Filed 8/13/15 P. v. Martin CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066921

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. PLAK7901)

TODD DAVID MARTIN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Margie G.

Woods, Judge. Affirmed.



         Jill M. Klein, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kimberly

A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Todd David Martin was sentenced to three years' parole

following conviction for possessing illegal drugs. Because defendant has a history of

sexual assault, one of his parole conditions prohibited him from being near sites where

children congregate, such as public parks. The court found defendant violated this parole

condition when he went paddle boarding at a public beach. In so finding, the court noted

that defendant should not necessarily be prohibited from ever visiting the beach and that

such visits might be helpful for his rehabilitation. However, the court left the condition

in place without modification.

       Defendant claims the court abused its discretion because it rendered its decision in

ignorance of the law, which permits the court to modify parole conditions. We disagree

and conclude the court properly exercised its broad discretion. Affirmed.


                     FACTUAL AND PROCEDURAL OVERVIEW

       In 1996, defendant sexually assaulted a 16-year-old girl. In 2002, defendant

committed another sexual assault, this time against a woman working for him. Because

of these prior convictions, defendant has been classified as a high risk sexual offender.

Defendant was convicted in 2012 for possession of methamphetamine. In late May 2012,

he was paroled for three years.

       Because defendant is a high risk sexual offender, one of his parole conditions

prohibits him from entering or loitering within 100 yards of places where children

congregate, including public pools and parks. In early September 2014, defendant spent

approximately one hour paddle boarding in the ocean at a public beach in San Diego


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County. Defendant's parole agent discovered defendant visited the public beach while

reviewing data from defendant's GPS tracker. The California Department of Corrections

and Rehabilitation filed a petition for revocation of parole.1 Defendant was arrested, and

a revocation hearing was set for early October 2014.

       At the hearing, defendant testified that he entered the ocean from an isolated and

deserted part of the beach accessible only from a cliff. Defendant's parole agent testified

that defendant had previously violated parole by visiting a public beach and that he had

expressly instructed defendant never to visit the beach. However, the agent

acknowledged the parole condition did not explicitly list "beach" among the places

defendant could not visit.

       At the conclusion of the hearing, the court found that defendant violated the

conditions of his parole by visiting the public beach where children can congregate. In

making this finding, the court stated as follows: "[T]he court believes and would assume

that this hearing helps the individuals involved, Mr. Martin, who remains on parole after

he serves his sentence for his violation, and his parole officer understands that there may

be some areas that there needs to be more specificity. And the court would think that if

Mr. Martin can stay law abiding and care better for himself by being in the ocean,

because apparently that's part of his life, that would benefit society as well, which

hopefully will assist him in remaining law abiding and not reoffending. So there should

be a possibility to have some special exceptions made. But, again, that's up to the agent.



1      Penal Code sections 1203.2, 3000.08, subdivision (f).
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Mr. Martin would like to see that happen. [¶] Until that time, Mr. Martin, bottom line is

you can't access the ocean via any beach, because a public beach is akin to a place where

children congregate.

        The court sentenced defendant to 150 days in jail and reinstated the same parole

conditions as before. Defense counsel did not make any request for a modification of the

parole conditions at the hearing.


                                       DISCUSSION

        The court, in response to a petition to revoke parole, may "[r]eturn the person to

parole supervision with modifications of conditions, if appropriate, including a period of

incarceration in county jail." (Pen. Code, § 3000.08, subd. (f).) Decisions regarding

conditions for parole are reviewed for abuse of discretion. (People v. Martinez (2014)

226 Cal.App.4th 759, 764.) Abuse of discretion by the court may be demonstrated by

showing the ruling was " 'arbitrary, capricious or exceeds the bounds of reason.' " (Ibid.)

Abuse of discretion can also be found if the court exercised its discretion based upon

erroneous views regarding its scope. (People v. Sandoval (2007) 41 Cal.4th 825, 847-

848.)

        A claim regarding an error in sentencing generally is not preserved for appeal if

trial counsel fails to object. (People v. Scott (1994) 9 Cal.4th 331, 355-356.) However,

such a claim can still be made on appeal if a defendant can show that trial counsel's

failure to object was a professional error under Strickland v. Washington (1984) 466 U.S.

668. To find professional error, a defendant must demonstrate that trial counsel's failure


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to act is not justifiable by any conceivable trial strategy and that the error prejudiced the

defendant. (Id. at pp. 689-690; People v. Lewis (1990) 50 Cal.3d 262, 288.)

       Parole agents are accorded broad supervisory powers over parolees to mitigate the

risk parolees pose to the public. (People v. Denne (1956) 141 Cal.App.2d 499, 508-509.)

Legal standards regarding parole usually parallel those used in evaluating probation.

(Lucido v. Superior Court (1990) 51 Cal.3d 335, 345, fn. 7.) The law grants probation

officers significant discretion in deciding what level of supervision is appropriate to

enforce the terms of probation set out by the court. (See People v. Kwizera (2000) 78

Cal.App.4th 1238, 1240-1241; Pen. Code, § 1202.8, subd. (a).) The court "may leave to

the discretion of the probation officer the specification of the many details that invariably

are necessary to implement the terms of probation." (People v. O'Neil (2008) 165

Cal.App.4th 1351, 1358-1359.) "Probation officers have wide discretion to enforce

court-ordered conditions, and directives to the probationer will not require prior court

approval if they are reasonably related to previously imposed terms." (In re Pedro Q.

(1989) 209 Cal.App.3d 1368, 1373.)

       Defendant claims the court failed to modify his parole conditions because the

court erroneously believed that doing so was beyond its discretion. In support of this

claim, defendant cites language from the court's ruling stating that it believed an

exception giving defendant the ability to swim in the ocean might be beneficial, but the

creation of any exception was "up to the [parole] agent."

       We conclude the language relied on by defendant to show the court allegedly

believed it lacked discretion to modify his conditions of parole is at best ambiguous. This

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language can be interpreted simply as the court making a recommendation to the agent

regarding the supervision or enforcement of the condition. It does not sufficiently

demonstrate that the court wished to alter the condition but believed it could not. In the

absence of clear evidence to the contrary, we will presume the court was aware of its

discretion.

       In any event, a modification of the parole condition is not necessary to permit

defendant to access the beach for the purpose of swimming in the ocean. The condition

requires defendant to stay away from areas where children congregate. It does not

facially ban defendant from visiting the beach at all times and under all circumstances.

       Defendant's parole agent used his discretion to set the level of supervision best

suited to enforce the condition by barring defendant from visiting the beach. However,

the agent could conceivably allow defendant to visit the beach under certain

circumstances, while still enforcing the court-imposed condition that defendant stay away

from places where children congregate. For example, defendant might be permitted to

visit the beach during hours when schools are in session or other times when minors

would likely not be present. Furthermore, the parole agent would have had the discretion

to allow defendant's visit on Labor Day if the agent agreed with defendant's assessment

that children do not congregate at the part of the beach accessed by defendant.

       Because the parole condition as it stands would allow defendant to visit the beach

under certain circumstances, trial counsel's failure to request a modification at the hearing

was not prejudicial error. Even if this claim of abuse of discretion is cognizable on



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appeal without us first finding professional error, the court's ruling is not erroneous, but

well within its discretion.


                                       DISPOSITION

       The judgment is affirmed.




                                                                        BENKE, Acting P. J.

WE CONCUR:


HUFFMAN, J.


O'ROURKE, J.




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