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Filed 8/10/21 P. v. Torchia 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS PHILLIP TORCHIA,

Defendant and Appellant.

C089231

(Super. Ct. No. CRPR-2018-

84-1)

Defendant Thomas Phillip Torchia appeals an order remanding him to state prison 

after the trial court found he violated two conditions of his parole--one that was alleged in 

the petition for revocation of parole and one that was not. He contends (1) the trial court 

prejudicially erred by failing to provide him with a preliminary hearing to determine 

probable cause on the parole violation charge, (2) substantial evidence did not show he 

willingly violated the uncharged parole condition, (3) the trial court abused its discretion 

in finding he violated the uncharged parole condition, and (4) that corrections to the 

minute order identifying the wrong parole condition are required.
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We conclude defendant was denied his constitutional right to a prerevocation 

preliminary hearing, but that the error was harmless beyond a reasonable doubt. We shall 

direct the clerk to amend the minutes for the revocation hearing to properly reflect the 

court’s ruling. The judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In October 1991, defendant was convicted in Shasta County case No. 912015 of 

one count of conspiracy to commit first degree murder (Pen. Code, §§ 182, 187),1lewd 

and lascivious acts with a child 14 or 15 years old while being at least 10 years older 

(§ 288, subd. (c)(1)), and sodomy of a person under the age of 16 (§ 286, subd. (b)(2)). 

He was sentenced to 25 years to life in state prison.

The Board of Parole Hearings found defendant suitable for parole, and released 

him to Yolo County on October 21, 2018. Defendant’s conditions of parole included, 

among other things, the following:

Condition No. 47: “You shall not view, possess, or have access to any 

pornographic material; e.g., movies, photographs, drawings, literature, etc.”

Condition No. 48: “You shall not view, possess, or have access to any material; 

e.g., periodicals, newspapers, magazines, catalogs, that depict adults or children in 

undergarments, nude, partially nude, etc.”

Condition No. 85: “You shall not use the computer for any purpose which might 

further sexual activity; e.g., possession of sexually explicit material in any form; sexually 

related ‘chat’ or e-mail exchange; visiting or joining ‘chat rooms’ which contain sexually 

explicit conversations; visiting/viewing sexually explicit material on web sites; 

downloading text or video files, digital images in any format, text files or multi-media 

1 Further undesignated statutory references are to the Penal Code.
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material that is sexual in nature; or visiting and/or subscribing to user groups, 

newsgroups, or list servers which contain sexual content.”

Condition No. 86: “You shall not use the computer for any purpose which might 

further sexual activity involving minor children; (e.g., possession of sexually explicit 

material in any form; sexually related ‘chat’ or e-mail exchange; visiting or joining ‘chat 

rooms’ which contain sexually explicit conversations; visiting/viewing sexually explicit 

material on web sites; downloading text or video files, digital images in any format, text 

files or multi-media material that is sexual in nature; or visiting and/or subscribing to user

groups, newsgroups, or list servers which contain sexual content).”

After his release, defendant resided at a transitional housing facility. A month 

later, in November 2018, staff contacted defendant’s parole agent, Clinton Lugar, to 

report that defendant’s roommate said defendant was viewing pornography or sexually 

explicit material on his cell phone.

Agent Lugar conducted a home visit on November 6, 2018, and confiscated 

defendant’s laptop and cell phone. At the time, defendant said he may have clicked on 

some “popups” accidentally. During a routine checkup two days later, defendant told 

Agent Lugar that he may have spent a longer duration on the popups rather than 

immediately logging off. Defendant explained that he had not been able to view such 

material in a long time given his incarceration and he was curious.

A subsequent examination of defendant’s laptop and cell phone revealed that 

defendant’s phone had repeatedly been used to browse adult pornographic Web sites. 

Defendant was arrested on November 27, 2018, for violating his parole.2 That same day, 

Agent Lugar prepared a probable cause determination alleging that defendant had 

violated his parole for: “possession of pornography.” Under a heading entitled 

2 When questioned a third time while in custody, defendant stated, “ ‘I did it to myself. I 

give up, I’m going to die in prison.’ ”
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“Circumstances of Charge,” the probable cause determination referenced parole condition 

No. 85. The report also described how a forensic analysis of defendant’s confiscated 

phone revealed that on November 5, 2018, defendant’s phone visited a pornographic Web

site hundreds of times with search terms related to young boys and teens. A supervising 

parole agent recommended that defendant be retained in custody until a further report 

was prepared; he also directed that a good cause hearing be scheduled.

On December 4, 2018, Agent Lugar filed a petition to revoke defendant’s parole in 

the Yolo County Superior Court. The petition included a parole violation report, the 

probable cause determination form, and defendant’s signed parole conditions. The 

petition for revocation did not specifically identify which conditions of parole defendant 

had allegedly violated. The petition referred to the attached parole report, which alleged 

a single “violation” for “possession of pornography.” As with the probable cause 

determination form, a section entitled “Circumstances of Charge” referenced parole 

condition No. 85, but no other specific parole conditions were listed in the report.

That same day, December 4, the trial court found ex parte that there was probable 

cause to support revoking defendant’s parole based on the alleged violation, and 

preliminarily revoked it. Nothing in the record indicates defendant was given a probable 

cause hearing before the court made its decision to preliminarily revoke parole.

At a hearing two days later on December 6, 2018, defendant was provided a copy 

of the revocation petition and the trial court appointed him counsel. The matter was set 

for a contested hearing in January 2019. At the January hearing, defense counsel 

requested additional time to file a motion challenging several parole conditions and the 

matter was continued.

Prior to the continued revocation hearing, defendant filed a motion to modify or 

delete four parole terms. He argued condition Nos. 47, 48, and 85 were unreasonable 

under People v. Lent (1975) 15 Cal.3d 481, and that condition Nos. 47, 48, 85, and 86 

were either unconstitutionally vague or overbroad. The People opposed the motion. In 
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their opposition, the People specifically argued: “this Court should exercise its discretion 

and revoke the Defendant’s parole because he failed to comply with terms 047, 048, 085, 

and 086 of his parole.”

Two months later, in March 2019, the court considered defendant’s motion to 

modify the terms of parole. The court struck condition No. 47 as unconstitutionally 

vague to the extent it referenced “pornography,” but found the remainder of the 

challenged conditions valid. After ruling on the motion, the court conducted the 

contested revocation hearing.

At the contested hearing, Agent Lugar testified to the above facts. During crossexamination, defense counsel asked Lugar whether his report stated that defendant 

violated condition No. 85, and whether that was what “we’re dealing with today.” Agent 

Lugar responded “yes.” On redirect, the prosecutor asked Lugar whether defendant’s 

conduct had also violated condition No. 48, which prohibited defendant from “view[ing], 

possess[ing], or hav[ing] access to [any] material; for example, periodicals, newspapers, 

magazines, catalogs that depict adults or children in undergarments, nude, partially nude, 

et cetera.” Lugar responded that in his “discretion,” he believed defendant’s conduct of 

using his phone’s Web browser to access and view pornographic material violated both 

condition Nos. 48 and 85.

Defense counsel did not object to the prosecutor’s questions based on condition 

No. 48. On recross-examination, defense counsel elicited that it would be up to a parole 

officer’s discretion how to enforce condition No. 48, and that, in his opinion, viewing an 

adult man with his shirt off would not be considered partial nudity.

John Sadlowski, the investigator who examined defendant’s electronic devices, 

also testified at the revocation hearing. According to him, defendant’s phone had 

repeatedly been used to browse adult pornographic Web sites, including accessing the

pornographic Web site “xhamsters.com” 400 times using search terms such as “teen,” 
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“anal,” “boy,” “young,” “gay,” and “twink.”3 The videos searched for generally showed 

two nude males engaging in sex acts. His investigation of the browser history further 

revealed searches for the live-streaming adult pornography Web site “chaterbate.com.” 

The phone’s Web history showed a user accessed the Web site over 100 times in a sixhour period, and had over 800 “tokens” (or approximately $64 worth of credit) to view 

the Web site’s adult live-streaming content. Interspersed throughout the search history 

were entries showing the Facebook account of “Thomas Torchia” had been accessed. 

During cross-examination, Sadlowski confirmed that he did not find any child 

pornography related videos, chat rooms, or social network sites on defendant’s phone.

Defendant did not testify, nor did he present any evidence during the hearing. In 

closing, defense counsel renewed her objections to the constitutionality of both condition 

Nos. 48 and 85. She also argued that defendant’s cell phone did not qualify as a 

computer for purposes of condition No. 85. As for condition No. 48, counsel 

acknowledged that viewing naked adults on the Web site would be an issue, but again 

reiterated her constitutional objection to the condition. The prosecutor argued 

defendant’s conduct violated both conditions.

After considering counsels’ arguments, the trial court found defendant violated 

both condition Nos. 48 and 85. The court remanded defendant to the Department of 

Corrections and Rehabilitation for further evaluation by the parole board. Defendant 

timely appealed.

3 The investigation also located the following search terms on defendant’s phone: 

“ ‘teen sex-slave,’ ” “ ‘boys young anal together,’ ” and “ ‘bareback young boy.’ ”
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DISCUSSION

I.

Preliminary Hearing

Defendant contends the trial court violated his due process right to a prerevocation 

preliminary hearing to determine whether there was probable cause to believe he had 

violated the terms of his parole. The absence of such a hearing, defendant argues, was

prejudicial because he could have marshalled evidence and testimony to show his 

conduct did not violate condition No. 48, which was not referenced in the revocation 

petition. We agree the defendant should have received a preliminary hearing prior to the 

final revocation hearing, but conclude the error was harmless.

Parolees facing revocation are constitutionally entitled to certain due process 

protections. (Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484] (Morrissey);

People v. DeLeon (2017) 3 Cal.5th 640, 644 (DeLeon).) “These include the right to a 

prompt preliminary hearing after arrest to determine whether there is probable cause to 

believe a parole violation has occurred.” (DeLeon, at p. 644; Morrissey, at pp. 485-487.)

The Criminal Justice Realignment Act of 2011 transferred jurisdiction over most 

parole revocation hearings from the Board of Parole Hearings to the superior courts. 

(§ 3000.08, subds. (a), (f), added by Stats. 2011, ch. 39, § 38 [Assem. Bill No. 117 (2011-

2012 Reg. Sess.)], amended by Stats. 2012, ch. 43, § 35 [Sen. Bill No. 1023 (2011-2012 

Reg. Sess.)]; DeLeon, supra, 3 Cal.5th at p. 644.) “In 2012 the Legislature amended 

section 1203.2 to incorporate parole into the statutes governing revocation of probation, 

mandatory supervision, and postrelease community supervision. (§ 1203.2, subds. (a), 

(b)(1), (f)(3)(E), as amended by Stats. 2012, ch. 43, § 30 [Sen. Bill No. 1023 [(2011-2012 

Reg. Sess.)]].)” (DeLeon, at p. 647.)

“Together, sections 1203.2 and 3000.08 establish a statutory framework for parole 

revocation.” (DeLeon, supra, 3 Cal.5th at p. 647.) Under those provisions, a parolee 

may be arrested, with or without a warrant, based on probable cause to believe that a 
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parole violation has occurred. (§§ 1203.2, subd. (a); 3000.08, subd. (c).) The supervising 

parole agency determines if there is good cause to believe the subject has violated parole, 

and may impose intermediate sanctions, including flash incarceration for up to 10 days. 

(§ 3000.08, subds. (d), (e).) If intermediate sanctions are deemed inappropriate, the 

parole agency must petition the superior court to revoke parole and provide notice to the 

parolee. (§§ 1203.2, subd. (b); 3000.08, subd. (f).) The superior court may modify or 

revoke parole if the interests of justice so require. (§§ 1203.2, subd. (b); 3000.08, subd. 

(f).)

Although section 1203.2 does not expressly provide for a preliminary hearing, our 

Supreme Court recognized in DeLeon that that right was firmly established in 

constitutional precedent. (DeLeon, supra, 3 Cal.5th at p. 655, citing Morrissey, supra,

408 U.S. at pp. 485-487 & In re La Croix (1974) 12 Cal.3d 146, 152.) When a parolee is 

arrested for an alleged parole violation, some minimal inquiry must be conducted at or 

reasonably near the time of arrest while information is fresh and sources are available. 

(DeLeon, at p. 654.) Such an inquiry is in the nature of a preliminary hearing to 

determine whether probable cause or reasonable ground to believe that the arrested 

parolee has committed acts that would constitute a violation of parole conditions. (Ibid.) 

The determination must be made by someone uninvolved in the case, and the procedure 

is informal. (Ibid.) The parolee must be given notice and a chance to appear and speak 

on his own behalf. (Ibid.) He may bring documentary evidence or persons who can 

provide relevant information to the hearing officer, and witnesses to the parole violation 

generally must be made available for questioning. (Ibid.) The hearing officer then 

decides whether probable cause supports continued incarceration pending a final 

revocation hearing. (Ibid.) Although formal findings of fact and conclusions of law are 

not required, the hearing officer must prepare a summary of what occurs at the hearing, 

the parolee’s responses, and the substance of documents or evidence given or relied upon, 

and must state the reasons for his determination. (Ibid.)
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At a final hearing to determine if parole should be revoked, due process requires, 

at a minimum, written notice of the alleged parole violations, disclosure of the evidence 

against the parolee, an opportunity for the parolee to be heard in person and to present 

witnesses and documentary evidence, the right to confront and cross-examine adverse 

witnesses absent good cause to deny confrontation, an impartial hearing body, and a 

written decision regarding the evidence and the reasons for revoking parole. (DeLeon, 

supra, 3 Cal.5th at p. 654)

In this case, defendant was not given a prerevocation preliminary hearing. Agent 

Lugar signed the probable cause form on November 27. He filed the petition to revoke 

probation on December 4, 2018, and that same day the court found ex parte that probable 

cause existed to believe that defendant had violated the terms of his parole. Proceeding 

ex parte to determine probable cause, rather than providing a preliminary hearing, 

deprived defendant of his constitutional right to due process. (DeLeon, supra, 3 Cal.5th 

at p. 655.)

That defendant was denied a preliminary hearing, however, does not end our 

inquiry. A violation of a parolee’s right to a prerevocation preliminary hearing to 

determine probable cause “does not necessarily mean that he is automatically entitled to 

relief therefrom.” (DeLeon, supra, 3 Cal.5th at p. 659.) The parolee must prove 

prejudice. (Id. at pp. 659-660.) That is, if the denial of the constitutionally mandated 

hearing was harmless beyond a reasonable doubt, reversal is not warranted. (Ibid.)

In this case, defendant argues he was prejudiced because the revocation petition 

did not reference condition No. 48. Had a preliminary hearing been held, he contends his 

counsel could have shown that only condition No. 85 was at issue, and the trial court 

could not have found probable cause to believe he violated condition No. 48 because no 

evidence related to that condition would have been entered in the record or argued before 

the court.
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The People argue defendant forfeited his appellate challenge by failing to raise an 

objection to the probable cause determination or to the notice given. Even if we assume, 

without deciding, that defendant’s challenge has been preserved, we are not convinced by 

defendant’s speculative argument given the record on appeal.

The record shows that nearly a month before the final revocation hearing, 

defendant was on notice that the prosecutor had asked the court to find him in violation of 

both condition No. 85 and condition No. 48 for his conduct in using his phone to 

repeatedly view pornographic Web sites and images. At the final revocation hearing, 

defendant never objected that condition No. 48 was not specifically listed in the 

revocation petition, and he presented no evidence as to why his conduct did not violate 

that condition. Defense counsel challenged the condition’s constitutionality. However, 

defense counsel also conceded defendant’s conduct was problematic under condition

No. 48.

Given that defendant did not challenge the omission of condition No. 48 in the 

petition at the final revocation hearing even though he was well aware that the prosecutor 

expressly asked the court to find such a violation in prehearing briefing and had a copy of 

the revocation petition that did not specifically reference condition No. 48, we are 

convinced beyond a reasonable doubt that he would not have done so at a prerevocation 

probable hearing had one been held. And defendant presents nothing to suggest that all 

factual issues to be presented at the preliminary hearing to which he was entitled would 

not necessarily have been decided against him as to both condition Nos. 48 and 85, as the

same evidence of his conduct was alleged to have violated both conditions at the final 

revocation hearing. (In re La Croix, supra, 12 Cal.3d pp. 154-155.)
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II.

Violation of Parole Condition No. 48

Defendant contends that insufficient evidence supports the trial court’s finding that 

he willfully violated condition No. 48, and that the court abused its discretion by so 

finding. We disagree.

The crux of defendant’s argument is that condition No. 48 only refers to “physical 

objects” and that his conduct of viewing nude males on his phone does not violate the 

condition. In other words, he interprets the condition’s reference to viewing, possessing, 

or having access to “any material” such as “periodicals, newspapers, magazines, [and] 

catalogs” to mean hard copies of those items. But the plain language of the condition is 

not so limited.

Defendant attempts to insert words (i.e., hard copies or physical objects) into the 

condition. The general rules of statutory construction do not allow us to insert words into 

the condition. (People v. Guzman (2005) 35 Cal.4th 577, 587 [court may not insert 

words into statute that Legislature has omitted]; Code Civ. Proc., § 1858.) Nothing in

condition No. 48 limits prohibited viewing, possessing, or accessing nude or partially 

nude images of adults or children to only hard copy materials. Magazines and other 

periodicals are regularly found in electronic formats and condition No. 48’s plain 

language does not distinguish between hard copies and electronic copies. Our role is not 

to rewrite the condition to conform to an assumed intent that does not appear from its 

plain language. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)

Defendant does not dispute that he accessed and viewed material containing fully 

or partially nude individuals engaged in sex acts. Given the overwhelming forensic 

evidence presented at the revocation hearing, as well as defendant’s own statements, the 

trial court could reasonably conclude that defendant’s conduct violated not only condition 

No. 85, which finding defendant does not challenge on appeal, but also condition No. 48.
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III.

Correction to Minute Order

The clerk’s minutes state that the trial court found defendant violated condition 

Nos. 48, 85, and 86, but the court did not address condition No. 86 in its ruling. We shall 

direct the clerk to correct the minutes to reflect the trial court’s actual ruling. (People v. 

Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Zackery (2007) 147 Cal.App.4th 380, 

385 [“Where there is a discrepancy between the oral pronouncement of judgment and the 

minute order or the abstract of judgment, the oral pronouncement controls”].)

DISPOSITION

The judgment is affirmed. The clerk is directed to correct the March 13, 2019,

minutes to reflect that the trial court found defendant in violation of parole condition Nos. 

48 and 85; the clerk shall delete the reference to condition No. 86 in the minutes.

 /s/

HOCH, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

MURRAY, J.