People v. Osorio CA4/3
235 Cal. App. 4th 1408
Cal. Ct. App.2015Background
- In 2011 Osorio pled guilty to second-degree robbery and street terrorism and began a three-year parole term in November 2011 with a condition forbidding association with known gang members.
- On July 2, 2013, Osorio spoke with two men known to be gang members; he admitted knowing this violated his parole and was arrested and jailed pending a revocation proceeding.
- The Department filed a petition to revoke parole and submitted a Parole Violation Decision Making Instrument (PVDMI) recommending the “Most Intensive B” response (revocation and custody), with the agent citing gang-related destabilizing factors; the PVDMI showed a Moderate risk score and a severity score recommending the most intensive response but allowed some discretion.
- At arraignment Osorio demurred to the petition; the trial court overruled the demurrer, found probable cause, and later revoked parole, sentenced him to 73 days (with credit) and reinstated parole; Osorio appealed.
- The Attorney General moved to dismiss the appeal as moot after Osorio’s parole discharged; the court took judicial notice of official records but declined to dismiss, exercising discretion to decide a recurring public-interest issue.
- The Court of Appeal reversed, holding the petition insufficient as a matter of law because the Department failed to adequately explain why intermediate sanctions were inappropriate before seeking revocation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appeal is moot because parole ended | Appeal moot; discharge from parole removes live controversy | Appeal not moot; revocation has collateral consequences and raises recurring public-interest issue | Court exercised discretion to decide merits despite discharge |
| Whether demurrer to parole-revocation petition should be overruled | The petition and PVDMI justified revocation; any defects could be cured or amended | Petition insufficient: Department failed to state reasons why intermediate sanctions were inappropriate as required by Penal Code §3000.08(f) and Cal. Rules of Court, rule 4.541(e) | Demurrer should have been sustained; petition legally inadequate and revocation reversed |
| Whether PVDMI selection of Most Intensive B was justified by facts | Agent reasonably exercised discretion given gang-related factors; revocation permissible | Facts (10-minute conversation) did not warrant Most Intensive B; agent misapplied PVDMI and ignored stabilizing factors | Selection of Most Intensive B was improper given violation facts and required consideration of less restrictive responses |
| Whether petition defects could be cured by amendment after demurrer | Department could amend under remedial principles (cites Penal Code §1007 analogy) | §1007 inapplicable; permitting amendment risks due-process timing violations under Williams | Court rejected cure-by-amendment argument as inapplicable and potentially causing constitutional/timing problems |
Key Cases Cited
- In re Law, 10 Cal.3d 21 (1973) (court may decide moot parole issues of broad public importance)
- Spencer v. Kemna, 523 U.S. 1 (1998) (parole discharge can moot habeas challenges absent collateral consequences)
- In re Zeth S., 31 Cal.4th 396 (2003) (postjudgment evidence ordinarily not admissible on appeal)
- In re Josiah Z., 36 Cal.4th 664 (2005) (postjudgment developments may be considered to assess mootness)
- Williams v. Superior Court, 230 Cal.App.4th 636 (2014) (timing requirements for parole-revocation proceedings and potential due process concerns)
- People v. Manfredi, 169 Cal.App.4th 622 (2008) (demurrer tests legal sufficiency of pleading)
- Tobe v. City of Santa Ana, 9 Cal.4th 1069 (1995) (demurrer to criminal complaint challenges pleading sufficiency)
- Honig v. San Francisco Planning Dept., 127 Cal.App.4th 520 (2005) (appellate de novo review of demurrer)