Filed 5/15/17; pub. order 5/30/17 (see end of opn.)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION SEVEN


THE PEOPLE,                                       B271406

        Plaintiff and Respondent,                 (Los Angeles County
                                                  Super. Ct. No. 6PH01157)
        v.

RAYMOND ZAMUDIO,

        Defendant and Appellant.



      APPEAL from an order of the Superior Court of
Los Angeles County, Robert M. Kawahara, Judge. Affirmed.
      Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Victoria B. Wilson and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
                      ____________________
       After overruling Raymond Zamudio’s demurrer to the
petition for revocation of parole filed by the Los Angeles County
District Attorney’s Office and denying his motion for an
assessment whether imposition of intermediate sanctions would
be appropriate, the superior court found Zamudio in violation of
the conditions of his parole, revoked parole and ordered it
restored after Zamudio had served 150 days in county jail. On
appeal Zamudio contends the ability of a district attorney to
petition for revocation of parole without first completing certain
procedural steps and including in the petition information
required when a revocation petition has been filed by the
supervising parole agency violates his and other parolees’ right to
equal protection of the law under the state and federal
constitutions. We affirm.
      FACTUAL AND PROCEDURAL BACKGROUND
      The facts in this case are undisputed. On September 4,
2013 Zamudio was convicted of making a criminal threat (Pen.
Code, § 422)1 and sentenced to a two-year state prison term. On
April 29, 2014 he was released on parole.
      On January 16, 2016 Zamudio assaulted the mother of his
children. One month later the district attorney’s office petitioned
to revoke Zamudio’s parole pursuant to section 1203.2 and
requested issuance of an arrest warrant. The petition for
revocation consisted of a completed copy of Judicial Council form
CR-300, a one-page attachment describing the domestic violence
incident and a two-page list of Zamudio’s juvenile and adult
criminal history offenses. No other documents were filed with
the petition.

1     Statutory references are to this code.



                                 2
       On February 16, 2016 the superior court found probable
cause to support revocation, preliminarily revoked parole pending
a full hearing and issued an arrest warrant. The arrest warrant
was recalled once Zamudio appeared in court. He was remanded
into custody.
       Zamudio demurred to the petition and filed a “motion for
sanctions,” that is, a motion to require consideration by the
supervising parole agency of the imposition of intermediate
sanctions before pursing parole revocation. Zamudio argued the
district attorney’s parole revocation petition violated his right to
equal protection because it did not comply with section 3000.08
and California Rules of Court, rule 4.541 (rule 4.541), as required
for parole revocation petitions filed by the California Department
of Corrections and Rehabilitation, Division of Adult Parole
Operations, the supervising parole agency.2
       After the superior court overruled the demurrer and denied
the motion for sanctions on March 16, 2016, Zamudio waived his
right to a parole revocation hearing and admitted the violation.
The court revoked parole supervision and ordered it reinstated on
the same terms and conditions as before upon Zamudio’s
completion of 150 days in county jail (with 46 days of custody
credits).


2     The alternate public defender who represented Zamudio
represented another parolee, Ignacio Castel, and also filed a
demurrer and motion for assessment of intermediate sanctions in
his parole revocation proceedings, which were pending in the
same superior court department as Zamudio’s. The court and
counsel agreed the briefing, oral argument and ruling issued in
Castel’s case, heard immediately before Zamudio’s, would be
“incorporated into this case because the issues are identical.”



                                 3
       Zamudio filed a timely notice of appeal, challenging the
ruling on his demurrer and motion for sanctions. (See People v.
Osorio (2015) 235 Cal.App.4th 1408, 1412 (Osorio) [parole
revocation order is a postjudgment order affecting the substantial
rights of the party and appealable under § 1237, subd. (b)].) The
superior court granted Zamudio’s request for a certificate of
probable cause.
       Zamudio’s appointed appellate counsel filed an opening
brief in which no issues were raised. (See People v. Wende (1979)
25 Cal.3d 436, 441.) After independently examining the record,
we asked the parties to submit supplemental briefing addressing
whether the superior court had erred in overruling Zamudio’s
demurrer and denying his motion, given that section 3000.08,
subdivision (f), and rule 4.541(e) require certain minimum
information be provided in a petition to revoke parole, including a
written report by the supervising parole agency explaining “the
reasons for that agency’s determination that the intermediate
sanctions without court intervention . . . are inappropriate
responses to the alleged [parole] violations.” (See Osorio, supra,
235 Cal.App.4th at p. 1413.)3




3     Although technically moot because Zamudio has completed
the additional 150-day period of incarceration ordered as a
condition of reinstating parole, we exercise our discretion to
consider the issue presented. It is capable of repetition, might
otherwise evade review and is of continuing public interest. (See
People v. Hronchak (2016) 2 Cal.App.5th 884, 889-890; Osorio,
supra, 235 Cal.App.4th at pp. 1411-1412.)



                                 4
                          DISCUSSION
      1. Governing Law
      The Legislature in 2011 enacted and amended “‘a broad
array of statutes concerning where a defendant will serve his or
her sentence and how a defendant is to be supervised on parole,’”
referred to generally as the realignment legislation. (Williams v.
Superior Court (2014) 230 Cal.App.4th 636, 650.) The overall
purpose of the realignment legislation was to decrease recidivism
and improve public safety, while at the same time reducing
corrections and related criminal justice spending. (People v. Cruz
(2012) 207 Cal.App.4th 664, 679; see § 17.5 [legislative findings
and declarations regarding recidivism].)
      As enacted by the realignment legislation, new
section 3000.08 and an amended version of section 1203.2 became
central elements of the system for parole supervision and
revocation. Together with rule 4.451, these statutes provide the
framework for parole eligibility, enforcement of parole
supervision conditions and procedures to revoke parole in the
event of a violation.
      If a parole violation occurs, section 3000.08, subdivision (d),
permits the supervising parole agency to impose additional
conditions of supervision and “intermediate sanctions” without
court intervention: “Upon review of the alleged violation and a
finding of good cause that the parolee has committed a violation
of law or violated his or her conditions of parole, the supervising
parole agency may impose additional and appropriate conditions
of supervision, including rehabilitation and treatment services
and appropriate incentives for compliance, and impose
immediate, structured, and intermediate sanctions for parole




                                  5
violations, including flash incarceration in a city or a county
jail.”4
        Section 3000.08, subdivision (f), authorizes the supervising
parole agency to petition to revoke parole only after the agency
has determined that intermediate sanctions are not appropriate:
“If the supervising parole agency has determined, following
application of its assessment processes, that intermediate
sanctions up to and including flash incarceration are not
appropriate, the supervising parole agency shall, pursuant to
Section 1203.2, petition . . . the court in the county in which the
parolee is being supervised . . . to revoke parole.” (See Osorio,
supra, 235 Cal.App.4th at p. 1413 [“less restrictive sanctions for
an alleged parole violation must be considered before revocation
of parole is sought”]; People v. Hronchak (2016) 2 Cal.App.5th
884, 891 [same].)
        Section 3000.08, subdivision (f), requires a petition to
revoke parole filed by the supervising parole agency to include a
written report containing relevant information regarding the
parolee and the recommendation to revoke parole and directs the
Judicial Council to adopt forms and rules of court to implement
it. Rule 4.541(c), in turn, describes the minimum requirements
for the written report included with the supervising parole
agency’s petition to revoke; and rule 4.451(e) provides, in addition
to those minimum contents, the petition “must include the
reasons for that agency’s determination that intermediate



4     “‘Flash incarceration,’ is a period of detention in a city or a
county jail due to a violation of a parolee’s conditions of parole.
The length of the detention can range between one and
10 consecutive days. . . .” (§ 3000.08, subds. (d) & (e).)



                                  6
sanctions without court intervention . . . are inappropriate
responses to the alleged violations.”
       Section 1203.2, as amended by the realignment legislation,
governs the procedure for revocation of various forms of
supervision, including both probation and parole. As pertinent
here, section 1203.2, subdivision (b)(1), authorizes the “parole
officer, or the district attorney” to petition to modify or revoke
parole. That subdivision further provides, upon filing of a
petition, “[t]he court shall refer . . . the petition to the . . . parole
officer. After the receipt of a written report from the . . . parole
officer, the court shall read and consider the report and . . . the
petition and may modify [or] revoke” parole supervision “if the
interests of justice so require.” Subdivision (g) of section 1203.2
expressly provides that nothing in the section “affect[s] the
authority of the supervising agency to impose intermediate
sanctions, including flash incarceration, to persons supervised on
parole pursuant to Section 3000.08.”
       If a parolee is found in violation of the conditions of parole,
a court is authorized to (1) return the parolee to parole
supervision with a modification of conditions, if appropriate,
including a period of incarceration in county jail of up to 180 days
for each revocation (§ 3000.08, subds. (f)(1), (g)); (2) revoke parole
and order the person to confinement in the county jail for up to
180 days (§ 3000.08, subds. (f)(2), (g)); (3) refer the parolee to a
reentry court pursuant to section 3015 or other evidence based
program in the court’s discretion (§ 3000.08, subd. (f)(3)); or
(4) place the parolee on electronic monitoring as a condition of
reinstatement on parole or as an intermediate sanction in lieu of
returning the parolee to custody (§ 3004, subd. (a)).




                                    7
      2. Zamudio’s Challenge to the Sufficiency of the Parole
         Revocation Petition Was Properly Denied
       In the superior court Zamudio first argued in his demurrer
that the district attorney’s petition to revoke parole was deficient
because it did not include the minimum information required by
section 3000.08, subdivision (f), and rule 4.541(c) and (e). (See
Osorio, supra, 235 Cal.App.4th at p. 1415 [superior court should
have sustained demurrer to the petition for revocation because it
failed to include the reasons for the determination by the
supervising parole agency that intermediate sanctions without
court intervention were an inappropriate response to the allege
parole violation].) However, as Zamudio appears to concede on
appeal, neither section 3000.08. nor rule 4.541 applies to
petitions filed by the district attorney. As discussed, although
section 1203.2 addresses revocation petitions filed by either a
parole officer or the district attorney, by its terms section 3000.08
applies only to parole revocation petitions filed by the
“supervising parole agency.” Similarly, rule 4.541 expressly
applies to “supervising agency petitions for revocation of formal
probation, parole, mandatory supervision under Penal Code,
section 1170(h)(5)(B) and postrelease community supervision
under Penal Code section 3455.” (Rule 4.541(a).) Accordingly,
the district attorney is not obligated to file revocation petitions
with the written report mandated by those provisions, nor must
the petition state why intermediate sanctions are not considered
appropriate.
       Although section 3000.08 and rule 4.451 do not apply to a
district attorney’s petition to revoke parole, the Legislature
ensured the court’s evaluation of the petition would not be
conducted without input from the supervising parole agency.




                                  8
Section 1203.2, subdivision (b)(1), requires the court to refer a
district attorney petition, once filed, to the parolee’s parole officer
for a written report that must be considered by the court when
deciding whether to modify or revoke parole.
       To be sure, section 1203.2 does not describe the contents of
the written report, nor does it refer to, or incorporate, the
minimum requirements for the report mandated by
section 3000.08, subdivision (f). Nonetheless, given
subdivision (g), of section 1203.2, which preserves the supervising
parole agency’s authority to impose less restrictive sanctions, the
parole officer’s report under subdivision (b)(1) should include an
intermediate sanctions assessment. Even if not required by
statute or the Rules of Court, the best practice would be for the
parole officer to address the appropriateness of intermediate
sanctions to assist the court in exercising its discretion in the
interest of justice. Such an assessment would also serve as a
check on potentially overzealous deputy district attorneys or
parole officers. (See Williams v. Superior Court, supra,
230 Cal.App.4th at p. 664). However, when, as here, the alleged
parole violation also constitutes a new felony offense, particularly
one involving violence, or when the parolee has absconded from
parole, it may well be reasonable for the court to determine
intermediate sanctions would be inappropriate without a formal
assessment. In any event, the parole revocation petition filed
against Zamudio was not insufficient as a matter of law because
the district attorney was not obligated to include the written
report mandated by section 3000.08, subdivision (f), and
rule 4.541.




                                   9
      3. The Statutory Scheme Under Which the District
         Attorney’s Petition Was Filed Does Not Violate Parolees’
         Right to Equal Protection of the Law
       While asserting in superior court that the district
attorney’s petition was defective because it failed to include the
information required by section 3000.08, subdivision (f), and
rule 4.541, Zamudio also argued, as he again does on appeal,
that, by applying only to petitions filed by the supervising parole
agency and not the district attorney, those provisions deprive him
(and other parolees responding to district attorney petitions) of
important procedural protections, including an intermediate
sanctions assessment, provided other, similarly situated parolees.
That disparate treatment, Zamudio contends, based solely on
which entity has filed the revocation petition, violates the federal
and state constitutions’ guarantee of equal protection.
       To prevail on an equal protection challenge, a party must
first establish that “‘the state has adopted a classification that
affects two or more similarly situated groups in an unequal
manner.’” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.)
If such a classification of similarly situated individuals exists and
does not affect a fundamental right or a legally suspect class, the
next inquiry is whether the classification is rationally related to a
legitimate government interest. If so, it must be upheld against
an equal protection challenge: “Where, as here, a disputed
statutory disparity implicates no suspect class or fundamental
right, ‘equal protection of the law is denied only where there is no
“rational relationship between the disparity of treatment and
some legitimate governmental purpose.’” [Citation.] ‘This
standard of rationality does not depend upon whether lawmakers
ever actually articulated the purpose they sought to achieve. Nor
must the underlying rationale be empirically substantiated.



                                 10
[Citation.] While the realities of the subject matter cannot be
completely ignored [citation], a court may engage in “‘rational
speculation’” as to the justifications for the legislative choice
[citation]. It is immaterial for rational basis review “whether or
not” any such speculation has “a foundation in the record.”’ . . . If
a plausible basis exists for the disparity, courts may not second-
guess its ‘“wisdom, fairness, or logic.”’” (Johnson v. Department
of Justice (2015) 60 Cal.4th 871, 881; see Warden v. State Bar
(1999) 21 Cal.4th 628, 644 [when the challenged statutory
classification of similarly situated individuals “neither proceeds
along suspect lines nor infringes fundamental constitutional
rights,” it “must be upheld against [an] equal protection
challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification”].)
       Here, as the Attorney General suggests, it is entirely
plausible to posit that revocation petitions filed by the district
attorney will concern parolees whose violations involve the
commission of a new felony while petitions filed by the
supervising parole agency will largely consist of more minor or
technical violations. As such, the two groups of parolees are not
similarly situated. But even if they were, as Zamudio assumes, it
is entirely rational for the Legislature to have concluded parole
revocation procedures should be different depending upon which
entity files the petition. Because the district attorney generally
seeks parole revocation as the result of parolees’ criminal
conduct, the Legislature could reasonably conclude there would
be far fewer instances in which intermediate sanctions would be
appropriate for these more serious offenders. Furthermore, the
Legislature could properly recognize that the district attorney,




                                 11
unlike the supervising parole agency, does not have the resources
to conduct intermediate sanctions assessments.
       Zamudio argues many parolees whose alleged criminal
violations are nonviolent felonies or misdemeanors still come
within the district attorney’s purview and they would likely
benefit from less restrictive sanctions. Those parolees, he
contends, should be entitled to an intermediate sanctions
assessment. If the district attorney is not in a position to conduct
such assessments, that office should be prohibited from filing
petitions to revoke parole.
       Zamudio’s argument fails to recognize that, in reality, no
significant difference exists between the revocation procedures
for the two groups of parolees. If the supervising parole agency
handles the violation and files a petition to revoke parole, it must
also file a report containing an intermediate sanctions
assessment for the court to review under section 3000.08 and
rule 4.451. If the district attorney’s office is evaluating the crime
and a possible parole violation hearing, nothing in the statutes
prevents that office from referring the matter to the supervising
agency to evaluate the case and assess the appropriateness of
sanctions other than revocation or a criminal prosecution.
However, if the district attorney elects to file a revocation
petition, the court must then order a report from the supervising
parole agency, which should include an intermediate sanctions
assessment for the court to review. Although the procedural
steps occur in a different order, parolees subject to a filing by the
district attorney lose no substantive protections under the
relevant provisions merely because the report follows, rather
than accompanies, the filing of the petition to revoke parole.
There is no equal protection violation.




                                 12
    In sum, the superior court did not err in overruling the
demurrer and denying the motion for sanctions.
                        DISPOSITION
     The order is affirmed.




                                         PERLUSS, P. J.

We concur:




     ZELON, J.




     SEGAL, J.




                               13
Filed 5/30/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION SEVEN

THE PEOPLE,                           B271406

       Plaintiff and Respondent,      (Los Angeles County
                                      Super. Ct. No. 6PH01157)
       v.
                                        ORDER CERTIFYING
RAYMOND ZAMUDIO,                        OPINION FOR
                                        PUBLICATION
       Defendant and Appellant.

       THE COURT:
       The opinion in this case filed May 15, 2017 was not
certified for publication. It appearing the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c), Appellant’s request pursuant to California Rules
of Court, rule 8.1120(a) for publication is granted.
       IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
       ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be published in the Official Reports.

___________________________________________________________
   PERLUSS, P. J.         ZELON, J.        SEGAL, J.
