People v. Austin

247 Cal. Rptr. 3d 729, 35 Cal. App. 5th 778
CourtCalifornia Court of Appeal, 5th District
DecidedMay 3, 2019
DocketD073523
StatusPublished
Cited by13 cases

This text of 247 Cal. Rptr. 3d 729 (People v. Austin) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Austin, 247 Cal. Rptr. 3d 729, 35 Cal. App. 5th 778 (Cal. Ct. App. 2019).

Opinion

DATO, J.

*781Richard Austin appeals an order finding him in violation of a special condition of parole (condition 25) restricting him from contacting the "crime victim(s)" in case No. SCE350433, specified as "

*732Lisa [H.] or Brent [M.]" According to Austin, a later order in case No. SCE350433 made clear that the "crime victim" in that case was Brent, not Lisa. He claims this order had a preclusive effect as to the meaning of parole condition 25, or at a minimum that condition 25 was unconstitutionally vague and overbroad. Austin does not contend a properly worded no-contact condition restricting contact with Lisa would be invalid. Rather, he argues that the condition is vague as written , particularly in light of the finding in the underlying case that Lisa was never a protected party. As we explain, we find that contention meritorious on our record and reverse the order.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2015, Austin was charged with several offenses arising out of a domestic violence incident involving his girlfriend Lisa H. and an assault on Lisa's adult son Brent M. the following day. He pleaded guilty to a single count, assault by means likely to produce great bodily injury as to Brent ( Pen. Code, § 245, subd. (a)(4) ), and admitted a prior serious felony conviction.1 All remaining counts and allegations were dismissed.

*782During sentencing, the court struck the prior strike and placed Austin on formal probation for three years. It did not impose a condition restricting contact with Lisa at that time. When the probation order listed a no-contact restriction (condition 10j), prompting Austin's later arrest for contacting Lisa, the court found no violation, stating "[t]here is no protective order in this case" and deleting condition 10j from the order granting probation.

Austin later tested positive for controlled substances, violating the terms of his probation. In September 2016, defense counsel sought reinstatement of probation, while the prosecution requested a three-year middle term. The court revoked probation, sentencing Austin to three years with credit for time served. After Austin appealed, we remanded for the sole purpose of clarifying the court's ruling during sentencing. ( People v. Austin 2017 WL 3484712 (Cal.App. 4th Dist., Aug. 15, 2017, D071255 ) [nonpub. opn.].)

Austin was released on parole in July 2017. He acknowledged receiving notice of the general and special conditions of his parole. Among the special conditions of parole was condition 25:

"You shall not contact or attempt to contact your crime victim(s): [No.] SCE350433 PC 245 [ ](a)( [4] ) Assault w/Force Likely to Produce GBI Lisa [H.] or Brent [M.] ... 'No contact' means no contact in any form, whether direct or indirect, personally, by telephone, by writing, electronic media, computer, or through another person, etc."2

In October 2017, the California Department of Corrections and Rehabilitation (CDCR) filed a parole revocation petition (§ 1203.2, subd. (b)(1)), alleging Austin had violated the terms of his parole by contacting Lisa and using drugs. Austin waived an evidentiary hearing and was ordered to serve 120 days in custody for both violations.

On December 6, 2017, the court in case No. SCE350433 held a hearing following remittitur to clarify the sentence imposed.

*733The court indicated it had revoked probation in September 2016, sentenced Austin to three years in state prison, and given him credit for time served. It further clarified "for any parole officer" that there was no protective order in place: probation condition 10j barring contact with Lisa had been deleted. Defense counsel asked the court to make it "crystal clear for the future parole agent who supervises Mr. Austin, that the victim in this case was Brent [M.], ... not Lisa [H.]" The prosecutor agreed that the victim was Brent, not Lisa. The court stated, "Okay. The record and the minute order will reflect that." It went on to *783explain that Brent was no longer a protected party and Lisa "should never have been a protected party." Consistent with these findings, the minute order stated: "Protective order is no longer in effect against Brent [M.] The court finds Lisa [H.] was never a protected party."

Austin failed to report to his parole agent within 24 hours of being released from custody. CDCR filed a parole revocation petition, prompting the court to impose a 16-day sentence in mid-December. Austin and Lisa got married on December 27, and he was arrested on January 4, 2018 for violating parole condition 25. CDCR filed another parole revocation petition. This time, Austin requested an evidentiary hearing.

On January 29, 2018, the court heard testimony from Lisa, the police officer who arrested Austin, Austin's parole agent, and the public defender who represented Austin at the December 6 hearing in the underlying case. Lisa testified she did not want to remain married but did want to maintain contact and was not afraid of Austin. Lisa's account was challenged by Hilda P., Austin's parole agent, who testified that Lisa had expressed her fear of Austin several times through text messages. Hilda had seen a copy of the December 6 minute order in the underlying case, but she and her supervisor concluded the no-contact parole condition could be validly imposed given the nexus between Lisa and the convicted offense. Hilda explained that the parole condition would be lifted if Lisa wanted contact after Austin completed his anger management classes.

Austin's counsel called the public defender to the stand to explore events in the underlying case. The court questioned the relevance of her testimony, stating, "this is not a probation case, this is a parole case." "The fact that parole made it a condition is not my jurisdiction.... They paroled him with that condition. That's what I'm stuck with." When defense counsel stated parole condition 25 was based on a dismissed charge in the underlying case, the court replied, "[t]hat might be an appellate issue, but he signed the parole conditions. [¶] I don't know where the jurisdiction is, counsel. Do you know what -- how do you change a parole condition? [¶] I can't not violate someone because a judge in a trial court said he shouldn't have a protective order for that." The court rejected the offer of proof by Austin's counsel that rulings by the probation court would provide a basis to invalidate a parole condition as unreasonable. It further asked: "What legal authority do I have to change a parole condition after it has been imposed for over two years?"

After both sides rested, the court heard arguments from counsel. The prosecutor clarified that "the court does have discretion to modify the terms and conditions of Mr. Austin's parole in the interest of justice" but argued it should not exercise that discretion. Citing *784People v. Burgener

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Cite This Page — Counsel Stack

Bluebook (online)
247 Cal. Rptr. 3d 729, 35 Cal. App. 5th 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-austin-calctapp5d-2019.