Filed 1/7/21 P. v. Gazzaway CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Appellant, A158508
v.
CLAYTON DAVID GAZZAWAY, (Alameda County
Defendant and Respondent. Super. Ct. No. 19-CR-012038)
Real party in interest California Department of Corrections and
Rehabilitation (CDCR) petitioned to revoke the parole of defendant Clayton
David Gazzaway after he absconded 19 times and committed multiple parole
violations for which he was repeatedly jailed. Rather than grant CDCR’s
revocation petition, the trial court dismissed it and issued an order
terminating defendant’s parole supervision. After the trial court denied
CDCR’s motion for reconsideration, defendant was effectively discharged
from parole.
CDCR has appealed the trial court’s orders on two grounds: (1) the
trial court erred in finding that defendant’s parole period expired on May 1,
2018, given that his parole period was tolled for the total amount of time he
absconded and extended for the total amount of time he was jailed on parole
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violations; and (2) the trial court did not have authority to terminate his
parole pursuant to Penal Code section 1203.2.1 We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In 2009, defendant was convicted of receiving stolen property and
sentenced to one year and four months in prison. Defendant was released on
parole on May 15, 2010, subject to a three-year parole term.
Defendant’s parole term was originally scheduled to end on May 15,
2013. However, this discharge date did not hold because, while on parole,
defendant absconded well over a dozen times for a total of 2,106 days and
committed numerous parole violations for which he served 760 days in jail.2
Finally, on August 2, 2019, after defendant absconded for the 19th time,
CDCR filed a petition to revoke defendant’s parole.
A hearing on CDCR’s petition was held on August 9, 2019. The court
stated on the record that, based on the court’s calculation, defendant should
have been discharged from parole on May 1, 2018. The court thus deemed
defendant’s parole terminated “by operation of law . . . .” In its subsequent
order, the court terminated defendant’s “Parole Supervision” and dismissed
CDCR’s petition to revoke defendant’s parole given that it was filed after his
discharge date.
CDCR moved for reconsideration on the grounds that the August 9,
2019 order, which essentially terminated defendant’s parole and discharged
him from CDCR’s custody, contravened the Penal Code and must be set
aside.
1 Unless otherwise stated, all statutory citations herein are to the Penal
Code.
Defendant’s parole violations include multiple acts of drug and
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weapons possession, multiple violations of the terms of a restraining order,
child cruelty and misappropriation of property.
2
On September 27, 2019, the court denied CDCR’s motion for
reconsideration, concluding that it indeed had authority under section 1203.2
to terminate defendant’s parole supervision, which, according to the court,
was distinct from terminating defendant’s parole (which, admittedly, it could
not do). According to the court, interpreting section 1203.2 otherwise would
be “nonsensical.”
On September 30, 2019, CDCR filed a timely notice of appeal.
DISCUSSION
CDCR contends the trial court erred by (1) miscalculating defendant’s
parole discharge date based on an erroneous reading of sections 3000 and
3064 and (2) acting beyond the scope of its authority under section 1203.2 to
effectively terminate defendant’s parole before he completed his term.
We review both of these legal issues involving statutory interpretation
de novo. (People v. Pearl (2009) 172 Cal.App.4th 1280, 1288 (Pearl); People v.
Gonzalez (2017) 2 Cal.5th 1138, 1141.) The rules are well established. “In
interpreting a statute, our primary goal is to determine and give effect to the
underlying purpose of the law.” (Goodman v. Lozano (2010) 47 Cal.4th 1327,
1332.) “First, we consider the statutory language and give the statute’s
words their usual and ordinary meaning. [Citation.] The statutory language
must be construed in the context of the statute as a whole and the overall
statutory scheme, giving significance to every word, phrase, sentence, and
part of an act. [Citation.] If the statutory language is unambiguous, the
plain meaning controls and consideration of extrinsic sources to determine
the Legislature’s intent is unnecessary.” (Pearl, at p. 1288.)
I. The trial court miscalculated defendant’s parole discharge date.
“A parolee’s conviction of a felony ‘justifies imposing extensive
restrictions on the individual’s liberty. . . . Given the previous conviction and
the proper imposition of conditions, the State has an overwhelming interest
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in being able to return the individual to imprisonment without the burden of
a new adversary criminal trial if in fact he has failed to abide by the
conditions of his parole.’ ” (People v. Nuckles (2013) 56 Cal.4th 601, 609–610.)
Thus, “parole is a mandatory component of any prison sentence.” (Ibid.)
Section 3000, subdivision (a)(1) provides in relevant part that a
“sentence resulting in imprisonment in the state prison . . . shall include a
period of parole supervision or postrelease community supervision, unless
waived . . . .” (§ 3000, subd. (a)(1).) For an inmate, such as defendant,
sentenced for a theft crime committed prior to July 1, 2013, “the period of
parole . . . shall not exceed three years . . . unless in either case the Board of
Parole Hearings for good cause waives parole and discharges the inmate from
custody of the department.” (§ 3000, subd. (b)(1).) “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).)
Here, there is no question defendant failed to successfully complete
parole. We are instead concerned with whether, as the trial court found, the
maximum statutory period of defendant’s parole ended on May 1, 2018. The
Penal Code provides a scheme for computing a parolee’s discharge date: “The
date of the maximum statutory period of parole . . . shall be computed from
the date of initial parole and shall be a period 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 . . . .” (§ 3000, subd. (b)(6).)
Regarding the suspension of time on parole triggered by a prisoner’s
jailing on a parole violation, section 3000, subdivision (b)(6)(A) provides in
relevant part: “[I]n no case may a prisoner subject to three years on parole be
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retained under parole supervision or in custody for a period longer than four
years from the date of his or her initial parole.” (§ 3000, subd. (b)(6)(A).) In
contrast, regarding the suspension of time on parole triggered by a prisoner’s
absconding, section 3064 provides in relevant part that “no part of the time
during which he is an escapee and fugitive from justice shall be part of his
term.” (§ 3064.) We recently explained this distinction: “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, [172 Cal.App.4th] at p. 1291;
[People v.] Townsend [(2020) 53 Cal.App.5th 888,] 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 parole violation for more than
4 years.” ’ ” ’ (Townsend, supra, at pp. 893–894, italics added, quoting Pearl,
supra, at p. 1291.)” (People v. Johnson (Dec. 9, 2020, A158081)
___ Cal.App.5th ___ [pp. 4–5].)
Applying these principles to the facts of this case, we agree with CDCR
that the trial court miscalculated defendant’s parole discharge date.
According to CDCR’s worksheet, defendant would have been discharged from
parole on May 15, 2013, had he not absconded for 2,106 days and spent 760
days in custody on parole violations. CDCR calculates that defendant’s
parole discharge date was extended by each day that he absconded (2,106
days) plus the one-year (365 days) maximum for in-custody time, resulting in
a discharge date of February 18, 2020, rather than, as the trial court found,
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May 1, 2018. CDCR’s analysis is consistent with our construction of section
3000, subdivision (b)(6)(A) and section 3064, set forth above.
Defendant, however, argues the correct date of his discharge from
parole was January 7, 2018.3 He reasons: “[Section 3000, subdivision
(b)(6)(A)] provides that ‘[e]xcept as provided in Section 3064, in no case may a
[parolee] 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.’ (§ 3000, subd. (b)(6)(A), emphasis added.) Hence,
when ‘initial parole’ is three years, custody for parole violations can extend
parole supervision up to four years ‘from the date of his or her initial parole.’
(Ibid.) Here, four years from the date of [defendant’s] initial parole expired
on May 14, 2013.” (First bracketed insertion added.)
This division recently rejected essentially the same argument raised by
the defendant in People v. Johnson, supra, ___ Cal.App.5th ___, which, in
turn, followed another recent decision, People v. Townsend, supra, 53
Cal.App.5th 888 (Townsend). We explained: “The Townsend court rejected
this argument, as do we. [Citation.] ‘[W]here a parolee absconds early,
section 3064 tolls the initial four-year maximum period of parole. . . .’
(Townsend, supra, at pp. 895–896, italics added.) . . . [H]ere, 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
3 Defendant contends the trial court’s parole discharge date of May 1,
2018, was a miscalculation that did not impact the overall correctness of the
trial court’s order to terminate his parole.
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violations, for a total of 3,580 days—from August 16, 2010 to June 4, 2020.”
(People v. Johnson, supra, ___ Cal.App.5th ___ [p. 6].)
We adhere to this reasoning. As in People v. Johnson, supra, because
section 3064 tolled the initial four-year maximum period of parole, none of
the 2,100-plus days defendant spent absconding may be counted against the
four-year maximum, and his discharge date must be extended by the full
number of days he absconded (which appears to be 2,106)4 plus the one-year
maximum (365 out of 760 days) for time spent in jail on parole violations.
Under this analysis, the trial court erred in finding that defendant completed
his parole period on May 1, 2018, before CDCR filed its petition to revoke his
parole.
II. The trial court lacked authority to terminate parole.
CDCR further contends the trial court violated section 1203.2 and acted
in excess of jurisdiction when terminating defendant’s parole. Defendant
responds that CDCR misconstrues the trial court’s order and findings.
According to defendant, the court did not terminate his parole; rather, the
court simply found that his parole period terminated “by operation of law” on
May 1, 2018.
Our review of the record confirms that when denying CDCR’s motion
for reconsideration, the trial court found that while section 1203.2 prohibits
courts from terminating a parolee’s parole, the court nonetheless possesses
4 CDCR acknowledges there are at least two errors in its worksheet
calculating defendant’s parole discharge date. We leave it to the parties on
remand to present the trial court with correct calculations of defendant’s time
spent absconded from parole supervision and in custody on parole violations
so that, consistent with this opinion, the court can determine his actual
parole discharge date.
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authority to terminate a parolee’s supervision, which is what the court then
did. The trial court misinterpreted section 1203.2.
Section 1203.2 subdivision (b)(1) provides: “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.) Subdivision (b)(1),
in turn, reiterates and expands on subdivision (a), providing in relevant part:
“[W]henever a supervised person who is subject to this section is
arrested . . . , the court may order the release of a supervised person from
custody under any terms and conditions the court deems appropriate. 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 their [sic] supervision . . . . However, the court shall
not terminate parole pursuant to this section.” (§ 1203.2, subd. (a), italics
added.)
In People v. Johnson, supra, ___ Cal.App.5th ___, this division also
faced the question of whether section 1203.2 bars the court from terminating
a parolee’s parole but permits the court to terminate a parolee’s “parole
supervision.” Responding to this question in the negative, we concluded that
parole is simply one of several types of supervision addressed in section
1203.2 and, as such, that the legislative ban on terminating parole is a ban
on terminating parole supervision: “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).)
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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) [sic]; 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.
(§ 1203.2, subds. (a), (b)(1); People v. Johnson (2020) 45 Cal.App.5th 379,
397 . . . .) 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
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refers to the different types of supervision available to individuals released
from custody—probation, mandatory supervision, PCRS [sic], 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.” (People v. Johnson, supra, ___ Cal.App.5th ___ [pp. 7–8].)
From this analysis, which we apply here, it is clear the trial court in
this case was mistaken to conclude it was authorized under section 1203.2 to
terminate defendant’s “parole supervision,” and that terminating his “parole
supervision” was not the same as terminating his parole. Simply put, no
legal distinction may be drawn between parole supervision and parole for
purposes of section 1203.2. Parole is simply one type of supervision and,
under section 1203.2, the trial court “may not terminate parole.”
Accordingly, we reverse the trial court’s August 9, 2019 order
dismissing CDCR’s petition and terminating defendant’s parole as well as its
September 27, 2019 denial of CDCR’s petition for reconsideration.
DISPOSITION
The trial court’s orders of August 9, 2019, and September 27, 2019, are
reversed. The matter is remanded for further proceedings consistent with
this opinion.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Fujisaki, J.
A158508/People v. Clayton David Gazzaway
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