Filed 10/28/15 P. v. Horace CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,

v.

MARCEL HORA CE,
Defendant and Appellant. B262382
(Los Angeles County Super. Ct. No. 5PH00045)

APPEAL from an order of the Superior Court of Los Angeles County. Jacqueline H. Lewis, Judge. Reversed

.

______ Heather E. Shallenberger, under app ointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Dana M. Ali, Deputy Attorne ys General, for Plaintiff and Respondent.

______2

Marcel Horace appeals from the order entered after the trial court found him in violation of his parole , revoked and reinstated parole on the same terms and conditions and sentenced him to 180 days in count y jail. Because we conclude th e evidence does not support the finding of a willful violation of parole, we reverse the order

.

FACTUAL AND PROCEDURAL BACKGROUND

“ A person who is required to register as a sex offender pursuant to Section 290
shall not remo ve, disable, render inoperable, or knowingly circumvent the operation of, or permit another to remove, disable, render inoperable, or knowingly circumvent the operation of, an electronic, GPS, or other monitoring device affixed to his or her person

as a co ndition of parole, when he or she knows that the de vice was affixed as a condition of parole. ” (Pen. Code, § 3010.10, subd. (b).) Horace c omplied with Penal Code
section 290’s registration requirement. Yet, o n January 5, 2015, the Division of Adult
Paro le Operations filed a petition for revocation of parole, alleging that Horace had
violat ed conditions of parole by (1) absconding parole su pervision and (2) disabling
his GPS device when he allowed it to “transition into dead battery” status between
Decemb er 23 and 30, 2014. (See Pen. Code, § 3000.08, subd. (f).) The trial court found probable cause to support a revocation of parole and preliminarily revoked parole. The trial court held a contested parole revocation hearing on February 11, 2015.
Accordi ng to the evidence presented at that hearing, o n May 13, 2014, Horace was released on parole under the supervision of Brian Bowers, a parole agent in the County of Los Angeles. As conditions of parole, Horace was required to wear a global positioning syst em (GPS) device, pursuant to Penal Code section 290
, and to charge the device for at least one hour at least two times per day (every 12 hours). Soon after, w hil e on parole, Horace was stabbed. He spent several months in the hospital, much of the time in a coma , and had two heart surgeries . On November 2 8 , Horace got out of the hospital . Bowers attached Horace’s GPS device and reviewed with
him the conditions of his parole

. Bowers believe d that Horace understood them. After
his discharge from the hos p ital, Horace lived with his ex

- wife and complied with the charging requirement for his GPS device.3

On December 22, Horace charged his GPS device from 6:12 a.m. to 8:46 a.m. That night, at 11:03 p.m., the parole office received an alarm from Horace’s GPS device signaling that Horace had not returned to his e x

- wife’s r esidence. The next morning,

at 9:31 a.m., the GPS device was on low battery status; at 1:11 p.m., it was in critical battery status; and at 4:33 p.m. the device ’s battery was dead. The batte ry remained dead until December 27 when Horace charge d it again. On December 27 and 28, Horace charged the GPS device twice a day as required. On December 30, the device was on low battery status , suggesting that Horace had not charge d it for the require d amount of time on December 29. Because the parole office could not track Horace’s whereabouts when his device’s battery was dead fro m December 23 to 27 , Horace was considered an
absconder and arrested on December 30. Bowers was on vacation from Decembe r 22 to January 5, 2015.
Horace testified in his defense that on or around December 22 his ex

- wife received a telephone call telling her to come to Bakersfield to visit family. His wife was upset that
he could not come with her based on his status as a P enal Code section 290 registrant.
She intentionall y locked Horace out of her residence until she returned on December 26
or 27. While lock ed out , Horace could not charge his GPS device bec ause the charger
was in the residence . He spent two nights in the plaza of the courthouse in Compton, which was near the parole office. Horace said that he sat outside the courthouse in the
rain on December 24 and 25. At some point, he called the parole office and was
informed that Bowers was on vacation. He also cal led Bowers’s telephone number but did not reach him. He attempted to send Bowers a text message. Bowers believed that
Horace had an old business card for him and thus messages from Horace would not have
reached him. According to Horace, “I mean, I wasn’t going to go to the police station and turn myself in on the day of Christmas. But I did sleep there. And [because the GPS device was beeping] I thought that the device was going to track me to show I was doing what I could.” As to why he did not go int o the parole office on December 26 when it opened after being closed on C hristmas day, Horace said, “[M]y mental condition, I’m thinking4

back at the time, if I want a cup of water, I might say I want an ink pen, but I’m talking about a cup of water at that time. That’s not the situation now, but I thought I was doing what was right by going and sitting in the parole office. The next day I should have went back to the parole office. But my thinking when I got up in the morning, I jumped on the
train and r ode the train back and forth back and forth back and forth. I thought I was doing right by sitting in the courthouse texting.” On December 26 or 27 , his ex

- wife
returned to her residence , and Horace charged his GPS device again on December 27.
Horace sa id that he did not intend to violate parole because doing so would be “suicide” given his severe and delicate medical condition. Based on this evidence, the trial court found true the allegations in the parole revocation petition. It revoked and reinstat ed parole on the same terms and conditions and, pursuant to Penal Code section 3010.10, subdivisi on (e), sentenced Horace to
180 days in the county jail. Horace timely appealed.
DISCUSSION A trial court may revoke parole under Penal Code 120 3.2 , subdivisi on (a), “ if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of
the conditions of his or her supervision . . . .” As a result, the determination whether to revoke parole is discretionary. ( People v. Galvan (2007) 155 Cal.App.4th 978, 981

- 982. ) “[T]he discretion that the trial court is empowered to use is predicated upon reason and law but is primarily directed to the n ecessary end of justice. As judges, such discretion requires the application of sound judgment that takes into consideration that life is not always predictable and that things do not always go according to plan.” ( People v. Zaring (1992) 8 Cal.App.4th 3 62, 379.) “Parole and probation revocation hearings are equivalent in terms of the requirements of due process. [Citations.]” ( People v. Rodriguez (1990) 51 Cal.3d 437, 441.) For either type of violation, the facts supporting a revocation hearing must be proved by a preponderance of the evidence. ( Ibid .; see Pen. Code, § 3044, subd. (a)(5).) “[ T ] he evidence must support a conclusion the probationer’s [or parolee’s] conduct5

constituted a willful violation of the terms and conditions of probation [or pa role]. [Citation.] ” ( People v. Galvan
, supra , 155 Cal.App.4th at p. 982 ; People v Zaring
, supra , 8 Cal.App.4th at p. 379 [probation revocation reversed when evidence did not support conclusion that defendant’s conduct “constitute d a willful violation of th[e probation] condition”] ; see People v. Vickers (1972) 8 Cal.3d 451, 461 [violation of probation assesses whether probationer is “ volitionally guilty of any misconduct ”] .) Appellate courts have reversed violation findings when the conduct at issue does not demonstrate irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court. ( E.g., Galvan , at p. 984 [probation violation finding reversed when defendant did not report to probation within 24 hours as required beca use he had been deported after release from county jail, could assume requirement had been waived and thus did not willfully violate probation condition] ; Zaring , at p. 379 [probation violation finding
reversed when defendant appeared 22 minutes late for a hearing in violation of a court order due to a change in circumstances that required her to take her children to school before going to court and thus violation was not willful ].) The evidence presented at the contested parole revocation hearing did not establish a willful violation of parole. Although Horace’s GPS device went into dead battery status from December 23 to December 27, the circumstances demonstrate the violation
was not willful. His ex

- wife locked him out of the residence
, and he could no t retrieve his charger for the entire time the device was in dead battery status. When his ex

- wife returned, he charged his device on December 27, as required under the terms of his parole. During the time th e device’s battery was dead, Horace, who had b een out of the hospital after a severe injury less than one month, believed that the device was still communicating with the parole office because it was beeping. He also stayed near the parole office. He tried in multiple ways to reach Bowers but was un able to do so based on Bowers’s vacation and issues with the telephone number he had for Bowers. The fact
that his device went into low battery status on December 30 could not support the finding
of a parole violation because the petition alleged that Hor ace had violated parole only by absconding and allowing the GPS device to go into dead battery status, not low battery6

status. Based on Horace’s medical condition , the attempts he made to reach Bowers and the undisputed fact that he was locked out of his ex

- wife’s residence where his charger
was located for the entire time his device’s batter y was dead, Horace did not exhibit irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court. ( People v. Galvan
, supra , 155 C al.App.4th at p. 985; People v. Zaring
, supra , 8 Cal.App.4th at p. 37 9.)
In concluding that Horace had violated parole, the trial court found some credibility issues with Horace’s testimony. Yet, even if Horace’s testimony w as not credible in all respect s, nothing presented by the People demonstrated that the violation
was willful. The undisputed evidence showed that Horace’s ex

- wife had locked him

out of her residence from December 23 to 27 and that his charger was in the residence. Although Horace per haps could have tried other methods t o inform the parole office
that he was unable to charge his device, such as going into the office, he stayed near
the office, demonstrating he was not trying to abscond from parole. Under these circumstances, given tha t the discretion afforded the trial court “requires the application of sound judgment that takes into consideration that life is not always predictable and
that things do not always go according to plan” ( People v. Zaring
, supra , 8 Cal.App.4th

at p. 379), the finding of a parole violation constituted an abuse of discretion.
DISPOSITION
The order is reversed

. NOT TO BE PUBLISHED

.

ROTHSCHILD, P. J. We concur:

CHANEY, J. LUI, J.