People v. Mustill CA3 ( 2023 )

Filed 8/21/23 P. v. Mustill CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C097107
Plaintiff and Respondent, (Super. Ct. No. 21PA014019)
v.
SEAN EVERETT MUSTILL,
Defendant and Appellant.
Following an August 2021 parole search of defendant Sean Everett Mustill’s
residence, the Department of Corrections and Rehabilitation (CDCR), Division of Adult
Parole Operations (the Division), filed a petition for revocation of his parole, alleging
three violations. After a hearing, the trial court concluded the People established the
violations and remanded defendant to CDCR.
On appeal, defendant asserts (1) the parole conditions were invalid, vague, and
overbroad, (2) the petition was procedurally deficient, (3) the Division failed to provide
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sufficient justification for overriding the recommendation for intermediate sanctions, and
(4) substantial evidence does not support the trial court’s determination. We affirm.
BACKGROUND
Petition for Revocation of Parole
On August 17, 2021, the Division filed a petition for revocation of defendant’s life
parole. According to the petition, defendant had been convicted of murder in the second
degree (Pen. Code, § 187) and sentenced to 21 years to life.1 He was released to parole
in April 2016. In November 2016, he was convicted of possession of a controlled
substance and sentenced to two years eight months in prison. He was most recently
released on parole on March 27, 2020.
The petition alleged defendant violated three conditions. We discuss each
condition and allegation in the order they appear in the petition.
Special condition No. 40 provided: “You shall not wear, carry on your person, or
possess items (e.g., pictures, jewelry), clothing, or apparel with gang colors, signs,
symbols, or paraphernalia you know or reasonably should know to be associated with
gang affiliation and/or activity.” The Division alleged that, on August 11, 2021, during a
parole compliance search of defendant’s residence, agents found “multiple items
indicative of association with the Hells Angels Motorcycle Club . . . .”
Special condition No. 3 provided, in part: “You shall not consume, possess, or
have access to any alcoholic beverages, liquors, or over-the-counter medication that
contains alcohol . . . .” The Division alleged agents found three bottles of wine in
defendant’s refrigerator, one of which was open and not full.
1 Undesignated statutory references are to the Penal Code.
2
The final allegation pursuant to general condition No. 3 provided, in part, “You
shall comply with all of the instructions from your parole agent.” The Division alleged
an agent asked defendant for the passcode to his phone and defendant refused.
The evaluation section of the petition stated defendant had “been on gang GPS
monitoring since 1/24/2020. [He] is classified per [CDCR] as a . . . ‘Skin Head’ gang
member associate. Skin Heads are known to associate with Hells Angels members while
incarcerated and have been known to have Hells Angels apparel and insignia while out on
the streets.”
The evaluation stated this would be defendant’s third parole violation. He
“received a violation in 2016 for Possession of amphetamine/methamphetamine, (2019)
Possession of amphetamine/methamphetamine, Possession of drug paraphernalia,
Possession of heroin, Possession of Alcohol, Possession of Materials Depicting Gang
Activity, (2021) Possession of a Firearm and Possession of Heroin for Sale (Case Still
pending . . .).”
The Division had considered specified intermediate sanctions short of revocation,
but concluded they were inappropriate. The Division acknowledged the “parole violation
decision making instrument” it was required to use (§ 3015, subd. (b)) recommended
“moderately intensive” sanctions and a response of “continue on parole with remedial
sanctions.” (Capitalization omitted.) However, the Division disagreed. The Division
emphasized defendant continued to disregard parole conditions and had been arrested
several times over the preceding three years for serious violations including carrying a
firearm and sale of narcotics. The Division characterized defendant as a danger to the
public. According to the Division, defendant continued to associate with criminal street
gangs and possess alcohol. The evaluation continued: “Unfortunately, [defendant] has
shown little progress in changing his criminal lifestyle and his failures illustrate[] his
resistance to positive changes. [Defendant’s] failure to abide by his special conditions of
parole makes it extremely difficult to supervise.”
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Parole Revocation Hearing
The People’s Case
Parole agent Matthew Barnhart participated in the search of defendant’s residence.
In the garage, agents found gloves, a sticker, a bag, and tickets that were all associated
with the Hells Angels. The Hells Angels are “identified as a security threat group . . . and
is included in our gangs.” The gloves had the numbers “8” and “1” on them,
corresponding, alphanumerically, to the letters “H” and “A” for Hells Angels. The
stickers were red and white and said “Hells Angels Highlands,” and the bag said
“Support 81 Highlands.” Barnhart testified red and white are colors associated with the
Hells Angels, and Highlands was a club within the Hells Angels. The tickets were for a
Hells Angels event.
Parole agent Jason Rosso found bottles of what appeared to be wine in the kitchen
refrigerator. People’s exhibits 4 and 5 were photographs depicting what appears to be
three bottles of wine. One of the bottles had been opened and was not full, and defendant
had access to the refrigerator. Rosso did not test defendant for alcohol and did not test
the liquid in the bottles. He acknowledged that when property is used to establish a
violation, the property is to be seized and placed into evidence. He did not know whether
the wine was seized, but an evidence form did not indicate it was. Defendant previously
had pled guilty to a parole violation for possession of alcohol.
Rosso testified another agent attempted to search defendant’s phone but was not
able to open it. Rosso heard the agent ask defendant for the passcode, but the passcode
provided did not work. There were multiple attempts to obtain the correct passcode.
Rosso testified defendant refused to provide a passcode. According to Rosso, it was
failure to provide the passcode, as distinguished from failure to open the phone, that
constituted the violation.
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The Defense Case
Defendant’s wife lived with defendant and their two children. She testified the
gloves were hers. She had won a “swag bag basket” at a fundraiser that included gloves
and stickers and she put the basket in the garage. She acknowledged the items were
affiliated with Hells Angels and that defendant had access to the garage and everything in
it.
Defendant’s wife asserted she did not know anything about the wine, does not
keep wine in the house, does not personally drink wine and the wine found was not hers.
She testified defendant did not drink and she had never seen him drink wine. When
defendant sustained a prior violation, it was because of her empty beer can. She
acknowledged defendant had access to the refrigerator.
With respect to accessing the cell phone and because defendant had difficulty
remembering things, defendant’s wife set up his phone to unlock with his thumbprint or
face scan rather than a passcode.
Defendant also testified. He acknowledged he had been affiliated with the
skinheads, that he was a “former white supremacist skinhead,” but testified he dropped
out in 2007. He denied knowing Hells Angels was a gang. He acknowledged he had
access to the garage where the gang-related items were found.
Defendant pled guilty to a prior violation related to alcohol where he had access to
a can of beer. He testified he did not drink wine, but acknowledged he had access to the
refrigerator.
When agents told defendant to open his phone, he responded, “[W]hat for? Why
do you want to see in my phone? I have private pictures in there. I have private
correspondence. Why do you want to see?” Defendant then agreed to open his phone
and agents asked for the passcode. Defendant responded, “[T]he code is I touch it. I look
at it.” Eventually, defendant opened the phone by touching it.
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The Trial Court’s Determination
The trial court found the People proved defendant had committed each of the three
violations. The court remanded defendant to CDCR for future consideration pursuant to
section 3000.08, subdivision (h).
DISCUSSION
I
Validity of Parole Conditions
A. Forfeiture
Defendant challenges the parole conditions on grounds of validity, vagueness, and
overbreadth. The People assert defendant forfeited these challenges. In general, the
failure to object to a parole or probation condition forfeits the claim on appeal. (People v.
Relkin (2016) 6 Cal.App.5th 1188, 1194.) “An objection may be raised for the first time
on appeal only where it concerns an unauthorized sentence involving pure questions of
law.” (Id. at p. 1195.) On this record, defendant did not object to the parole conditions.
However, inasmuch as certain of defendant’s contentions raise pure questions of law, we
consider the validity of the three conditions.
B. Validity Under Lent
Defendant asserts the conditions were invalid as they were not reasonably related
to future criminality. We disagree.
“ ‘The validity and reasonableness of parole conditions is analyzed under the same
standard as that developed for probation conditions.’ ” (People v. Relkin, supra,
6 Cal.App.5th at p. 1194.) “A condition of [parole] will not be held invalid unless it
‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality . . . .’ ” (People v. Lent (1975) 15 Cal.3d 481,
486, superseded by statute on another ground as stated in People v. Moran (2016)
1 Cal.5th 398, 403, fn. 6.) “The Lent test is conjunctive; all three prongs must be found
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before a reviewing court will invalidate the condition.” (People v. Salvador (2022)
83 Cal.App.5th 57, 62.) We focus our analysis on the third Lent prong, relating to future
criminality, which “ ‘contemplates a degree of proportionality between the burden
imposed by a [parole] condition and the legitimate interests served by the condition.’ ”
(Ibid.) We review the imposition of parole conditions for an abuse of discretion.
(People v. Navarro (2016) 244 Cal.App.4th 1294, 1299.)
With regard to special condition No. 40 addressing gang paraphernalia, in
People v. Lopez (1998) 66 Cal.App.4th 615, the court determined imposition of a gang-
related probation condition was not an abuse of discretion, even assuming the defendant’s
present crime was not gang related, where the defendant had admitted to membership in a
gang. (Id. at pp. 624-626.) “Because ‘[a]ssociation with gang members is the first step to
involvement in gang activity,’ such conditions have been found to be ‘reasonably
designed to prevent future criminal behavior.’ ” (Id. at p. 624.) As stated in Lopez,
courts “have found curtailments of an adult probationer’s associations with specified
groups to be proper where such restrictions serve a rehabilitative purpose, even where the
crime in issue was not shown to have been group related.” (Id. at p. 625, fn. omitted.)
The Lopez court further noted, “[t]he restriction on the display of gang indicia was
reasonable because it removed from [the defendant] the visible reminders of his past gang
connection.” (Id. at p. 626.)
Defendant admitted he had been affiliated with the skinheads — he was a “former
white supremacist skinhead”— although he testified he dropped out in 2007. According
to the petition, skinheads are known to associate with Hells Angels and to have Hells
Angels apparel. Furthermore, when defendant was paroled in March 2020 his written
notice and conditions of parole, which he signed and accepted, specifically informed him
of special condition No. 40 because he “is a validated gang member, has a documented
history of gang involvement/activity/association, and/or a current or prior conviction of
Penal Code 182.5 and 186.22.” Because the defendant was already classified as a
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skinhead gang member associate and the condition at issue properly attempted to serve a
rehabilitative purpose of deterring association with other gang members and for the
reasons articulated in Lopez, we conclude the trial court did not abuse its discretion in
imposing condition No. 40.
Relevant to special condition No. 3 addressing alcohol, “empirical evidence shows
that there is a nexus between drug use and alcohol consumption. It is well documented
that the use of alcohol lessens self-control and thus may create a situation where the user
has reduced ability to stay away from drugs.” (People v. Beal (1997) 60 Cal.App.4th 84,
87.) “Based on the relationship between alcohol and drug use, . . . alcohol use may lead
to future criminality where the defendant has a history of substance abuse and is
convicted of a drug-related offense.” (Ibid.)
In November 2016, defendant was convicted of possession of a controlled
substance and he had several prior parole violations involving possession of controlled
substances and alcohol. For the reasons articulated in Beal, the trial court did not abuse
its discretion in imposing special condition No. 3.
General condition No. 3 required defendant to comply with parole agent
instructions. “A condition of probation that enables a probation officer to supervise his
or her charges effectively is . . . ‘reasonably related to future criminality.’ ” (People v.
Olguin (2008) 45 Cal.4th 375, 380-381.) Although the California Supreme Court has
since acknowledged this language to be “expansive,” it further noted this reflected the
circumstances of the condition in Olguin and the “nonburdensome manner in which the
condition helped to ensure the probation officer’s safety and ability to properly supervise
the probationer.” (In re Ricardo P. (2019) 7 Cal.5th 1113, 1126.)
Here, the condition requiring defendant to comply with parole agent instructions
enabled parole officers to supervise defendant effectively (People v. Olguin, supra,45 Cal.4th at pp. 380-381), is not particularly burdensome and helps ensure parole
officers’ safety and ability to properly supervise defendant (In re Ricardo P., supra,
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7 Cal.5th at p. 1126), and is thus “ ‘reasonably related to future criminality’ ” (Olguin, at
pp. 380-381). The condition, and its application to reviewing the contents of defendant’s
phone to observe any indication of criminal or harmful activity, is eminently reasonable
in the context of parole supervision.
C. Vagueness and Overbreadth
Defendant asserts the conditions are vague and overbroad. We disagree.
The vagueness doctrine bars enforcement of a law “ ‘ “which either forbids or
requires the doing of an act in terms so vague that [people] of common intelligence must
necessarily guess at its meaning and differ as to its application.” ’ ” (In re Sheena K.
(2007) 40 Cal.4th 875, 890.) “ ‘The essential question in an overbreadth challenge is the
closeness of the fit between the legitimate purpose of the restriction and the burden it
imposes on the defendant’s constitutional rights — bearing in mind, of course, that
perfection in such matters is impossible, and that practical necessity will justify some
infringement.’ ” (People v. Salvador, supra, 83 Cal.App.5th at p. 63.)
Defendant does not advance any substantive argument as to how the conditions
were vague or overbroad. His arguments instead are in the nature of substantial evidence
challenges. “An appellate court is not required to examine undeveloped claims, nor to
make arguments for parties.” (Paterno v. State of California (1999) 74 Cal.App.4th 68,
106.) Thus, we will not speculate as to what defendant’s arguments are for him.
II
Procedural Challenge to Petition
Defendant asserts the parole violation report does not satisfy section 3000.08,
subdivision (f) and California Rules of Court, rule 4.451(e), because it does not include
sufficient justification for the determination that intermediate sanctions were insufficient.
Defendant has forfeited his procedural challenge to the petition.
In People v. Hronchak (2016) 2 Cal.App.5th 884, the defendant asserted the
revocation petition “should have been dismissed for lack of consideration of intermediate
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sanctions.” (Id. at p. 892, fn. omitted.) The appellate court noted the defendant had not
challenged the adequacy of the report in the trial court. (Ibid., fn. 5.) “That omission
would usually result in a forfeiture of this issue on appeal. [Citation.] However, the
Attorney General . . . has not suggested we decline to review the merits of [the
defendant’s] claim of procedural error.” (Ibid.) Therefore, the court proceeded to the
merits. (Id. at p. 892.)
Unlike Hronchak, here, the People assert defendant forfeited his challenge. We
agree. By failing to demur or otherwise challenge the petition in the trial court, defendant
has forfeited his claim of procedural error. (See generally People v. Stowell (2003)
31 Cal.4th 1107, 1114 [discussing forfeiture].)
III
Election to Seek Revocation
Defendant asserts the request for revocation was inconsistent with CDCR policies,
and that the Division erred in rejecting the recommendation of a lesser sanction. To the
extent defendant is contending the Division improperly chose to seek revocation, apart
from his forfeited procedural argument, and to the extent such a contention is cognizable
on appeal, we disagree.
“When a parole violation occurs, 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.’ ” (People v. Perlas (2020) 47 Cal.App.5th 826,
832, quoting § 3000.08, subd. (d).) “However, ‘[i]f the supervising parole agency has
determined, following application of its assessment processes, that intermediate sanctions
. . . are not appropriate, the supervising parole agency shall . . . petition . . . to revoke
parole.’ ” (Perlas, at pp. 832-833, quoting § 3000.08, subd. (f).)
In the petition, the Division acknowledged the decisionmaking instrument it used
recommended moderate sanctions, and stated it had considered specified intermediate
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sanctions, but concluded they were inappropriate. The Division emphasized defendant
continued to disregard parole conditions and had been arrested several times for serious
violations including carrying a firearm and sale of narcotics. The Division characterized
defendant as a danger to the public. Its evaluation continued: defendant “has shown little
progress in changing his criminal lifestyle and his failures illustrate[] his resistance to
positive changes.” The Division concluded defendant’s failure to obey parole conditions
made it extremely difficult to supervise him. The Division engaged in an individualized
consideration of defendant as required and concluded intermediate sanctions were
inappropriate. (See Cal. Rules of Court, rule 4.541(e) [report must include reasons for
determination intermediate sanctions are inappropriate]; People v. Perlas, supra,
47 Cal.App.5th at p. 833 [specific reasons intermediate sanctions are inappropriate must
be individualized to parolee].)
IV
Substantial Evidence
Defendant asserts that the evidence did not support the trial court’s findings that
he violated each of the three conditions. We disagree.
We review the trial court’s factual findings for substantial evidence. (People v.
Butcher (2016) 247 Cal.App.4th 310, 318.) In considering a substantial evidence
challenge, “[w]e review the whole record most favorably to the judgment to determine
whether there is substantial evidence--that is, evidence that is reasonable, credible, and of
solid value--from which a reasonable trier of fact could have made the requisite finding
under the governing standard of proof.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
We “neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.]
We presume in support of the judgment the existence of every fact the [trier of fact]
reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably
justify the findings made by the trier of fact, reversal of the judgment is not warranted
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simply because the circumstances might also reasonably be reconciled with a contrary
finding.” (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
With regard to the gang paraphernalia condition, agents found in defendant’s
garage multiple items associated with the Hells Angels, which is considered a gang.
Gloves had the numbers “8” and “1” on them, corresponding, alphanumerically, to the
letters “H” and “A” for Hells Angels. Red and white stickers — colors associated with
Hells Angels — said “Hells Angels Highlands,” and a bag said “Support 81 Highlands.”
Highlands was a club within the Hells Angels. Agents also found tickets to a Hells
Angels event. Defendant’s wife testified she won the items at a fundraiser and put them
in the garage. Defendant and his wife both acknowledged defendant had access to
everything in the garage. Defendant also acknowledged he was a “former white
supremacist skinhead,” but testified he dropped out in 2007. While he denied knowing
Hells Angels was a gang, given his historical gang affiliation and the ties between
skinheads and Hells Angels, the trial court reasonably could have discredited this
testimony. Substantial evidence supports the conclusion defendant violated this
condition by possessing items in the garage he knew or reasonably should have known
“to be associated with gang affiliation and/or activity.”
With regard to the special condition prohibiting “access to any alcoholic
beverages,” Rosso found bottles of wine in the refrigerator, one of which had been
opened and was not full. People’s exhibits 4 and 5 depicted three bottles of wine.
Defendant’s wife was not aware of the wine in the refrigerator. She and defendant both
testified defendant did not drink wine. Rosso did not test defendant for alcohol, did not
test the liquid in the bottles, and did not know whether the bottles were seized. However,
the trial court reasonably could have concluded the liquid in the bottles was wine. Rosso,
defendant, and his wife all agreed defendant had access to the refrigerator. Substantial
evidence supported the trial court’s determination defendant violated this condition by
having access to alcoholic beverages.
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General condition No. 3 required defendant to “comply with all of the instructions
from your parole agent.” Rosso heard an agent ask defendant for his phone passcode,
and after debating why access to his phone was necessary, the passcode provided did not
work. There were multiple attempts to obtain the correct passcode. Defendant’s wife
testified defendant’s phone was opened with a thumbprint or face scan because defendant
could not remember passcodes. Defendant testified that, when agents asked him to open
his phone, he responded, “[W]hat for? Why do you want to see in my phone? I have
private pictures in there. I have private correspondence. Why do you want to see?” He
then opened his phone by touching it. However, Rosso testified it was the repeated
failure to provide the passcode, and defendant’s failure to follow the instructions to
provide the passcode, not the failure to open the phone, that constituted the violation.
Substantial evidence supports the trial court’s determination defendant violated this
condition.
DISPOSITION
The judgment is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
KRAUSE, J.
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