Code1 section

3000.08, subdivision (a)(4), and not be placed in postrelease community supervision

(PRCS) under section 3450 et seq.

As we explain, we independently conclude defendant was subject to parole

supervision as a result of his 1984 convictions for forcible rape, rape in concert, and

robbery, which qualify as serious and/or violent felonies within the meaning of

subdivision (a)(1) and (2) of section 3000.08, respectively. As such, we deem it

unnecessary to determine whether defendant was also subject to such supervision as a

result of his high-risk sex offender classification. Affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In connection with his pending release from prison in mid-June 2018, defendant

maintained he was to be supervised under PRCS because his most recent convictions

were for a nonviolent offense. After defendant's release, CDCR filed the petition because

he refused to comply with the parole condition requiring him to affix to his person "an

electronic, global positioning system (GPS), or other monitoring device" as a result of

CDCR's determination he was a high-risk sex offender based on sex offenses he

1 All further statutory references are to the Penal Code unless noted otherwise.
2
committed in January 1984, as discussed post. In early July 2018, defendant rejected

CDCR's offered disposition of 180 days in confinement in a county jail, and requested a

parole revocation evidentiary hearing.

In connection with that hearing, defendant filed his motion in early August 2018.

Attached to the motion was an 11-page report prepared by defendant's expert; the expert's

curriculum vitae; defendant's Static-99 test; and excerpts of Static-99R coding rules,

among other documents. In the motion, defendant argued his Static-99R score of 5,

which put him in the high-risk sex offender category, was unreliable because he was only

16 years old when he committed the index sex offenses; and thus, according to

defendant's expert, the Static-99R was an improper assessment tool to predict his

likelihood of sexual recidivism. He further argued that, even if the Static-99R was the

proper assessment tool, his score was unreliable because CDCR delayed in administering

the test, and failed to account for his current age and for the length of time he had spent in

the community without committing additional sex offenses.

Defendant filed a supplemental brief in support of his motion. In this brief, he

argued that section 3000.08 was the "controlling authority" in determining whether a

person released from state prison should be supervised by parole or PRCS. He further

argued that subdivision (a) of this statute, which, when applicable, requires parole

supervision, did not apply to him because he was neither a high-risk sex offender nor

were his most recent convictions for "drug sales and transportation" serious or violent

felonies. As such, defendant argued he was not subject to parole supervision, was not

required to wear a GPS device, and was instead subject to PRCS.

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 In opposing defendant's motion, the People claimed he had been properly

designated as a high-risk sex offender and thus, was subject to parole supervision. The

People also claimed—as they do on appeal—that whether defendant was subject to parole

supervision was "within the sole discretion of CDCR"; that the trial court therefore was

"statutorily prohibited from terminating [defendant's] parole"; and that the court's role at

the revocation hearing was merely to act as the trier of fact in determining whether

defendant violated parole by refusing to wear a GPS device.

At the September 5 evidentiary hearing, the court initially heard testimony from

defendant and his parole agent. The court then found by a preponderance of the evidence

that defendant had violated parole by refusing to comply with the GPS monitoring

condition.

The court next turned to the issue of whether defendant was subject to parole

supervision. The court noted it had read defendant's motion and the attachments thereto,

the People's opposition, the supplemental brief and materials filed by defendant, and the

parties' stipulation of various facts.

Regarding the parties' stipulation, the court read the following into the record: 1)

defendant was born on July 7, 1967; 2) defendant committed his "index sexual offenses"

on January 22, and January 24, 1984; 3) defendant was 16 years old when he committed

the sex offenses; 4) defendant pleaded guilty on August 30, 1984, to one count of forcible

rape, one count of rape in concert, and one count of robbery; 5) defendant on March 24,

1996, was 28 years old when he was paroled on these offenses; 6) defendant was

sentenced in January 2005 to three years in prison for failing to register as a sex offender,

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in violation of former section 290, subdivision (g)(2), and was paroled for that offense in

January 2006; 7) defendant pleaded guilty in March 2008, and sentenced to 30 days in

jail, for the misdemeanor offense of resisting a peace officer; 8) defendant was "arrested

for possession for sales and sales of cocaine base" in February 2011, in violation of

(former) Health and Safety Code sections 11351.5 and 11352; 9) shortly before

defendant's release on the "drug sales case," CDCR in February 2018 administered the

Static-99R test, which resulted in a score of "5," although defendant scored a "1," or "low

risk," on the "California Risk Assessment level"; and 10) defendant on June 16, 2018,

was 50 years old when he was released from state prison on the 2011 "drug sales case."

After receiving additional testimony including from defendant's expert and another

witness from CDCR, and hearing the argument of counsel, the court confirmed its

tentative ruling and found it had "jurisdiction" to hear defendant's motion, relying in part

on People v. Toussain (2015) 240 Cal.App.4th 974 (Toussain), and sections 1203.2,

subdivision (b)(1), 3000.08, and 3056, subdivision (a). The court also found that,

pursuant to various statutes, CDCR was required to evaluate defendant "under the risk

assessment tools for sex offenders"; that with respect to the classification defendant was a

high-risk sex offender, the Static-99R was a "tool" and not the "law," and was a "reliable"

and "objective" indicator on this issue; and that in the instant case, CDCR followed its

own policies, regulations, and the applicable statutory scheme in assessing defendant and

in determining he qualified as a high-risk sex offender.

The court also rejected defendant's argument that use of the Static-99R was

unwarranted because he committed the index offenses when he was 16 years old. The

5
court noted that this assessment tool was not even in existence when defendant was

paroled on the index crimes; and that, in any event, it disagreed with defendant's expert

that the tool was inaccurate if used on a person who committed the index crimes when he

or she was 16 years old. Finally, the court found that it lacked the authority to "rescore"

defendant using the Static-99R, and that, even if it had such authority, it would not do so.

DISCUSSION

A. Overview of Realignment

The Legislature in 2011 enacted and amended " ' "a broad array of statutes

concerning where a defendant will serve his or her sentence and how a defendant is to be

supervised on parole," ' referred to generally as the realignment legislation. [Citation.]"

(See People v. Zamudio (2017) 12 Cal.App.5th 8, 13 (Zamudio).) "The overall purpose

of the realignment legislation was to decrease recidivism and improve public safety,

while at the same time reducing corrections and related criminal justice spending.

[Citation.]" (Ibid.)

"As enacted by the realignment legislation, new section 3000.08 and an amended

version of section 1203.2 became central elements of the system for parole supervision

and revocation. Together with [California Rule of Court,] rule 4.541 [governing the

contents of supervising agency reports], these statutes [and this rule] provide the

framework for parole eligibility, enforcement of parole supervision conditions and

procedures to revoke parole in the event of a violation." (Zamudio, supra, 12

Cal.App.5th at p. 13.)

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 B. The Court Had the Authority to Rule on Defendant's Motion

We first address the threshold issue whether the trial court lacked "jurisdiction" to

modify defendant's supervision from parole to PRCS, as the People claim, because that

authority rests exclusively with CDCR. The People claim defendant's appeal should be

dismissed, he should be required to exhaust his administrative remedies through CDCR,

and only then, if necessary, challenge in court any such determination through a writ of

habeas corpus.

This identical issue was recently addressed and rejected by this court in People v.

Johnson (2020) 45 Cal.App.5th 379 (Johnson). There, we held a court had the authority

or "jurisdiction" to rule on a defendant's motion to dismiss the petition to revoke his

parole and transfer him from parole supervision to PRCS. (Id. at pp. 399–340, fn. 13.)

In reaching our decision, we interpreted section 1203.2, subdivision (b)(1), which

provides in relevant part as follows: "Upon its own motion or upon the petition of the

supervised person, the probation or parole officer, or the district attorney, the court may

modify, revoke, or terminate supervision of the person pursuant to this subdivision,

except that the court shall not terminate parole pursuant to this section." (Italics added.)

In Johnson, we concluded that the Legislature intended the above italicized

language to prohibit the trial court from terminating parole as a sanction for violating the

conditions of parole (Johnson, supra, 45 Cal.App.5th at p. 405); and thus, that such

language did not bar a court from transferring a defendant from parole supervision to

PRCS when a defendant has shown he or she is not subject to any of the qualifying

crimes set forth in subdivision (a) of section 3000.08. (Johnson, at p. 405.)

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 To support our decision, we noted subdivision (a) of section 1203.22 had the

identical italicized language that appears in subdivision (b) of this statute. (Johnson,

supra, 45 Cal.App.5th at pp. 396–397.) Because subdivision (a) of section 1203.2

described the sanctions available to a court, other than termination of parole for a

violation of the conditions of parole or for other bad acts, we concluded the Legislature

intended the identical language in subdivisions (a) and (b) of this statute to have the same

meaning. (Johnson, at p. 396; see People v. Jones (1988) 46 Cal.3d 585, 595 [noting

" '[i]t is presumed, in the absence of anything in the statute to the contrary, that a repeated

phrase or word in a statute is used in the same sense throughout' "]; see also People v.

Montiel (2019) 35 Cal.App.5th 312, 321 [interpreting "economic loss" in various

subdivisions of section 1202.4 "consistently" in affirming a restitution award to the

mother of an eight-year-old victim who was molested by the defendant].)

Our conclusion in Johnson was further buttressed by the purpose of the

Legislature's enactment of realignment. If a court had the authority to terminate parole

altogether as a sanction for a violation, that remedy would undermine the purpose of

realignment, which was to prevent a parolee from returning to prison. (Johnson, supra,

2 Subdivision (a) of section 1203.2 provides in relevant part: "Upon rearrest, or
upon the issuance of a warrant for rearrest, the court may revoke and terminate the
supervision of the person if the interests of justice so require and the court, in its
judgment, has reason to believe from the report of the probation or parole officer or
otherwise that the person has violated any of the conditions of his or her supervision, has
become abandoned to improper associates or a vicious life, or has subsequently
committed other offenses, regardless of whether he or she has been prosecuted for those
offenses. However, the court shall not terminate parole pursuant to this section." (Italics
added.)
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45 Cal.App.5th at p. 397 [noting as part of realignment, the Legislature intended to

provide the return of a parolee as a sanction for a violation "only for a very limited class

of parolees," as set forth by statute, and further noting that, except in those instances,

subdivision (f)(2) of section 3000.08 provides that the most extreme custody-related

sanction the trial court may issue for a parole violation is confinement in county jail for

up to 180 days]; see § 3056, subd. (a) [providing that "[p]risoners on parole shall remain

under the supervision of the department but shall not be returned to prison"].)

We agree with the reasoning in Johnson and conclude the language "shall not

terminate parole" in subdivision (b)(1) of section 1203.2 means a court, absent

circumstances not applicable here, cannot return a parolee to prison as a sanction for, or a

consequence of, violating parole; but that a court retains the authority to hear and decide

a motion to transfer a defendant from parole to PRCS upon a showing the defendant did

not commit any of the qualifying crimes set forth in subdivision (a) of section 3000.08.

C. Defendant Was Subject to Parole Supervision because his 1984 Crimes
Qualified as Serious and/or Violent Felonies under subdivision (a)(1) and (2),
respectively, of Section 3000.08

1. Additional Background Regarding Defendant's 1984 Convictions

The record includes a recitation of defendant's criminal history, including, as

relevant here, the offenses he committed in 1984. It provides: On January 22, 1984, "[a]t

approximately 11:45 p.m., [victim 1] was alone in her residence when she answered a

knock at the door. She opened the door, believing it was her roommate, [victim 2].

Instead, it was co-defendant Brooks who barged into her home holding a black revolver.

He pointed the gun at [victim 1] and told her to lie down and cover her face. [Defendant]

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Mr. Williams and another co-defendant entered the home and asked if anyone else was

home. [Victim 1] claimed other people were home, but the defendants checked the

rooms in the house and discovered no one else was there. One of the subjects said, 'Hey,

we're going to be here a while' and all three covered their faces with bandanas and placed

socks over their hands.

"The subjects went through the rooms of the house, ransacked drawers and

cabinets, and continually asked when [victim 1's] roommate was returning. They told the

victim they needed a car and had her telephone her roommate, [victim 2], in order to get

her to come home. The subjects continued to ransack the rooms and began drinking

alcohol. One of the subjects approached [victim 1], unbuttoned his pants, removed his

penis and told her to, 'Put your mouth on this.' When [victim 1] refused, she was pistol

whipped in the face with the revolver. [Victim 1] became very nervous, began

hyperventilating, and vomited. Co-defendant Brooks opened the cylinder of the gun he

was holding, removed the bullets and showed them to [victim 1]. The other subject then

told her, 'Don't relax too much, I still have a knife.'

"When [victim 2] arrived home, she was confronted by one of the subjects who·

was standing behind the front door. He pointed a black revolver at her and ordered her to

get on the floor. [Victim 2] was asked if she had any dope or guns. She went into the

bathroom and one of the subjects followed her. Once inside the bathroom, the subject

unbuttoned his pants, removed his penis, and shoved it towards [victim 2]. She refused

and was taken from the bathroom to the bedroom where her hands were tied behind her

back. Another subject took [victim 1] to another bedroom and tied her hands behind her

10
back. The subjects loaded the stolen items from the residence into [victim 2's] car and

left. [Victim 1] was able to work her hands free, untied her roommate's hands, and they

went next door to call the police.

"January 24, 1984: The C[.] Family: [¶] Mr. and Mrs. C[.] were asleep in their

bed when they were awakened around 1:40 a.m. by a voice saying, 'Don't move and don't

make a sound.' (Their three-year-old son was also asleep in the house in another room.)

Mr. C[.] saw the barrel of a gun and men with stocking masks over their faces. He

ultimately saw two black males holding handguns; one [of the guns] was described as a

large black revolver with a six-inch barrel and white pistol grip.

"Mr. and Mrs. C[.] were immediately ordered to lie face-down on the floor and

Mr. C[.] was taken into an empty bedroom where his feet and hands were bound, and he

was gagged. A gold chain and yellow gold band were removed from Mrs. C[.] before she

was taken into the master bedroom and forcibly raped by five of the subjects. She told

the reporting officer, 'I don't remember how many of them there were, I just remember

that they had a gun, they put a pillow over my head and held my legs and arms while they

took turns raping me.'

"She was also sodomized by at least three of the men. She could not be certain if

all five sodomized her as she lost consciousness at least once during the sodomy. One of

the subjects inserted the barrel of a handgun into her anus during the sexual assault.[3]

3 Defendant in his motion admitted he was the one who sodomized Mrs. C. "with a
gun barrel."
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Also, one of the subjects attempted to have Mrs. C[.] orally copulate him. The subjects

then tied up Mrs. C[.] with a phone cord and gagged her.

"The residence was ransacked and the C[.]'s property was taken and placed into

their vehicle, which was then stolen. Mr. and Mrs. C[.] eventually untie[d] themselves

and contacted police from a neighbor's house. Mrs. C[.] was taken to a hospital for her

injuries and a medical report indicated she may have been pregnant at the time the attack

occurred.

"During the investigation of these crimes, co-defendant Brooks and a minor

admitted their involvement in the C[.] case. Brooks admitted helping Mr. Williams pry a

corner of the C[.]'s garage door open to gain entry into the house. Mr. Williams had the

gun and was the one who forced the family to lie on the floor. All of the subjects

participated in the rape. A search of Mr. Williams' home revealed a black BB gun with a

six-inch barrel and white hand grip as described by Mrs. C[.] She also positively

identified Mr. Williams as being the intruder with the black gun with [the] white hand

grip.

"On August 30, 1984, Mr. Williams pled guilty . . . to one count of rape in concert

([former] §§ 261(2) & 264.1), one count of forcible rape ([former] § 261(2)), and one

count of robbery of an inhabited dwelling (§§ 211 & [former] 213.5). The remaining

counts, including the firearm allegation, were dismissed pursuant to the plea

bargain. [Defendant] was sentenced to 23 years in state prison.

"On March 24, 1996, [defendant] was paroled from state prison at the age of 28."

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 2. Statutory Overview

As noted ante, the parties to this appeal dispute whether defendant qualified as a

high-risk sex offender under subdivision (a)(4) of section 3000.08. Subdivision (a) of

this statute provides in relevant part: "A person released from state prison prior to or on

or after July 1, 2013, after serving a prison term . . . for any of the following crimes is

subject to parole supervision by the Department of Corrections and Rehabilitation and the

jurisdiction of the court in the county in which the parolee is released, resides, or in

which an alleged violation of supervision has occurred, for the purpose of hearing

petitions to revoke parole and impose a term of custody: [¶] (1) A serious felony as

described in subdivision (c) of Section 1192.7. [¶] (2) A violent felony as described in

subdivision (c) of Section 667.5. [¶] . . . [¶] (4) Any crime for which the person is

classified as a high-risk sex offender. …"

Subdivision (b) of section 3008.08 provides: "Notwithstanding any other law, all

other offenders released from prison shall be placed on postrelease supervision pursuant

to Title 2.05 (commencing with Section 3450)."

On this court's own motion, we sought supplemental briefing from the parties

regarding whether subdivision (a)(1) and/or (2) of section 3000.08 apply here based on

defendant's 1984 convictions for forcible rape, rape in concert, and/or robbery. The

parties submitted supplemental briefs, separately claiming (with little legal support) that

subdivision (a)(1) and (2) allegedly did not apply because only defendant's most recent

13
commitment offense determines parole eligibility under the language of these two

provisions.4

This question presents an issue of statutory interpretation, which issue we review

de novo. (People v. Morales (2018) 25 Cal.App.5th 502, 509.) It is axiomatic that

the " ' "goal of statutory construction is to ascertain and effectuate the intent of the

Legislature." ' [Citation.] In approaching this task, we must first look at the plain and

commonsense meaning of the statute because it is generally the most reliable indicator of

legislative intent and purpose. [Citation.] If there is no ambiguity or uncertainty in the

language, the Legislature is presumed to have meant what it said, and we need not resort

to legislative history to determine the statute's true meaning." (People v. Cochran (2002)

28 Cal.4th 396, 400–401; People v. Birkett (1999) 21 Cal.4th 226, 231 [noting that "[w]e

must follow the statute's plain meaning, if such appears, unless doing so would lead to

absurd results the Legislature could not have intended"].)

Moreover, it " 'is an established tenet of statutory construction that separate items

in a statute should be given meaning with reference to the whole, and that each word and

phrase in the statute should be interpreted "to give meaning to every word and phrase in

4 The People in their supplemental brief made the additional argument that,
regardless of defendant's classification as a high-risk sex offender, he also was subject to
parole supervision pursuant to subdivision (l) of section 3000.08. This subdivision
provides, "Any person released to parole supervision pursuant to subdivision (a) shall,
regardless of any subsequent determination that the person should have been released
pursuant to subdivision (b), remain subject to subdivision (a) after having served 60 days
under supervision pursuant to subdivision (a)." (§ 3000.08, subd. (l).) Because—as we
discuss—defendant was subject to parole supervision under either subdivision (a)(1) or
(2) of section 3008, we decline to address whether subdivision (l) also applied to
defendant.
14
the statute to accomplish a result consistent with the legislative purpose." [Citation.]' "

(People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496 (Sylvester), italics added.)

However, if a statute is ambiguous, " 'we may consider a variety of extrinsic aids,

including legislative history, the statute's purpose, and public policy.' " (People v.

Costella (2017) 11 Cal.App.5th 1, 6.) We also may " 'examin[e] the context in which the

language appears and adopt[ ] the construction which best serves to harmonize the statute

internally and with related statutes.' " (People v. Gonzalez (2008) 43 Cal.4th 1118,

1126.)

3. Section 3000.08, subdivision (a)(1) and (2) apply to a person who has served
prison time for a serious and/or violent offense, respectively, even if the person's current
offense for which he or she is being released to parole was not for such an offense

We agree with the parties that section 3000.08 is the operative statute in this

appeal. A version of this statute was interpreted in 2015 by Division 3 of this court in

Toussain.5 Much like defendant in the instant case, in Toussain the defendant moved to

dismiss a parole revocation petition filed by CDCR after the defendant violated a

condition of parole by tampering with his GPS device. (Toussain, supra, 240

Cal.App.4th at p. 978.) The defendant in Toussain was required to wear a GPS device

based on a 1989 sex offense conviction of assault with intent to rape under former section

220. (Toussain, at p. 978.) In March 2014, Toussain was released on parole after being

5 Effective January 1, 2016, former section 3000.08, subdivision (c) was amended
to provide a court with the discretion to release a parolee from custody "under any terms
and conditions the court deems appropriate." (Stats. 2015, ch. 61 (Sen. Bill No. 517), §
2, eff. Jan. 1, 2016.) The Legislature again amended section 3000.08 effective January 1,
2017, which is the current version of the statute applicable in this case. (Stats. 2016, ch.
86 (Sen. Bill No. 1171), § 236, eff. Jan. 1, 2017.)
15
convicted in April 2013 for failing to register as a sex offender under former section

290.018, subdivision (b). (Toussain, at p. 978.) The parole revocation petition filed by

CDCR alleged the defendant's Static-99R risk category was " 'high,' " as his score was a

7, and he therefore qualified as a high-risk sex offender under former section 3000.08,

subdivision (a)(4). (Toussain, at p. 978.)

In response, the defendant in Toussain asserted that the court lacked "jurisdiction"

to hear the revocation petition, and that CDCR "could not supervise him because his most

recent prison commitment was not for a crime triggering parole supervision under

[former] section 3000.08." (Toussain, supra, 240 Cal.App.4th at p. 978.) The trial court

agreed with the defendant, dismissed the revocation petition for "lack of jurisdiction,"

and ordered the defendant to be placed on PRCS. (Ibid.)

The People appealed, contending that defendant was required to be supervised by

parole because CDCR had classified him as a high-risk sex offender, and that "all high-

risk sex offenders released from prison must be placed on parole rather than PRCS

regardless of the offender's most recent commitment offense." (Toussain, supra, 240

Cal.App.4th at p. 979.) The Toussain court agreed with the People, and reversed the

order dismissing the revocation petition.

After reviewing the language of former section 3000.08, subdivision (a), the court

in Toussain adopted the People's interpretation of this subdivision, persuasively reasoning

as follows: "By its terms, section 3000.08 requires parole supervision, not PRCS,

whenever a person who has committed '[a]ny crime for which the person is classified as a

high-risk sex offender.' (§ 3000.08, subd. (a)(4).) Toussain contends parole supervision

16
is required only when the offender's most recent prison commitment is for a crime for

which the person was classified as a high-risk sex offender, but the plain terms of the

statutory language include no such limitation. To the contrary, the Legislature specified

that even for offenders already released from prison 'prior to' section 3000.08's effective

date on July 1, 2013, the person 'is subject to' CDCR parole supervision if he or she

served a prison term for '[a]ny crime for which the person is classified as a high-risk sex

offender.' (§ 3000.08, subd. (a)(4).)

"The Legislature's use of the present tense ('is classified as' and 'is subject to')

discloses a plain intent that individuals who are classified as high-risk sex offenders shall

be subject to parole supervision based on a qualifying commitment offense ('Any crime

for which the person is classified as a high-risk sex offender'), even in circumstances

where they reoffend and are released from prison after a new offense. In other words, the

high-risk sex offender designation remains controlling and requires parole supervision

whether the person committed a qualifying offense and first gained release from prison

"prior to[,] on or after July 1, 2013.' (§ 3000.08, subd. (a)[].) Otherwise, a high-risk sex

offender on parole could deliberately commit a low-level felony to prompt parole

revocation, serve time on the new offense, and gain release on PRCS rather than continue

under parole supervision." (Toussain, supra, 240 Cal.App.4th at p. 980.)

The Toussain court further supported its interpretation of former section 3000.08,

subdivision (a) based on what it termed the "important" distinction between parole and

PRCS, noting that, unlike parolees and probationers, state law did not require PRCS

offenders to participate in a containment model sex offender management program.

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(Toussain, supra, 240 Cal.App.4th at p. 981.) The court thus concluded that, adopting

the defendant's interpretation of former section 3000.08, subdivision (a), and placing him

under PRCS, would "defeat[] the Legislature's intent to require close monitoring of

registered sex offenders." (Toussain, at p. 981.)

We find Toussain provides meaningful guidance on our issue. Like the Toussain

court, we conclude the language in subdivision (a) of section 3000.08 is unambiguous.

As relevant here, this subdivision requires a person to be supervised by parole if that

person was "released from state prison prior to . . . July 1, 2013, after serving a prison

term . . . for any of the following crimes," which list includes a "serious felony as

described in subdivision (c) of Section 1192.7" (§ 3000.08, subd. (a)(1)); and a "violent

felony as described in subdivision (c) of Section 667.5." (§ 3000.08, subd. (a)(2).) If the

Legislature had wanted to limit subdivision (a)(1) and (2) to apply only when an offender

is released from a current prison commitment that qualifies as a serious and/or violent

felony, respectively, it easily could have included such language in the statute.

In fact, as originally enacted, such limiting language was in the statute. As

originally enacted on April 4, 2011, subdivision (a) of former section 3000.08 provided in

relevant part: "Persons released from state prison on or after October 1, 2011, after

serving a prison term or, whose sentence has been deemed served pursuant to Section

2900.5, for any of the following crimes shall be subject to the jurisdiction of and parole

supervision by the Department of Corrections and Rehabilitation[.]" (Added by Stats.

2011, ch. 15 (Assem. Bill No. 109), § 469, eff. April 4, 2011, operative Oct. 1, 2011;

amended by Stats. 2011, ch. 39 (Assem. Bill No. 117), § 37, eff. June 30, 2011, operative

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Oct. 1, 2011; Stats. 2011-2012, 1st Ex. Sess., ch. 12 (Assem. Bill No. 17), § 17, eff. Sept.

21, 2011, operative Oct. 1, 2011, italics added.) Subdivision (a) of former section

3000.08 went on to list the same five crimes appearing in the current statute, including, as

relevant here, a "serious felony" (former § 3000.08, subd. (a)(1)); a "violent felony" (id.,

subd. (a)(2)); and a crime where a person is classified as a "High Risk Sex Offender" (id.,

subd. (a)(4)).

The legislature history of section 3000.08 shows the same "on or after October 1,

2011" language that appeared in the original version of the statute was repeated in two

subsequent amendments. (See Stats 2012, ch. 24 (Assem. Bill No. 1470), § 44, eff. June

27, 2012; and Stats. 2013, ch. 32 (Sen. Bill No. 76), § 8, eff. June 27, 2013.) However,

key to the instant case, the "on or after" language in subdivision (a) changed in an

amendment effective July 1, 2013. (See Stats. 2013, ch. 31 (Sen. Bill No. 75), § 23, eff.

June 27, 2013, operative July 1, 2013; Stats. 2013, ch. 32 (Sen. Bill No. 76), § 9, eff. June

27, 2013, operative July 1, 2013.)

19
 The version of subdivision (a) of former section 3000.08 effective July 1, 2013,

added the "prior to" language which remains in current subdivision (a) of this statute.6

Thus, it is clear from the July 2013 amendment that the Legislature intended section

3000.08 to require a person to be supervised by parole if that person served prison time

for any of the qualifying crimes in subdivision (a) of section 3000.08, regardless of when

he or she committed such crimes. Such an interpretation is consistent with the Toussain

court's interpretation of the language in former section 3000.08, subdivision (a)(4),

applicable to high-risk sex offenders, and with that court's recognition that former section

3000.08 did not require a person to be "reevaulated with each pending release for

subsequent commitment offenses" when, as in that case, the person has been found to be

a high-risk sex offender. (Toussain, supra, 240 Cal.App.4th at p. 981.)

6 We note section 3079.1 of the Code of Regulations, titled "Postrelease Community
Supervision Exclusionary Criteria," lists several types of crimes and/or criteria that make
an inmate ineligible for PRCS. (See Cal.Code Regs., tit. 15, § 3079.1.) Subsection (a) of
this section provides an inmate is ineligible for PRCS if he or she is "serving a current
term for a serious felony," as described in subdivision (c) of section 1192.7 or 1192.8.
(Italics added.) Subsection (b) of this section uses the same language as subsection (a),
except it applies to a violent felony as described in subdivision (c) of section 667.5. We
note, however, that section 3079.1 of the Code of Regulations was filed as an emergency
on June 26, 2012, before the July 2013 amendment to former section 3000.08. Because
the currentness requirement in subsections (a) and (b) of section 3079.1 of the Code of
Regulations conflicts with the "prior to" language in section 17.5, subdivision (a)(5),
discussed post, and in section 3000.08, subdivision (a), we conclude section 3079.1 of the
Code of Regulations is invalid at least with respect to subdivision (a)(1) and (2) of
section 3000.08. (See In re Schuster (2019) 42 Cal.App.5th 943, 954-955 [invalidating
section 3491, subdivision (b)(3) of the Code of Regulations, which barred early parole
consideration for inmates convicted of nonviolent offenses who had a prior conviction for
a sex offense and who were required to register under section 290, because that
regulation conflicted with section 32(a)(1) of article 1 of the California Constitution,
which became law when the electorate in 2016 passed Proposition 57, the Public Safety
and Rehabilitation Act of 2016].)
20
 We thus reject the interpretation of section 3000.08 proffered by the parties. In so

doing, we note in particular the inconsistency of the People's position with respect to this

issue. That is, the People in the instant case claim Toussain was properly decided and

rely on that case, including in their supplemental briefing. But as is clear from the July

2013 amendment, without the addition of the words "prior to" in subdivision (a) of

former section 3000.08 interpreted by the Toussain court, a person would not be subject

to parole if that person was released from prison before October 1, 2011, even if that

person had previously served time for a crime that allowed him or her to be classified as a

high-risk sex offender, as was the case in Toussain when defendant committed the index

sex crime in 1989. (Toussain, supra, 240 Cal.App.4th at p. 978.)

It is axiomatic that as a court of review, we are not bound to follow the meaning of

a statute sought by a party. (See Tun v. Wells Fargo Dealer Services, Inc. (2016) 5

Cal.App.5th 309, 327 [rejecting the concession of the defendant made during oral

argument regarding the meaning of the word "tender" in Civil Code section 2983.4, a

statute awarding a party prevailing under the Automobile Sales Finance Act reasonable

attorney fees and costs]; see also R.J. Land & Associates Construction Co. v. Kiewit–

Shea (1999) 69 Cal.App.4th 416, 427, fn. 4 [recognizing the interpretation and

applicability of a statute is a question of law and further noting in the "public interest[,]

we have discretion to reject [a party's] concession[ ] because our function to correctly

interpret a statute is not controlled by [a party's] concession of its meaning"]; Bell v. Tri–

City Hospital Dist. (1987) 196 Cal.App.3d 438, 449 [noting a reviewing court " 'is not

bound to accept concessions of parties as establishing the law applicable to a case' "],

21
disapproved on another ground as stated in State of California v. Superior Court (2004)

32 Cal.4th 1234, 1244.)

Our interpretation of subdivision (a) of section 3000.08 is also consistent with the

purposes of the realignment legislation. (See Toussain, supra, 240 Cal.App.4th at

pp. 980–981.) The purpose behind such legislation was codified in section 17.5. (Added

Stats. 2011, ch. 15 (Assem. Bill No. 109), § 229, eff. April 4, 2011, operative Oct. 1,

2011; amended Stats. 2011, ch. 39 (Assem. Bill No. 117), § 5, eff. June 20, 2011,

operative Oct. 1, 2011.) Reaffirming its commitment to reducing recidivism, the

Legislature in section 17.5 declared that "[c]riminal justice policies" based on "building

and operating more prisons" were "not sustainable" (§ 17.5, subd. (a)(3)); that "California

must reinvest its criminal justice resources to support community-based corrections

programs and evidence-based practices" to achieve "improved public safety" (id., subd.

(a)(4)); and to accomplish such goals, that "low-level felony offenders who do not have

prior convictions for serious, violent, or sex offenses" should be realigned "to locally run

community based programs." (Id., subd. (a)(5), italics added.)

This interpretation of subdivision (a) of section 3000.08 therefore supports the

Legislature's realignment policy goals of placing "low-level felony offenders" in

community-based programs if such offenders have no "prior" convictions for "serious,

violent, or sex offenses." (§ 17.5, subd. (a)(5).)

In concurrence, our colleague contends that, up until the instant majority opinion,

it has "been uniformly understood" by CDCR, local county probation departments, as

well as the California Attorney General's Office that the serious and violent felony

22
exceptions in section 3000.8, subdivision (a)(1) and (2), respectively, "apply to the

defendant's current offense, i.e., the one for which he or she served the prison term that is

just ending."

We note, however, the lack of any case law to support this "uniform[]

underst[anding]."

We further note that the administrative authority from the CDCR, on which our

colleague relies, predates the July 2013 amendment to section 3000.08, when our

Legislature added the words "prior to" to subdivision (a) (see Maj. Opn, fn. 6); that our

colleague's interpretation would require us to ignore the words "prior to" and their plain

meaning in subdivision (a) of section 3000.08, and instead insert the word "current" in

modifying only subdivision (a)(1) and (2), but ostensibly not the other subparts of

subdivision (a); that omitting the words "prior to" and inserting the word "current" in

subdivision (a)(1) and (2) of section 3000.08 would contravene well-established rules of

statutory construction, in which " 'each word and phrase in the statute should be

interpreted to "give meaning to every word and phrase in the statute" ' " (see Sylvester,

supra, 58 Cal.App.4th at p. 1496, italics added); that interpreting subdivision (a)(1) and

(2) per our colleague would appear to be inconsistent with the interpretation of

subdivision (a)(4) of this statute applicable to high-risk sex offenders, as discussed in

Toussain, supra, 240 Cal.App.4th at page 980, which, as discussed at length ante,

concluded a defendant was subject to parole supervision and not PRCS regardless of

when he or she committed a crime that would qualify an individual as such an offender;

that public policy actually favors the majority's construction of section 3000.08, as our

23
Legislature clearly limited PRCS to low-risk felony offenders (see § 17.5, subd. (a)(5)

[noting that "low-level felony offenders who do not have prior[, as opposed to current—

as suggested in the concurrence—] convictions for serious, violent, or sex offenses"

should be realigned "to locally run community-based programs" (italics added)); that

defendant committed crimes in 1984 that clearly qualify as both serious and/or violent

felonies under subdivision (a)(1) and (2), respectively, of section 3000.08, which

included his act of inserting a gun barrel into the anus of one of his victims, as described

in detail ante; and finally, that if our colleague is correct and subdivision (a)(1) and (2)

only apply to current serious and/or violent felonies for which a defendant is being

released, any such change to section 3000.08 should come from the Legislature and not

by judicial fiat, particularly when the interpretation sought by the concurrence is based

primarily on secondary authorities and on legislative history predating the July 2013

amendment.

For these reasons, we disagree with our colleague's reasoning in affirming the

requirement that defendant be supervised by parole and not PRCS.

4. Defendant's convictions for forcible rape, rape in concert, and robbery qualify
as serious and/or violent felonies under subdivision (a)(1) and/or (2) of section 3000.08,
respectively

Subdivision (a)(1) of section 3000.08 is applicable if a defendant has committed a

"serious" felony within the meaning of subdivision (c) of section 1192.7. Included in this

list of serious felonies is rape (§ 1192.7, subd. (c)(3)); robbery (id., subd. (c)(19)); and

commission of rape or sexual penetration in concert (id., subd. (c)(34)). We conclude

that defendant's 1984 convictions for forcible rape, rape in concert, and robbery were

24
serious felonies within the meaning of section 1192.7, subdivision (c); and therefore, that

he was subject to parole supervision under 3000.08, subdivision (a)(1).

We further conclude defendant's 1984 convictions were violent felonies within the

meaning of section 667.5, subdivision (c). Included in this list of violent felonies is rape

(§ 667.5, subd. (c)(3)); robbery (id., subd. (c)(9)); and rape or sexual penetration in

concert (id., subd. (c)(18)). As such, we separately conclude defendant was subject to

parole supervision under subdivision (a)(2) of section 3000.08.

DISPOSITION

The order denying defendant's motion to dismiss the parole revocation petition is

affirmed.

BENKE, Acting P. J.

I CONCUR:

O'ROURKE, J.

25
Dato, J., Concurring and Dissenting.

The Criminal Justice Realignment Act of 2011—sometimes referred to as

Assembly Bill No. 109 Realignment—made significant changes in where California

felons are incarcerated and how they are supervised following incarceration. (Stats.

2011, ch. 15, § 1 (Realignment).) The overall objective, for budgetary and other reasons,

was to transfer substantial responsibilities from the state to the local level. This case

involves the aspect of Realignment that was designed to reallocate most postrelease

supervision responsibilities from the state parole system to county probation departments

as part of a new process known as Post Release Community Supervision (PRCS).

Penal Code section 34511 sets forth the general rule that felons released from

prison after October 1, 2011 will be supervised at the local level. Section 3000.08 allows

for state parole supervision in exceptional cases. The specific exceptions are delineated

in both subdivision (b) of section 3451 and subdivision (a) of section 3000.08, which are

substantively mirror images. Among these exceptions—prisoners who will continue to

be supervised by the Division of Adult Parole Operations in the California Department of

Correction and Rehabilitation (CDCR)—are persons released from state prison after

serving a term of incarceration for a serious felony (as described in section 1192.7,

subdivision (c)) or a violent felony (as described in section 667.5, subdivision (c)).

(§ 3000.08, subds. (a)(1) and (a)(2); § 3451, subds. (b)(1) and (b)(2).) Until now, it has

1 All statutory references are to the Penal Code unless otherwise indicated.
been uniformly understood by CDCR and local county probation departments as well as

the California Attorney General's Office that the serious and violent felony exceptions in

sections 3000.08 and 3451 apply to the defendant's current offense, i.e., the one for which

he or she served the prison term that is just ending. These were never intended to be

permanent "status" exceptions that require state-level parole supervision if the defendant

has ever been in prison for a serious or violent felony.

In this case, Arnell Williams suffered 1984 convictions for forcible rape, rape in

concert, and robbery, all of which qualify as serious or violent felonies. He was released

from prison in 1996. More than 20 years later, he was again released from prison in 2018

after serving his sentence for two drug offenses, neither of which qualifies as a serious or

violent felony. (See Health & Saf. Code, §§ 11351.5 and 11352, subd. (a).) Although

the parties in this case dispute whether Williams is appropriately subject to state parole

supervision for other reasons, neither Williams nor the People contend he should be on

parole based on the exceptions created by sections 3000.08, subdivisions (a)(1) or (a)(2)

and 3451, subdivisions (b)(1) or (b)(2).

That question was first raised by this court on its own motion in a letter to counsel

soliciting supplemental briefing as to "whether or not subdivision (a)(1) and/or (2) of

section 3000.08 apply to defendant based on his 1984 convictions for forcible rape and

rape in concert." Both parties responded to the court's inquiry, agreeing that subdivisions

(a)(1) and (a)(2) of section 3000.08 do not apply. As the Attorney General explained,

"Those subdivisions subject a person to parole when the commitment offense—not a

prior conviction—constitutes a serious or violent felony." (Italics added.) Defendant's

2
counsel agreed: "Penal Code section 3000.08, subdivisions (a)(1) and (a)(2) do not apply

to appellant based on his 1984 convictions . . . ." (Capitalizations omitted.) Eschewing

the considered position of the parties, the uniform views of knowledgeable and respected

commentators, and CDCR's consistent application of the statute, the majority opinion

concludes that a released prison inmate must be subject to state parole supervision if that

inmate ever served a prison term attributable to a serious or violent felony. While I

acknowledge the majority's right to stake out an independent path—"[t]he final meaning

of a statute . . . rests with the courts" (Dyna-Med, Inc. v. Fair Employment & Housing

Com. (1987) 43 Cal.3d 1379, 1389)—I sincerely question the basis for doing so in this

case.

A

Realignment was a complex undertaking. Assembly Bill No. 109 was a

complicated statute, and it was followed by several pieces of trailer legislation making

numerous technical amendments. Despite this complexity, all experts in the field—

judges, prosecutors, even CDCR—agree that subdivisions (a)(1) and (a)(2) of sections

3000.08 and subdivisions (b)(1) and (b)(2) 3451 apply to the commitment offense and not

to prior convictions suffered by the defendant at an earlier point in time.

Emblematic of these commentators are Justice Tricia Bigelow and Judge Richard

Couzens (Ret.), recognized experts in California felony sentencing law who provide

continuing education classes for judges throughout the state. These jurists collaborated to

create an online guide on Realignment. (Bigelow & Couzens, Felony Sentencing After

Realignment (May, 2017) Criminal Justice Realignment Resource Center

3
 [as of April 3,

2020], archived at .) In describing persons excluded

from PRCS supervision under section 3451, subdivision (b), the authors explain that

those exclusions consider "the current crime of commitment, not the defendant's prior

crimes." (Bigelow & Couzens, supra, at p. 90.) "Section 3451[, subdivision] (b) focuses

on 'any person released from prison after having served a prison term' for any of the

excluded circumstances. In other words, merely because a defendant has a prior strike

would not exclude him from PRCS, so long as the term he was serving was not a third

strike offense or was for any of the other excluded offenses." (Ibid.) Judge Couzens and

Justice Bigelow reiterate the same point in a Rutter Guide publication. (Couzens et al.,

Cal. Law and Proc. Sex Crimes (The Rutter Group 2019) ¶ 13:17.)

Other commentators from a variety of backgrounds have consistently reached the

identical conclusion. Loyola Law School Professor Laurie L. Levenson observes that

"[t]he following inmates do not qualify for PRCS release: (1) state prisoners whose

commitment offense [is] a serious or violent felony . . . ." (Levenson, Cal. Criminal Proc.

(The Rutter Group 2019) ¶ 31:3, p. 31-5, italics added.) The Continuing Education of the

Bar (C.E.B.) treatise on criminal law and practice similarly explains that "[a] felon who is

released from state prison . . . is subject to parole supervision by the CDCR if the

commitment offense involved [¶] [a] serious felony under [section 1192.7,

subdivision] (c); [¶] [or] [a] violent felony under [section 667.5, subdivision](c) . . . ."

(Cal. Crim. Law Proc. & Prac. (Cont.Ed.Bar. 2018) § 47.4C, p. 1512, italics added.) San

Diego County Deputy District Attorney (and now Superior Court Judge) Lisa Rodriguez

4
wrote an article from a practitioner's viewpoint, noting that under Realignment state

parole is statutorily "limited to offenders released after serving a term for a serious or

violent committing offense . . . ." (Rodriguez, Criminal Justice Realignment: A

Prosecutor's Perspective (Apr. 2013) vol. 25, No. 4 Federal Sentencing Reporter 220,

223!2013 WL 8171768 It further found that CDCR's determinations were reasonable,

validated, and scientifically valid. There is no showing that the court abused its

discretion in making those findings.

Accordingly, I agree the superior court did not err in concluding that Williams was

properly subject to state parole supervision, and it correctly denied his motion to dismiss

the petition for parole revocation. But while I concur in the result reached by the

majority opinion, I cannot join its reasoning.

DATO, J.

5