Filed 6/26/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION TWO


THE PEOPLE,                               B271396

       Plaintiff and Respondent,          (Los Angeles County
                                          Super. Ct. No. 6PH00808)
       v.

IGNACIO CASTEL,

       Defendant and Appellant.


     APPEAL from an order of the Superior Court of Los
Angeles County. Robert M. Kawahara, Commissioner. 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, Shawn McGahey Webb, Supervising Deputy
Attorney General, Noah P. Hill, Deputy Attorney General, for
Plaintiff and Respondent.


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       When a supervising agency files a petition to modify,
revoke, or terminate a criminal defendant’s parole or postrelease
community supervision, its petition must be accompanied by a
written report containing information specified by statute and
the California Rules of Court. (Pen. Code, §§ 1203.2, subd. (b)(1)
& 3000.08, subd. (f);1 Cal. Rules of Court, rule 4.541.) When a
district attorney files such a petition, its petition need not be
accompanied by such a report. (§ 1203.2, subd. (b)(1);
cf. § 3000.08, subd. (f).) Does this procedural difference violate
equal protection by treating similarly situated defendants
differently without a rational basis for doing so? We conclude
there is no equal protection violation, and affirm the revocation of
parole in this case.
         FACTS AND PROCEDURAL BACKGROUND
       Ignacio Castel (defendant) pled no contest to one count of
felony assault (§ 459), and he was sentenced to three years in
state prison. Following his release from state prison, he was
placed on parole.
       In 2015, while on parole, defendant threatened to kill two
of his in-laws. The People charged him with a misdemeanor
violation of making criminal threats (§ 422). He pled no contest
to the charge, and the trial court sentenced him to three years of
informal probation, including nine days in jail.
       Soon thereafter, the Los Angeles County District Attorney’s
Office (District Attorney) filed a petition seeking revocation of
defendant’s parole.
       Defendant filed a demurrer to the petition. He argued that
the District Attorney’s petition was facially deficient under

1     All further statutory references are to the Penal Code
unless otherwise indicated.




                                 2
People v. Osorio (2015) 235 Cal.App.4th 1408 (Osorio) because it
was not accompanied by the written report that must accompany
petitions filed by supervising parole agencies. Defendant also
filed a “motion for sanctions” in which he sought an order
compelling the preparation of a written report, asserting that the
Legislature’s failure to require a written report for district
attorney-filed petitions violated equal protection.
       In a nine-page order, the trial court overruled the demurrer
and denied the motion for sanctions. The court overruled the
demurrer because the pertinent statutes authorize a district
attorney to file a petition to revoke parole without any
accompanying report. The court also rejected defendant’s equal
protection argument. The court accepted that parolees and other
supervised persons are similarly situated no matter who (a
district attorney or a supervising parole agency) seeks their
revocation. However, the court concluded that our Legislature
had a rational basis for treating the two groups differently—
namely, (1) that a written report spelling out additional
information about the parolee’s or supervised person’s “history
and background” as well as an explanation as to why sanctions
short of revocation are appropriate “is less essential for parole-
revocation petitions filed by a district attorney because they
typically involve violations amounting to criminal conduct (rather
than technical violations)”; and (2) that the information
necessary to compile the required written report is not available
to district attorneys.2



2     The trial court ordered the district attorney to turn over the
investigative reports pertaining to the crime underlying
defendant’s alleged parole violation “as discovery materials.” The




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      Defendant then waived his rights to a contested hearing
and admitted the parole violation. The trial court sentenced
defendant to 150 days in jail and reinstated his parole.
      Defendant filed a timely notice of appeal. Although
defendant’s appointed counsel filed a brief pursuant to People
v. Wende (1979) 25 Cal.3d 436, and defendant filed no
supplemental brief, we independently reviewed the record and
ordered supplemental briefing on the issues set forth in this
opinion.
                           DISCUSSION
      Defendant contends that the trial court erred in
(1) overruling his demurrer, and (2) rejecting his equal protection
argument. We review both claims de novo. (Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191 [demurrer];
California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th
177, 208 [equal protection claim].)
      As a threshold matter, the People argue that defendant’s
challenge to his parole violation is now moot because he has
finished serving the 150-day jail sentence that was the sole
penalty for his violation. We have the discretion to reach issues
present on appeal, even if they are moot, if they involve “issues of
broad public interest that are likely to recur.” (Coachella Valley
Mosquito & Vector Control Dist. v. California Public Employment
Relations Bd. (2005) 35 Cal.4th 1072, 1079, fn. 3.) The demurrer
and equal protection issues presented in this appeal qualify as
such.




People do not challenge this portion of the order, and we
accordingly have no occasion to address its propriety.




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I.     Demurrer
       A defendant in a criminal case may demur to a charging
document on several grounds, including the absence of
“jurisdiction of the offense charged therein” and any “legal bar to
the prosecution.” (§ 1004, subds. 1 & 5.)
       Depending on the offense(s) for which they have been
incarcerated, persons released from state prison are placed either
(1) on parole, where they are supervised by the Department of
Corrections and Rehabilitation, or (2) on postrelease community
supervision, where they are supervised by a county probation
office. (§§ 3000.08, subds. (a), (b), (i) & 3451.) A petition to
revoke a defendant’s parole or postrelease community supervision
may be filed by the parole officer (in the case of parole), the
probation officer (in the case of postrelease community
supervision), or the district attorney. (§ 1203.2, subd. (b)(1).)
       If the petition is filed by the parole or probation officer, the
petition must “include a written report that contains additional
information regarding the petition.” (§ 3000.08, subd. (f).) That
additional information includes: (1) “the relevant terms and
conditions of parole” or postrelease community supervision,
(2) “the circumstances of the alleged underlying violation,”
(3) “the history and background of the parolee,”
(4) “recommended sanctions,” and (5) “the reasons for [the]
agency’s determination that intermediate sanctions without court
intervention”—such as electronic monitoring, additional services
or incentives, or “flash incarceration” (that is, a short stint in jail
for up to 10 consecutive days)—“are inappropriate responses to
the alleged violations.” (§§ 3000.08, subds. (e), (f) & 3454, subd.
(b); Cal. Rules of Court, rule 4.541(c), (e).)




                                  5
       If the petition is filed by the district attorney, no such
written report is required. (Cf. § 3000.08, subd. (f); Cal. Rules of
Court, rule 4.541.) Instead, the court will “refer . . . the petition
to the probation or parole officer,” who must then prepare and
submit a written report to the court. (§ 1203.2, subd. (b)(1).)
       A supervising agency’s failure to include the statutorily
required written report with a petition for revocation renders the
pleading deficient and subject to demurrer. (Osorio, supra,
235 Cal.App.4th at pp. 1412-1415; see also People v. Hronchak
(2016) 2 Cal.App.5th 884, 891-892 [applying this rule to
information that California Rules of Court, rule 4.541 specifies
must be included in the written report].)
       The trial court correctly overruled the demurrer in this
case. The pertinent statutes detailed above do not require a
petition to revoke parole or postrelease community supervision
filed by a district attorney to be accompanied by a written report.
Accordingly, the district attorney’s failure to include such a
report does not render the pleading deficient.
II.    Equal Protection
       Both the federal and California Constitutions guarantee
that no person shall be “den[ied] . . . the equal protection of the
laws.” (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) Equal
protection of the laws means that similarly situated persons shall
be treated similarly unless there is a sufficiently good reason to
treat them differently. (People v. Morales (2016) 63 Cal.4th 399,
408; Engquist v. Oregon Depart. of Agriculture (2008) 553 U.S.
591, 602; see Johnson v. Department of Justice (2015) 60 Cal.4th
871, 881 (Johnson) [federal and state equal protection guarantees
have similar interpretation].)




                                  6
       The first step in evaluating any equal protection claim is
determining whether there are two groups of individuals who are
“‘“similarly situated with respect to the legitimate purpose of the
law”’” but are being treated differently. (People v. Barrett (2012)
54 Cal.4th 1081, 1107, quoting In re Gary W. (1971) 5 Cal.3d 296,
303; accord, Vergara v. State of California (2016) 246 Cal.App.4th
619, 644.) If the two groups are not similarly situated or are not
being treated differently, then there can be no equal protection
violation. However, if these threshold requirements are met, a
court must next ascertain whether the Legislature has a
constitutionally sufficient reason to treat the groups differently.
(In re Marriage Cases (2008) 43 Cal.4th 757, 831.) Unless the
groups are defined by word or effect as members of a “suspect
class” (such as race, national origin, gender, or illegitimacy, to
name a few) or the law affects a fundamental right, a law will be
upheld as long as there is any “‘“rational relationship between
the disparity of treatment and some legitimate governmental
purpose,”’” even if the rational basis for that law was never
articulated by—or even relied on by—the Legislature. (Johnson,
supra, 60 Cal.4th at p. 881; cf. People v. Wilkinson (2004)
33 Cal.4th 821, 836 (Wilkinson) [for laws drawing distinctions
based on membership in a suspect class or affecting a
fundamental right, courts will apply “strict” or “intermediate”
scrutiny].)
       Defendant posits that all former state prisoners subject to
parole and postrelease community supervision are similarly
situated because all are being supervised. He further posits that
the Legislature is treating those whose parole or postrelease
community supervision revocation proceedings are initiated by a
petition from the supervising agency differently than those whose




                                7
parole or postrelease community supervision revocation
proceedings are initiated by a petition from the district attorney.
The first group is entitled to have the entity seeking revocation
file a written report concurrently with its petition to revoke; the
second group is not. There is no possible reason, defendant
continues, for the Legislature to draw this distinction and the
statutes on their face consequently violate equal protection.
       It is far from clear that the two groups defendant
identifies—those whose revocation proceedings are initiated by a
supervising agency and those whose are initiated by a district
attorney—are similarly situated. Supervising agencies have a
broad mandate to rehabilitate the people they supervise and to
facilitate their “transition from inmate to free citizen.” (People
v. Guzman (2005) 35 Cal.4th 577, 586; People v. Reyes (1998)
19 Cal.4th 743, 752; § 3000, subd. (a)(1) [legislative finding that
“the period immediately following incarceration is critical to
successful reintegration of the offender into society”].) District
attorneys, by contrast, have a different mandate—namely, to
“initiate and conduct on behalf of the people all prosecutions for
public offenses.” (Gov. Code, § 26500; see also id., § 100, subd.
(b); People v. Birks (1998) 19 Cal.4th 108, 134 [“prosecuting
authorities . . . ordinarily have the sole discretion to determine
whom to charge with public offenses and what charges to bring”];
People v. Eubanks (1996) 14 Cal.4th 580, 588-589 [same].) As a
result, revocation petitions filed by a district attorney necessarily
allege the commission of a public offense, while petitions filed by
a supervising agency can allege a far broader universe of more
technical parole violations. (E.g., Osorio, supra, 235 Cal.App.4th
at p. 1415 [defendant alleged to have talked to two gang members
for 10 minutes, in violation of parole term not to associate with




                                 8
gang members].) Although it is possible for a supervising agency
to file a revocation based on allegations of criminal conduct, by
and large the two groups involve different degrees of parole
violations and are on that basis not similarly situated.
        It is also unclear that the two groups defendant identifies
are being treated differently. When a revocation petition is filed
by a district attorney, the court is statutorily required to “refer”
that petition to the supervising agency for the completion of a
“written report.” (§ 1203.2, subd. (b)(1).) To the extent that
written report has the same content as the written report that
must accompany a revocation petition filed by a supervising
agency (a point on which the statute is silent but which is
undoubtedly a good practice), the only differential treatment
between the two groups would be the timing of the production of
the report—concurrently with the petition (when filed by a
supervising agency) versus at some point prior to the final
revocation hearing (when filed by a district attorney).3 Given
that the absence of this report is not, as discussed above, a basis
for demurrer when a revocation petition is filed by a district
attorney, the difference in timing would not appear to be a
meaningful distinction in treatment. This is true because, no
matter when the trial court receives the report, it has the power
to deny revocation and instead to impose lesser sanctions.



3     Both groups are entitled to the same procedural due
process protections. (See Williams v. Superior Court (2014)
230 Cal.App.4th 636, 652-654; see generally Morrissey v. Brewer
(1972) 408 U.S. 472, 488-489; People v. Vickers (1972) 8 Cal.3d
451, 457-458; accord, Assem. Bill No. 1470 (2011-2012 Reg. Sess.)
§ 45 [noting “intent of the Legislature” to incorporate due process
protections into § 1203.2].)




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(§§ 3000.08, subds. (f) & (g); 3004, subd. (a).) Moreover, nothing
in the statute precludes the supervising agency from working in
tandem with a district attorney by generating and providing the
report to the court simultaneously with the district attorney’s
petition.
       Even if we assume that the two groups of supervised
persons are similarly situated and are being treated differently,
our Legislature had a rational basis for doing so—two such bases,
in fact. We review the classification at issue in this case between
supervised persons only for rationality because it is not based
upon membership in any suspect class and because laws that
draw distinctions in criminal cases do not, except when
demarking “the boundaries between the adult and juvenile
criminal justice systems,” implicate a fundamental right.
(Wilkinson, supra, 33 Cal.4th at pp. 836-838.)
       We can hypothecate two reasons why our Legislature would
require a revocation petition filed by a supervising agency to be
accompanied by a written report detailing the supervised
person’s terms of parole, history and background, and reasons for
rejecting lesser sanctions, but forego that requirement for a
petition filed by a district attorney.
       First, the nature of the allegations set forth in the
revocation petitions filed by supervising agencies is likely to be
different than the nature of the allegations set forth in petitions
filed by district attorneys. Because, as noted above, it is the job
of district attorneys to prosecute public offenses, petitions filed by
the district attorney will necessarily allege the supervised
person’s commission of a crime. The directive not to commit more
crimes is almost always a term of parole or postrelease
community supervision, and the violation of this directive falls on




                                 10
the severe end of the spectrum of violations for which revocation
of parole or postrelease community supervision is, as a general
rule, more likely to be the appropriate sanction. The written
report specified by statute and court rule details the terms of
probation, the supervised person’s history on parole, and reasons
for not seeking lesser sanctions; this content is directed toward a
determination of whether to impose sanctions short of revocation,
a determination less relevant to a revocation proceeding when
the basis for revocation is the commission of a further crime. It is
certainly rational not to require a district attorney to expend its
finite and limited resources preparing a written report that will
be of limited utility in assisting a court in evaluating the
revocation petitions the district attorney files. (Accord, Genesis
Environmental Services v. San Joaquin Valley Unified Air
Pollution Control Dist. (2003) 113 Cal.App.4th 597, 607, fn. 11
[noting how prosecutors have “limited resources” and are
“granted greater deference” in how to allocate them]; Moreno
v. Draper (1999) 70 Cal.App.4th 886, 897 [noting rationality of
distinctions acknowledging the “limited fiscal resources” of state
agencies].) By contrast, petitions filed by the supervising agency
can and do involve more technical violations—violations for
which the supervised person’s history on parole and the
availability of sanctions short of revocation are far more
pertinent.
       Second, supervising agencies and district attorneys do not
have the same degree of access to the information necessary to
compile the written report called for by statute. Supervising
agencies have ready access to that information; they have all of
the terms of the person’s parole or postrelease community
supervision, know his or her full history of violations under




                                11
supervision, and have tools to evaluate the propriety of various
sanctions. (Osorio, supra, 235 Cal.App.4th at p. 1413 [discussing
“parole violation decisionmaking instrument” available to
Department of Corrections and Rehabilitation].) District
attorneys do not. To be sure, a supervising agency may share its
information with the district attorney. But it is not required to
do so. Requiring a district attorney to compile a written report
based on information it has no right to obtain—on pains of
having a revocation petition dismissed on demurrer—is an
absurd result, one the Legislature may well have opted not to
chance. (See B.H. v. County of San Bernardino (2015) 62 Cal.4th
168, 190 [courts assume legislatures do not draft statutes leading
to absurd consequences].)
       Defendant raises two further arguments. First, he
contends that People v. Chatman (2016) 2 Cal.App.5th 561,
review granted November 16, 2016, S237374, mandates a
different result. It does not. Chatman held that the Legislature
had no rational basis for declaring persons who had previously
been on probation for a felony offense ineligible to obtain a
certificate of rehabilitation under section 4852.01, while declaring
eligible persons who had previously been imprisoned for a felony
offense. (Chatman, at pp. 572-573.) As discussed above, we have
identified two legitimate grounds on which the Legislature could
rationally distinguish supervised persons facing revocation due to
a petition filed by a district attorney from those facing revocation
due to a petition filed by a supervising agency.
       Second, defendant asserts that there are no standards to
govern when a district attorney files a revocation proceeding
(and, consequently, when a petition will be filed by a district
attorney instead of a supervising agency). Although there is no




                                12
standard expressly set forth in section 1203.2, the scope of a
district attorney’s statutory authority effectively delineates that
district attorney-based revocation petitions will be based on the
alleged commission of a public offense.
                          DISPOSITION
       The order is affirmed.
       CERTIFIED FOR PUBLICATION.


                                      ______________________, J.
                                      HOFFSTADT
We concur:

_________________________, Acting P. J.
ASHMANN-GERST

_________________________, J.
CHAVEZ




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