Case Information
*1 Filed 2/22/21
CERTIFIED FOR PARTIAL PUBLICATION [*]
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, A160437 v. (Sonoma County
JAMES FREEMAN, Super. Ct. No. PRS-1003981) Defendant and Appellant.
James Freeman appeals from an order finding that he violated a
condition of his Post Release Community Supervision (PRCS). Freeman’s
appellate counsel has filed a brief that raises no issue for appeal and asks
this court for an independent review of the record pursuаnt to
People v.
Wende
(1979)
BACKGROUND
In February 2017, Freeman sustained convictions in Marin County for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(4); statutory references are to the Penal Code) and for buying or receiving a stolen vehicle *2 or equipment (§ 495d, subd. (a)). In June 2018, Freeman was released on PRCS in Sonoma County.
Prior to the incident that led to this appeal, Freeman’s PRCS was revoked and reinstated several times. In December 2018, he was charged with possession of weapons and methamphetamine, admitted PRCS violations in exchange for dismissal of criminal charges, was required to serve 110 days in County jail, and had his PRCS reinstated. In July 2019, Freemаn was arrested in connection with a hit and run car accident, admitted a PRCS violation, received a 180-day jail term, and had his PRCS reinstated. In November 2019, Freeman was arrested for possession of a replica handgun, a fixed blade knife, and a methamphetamine pipe, he again admitted violating PRCS, served a short jail term, and had his PRCS reinstated.
On February 7, 2020, the Probation Dеpartment filed a petition for revocation on the ground that Freeman violated a condition of PRCS requiring him to submit to electronic monitoring at the direction of his probation officer. According to the petition, Freeman was placed on electronic monitoring on January 24 but stopped charging his monitor, which caused the battery to die on Februаry 2. Consequently, a warrant was issued on February 4 and Freeman was arrested on February 6, 2020.
Recommending that the court once again revoke PRCS, the Department emphasized Freeman’s pattern of noncompliance with PRCS requirements despite being subjected to multiple “[f]lash” incarcerations. According to the Department, since Freeman was released from prison in 2018, he “has committed multiple new law violations, possessed weapons and controlled substances, and absconded from supervision.” The Department *3 requested that the court impose a 180-day jail term for the current violation and that PRCS be reinstated.
Freeman did not admit the PRCS violation, so a hearing was set for March 13, 2020. At the hearing, the People requested a continuance, acknowledging they were not prepared to proceed. The court denied the continuance, dismissed the petition, and reinstated Freeman on PRCS. That same day, the Department filed another petition re-alleging that Freeman had violated his electronic monitoring condition. Therefore, Freeman remainеd in custody, and, on March 17, his PRCS was summarily revoked. However, on April 17, Freeman was released from custody and reinstated on PRCS pending a hearing on the revocation petition, which was held on June 12, 2020.
At the revocation hearing, the People presented evidence that Freeman violated PRCS by failing to charge his electronic monitor in early February 2020, causing it nоt to function for several days. Their primary witness was Gary Sewell, a senior analyst at a private company that assists Sonoma County in administering its electronic monitoring program. Sewell described how the electronic monitor tracks the movements of the client and generates data that is reported to his company and then relayed to the client’s рrobation officer. Sewell also testified that clients are trained how to use the monitor, how to charge and replace the monitor’s removable battery, and how often the battery needs to be changed. Users also receive instruction about “alerts” that the monitor issues to signify when the battery is too low, and they are given a telephone number to call if the monitor stops functioning for any reason.
The People also presented evidence regarding Freeman’s electronic monitor, which showed that it was affixed to Freeman’s ankle on January 24, *4 2020, and was fully charged as of January 31. However, on February 1, a battery that was not fully charged was installed in the device, and the next day a battery was installed that had zero percent charge. On February 4, 2020, the reserve battery inside the device was depleted and the monitor stopped functioning.
Freeman did not testify at the revocation hearing but defense counsel argued the petition should be denied based on evidence that Freeman had been changing the batteries in his device during the period prior to his arrest. Counsel argued that this evidence supported a finding that the batteries malfunctioned and that any violation of the PRCS condition was not willful.
After the matter was submitted, the court made an initial finding that Freeman violated PRCS by failing to maintain the battery in his electronic monitor. The court’s ruling turned on evidence that Freeman knew or should have known that the battery was dead and that his dеvice was not sending a signal. Evidence that Freeman had used the monitor since January 24 showed that he had charged the batteries properly multiple times because the device was fully operational prior to February 1. Further, Sewell’s testimony showed that users receive an alert when their battery runs too low, and have ample opportunity to correct the problem before the device stops transmitting.
Next, the court turned to the recommendation to impose a 180-day jail term. The probation officer reported that Freeman had accrued 72 days in custody since the initial revocation petition was filed and would also be entitled to 72 days of conduct credit, which meant Freeman would be required to serve an additional 18 days to complete the 180-day term. Defense counsel argued the time Freeman had already served was sufficient penalty for his violation. However, the People disagreed because this was not *5 an isolated incident. Freeman’s probation officer, who was at the hearing, confirmed that after Freeman was released from custody in April (pending completion of the revocation hearing) there had been ongoing issues regarding his failure to keep his monitor fully charged.
The court elected to impose the full 180-day term, and emphasized to Freeman that his PRCS conditions specifically required him to “maintain that monitor in a working, functional order at all times.” The court gave Freemаn 144 credit days and ordered that after Freeman completed the jail term, he was to be released on PRCS, which was to be reinstated on all previous terms. In closing, the court reiterated to Freeman that he needed to keep his monitor charged as that was “a really specific term of [his] release on PRCS.”
DISCUSSION
I. This Appeal Is Not Subject to Wende Review
California’s
Wende
procedure was adopted to fulfill the requirements of
Anders v. California
(1967)
Because the federal constitutional right to counsel in a criminal case
“extends to the first appeal of right, аnd no further,” the United States
Supreme Court has refused to extend
Anders
to discretionary appeals or to
appeals from orders in postconviction proceedings that seek to collaterally
attack an underlying conviction. (
Pennsylvania v. Finley
(1987)
Applying
Finley
, California courts have declined to require
Wende
review in any appeal other than a first appeal of right from a judgment of
criminal conviction. For example, the California Supreme Court has held
that
Anders
does not require appellate courts to undertake a
Wende
review of
orders in conservatorship proceedings or dependency proceedings because
such appeals are not first appeals of right from a criminal conviction.
(
Conservatorship of Ben C
. (2007)
Our state Supreme Court has not addressed whether
Wende
applies to
criminal apрeals other than a direct appeal from the judgment of conviction.
Published decisions by our courts of appeal uniformly agree that
Wende/Anders
does not require independent review of appeals from post-
judgment orders in criminal proceedings, though they are split on whether in
certain contexts a court should nonetheless exercise discretion independently
to review a summary denial. (
People v. Serrano
(2012)
Serrano , for example, refused to conduct Wende review of an order denying a motion to vacate a conviction under Penal Code section 1016.5. ( Serrano , supra, 211 Cal.App.4th at pp. 499 & 503.) The court reasoned that because a criminal defendant is entitled to Wende review only in “a first appeal of right” from a criminal conviction, he or she is not entitled to such review “in subsequent appeals, including collatеral attacks on the judgment.” ( Id . at p. 503.) In such cases, the court found, the appeal must be dismissed as abandoned if neither the defendant nor appointed counsel raises any claims of error. ( Id . at pp. 503–504.)
In the present case, Freeman appeals from an order revoking and
reinstating PRCS. This appeal is not subject to
Wende
review under the
authority summarized above because it is not a direct appeal from a
judgment of conviction. Revocation proceedings are “constitutionally distinct”
from criminal prosecutions. (
In re Eddie M.
(2003)
Furthermore, the United States Supreme Court has held that an indigent defendant has no per se constitutional right to appointed counsel in parole or probation revocation hearings. ( Gagnon v. Scarpelli (1973) 411 U.S. 778, 790–791 ( Gagnon ).) Because a sentencing hearing is a critical stage in a criminal prosecution, an indigent defendant has the constitutional right to appointed counsel at sentencing even when sentencing is deferred and a hearing is not conducted until after probation is revoked. ( Id . at p. 781.) Beyond that, a due process right to counsel applies in revocation proceedings only on a “case-by-case basis.” ( Id . at p. 790.)
California has adopted a judicial rule of criminal prоcedure that is
more far-reaching. It provides all defendants the right to be represented by
counsel at probation revocation proceedings. (
People v. Bauer
(2012) 212
Cal.App.4th 150, 156.) Thus, “an indigent criminal defendant has the right
to appointed counsel at a probation revocation hearing and a constitutional
right to counsel at a deferred (postprobation rеvocation) sentencing hearing.”
(
Ibid
.; see also
People v. Vickers
(1972)
However, deferred sentencing hearings are not relevant to PRCS
revocation proceedings. PRCS is a post-conviction supervision scheme that
operates as an alternative to parole. (
People v. Lewis
(2016)
Wende/Anders review was established to protect the federal constitutional right to the effective assistance of counsel in a direct appeal from a criminal conviction. We decline to extend that protection to an appeal from an order revoking and reinstating PRCS absent a federal constitutional basis for doing so. Thus, if not for the fact that Frеeman filed a supplemental brief, we would dismiss this appeal as abandoned. (See Serrano, supra , 211 Cal.App.4th at pp. 503–504.)
Here, Freeman has filed a handwritten “letter” listing issues he would like the court to address. When an appellant files a pro se supplemental brief in a Wende case, the appellate court must address the specific issues raised and, if they lack merit, explain why they fail. ( Kelly, supra , 40 Cal.4th аt p. 110.) We follow that same approach here. ( People v. Mattson (1959) 51 Cal.2d 777, 797.)
II. Freeman’s Supplemental Brief Identifies No Prejudicial Error
Freeman’s submission lists four issues, none of which identifies a prejudicial error.
First, Freeman posits that his appointed trial counsel provided “ineffective assistance of counsel” because she did not investigate whether Freeman’s electroniс monitor actually malfunctioned and, consequently, she failed to conduct an effective cross-examination of “the witness.” On this record, we cannot find that Freeman had a federal constitutional right to effective assistance of counsel at his PRCS revocation hearing because he raises no fact or issue establishing a case-specific duе process right to counsel. (See Gagnon, supra , 411 U.S. at pp. 790–791.) He does, however, *10 have a right deriving from state law to have appointed counsel represent him at the revocation hearing. (§ 3455, subd. (a); People v. Byron (2016) 246 Cal.App.4th 1009, 1016–1017.)
Assuming without deciding that an ineffective assistance of counsel
claim is cognizable under these circumstances, Freeman does not show that
his counsel’s performance was deficient or that he wаs prejudiced by the
alleged errors. (
Strickland v. Washington
(1984)
The other three issues in Freeman’s letter are part of his sweeping due process challenge to the procedure by which his PRCS violation was adjudicated. Freemаn’s argument, as we understand it, is that he was denied his right to a timely hearing on the revocation petition (issue two), and a speedy trial or its equivalent (issue three), because the Probation Department was allowed to file a second petition charging him with the same electronic monitoring violation (issue four) after the initial petition was dismissed.
“[P]ersons arrested for an alleged PRCS violation and charged in a
revocation petition with violating PRCS have a due process right to a prompt
determination of probable cause followed by a timely revocation hearing with
the opportunity to appear in court and provide a defense.” (
People v.
Murdock, supra
,
Section 3455, which governs PRCS revocations, provides in pertinent part: “The revocation hearing shall be held within a reasonable time after the filing of the revocation petition.” (§ 3455, subd. (c).) Here, the initial petition filed on February 7, 2020 was dismissеd on March 13 because the People were not prepared to present their case. The hearing on the re-filed March 13 petition was not held until June, but Freeman’s rights were protected after April 17, when the court released him from custody and reinstated PRCS pending completion of the hearing. We cannot say this timeframe was unreasonable under thе totality of the circumstances, when we consider that these proceedings were conducted during the early, and highly disruptive, stage of the COVID-19 pandemic.
Even if the revocation hearing was not held within a reasonable time,
Freeman is not entitled to relief absent a showing of prejudice. (
In re La
Croix
(1974)
DISPOSITION
The order revoking and reinstating PRCS is affirmed.
TUCHER, J.
WE CONCUR:
POLLAK, P. J.
BROWN, J.
People v. Freeman (A160437)
Trial Court: Sonoma County Superior Court
Trial Judge: Hon. Shelly J. Averill
Counsel: Kelley Fleming, by Court-Appointment under the First
District Appellate Project for Plaintiff and Appellant Xavier Becerrа, Attorney General of California for Defendant and Respondent
People v. Freeman (A160437)
Notes
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of section II.
[1] Courts disagree about whether independently to review summary
denials of a section 1170.95 petitions. (Compare
Cole, supra,
52 Cal.App.5th
at pp. 1028–1029, with
Flores
,
supra,