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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

DIVISION 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 the terms and 

conditions of his postrelease community supervision (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 or 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 Stats. 

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 following 

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 status on the ground he had violated one of his postrelease 

supervision conditions—“Be of good conduct and obey all laws”—by violating Penal 

Code2section 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. According to the incident report, the sheriff’s department 

responded to a call indicating that the defendant had hit a small boy and then locked him 

out of the residence naked. After deputies 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 that 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 attorney 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. As a condition of probation defendant was ordered to serve six 

months in county jail. As further conditions defendant was ordered to complete a 52-

week parenting/anger management class and to not have 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. Defendant 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.

The prosecution objected to the modification 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 that defendant’s postrelease supervision

case had not been noticed for hearing that day but asked “to orally petition the court” 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), the probation 

officer explained that modifying the terms of postrelease supervision would allow the 

probation department to “assist the court 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. 

The court modified the conditions of probation in the child endangerment case to 

allow peaceful contact with the 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 supporting his objections to modification of the postrelease 

supervision conditions, which the court stated it would consider, but the modification 

became effective immediately. No further briefing was filed in the trial court.

Defendant timely filed a notice 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 objections, 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 filing 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 pending 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 

assessing 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 intermediate 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 of 
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punishment for violations of an offender's condition of postrelease supervision.” Under 

section 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 appropriate, the supervising county 

agency shall petition the court pursuant to Section 1203.2 to revoke, modify, or terminate 

postrelease community supervision.”

These statutory 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.

Here, the additional conditions requested by the probation department could 

properly have been imposed as part of the process 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, both 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 

offense 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 not 
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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 incarceration.’ ”].) 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 hearing of the requested modification and was given an opportunity to argue against 

those 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 deciding) that changed factual circumstances 

also are required to justify imposition of intermediate sanctions, additional conditions, or

incentives under section 3454, the record establishes a sufficient basis for the 

modifications approved by the court. Subsequent 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 was 

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. 
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Moreover, defendant’s family and living conditions were about to change and the

probation department was concerned that if defendant terminated his probation in the 

child endangerment case, it would have no means to monitor his proper treatment of the 

minor after the upcoming wedding. These relatively minor modifications 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.