A152806
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
April 13, 2020
CERTIFIED FOR PUBLICATION; (City & County of San Francisco Super. Ct. No. CT-17005288)
BACKGROUND
When Perlas was 17 years old, he, his then girlfriend (and now wife), and two friends met up with the victim. After shoplifting alcohol and drinking in the park, Perlas and the victim began to argue. Perlas assaulted the victim several times, rendering him unconscious. Perlas remembered paying the victim $15 for marijuana he never received. Perlas took $15 from the unconscious victim, and he and his friends then repeatedly kicked the man. The victim was found dead the next day. In 1996, Perlas was convicted of second degree murder (
In 2015, Perlas was released to a life-term parole. One of his agreed-upon parole conditions was that he would not consume alcohol. He also agreed to comply with all laws. Perlas acknowledged that if he violated the law or his parole conditions, his parole status could be revoked and he could be returned to state prison.
According to his parole officer, Perlas participated in and completed a transitional housing program and other “pro-social activities geared toward self-reliance” and addressing his “criminogenic needs.” He strove to “build relationships . . . supportive of a crime-free lifestyle.” He secured a construction job and found stable housing, and lived with his wife (whom he married at 19 while incarcerated) and their infant daughter. Perlas was on parole for more than two years without incident.
The next day, officers returned to Perlas’s apartment, found him there, and arrested him for spousal battery (
On April 10, 2017, Perlas posted bail and met with his parole officer, Peter Tram. He told Tram about the argument with his wife and that he drank beforehand. He said that when his wife blocked his exit from the parking lot, she also tried to take his cell phone from his back pocket. He spun around to try and stop her from taking the phone and “hit her in her face with his elbow,” which gave her the bloody nose. Perlas voluntarily signed a form admitting he had been drinking that day.
Tram also looked through Perlas’s cell phone. There were text messages from Perlas’s wife to Perlas and a mutual friend. His wife’s messages stated Perlas “trashed the apartment again” and that he didn’t realize he had “hit [her] in the head twice” as she tried to grab his phone. Another text message stated that she told the police she was unsure how long he has been drinking but that he had been “extra stressed since [their] daughter was born so maybe for a while.”
On April 14, 2017, the Department petitioned to revoke Perlas’s parole. The petition alleged Perlas violated his parole conditions by consuming alcohol and committing battery on a spouse or child.
The evaluation portion of Tram’s report, incorporated into the petition, stated: “Intermediate sanctions have been considered. However, they have been deemed not appropriate at this time.” The evaluation described Perlas’s 1995 commitment offense and his positive progress while on parole preceding the incident. It then explained: “Sadly, on April 8, 2017, he consumed alcohol and assaulted his wife, causing her to sustain a bloody nose. [Perlas] has a
According to the report, Perlas’s “California Static Risk Assessment Level” was “LOW.” The report also noted the “evidence based tool used for recommendation” was the “Parole Violation Decision Making Instrument (PVDMI).” The PVDMI-recommended response level was “MOST INTENSIVE: REFER FOR REVOCATION.” Tram signed the document, as did the unit supervisor.
Days later, the trial court administratively revoked Perlas’s parole. Perlas filed a “Demurrer and Motion to Dismiss Petition to Revoke Parole.” On August 30, 2017, the trial court granted the demurrer and dismissed the revocation petition “for failure to appropriately consider intermediate sanctions” and for “noncompliance with the requirement that parole provide a basis for not considering intermediate sanctions.”2 The court reinstated Perlas to parole. The People appeal.
DISCUSSION
The People contend the trial court erred in sustaining Perlas’s demurrer and dismissing the Department’s petition to revoke Perlas’s parole. We agree.
The Nature of Parole Revocation Proceedings and the Standard of Review
The provisions of the
” ’ “[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.” [Citation.]’ [Citations.] On appeal, we review the order overruling [a] defendant’s demurrer de novo. We exercise our independent judgment as to whether, as a matter of law, the petition alleged sufficient facts to justify revocation of [a] defendant’s parole.” (People v. Osorio (2015) 235 Cal.App.4th 1408, 1412 (Osorio), disapproved on another ground as stated in People v. DeLeon (2017) 3 Cal.5th 640, 646 (DeLeon).)
We give the accusatory pleading ” ’ “a reasonable interpretation and read [it] as a whole with its parts considered in their context.” ’ [Citation.] On appeal from a judgment entered on demurrer, the allegations of the accusatory pleading must be liberally construed and assumed to be true. [Citation.] [¶] The legal grounds for demurrer to an accusatory pleading are limited to those specifically enumerated in . . .
The Petition to Revoke Parole
When a parole violation occurs, the supervising parole agency “may impose additional and appropriate conditions of supervision, including rehabilitation and treatment services and appropriate incentives for compliance, and impose immediate, structured, and intermediate sanctions.” (
California Rules of Court, rule 4.541 describes the minimum requirements for the written report included with a petition to revoke probation. (Cal. Rules of Court, rule 4.541(c).) The rule requires the supervising agency to include in the report “the reasons for that agency’s determination that intermediate sanctions without court intervention . . . are inappropriate responses to the alleged [parole] violations.” (Id., rule 4.541(e).) The specific reasons are to be “individualized to the particular parolee, as opposed to a generic statement.” (Williams v. Superior Court (2014) 230 Cal.App.4th 636, 665, disapproved on another ground in DeLeon, supra, 3 Cal.5th at p. 653.)3
Analysis
The parole violation report accompanying the Department’s revocation petition sufficiently met the requirements of
The report described the criminal conduct for which Perlas was sentenced to state prison. It also set forth the relevant terms of his parole and explained his alleged violations, including one for drinking alcohol, which he admitted, and another for assaulting and injuring his wife. In the evaluation section of the report, the Department stated expressly, “Intermediate sanctions have been considered. However, they have been deemed not appropriate at this time.” According to the report, the Department used its evidence-based risk assessment instrument, the PVDMI, to determine the response to Perlas’s violations.4 The PVDMI “[i]dentifies the appropriate response to each
The report also provided specific reasons intermediate sanctions were inappropriate. In addition to identifying the PVDMI recommendation, the report described his drinking and allegedly striking his spouse in the context of the crimes of which he had been committed. The parole agent’s statement in the report that “[d]omestic violence is a serious social problem and a national health concern” reflects his assessment that Perlas’s alleged misbehavior was serious. In light of his concerns, he “ha[d] no choice but to refer this matter to the court.” In context, this statement appears to be a colloquial expression of concern over Perlas’s conduct and not a conclusion that the officer was legally bound to recommend revocation. These assertions were enough to defeat Perlas’s demurrer.5
Perlas argues “the record does not indicate [the parole agent] adequately considered intermediate sanctions before filing the revocation petition.” Citing the first two sentences of the Department’s evaluation (“Intermediate sanctions have been considered. However, they have been deemed not appropriate at this time.“), he contends the petition merely “parrot[ed] back”
Osorio, supra, 235 Cal.App.4th 1408, does not change our analysis. There, the court reversed a parole revocation, holding that the trial court erred when it overruled the parolee’s demurrer. (Id. at p. 1415.) The court never concluded that the Department failed to properly consider intermediate sanctions. (See id. at pp. 1414–1415.) Rather, the court appears to have been most troubled by revocation of parole based on the relatively minor nature of the violation in that case (“talking to gang members for 10 minutes“) and the agency’s rejection of the PVDMI recommendation for a moderately intensive response. (Id. at p. 1415.) In contrast, Perlas’s admitted violation for
Perlas also argues that the Department “failed to include the reasons for its determination that intermediate sanctions without court intervention were inappropriate,” as required by California Rules of Court, rule 4.451(e). This argument maintains that the Department failed to comply by “not singling out even one intermediate sanction it considered (and rejected) or providing even one on example of why Mr. Perlas’s conduct rendered him unamendable to continued placement on parole.” Again, we disagree. There is no requirement in rule 4.451 that the supervising agency list and reject any specific intermediate sanction in a petition seeking revocation. (See People v. Hronchak (2016) 2 Cal.App.5th 884, 892 [petition complied with rule 4.541 even without specific discussion of each intermediate sanction considered and rejected].)
Even if the alleged basis for recommending revocation was technically deficient, we are hard pressed to discern any resulting prejudice to Perlas. A defendant’s right to be informed of the charges against him is satisfied when he is advised sufficiently to enable him to prepare and present a defense and is not taken by surprise. (People v. Stone (2009) 46 Cal.4th 131, 141.) The petition here disclosed the parole agent’s recommendation, the recommendation’s basis in the PVDMI, and the agent’s view of the seriousness of Perlas’s conduct. We fail to see how a more detailed explanation of the basis for the recommendation would better inform Perlas or better enable him to defend the charges.
Moreover, assuming, without deciding, that the revocation petition were vulnerable to demurrer for the technical deficiency that it does not fully state the basis for a recommended revocation under
There is one more consideration that may have affected the Department’s decision to seek revocation here that is not fully explored in the record. Perlas is on lifetime parole after serving a term for second degree murder. (
Finally, it appears that prior to this April 2017 incident, Perlas had more than two years on parole without incident during which he had made substantial progress. He secured stable housing, was working, and became a father. There also appears to be family and community support for Perlas that was evident during the course of the revocation proceedings. These factors may be significant for the court in deciding whether the petition or the criminal action should be dismissed in the interests of justice pursuant to
In light of our holding that the Department satisfied the requirements of
The order sustaining the demurrer and dismissing the petition for revocation is reversed and remanded.
Siggins, P. J.
WE CONCUR:
Petrou, J.
Jackson, J.
A152806/People v. Englebert Perlas
A152806/People v. Englebert Perlas
Trial Court: Superior Court of the City and County of San Francisco
Trial Judge: Brown, Tracie L., J.
Counsel: Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Sara J. Romano and Michael G. Lagrama, Deputy Attorneys General, for plaintiff and appellant.
Jeremy Price, under appointment by the Court of Appeal, and Jonathan Soglin for defendant and respondent.