Filed 11/8/21 P. v. Wade CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C092710
Plaintiff and Respondent, (Super. Ct. No. 19PCS01789)
v.
GUY LOUIS WADE,
Defendant and Appellant.
Defendant Guy Louis Wade appeals the trial court’s revocation and reinstatement
of his postrelease community supervision (PRCS), arguing the trial court erred in
overruling his demurrer to the probation department’s fourth petition for revocation.
Defendant bases his claim on the failure of the probation department to follow the
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requirements of Penal Code section 3455, subdivision (a)1 and California Rules of Court,
rule 4.541(e). 2 We agree and reverse the postjudgment order. 3
FACTUAL AND PROCEDURAL BACKGROUND
The November 2, 2017 criminal complaint charged defendant with carrying a dirk
or dagger (§ 21310; count 1), possessing methamphetamine (Health & Saf. Code,
§ 11377, subd. (a); count 2), and possessing an opium pipe (id., § 11364, subd. (a); count
3). The complaint further alleged as to count 1 that defendant had served a prior prison
term (§ 667.5, subd. (b)) and had suffered a prior strike (§§ 667, subds. (b)-(j); 1170.12).
On March 8, 2018, defendant pleaded no contest to count 1 in exchange for the
dismissal of the remaining counts and enhancement allegations with a waiver pursuant to
People v. Harvey (1979) 25 Cal.3d 754. On April 5, 2018, the trial court denied
defendant’s request for probation and imposed the upper term of three years.
Defendant was released on PRCS on March 18, 2019, and had three revocations
and reinstatements prior to the petition challenged here. The instant petition for
revocation was filed on July 22, 2020, and alleged defendant had violated the terms of his
release by leaving his recovery program without permission, failing to report after he left,
and absconding from supervision in violation of his terms of release. The petition failed
to include or attach any summary of defendant’s criminal history and did not discuss
whether any intermediate sanctions had been considered and rejected as inappropriate.
Defendant demurred on August 14, 2020, arguing the petition was defective
because it failed to meet a condition precedent to filing a petition for revocation.
1 Further undesignated statutory references are to the Penal Code.
2 Further undesignated references to rules are to the California Rules of Court.
3 Because we agree with defendant’s first claim of error, we do not reach his second
claim--that the trial court abused its discretion in revoking PCRS.
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Specifically, the petition failed to state the probation department’s consideration of
intermediate sanctions. On August 21, 2020, the trial court overruled his demurrer
without prejudice, and defendant denied the allegations in the petition.
The trial court held an evidentiary hearing on the fourth petition on August 28,
2020. At this hearing, the People presented the testimony of defendant’s probation
officer Becky Haury, who confirmed the circumstances regarding defendant’s PRCS
violation: he left the treatment program without permission, failed to contact probation,
and failed to respond Haury’s phone messages. On cross-examination, Haury conceded
she had told defendant she would be recommending a jail term of 180 days. While
defendant had requested treatment, she thought it was unlikely that behavioral health
would authorize a third round of treatment. She had not considered flash incarceration,
GPS monitoring, or outpatient treatment. She admitted when asked that she “didn’t
consider [defendant] for any program other than . . . [j]ail.”
Defendant also testified; a recitation of his testimony is not relevant to the issues
on appeal. Following his testimony, defendant renewed his request for dismissal of the
petition for failure to show that the probation department had considered intermediate
sanctions.
The trial court implicitly denied defendant’s renewed request for dismissal by
ruling that defendant had violated the terms of his release. The court revoked and
reinstated supervision and ordered that defendant serve 150 days in county jail. The
court explained that it had considered that defendant was afraid because of COVID, that
defendant had requested treatment, that such treatment would be his third attempt, and
that defendant had not undertaken any efforts to reenter treatment following his arrest on
the petition. The court also noted that this was defendant’s fourth violation and that
defendant was familiar with his reporting requirements. The court authorized probation
to release defendant with or without ankle monitoring as appropriate given the rules of
any treatment programs that defendant might enter.
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Defendant timely appealed. The case was fully briefed in June 2021 and assigned
to this panel on August 24, 2021. The parties waived oral argument and the case was
submitted on September 28, 2021.
DISCUSSION
At the outset, we disagree with the Attorney General’s assertion that this appeal
should be dismissed as moot because defendant has already served the 150-day sanction.
Defendant remains subject to PRCS supervision until May 29, 2022. (See, e.g., People v.
DeLeon (2017) 3 Cal.5th 640, 645-646 [noting defendant’s claim concerning revocation
was moot because he had completed his jail term and parole had been terminated].)
Moreover, even if defendant’s appeal were moot, we would exercise our discretion to
reach this issue because the probation department’s failure to comply with statutory
conditions precedent to the filing of a PRCS revocation petition presents an issue of
public importance that is likely to reoccur. (Id. at p. 646; see also People v. Castel (2017)
12 Cal.App.5th 1321, 1325 (Castel).) Accordingly, we will address the merits of
defendant’s claim of error.
“ ‘ “[A] demurrer raises an issue of law as to the sufficiency of the accusatory
pleading, and it tests only those defects appearing on the face of that pleading.” ’ ”
(People v. Osorio (2015) 235 Cal.App.4th 1408, 1412; see Tobe v. City of Santa Ana
(1995) 9 Cal.4th 1069, 1090 [“ “A demurrer to a criminal complaint lies only to
challenge the sufficiency of the pleading and raises only issues of law’ ”].) “On appeal,
we review the order overruling defendant’s demurrer de novo.” (Osorio, at p. 1412.)
This requires that we use “our independent judgment as to whether, as a matter of law,”
the PRCS petition alleged sufficient facts necessary to sustain revocation of PRCS. (See
ibid. [same inquiry in a parole context].)
Section 3451 generally provides that nonviolent persons released from prison on
or after October 1, 2011, are subject to PRCS by the county’s probation department for a
period not to exceed three years. Section 3454 provides probation may determine
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appropriate conditions of supervision (see § 3453 [mandatory conditions of supervision])
consistent with public safety, including electronic monitoring, and appropriate
rehabilitation and treatment services. Probation may “determine appropriate incentives,”
and “order appropriate responses to alleged violations, which can include, . . . immediate,
structured, and intermediate sanctions up to and including referral to a reentry court . . . .”
(§ 3454; see § 3450, subd. (b)(8)(A)-(L) [immediate and structured sanctions include, but
are not limited to, flash incarceration, intensive community supervision, home detention
with electronic monitoring or GPS monitoring, mandatory community service, restorative
justice programs, work, training, or education in a furlough, work release program, day
reporting, mandatory residential or nonresidential substance abuse treatment programs,
mandatory random drug testing, community-based residential programs offering
structure, supervision, drug treatment, alcohol treatment, psychological counseling,
mental health treatment, or any combination of these and other interventions].)
Section 3455 provides that if probation has determined intermediate sanctions
(§ 3454, subd. (b)) are not appropriate, it “shall petition the court pursuant to Section
1203.2 to revoke, modify, or terminate postrelease community supervision.” (§ 3455,
subd. (a).) “Upon a finding that the person has violated the conditions of postrelease
community supervision, the revocation hearing officer shall have authority to do all of the
following: [¶] (1) Return the person to postrelease community supervision with
modifications of conditions, if appropriate, including a period of incarceration in county
jail. [¶] (2) Revoke and terminate postrelease community supervision and order the
person to confinement in the county jail. [¶] (3) Refer the person to a reentry court
pursuant to Section 3015 or other evidence-based program in the court’s discretion.”
(Ibid.) “Confinement . . . shall not exceed a period of 180 days in the county jail for each
custodial sanction.” (§ 3455, subd. (d).)
Rule 4.541 sets forth the minimum requirements for “supervising agency reports”
that must be included with certain revocation petitions for individuals subject to
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probation, parole, mandatory supervision and PRCS. (Rule 4.541(a); Castel, supra,
12 Cal.App.5th at p. 1323.) Relevant to this appeal, rule 4.541(e) provides special
requirements for the filing a parole or PRCS revocation petition. It states: “In addition to
the minimum contents described in (c), a report filed by the supervising agency in
conjunction with a petition to revoke parole or postrelease community supervision must
include the reasons for that agency’s determination that intermediate sanctions without
court intervention as authorized by . . . sections 3000.08 (f) or 3454(b) are inappropriate
responses to the alleged violations.” (Italics added.) The Advisory Committee comment
Rule 4.541(e) further advises that “sections 3000.08(d) and 3454(b) authorize supervising
agencies to impose appropriate responses to alleged violations of parole and postrelease
community supervision without court intervention, including referral to a reentry court
under . . . section 3015 or flash incarceration in a county jail. [S]ections 3000.08(f) and
3455(a) require the supervising agency to determine that the intermediate sanctions
authorized by sections 3000.08(d) and 3454(b) are inappropriate responses to the alleged
violation before filing a petition to revoke parole or postrelease community supervision.”
Thus, a probation department’s petition to revoke PRCS must include a statement
indicating that intermediate sanctions were considered and determined to be
inappropriate, as the consideration and rejection of intermediate sanctions are a condition
precedent to the probation officer filing for revocation. (Rule 4.541(e); Advisory Com.
com., Rule 4.541(e); § 3455, subd. (a); accord 9 Witkin & Epstein, Cal. Criminal Law
(4th. ed. 2021) Punishment, § 805B.) This is in contrast to a petition for revocation filed
by the District Attorney; in those petitions, in this requirement does not apply. (Castel,
supra, 12 Cal.App.5th at pp. 1323, 1325-1326.)
Here, neither the petition, nor any attachment included a statement that the
probation department considered intermediate sanctions and determined they were
inappropriate. Thus, the probation department’s petition was facially deficient, and
defendant’s demurrer should have been granted. (See People v. Osorio, supra,
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235 Cal.App.4th at pp. 1411-1415 [trial court erred in overruling demurrer to parole
revocation petition because intermediate sanctions must be considered prior to filing that
petition and the petition did not explain why the intermediate sanctions recommended by
the risk assessment would not have been appropriate].) We note that the summary
provided with the revocation petition was also deficient for failing to provide a
description of defendant’s previous criminal record and risk of recidivism, as well as a
summary of defendant’s previous PRCS violations and sanctions received. (Rule
5.541(c).)
The Attorney General “acknowledges that the petition for revocation did not
expressly state that intermediate sanctions were an inappropriate response to the alleged
violations as required by [] rule 4.541(e)” but argues that we should affirm despite the
deficiency because “[a]ppellant has not established how a lesser sanction would have
been appropriate given the fact that he had repeatedly failed to perform when released on
supervision following his past jail terms.” But defendant does not bear a burden on this
appeal to show the appropriateness of a lesser sanction. As we have described, he bears
the burden of showing the probation department’s petition was facially deficient, and he
has met that burden. That deficiency was not cured by the testimony of Officer Haury.
While it is certainly possible that a probation officer could have considered intermediate
sanctions and determined that they would be inappropriate given defendant’s previous
performance on PRCS, and could have described those considerations and determinations
in a petition that complied with statutory procedures associated with the filing of petitions
for revocation in the first instance, and could have then expanded on those conclusions at
the hearing, those things did not happen here. Thus, the demurrer was improperly
overruled.
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DISPOSITION
The postjudgment order is reversed.
/s/
Duarte, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Robie, J.
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