Filed 1/21/16 P. v. Gillespie CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A142874
v.
RAYMOND JOEL GILLESPIE,                                                  (Sonoma County
                                                                         Super. Ct. No. PRS-100246)
         Defendant and Appellant.


         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.)


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                                         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
Code2 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. 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.


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       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.


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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.




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