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Filed 1/21/16 P. v. Gillespie CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DI VISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. RAYMOND JOEL GILLESPIE, Defendant and Appellant. A142874
(Sonoma County Super. Ct. No. PRS

- 100246 )

Defendant Raymond Joel Gillespie appeals from an order modifying t he terms and
conditions of his postrelease community s upervision ( postrelease supervision )

. 1 He contends the trial court acted in excess of its jurisdiction and in violation of his due process rights when it modified the conditions of his postrelease supervision without
notice o r a sufficient factual basis

. We find no error and therefore shall affirm.

1 Postrelease supervision “ was established as an element of the Criminal Justice Realignment Act of 2011 (enacted by Stats. 2011, ch. 15, §§ 1, 450, amended by Stat s. 2011, ch. 361, § 6.7 and Stats. 2012, ch. 43, § 27). .

. . Under [Penal Code] section 3451, low

- level offenders serving a prison term who are released from prison ‘shall, upon release from prison and for a period not exceeding three years immediately fo llowing release, be subject to community supervision provided by a county agency designated by each county’s board of supervisors which is consistent with evidence

- based practices, including, but not limited to, supervision policies, procedures, programs, and practices demonstrated by scientific research to reduce recidivism among individuals under postrelease supervision.’ ” ( People v. Jones (2014) 231 Cal.App.4th 1257, 1266.)2 Background On July 18, 2013, upon his release from the custody of the California Department of Corrections and Rehabilitation after serving time for weapons

- related convictions
, defendant was placed, with various terms and conditions, on postrelease supervision

. Defendant’s postrelease supervision expires in August 2016. On April 15, 2014, the probation department filed a petition to revoke defendant’s postrelease supervision st atus on the ground he had violated one of his postrelease supervision conditions

— “Be of good conduct and obey all laws”

— by violating Penal
Code 2 section 273d, subdivision (a), cruel and inhuman corporal punishment. The petition alleged the following facts: “On 4/12/14, Mr. Gillespie was arrested by the Sonoma County Sheriff’s Department (SCSO #140412

- 022) for violating sections 273d(a)PC and 3452PC. Accordi ng to the incident report, the sheriff’s d epartment responded to a call indicating that the defendant had hit a small boy and then locked him

out of the residence naked. After d eputies contacted the defendant at the residence and talked to all involved parties, the defendant was arrested and booked into custody. It should be noted that the report states th at the defendant may have forced the boy’s face into fecal matter and the boy had a swollen red mark on his chest.” Defendant’s postrelease supervision was summarily revoked by the court upon the filing of the petition. On the same day , the district a ttor ney filed a new felony complaint based on the same incident charging defendant with inflicting cruel and inhuman corporal punishment on a child (§ 273d, subd. (a)). On May 14, 2014, defendant pled guilty in the new case to one count of
misdemeanor child endangerment (§ 273a, subd. (b)) and the court placed him on probation for four years. A s a condition of probation defendant was ordered to serve six months in county jail. A s further conditions defendant was ordered to complete a 52

- week parenting/anger m anagement class and to not h ave any contact with the victim.

2 All statutory references are to the Penal Code.3

At the same hearing, the court found the alleged postrelease supervision violation
true and reinstated postrelease supervision with the condition that defendant serve 180 days in jail
, the term to run concurrently with the six

- month jail term in the child endangerment case

. On July 18, 2014, the parties returned to court in the child endangerment case to consider defendant’s request that the no

- contact order with the victim be modified to
allow “peaceful contact” between defendant and the child. D efendant was requesting the modification because he intended to marry the minor’s mother the following week and
the married couple wished to live together with the child

. T he prosecution objected to t he modifi cation of the no

- contact order and informed the court that the probation department had a request regarding defendant’s postrelease supervision . The probation officer acknowledged th at defendant’s postrelease supervision
case had not been noticed for hearing that day but asked “ to orally petition the c ourt ” to modify the terms of his postrelease supervision by adding a peaceful contact order and a requirement that he complete the parenting classes

. 3 Because defendant was then entitled

to demand the termination of his probation in the child endangerment case , as all parties recognized (although defendant insisted he had no intention of doing so), t he probation officer explained that modif ying the terms of postrelease supervision would allow the proba tion department to “ assist the c ourt in enforcing those rules .” Defendant opposed
the modification of his postrelease supervision
, arguing that it was too late to impose
additional conditions of his postrelease supervision based on the child endangerment
incident
, and that there were no new facts or circumstances to justify modification of his postrelease supervision at the time of the hearing

. T he court modified the conditions of probation in the child endangerment case to allow peaceful contact with th e minor. Over defense counsel’s objection, the court also modified the terms and conditions of his postrelease supervision to require peaceful

3 The record contains a written request for modification of postrelease supervision that was file stamped on July 18. The transcript of the hearing does not indicate whether the document was filed before or after the hearing.4

contact with the minor and completion of a 52

- week parenting class. The court invited
defendant to file a brief s upporting his objections to modification of the postrelease supervision conditions, which the court stated it would consider, but the modification became effective immediately. N o further briefing was filed in the trial court

. Defendant timely filed a not ice of appeal.
Discussion Initially, we reject the Attorney General’s contention that defendant forfeited his objections to modification of his postrelease supervision because following the July 18 hearing he failed to file a brief supporting his objectio ns , as the court invited him to do. However, the trial court did not withhold entry of its order pending submission of a brief but entered an order that became immediately effective. Defendant was not obligated to
seek reconsideration of the order before f iling his appeal, and he did not forfeit his objections by failing to do so. Section 3453 sets forth the statutory conditions of postrelease supervision applicable to all offenders , including the condition that the offender inform probation of “any pendi ng or anticipated changes in residence” and “participate in rehabilitation programming as recommended by the supervising county agency.” Under section 3454, subdivision (a), “ Each supervising county agency

. . . shall establish a review process for
assessi ng and refining a person’ s program of postrelease supervision. Any additional postrelease supervision conditions shall be reasonably related to the underlying offense for which the offender spent time in prison, or to the offender's risk of recidivism, and the offender's criminal history, and be otherwise consistent with law. ” Under subdivision (b) of section 3454, “ Each county agency responsible for postrelease supervision

. . . may determine additional appropriate conditions of supervision

. . . , order the provision of appropriate rehabilitation and treatment services, determine appropriate incentives, and determine and order appropriate responses to alleged violations, which can include, but shall not be limited to, immediate, structured, and int ermediate sanctions up to and including referral to a reentry court pursuant to Section 3015, or flash incarceration in a city or county jail. Periods of flash incarceration are encouraged as one method of5

punishment for violations of an offender's conditi on of postrelease supervision. ” Under

s ection 3455 , subdivision (a) , “ If the supervising county agency has determined, following application of its assessment processes, that intermediate sanctions as authorized in subdivision (b) of Section 3454 are not a ppropriate, the supervising county agency shall petition the court pursuant to Section 1203.2 to revoke, modify, or terminate postrelease community supervision. ”
These statut ory provisions necessarily imply that the “assessment process” conducted by the probation department to determine the need for intermediate sanctions,
additional conditions
, or incentives is ongoing and not limited, as defendant suggests
, to the time defendant is initially placed on postrelease supervision

. It is anticipated that such steps shall be taken by the probation department prior to involving the court in defendant’s supervision with the filing of a petition under section 1203.2.
H ere, t he additional conditions requested by the probation department could properly have been im posed as part of the pr ocess of “assessing and refining” the terms
of defendant’s postrelease supervision

. Although not related to the weapons violations for which defendant was imprisoned and then placed on postrelease supervision , b oth of the
additional conditions are related to defendant’s subsequent criminal conduct and intended to encourage rehabilitation and prevent recidivism. As indicated above, additional postrelease supervision conditions may be reasonably related not only to the underlying
offens e for which the offender spent time in prison, but also “ to the offender's risk of recidivism, and the offender's criminal history, ” so long as they are “ otherwise consistent
with law. ” (§ 3454, subd. (a).) The requirement that defendant complete a parenting class is consistent with the statutory authorization for the probation department to determine
and order “ appropriate rehabilitation and treatment services .” (§ 3454, subd. (b).) The requirement that defendant engage in only peaceful contact with the minor is an appropriate additional condition of his supervision. Contrary to defendant’s argument, he was not deprived of notice of the
modification . Although written notice is required under section 1203.2 when a petition is
filed for revocation or modification of probation by the court, section 3454 does not6

impose any specific notice requirement prior to imposition of intermediate sanctions or
additional conditions by the probation department . Section 3453 requires only that defendant “be informed of the conditions” of his postrelease supervision

. (See also § 3453, subdivision (q) [Statutory conditions of postrelease supervision include that “[t] he person shall waive any right to a court hearing prior to the imposition of a period
of ‘ flash incarcer ation .’ ” ].) Indeed, even under section 1203.2, notice of the petition to modify probation “ may be given to the supervised person upon his or her first court appearance in the proceeding. ” (§ 1203.2, subd. (b)(2).) Since defendant was advised at
the hearin g of the requested modification and was given a n opportunity to argue against
th ose changes, we see no possible prejudicial error. Although articulated as a court order modifying the postrelease supervision conditions, the court in effect did no more than approve conditions that the probation officer was authorized to impose without court
intervention. Likewise, contrary to defendant’s argument, the probation department established a sufficient factual basis for the imposition of the additional conditions . As defendant notes, “[a] change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation ” under section 1203.2, subdivision (b). ( People v. Cookson (1991) 54 Cal. 3d 1091, 1095; In re Clark (1959) 51 Cal.2d 838, 840 [ “An order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it.” ].) Assuming (without decidi ng) that changed factual circumstances
also are required to justify imposition o f intermediate sanctions , additional conditions
, or incentives under section 3454, the record establishes a sufficient basis for the
modifications approved by the court

. Subseq uent to imposition of the initial postrelease supervision conditions defendant had committed the child endangerment offense, giving rise to the appropriateness of the additional postrelease supervision conditions. Although
these additional conditions were not imposed on May 14, 2014
, when defendant wa s committed to a concurrent 180

- day jail term for the postrelease supervision violation, nothing in section 3454 requires that the additional conditions be imposed at that point.7

Moreover, defendant’s family an d living conditions were about to chang e and the probation department was concern ed that if defendant terminate d his probation in the child endangerment case, it w ould have no means to monitor his proper treatment of the
minor after the upcoming wedding. T he se relatively minor modification s are precisely the type of assessment and refinement contemplated by the statute. Disposition
The order is affirmed.

_________________________ Pollak, Acting P.J.

We concur:

_________________________ Siggins, J.

_________________________ Jenkins, J.