People v. Johnson

Filed 12/31/20 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, A158081
Plaintiff and Appellant,
(Alameda County Super. Ct.
v.
No. 19-CR-008101)
DARRYL JOHNSON,
Defendant and Respondent. ORDER MODIFYING OPINION
NO CHANGE IN JUDGMENT
PETITION FOR REHEARING
DENIED

THE COURT:
It is ordered that the opinion filed herein on December 9, 2020, is
modified in the following respect:
At pages 1-2, delete the following text:
“On August 20, 2007, while on parole, he was convicted of grand theft
and possession of controlled substances for sale. For these two new
convictions, the trial court deemed defendant’s sentences served but
placed him on a new, overlapping three-year parole term to begin on
August 20, 2007.”

The deleted text is to be replaced with the following text:
“Thereafter, the trial court sentenced defendant on two other
convictions he previously sustained—a 2003 grand theft conviction and
a 2004 conviction for possession of controlled substances for sale. For
these convictions, the court deemed defendant's sentences served but

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placed him on a new, overlapping three-year parole term to begin on
August 20, 2007.”

This modification does not change the judgment.
Defendant’s petition for rehearing, filed December 22, 2020, is
denied.

Date: 12/31/2020 __FUJISAKI, J. Acting P.J.

A158081/People v. Johnson

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Trial Court: Alameda County Superior Court

Trial Judge: Hon. Scott Patton

Counsel: Office of Attorney General, Xavier Becerra, Attorney
General, Phillip J. Lindsay, Senior Assistant Attorney General, Sara J.
Romano, Supervising Deputy Attorney General, Michael G. Lagrama,
Deputy Attorney General, for Plaintiff and Appellant.

First District Appellate Project, Jonathan Soglin, Jeremy
Price, and Nathaniel Miller, for Defendant and Respondent.

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Filed 12/9/20 (unmodified opinion)
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Appellant,
A158081
v.
(Alameda County Super. Ct.
DARRYL JOHNSON, No. 19-CR-008101)
Defendant and Respondent.

California Department of Corrections and Rehabilitation (CDCR)
appeals from the trial court’s order revoking and restoring defendant Darryl
Johnson’s parole, setting a new parole discharge date, and “modify[ing] the
conditions of his parole to include no supervision” so that defendant would
“not be subject to parole supervision during the remainder of his parole
term.” CDCR contends the court: (1) miscalculated defendant’s parole
discharge date; and (2) had no authority to terminate defendant’s “parole
supervision.” We agree with both contentions and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, defendant was convicted of receiving stolen property and
sentenced to two years in prison. He was released on parole in June 2007,
subject to a three-year parole term. On August 20, 2007, while on parole, he
was convicted of grand theft and possession of controlled substances for sale.

*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of the following portion of the
Discussion: Parole Discharge Date.

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For these two new convictions, the trial court deemed defendant’s sentences
served but placed him on a new, overlapping three-year parole term to begin
on August 20, 2007. After deducting custody credits, defendant’s parole was
scheduled to end on August 16, 2010. After his release, defendant absconded
from parole supervision 11 times, for a total of 3,215 days, and was in jail on
parole violations nine times, for a total of 699 days.
On May 23, 2019, CDCR filed a petition to revoke defendant’s parole.
At a hearing on the petition, the trial court asked why CDCR was “wasting
time” “keeping him on parole” when he had not “committed any felonious
conduct” in many years and “resources would be better spent on people [who]
are seeking the resources or are . . . committing new crimes.” A parole officer
responded that defendant had not completed parole because “[a]s you know
when they are suspended their time stops[;] they don’t get credit for th[at]
time.” “If he’s been out in the wind for six years, we don’t know that he’s
been law abiding because he hasn’t given us an opportunity to supervise
him.” After further discussion, the court stated it had the “authority to
terminate his parole” and proceeded to do so after obtaining an admission
from defendant that he violated parole by absconding “since 2013.” The court
issued a written order revoking, restoring, and terminating defendant’s
parole, finding that while defendant “consistently failed to report and his
whereabouts have gone unknown,” “continuing [him] on parole would not
serve the interest of society. . . .”
CDCR moved for reconsideration on the grounds that defendant’s
discharge date—which CDCR calculated as June 15, 2020—had not passed
and that the trial court exceeded its authority by terminating his parole.
Defendant opposed reconsideration but argued in the alternative that “if the
Court decides to reconsider its decision, the Court should modify

2
[defendant’s] parole conditions and terminate supervision.” The court
granted CDCR’s motion for reconsideration stating it “acted in excess of
jurisdiction” by terminating defendant’s parole. The court found defendant
absconded from parole for a total of 3,225 days (the parties agree the actual
number is 3,215 days) and that the new parole discharge date was September
8, 2019. The court further “modifie[d] the conditions of [defendant’s] parole
to include no supervision” and ordered that defendant “shall not be subject to
parole supervision during the remainder of his parole term.” CDCR appeals.1
DISCUSSION
Parole Discharge Date
As explained below, the trial court miscalculated defendant’s parole
discharge date and the correct discharge date at the time of the order was
June 4, 2020.
The “period immediately following incarceration is critical to successful
reintegration of the offender into society and to positive citizenship.”
(Pen. Code, § 3000, subd. (a)(1).)2 Thus, an offender released from
incarceration after serving a prison sentence is subject to a parole term,
which is usually three years. (§ 3000, subd. (b)(1), (2)(A).) “Upon successful
completion of parole, or at the end of the maximum statutory period of
parole,” “whichever is earlier, the [parolee] shall be discharged from” parole.
(§ 3000, subd. (b)(6).) “The date of the maximum statutory period of parole
. . . shall be computed from the date of initial parole and shall be a period

1 Defendant argues the appeal must be dismissed as moot as the parole
discharge date has passed and this court therefore cannot provide effective
relief. We disagree. There is nothing in the record indicating defendant has
successfully completed parole; for example, he may have extended the
discharge date further by again absconding.
2 All further undesignated statutory references are to the Penal Code.

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chronologically determined. Time during which parole is suspended because
the prisoner has absconded or has been returned to custody as a parole
violator shall not be credited toward any period of parole. . . .” (Ibid.) In
other words, a parole term is extended by the number of days the parolee
absconds or is in jail for parole violations. (Ibid.; People v. Pearl (2009)
172 Cal.App.4th 1280, 1291 (Pearl).)
A parole term is extended without limit for the entire time a parolee
absconds from parole under section 3064, which provides: “From and after
the suspension or revocation of the parole of any prisoner and until his return
to custody he is an escapee and fugitive from justice and no part of the time
during which he is an escapee and fugitive from justice shall be part of his
term.” (Italics added.) (Pearl, supra, at p. 1290; People v. Townsend (2020)
53 Cal.App.5th 888, 893–894 (Townsend).) In contrast, there is a limit on
how long a parole term can be extended by time spent in custody on parole
violations under section 3000 subdivision (b)(6)(A), which provides: “Except
as provided in Section 3064 [regarding absconded days], in no case may a
prisoner subject to three years on parole be retained under parole supervision
or in custody for a period longer than four years from the date of his or her
initial parole.” (Pearl, supra, at p. 1291; Townsend, supra, at pp. 893–894.)
Courts have interpreted the limitation of “four years from the date of
his or her initial parole” in section 3000 subdivision (b)(6)(A) to mean that
there is a one-year cap (from three years to four years) on parole extensions
for time spent in custody on parole violations. (Pearl, supra, at p. 1291;
Townsend, supra, at pp. 893–894.) “That is, time spent absconding from
parole supervision suspends the parole period indefinitely, while” “ ‘ “ ‘[t]ime
spent in custody on a parole violation . . . extends the parole period’ ” ’ such
that a parolee ‘ “ ‘may not be retained on parole supervision or in custody on a

4
parole violation for more than 4 years.’ ” ’ ” (Townsend, supra, at pp. 893–
894, italics added, quoting Pearl, supra, at p. 1291.) Applying these
principles, the Townsend court extended the defendant’s parole discharge
date by the 2,309 days he absconded from parole, plus the 334 days he spent
in custody for parole violations, stating it was extending the parole term by
the full 334 days because 334 days is less than the one-year maximum
extension for in-custody time.
Here, defendant would have been discharged from parole on August 16,
2010 had he not absconded for 3,215 days and spent 699 days in custody for
parole violations. Thus, his parole discharge date was extended by 3,215
days for absconding plus the one-year (365 days) maximum for in-custody
time, for a total of 3,580 days, i.e., to June 4, 2020. The trial court therefore
erred in finding defendant’s parole discharge date was September 8, 2019.
Defendant asserts the correct date was actually “June 5, 2019, or, in
the alternative, . . . December 4, 2019.”3 Defendant’s calculations are based
on his argument, also made by the defendant in Townsend, that the four-year
limit contained in section 3000 subdivision (b)(6)(A)—i.e., “four years from
the date of his or her initial parole”— means that CDCR’s ability to extend
his parole term for time spent in custody for parole violations expired four
years from the original date his parole began and, therefore, the court lacked
authority to extend his parole term based on in-custody days served after the
four-year mark. (Townsend, supra, at p. 895.)

3 Defendant requests judicial notice of the same trial judge’s orders in
another case, Townsend, as they may “shed light” on the judge’s “reasoning”
in calculating the discharge date in the instant case. In light of defendant’s
agreement that the September 8, 2019 date is incorrect, and the fact that the
Townsend opinion thoroughly explained and rejected the trial judge’s method
of calculating the discharge date, we deny the request for judicial notice on
relevance grounds.

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 The Townsend court rejected this argument, as do we. (Ibid.) “[W]here
a parolee absconds early, section 3064 tolls the initial four-year maximum
period of parole. . . . Applying this tolling provision, none of the 2,309 days
Townsend spent absconding . . . counts against the four-year statutory
maximum under section 3000 [subdivision] (b)(6)(A). Townsend’s maximum
statutory period of parole was four years . . . plus the time Townsend spent
absconding from parole supervision.” (Townsend, supra, at pp. 895–896,
italics added.) Similarly, here, because section 3064 tolled the initial four-
year maximum period of parole, none of the 3,215 days defendant spent
absconding counted against the four-year maximum, and defendant’s
discharge date was extended by the full 3,215 days plus the one-year
maximum (365 out of 699 days) for time spent in jail on parole violations, for
a total of 3,580 days—from August 16, 2010 to June 4, 2020.
Termination of Parole Supervision
We conclude the trial court erred in terminating defendant’s “parole
supervision.”
The court, after acknowledging it lacked the authority to terminate
defendant’s parole early as it had originally intended, decided instead to
“modif[y] the conditions of his parole to include no supervision” and ordered
that defendant “shall not be subject to parole supervision during the
remainder of his parole term.” In doing so, the court cited section 1203.2
subdivision (b)(1): “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 particular, the court appears to have
interpreted the first italicized term “terminate supervision” to mean that

6
“supervision” was a condition of parole that could be stricken. This
interpretation is not supported by the statutory language.
“ ‘ “We begin with the plain language of the statute, affording the words
of the provision their ordinary and usual meaning and viewing them in their
statutory context, because the language employed in the Legislature’s
enactment generally is the most reliable indicator of legislative intent.”
[Citations.] The plain meaning controls if there is no ambiguity in the
statutory language.’ [Citation.] In interpreting a statutory provision, ‘our
task is to select the construction that comports most closely with the
Legislature’s apparent intent, with a view to promoting rather than defeating
the statutes’ general purpose, and to avoid a construction that would lead to
unreasonable, impractical, or arbitrary results.’ [Citation.]” (Poole v. Orange
County Fire Authority (2015) 61 Cal.4th 1378, 1385.)
Section 1203.2 vests a court with the authority to preside over
revocation hearings when a “supervised person” violates a term or condition
of his or her “supervision.” (§ 1203.2, subd. (a).) The statute does not
explicitly define “supervision” but uses the word throughout the statute to
refer to the different types of supervision—such as probation or parole—
available to individuals released from custody. For example, subdivision (a),
which provides that a “supervised person” may be rearrested for violations of
“any term or condition of the person’s supervision,” lists the following types of
“supervision” covered by the statute: (1) probation; (2) mandatory
supervision; (3) postrelease community supervision (PCRS); and (4) parole.
(§ 1203.2, subd. (a).)
The statute also states twice that the court has the authority to
“terminate” all types of “supervision” as a sanction for violating terms or
conditions, except that it may not terminate one type of supervision—parole.

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(§ 1203.2, subds. (a), (b)(1); People v. Johnson (2020) 45 Cal.App.4th 379, 397
(Johnson).) Specifically, subdivision (a) states that upon the supervised
person’s rearrest, the court “may revoke and terminate the supervision of the
person” under certain circumstances. (Italics added.) “However, the court
shall not terminate parole pursuant to this section.” (§ 1203.2, subd. (a).)
Subdivision (b)(1) repeats this language, stating that “the court may modify,
revoke, or terminate supervision of the person . . . except that the court shall
not terminate parole.” (Italics added.) In other words, upon a supervised
person’s rearrest or a finding that the person has violated terms or conditions
of the supervision, the court has the authority to terminate all types of
supervision—e.g., probation, mandatory supervision, PRCS—except that it
cannot terminate one type of supervision, parole.
“ ‘It 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.’ ” (People v. Jones (1988) 46 Cal.3d 585, 595.) When read
in context, we conclude the word “supervision” as used throughout the statute
refers to the different types of supervision available to individuals released
from custody—probation, mandatory supervision, PCRS, and parole—and
that the phrase repeated twice in section 1203.2 that the court may
“terminate supervision” “except that the court shall not terminate parole”
means the court has the authority to terminate all types of “supervision” as a
sanction for violations of terms and conditions, except that it may not
terminate parole.
Johnson, supra, 45 Cal.App.5th at p. 394 supports our conclusion.
There, the court similarly defined the word “supervision” to refer to the
different types of supervision, stating, “section 1203.2 pertains to proceedings
relating to persons on several different types of supervision (i.e., probation,

8
parole, PRCS and mandatory supervision).” (Johnson, supra, 45 Cal.App.5th
at p. 394.) The court also interpreted the term “terminate supervision” to
refer to the termination of a type of supervision and explained that trial
courts are authorized to terminate all types of supervision except parole
because “an order terminating parole as a sanction for a parole violation
would mean a return of the parolee to prison because he has not been
successful on parole. However, as part of realignment the Legislature
decided to provide that sanction only for a very limited class of parolees.” (Id.
at p. 397.) We conclude the trial court erred in interpreting section 1203.2 to
mean it had the authority to terminate “parole supervision,” and in ordering
that defendant “not be supervised for the remainder of his parole term.”4
Finally, the parties disagree about the effect of the trial court’s order
terminating “parole supervision” on defendant’s parole status. CDCR argues
that by ordering the termination of “parole supervision” altogether, the court
“indirectly” and “effectively discharged [defendant] from CDCR’s custody,
where parole officers could neither monitor [his] whereabouts nor require him
to participate in rehabilitative counseling.” In other words, it appears
CDCR’s position is that defendant has not been on parole since the date of
the order and therefore has the same number of days remaining on his parole

4 The trial court also cited People v. VonWahlde (2016) 3 Cal.App.5th
1187, 1198, which is inapposite as it simply states, in dictum and in a
different context, without analysis or explanation or citation to authority,
that the trial court would have “had the authority to terminate parole
supervision.” To the extent, if any, these statements regarding “parole
supervision” can be interpreted to mean that section 1203.2 authorizes courts
to terminate “parole supervision,” we disagree. Neither the trial court nor
the parties cited any authority holding a trial court is authorized to modify
parole to “terminate” “parole supervision,” or that “unsupervised parole” is an
option for parolees in California. We note that at the hearing on CDCR’s
petition, defendant asked, “Could I get unsupervised[?]” and the parole officer
responded there was no such thing as “unsupervised parole.”

9
term as he did as of the date of the court’s order. Defendant disagrees and
asserts that “parole supervision” is merely one aspect of parole and that other
important conditions remain in place, e.g., being subject to warrantless
searches, arrest, parole revocation, and sanctions for violations of any parole
conditions. Thus, defendant would argue he has been serving the remainder
of his parole term during the pendency of this appeal and that those days
should be counted towards satisfying his parole term.
Based on the record before us, and in light of the fact that we do not
know what has transpired since the trial court’s order, we conclude that the
effect the order has had on defendant’s parole discharge date is not for us to
determine at this time. (Wilson & Wilson v. City Council of Redwood City
(2011) 191 Cal.App.4th 1559, 1573 [we do not decide issues that are not ripe
for appeal]; In re Zeth S. (2003) 31 Cal.4th 396, 405, 413–414 [appellate
courts rarely accept postjudgment evidence or evidence developed after the
challenged ruling is made].) We do not know whether the order terminating
“parole supervision” had the effect of actually terminating all aspects of
parole supervision. We do not know whether CDCR has continued to satisfy
the objectives of parole by, for example, providing counseling or housing
assistance, or by monitoring the payment of fines or fees. (See In re Roberts
(2005) 36 Cal.4th 575, 590 [maintaining public safety and ensuring parolees’
rehabilitation are the twin objectives of parole supervision].) We also do not
know if defendant has again absconded from parole. On remand, the trial
court shall determine in the first instance whether defendant has served any
days on parole since the date of its order and recalculate his parole discharge
date in light of that determination and the principles set forth in this opinion.

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 DISPOSITION
The trial court’s order setting September 8, 2019 as defendant’s parole
discharge date and terminating “parole supervision” under section 1203.2 for
the remainder of his parole term is reversed. The matter is remanded for
further proceedings consistent with this opinion.

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 _________________________
Petrou, J.

WE CONCUR:

_________________________
Fujisaki, Acting P.J.

_________________________
Jackson, J.

A158081/People v. Johnson

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Trial Court: Alameda County Superior Court

Trial Judge: Hon. Scott Patton

Counsel: Office of Attorney General, Xavier Becerra, Attorney
General, Phillip J. Lindsay, Senior Assistant Attorney
General, Sara J. Romano, Supervising Deputy Attorney
General, Michael G. Lagrama, Deputy Attorney General,
for Plaintiff and Appellant.

First District Appellate Project, Jonathan Soglin, Jeremy
Price, and Nathaniel Miller, for Defendant and
Respondent.

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