Filed 1/23/20 P. v. Harper CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

TERRANCE ANDREW HARPER,

Defendant and Appellant.

B293941

(Los Angeles County

Super. Ct. No. 7PH05786)

APPEAL from order of the Superior Court for Los Angeles County, Robert M. Kawahara, Judge. Affirmed.

Linda L. Gordon, under appointment by the Court of Appeal, and Terrance Andrew Harper, pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant Terrance Andrew Harper was released on parole on November 8, 2016 after serving more than 25 years in prison on his 25-years-to-life sentence for murder. On October 17, 2018, the trial court found that he violated parole by absconding parole supervision, committing petty theft, and failing to participate in electronic in-home detention. He appeals from the order finding him in violation of parole. His appointed counsel filed a brief asking this court to independently review the record in accordance with the holding of People v. Wende (1979) 25 Cal.3d 436, 441. Defendant filed a supplemental brief that raises several issues, none of which provide grounds for reversal. We have independently reviewed the record and affirm the trial court’s order.

BACKGROUND

Defendant was given, and signed, written notice of the conditions of his parole on November 9, 2016. Those conditions included (1) that he must comply with all of the instructions from his parole agent; (2) that he must not engage in any conduct prohibited by law; and (3) several special conditions, including that he not consume, possess, or have access to any alcoholic beverages.

On October 12, 2017, defendant tested positive for methamphetamine, and was placed on electronic in-house detention, which required the use of an electronic in-home device (EID). An EID has two components: one is placed on defendant’s ankle, and the other is plugged into an electrical outlet in defendant’s residence. Unlike a GPS device, an EID only tracks defendant when he is within range of the component plugged in at his residence. Defendant was instructed that he had to be in his residence from 10:00 p.m. to 5:00 or 6:00 a.m., and the EID was used to determine whether he complied with those instructions. He also was instructed to charge the battery in his ankle bracelet for one hour every 12 hours. If the battery was not timely recharged, it would go into low battery warning, and then to dead battery status; when the EID is in dead battery status, defendant’s location cannot be monitored.

The EID was monitored by Satellite Tracking of People LLC, which provided reports to Parole Agent Danny Acosta, defendant’s parole agent. The reports showed when the EID was charging, when it went into low or dead battery status, and when defendant was in his residence; Acosta also would get an email alert if the EID went into low or dead battery status or if defendant was not in his residence during his curfew. Acosta received alerts that defendant’s EID had a dead battery on October 31, November 7, November 12, November 14, and December 3 of 2017. The tracking reports show that on at least one of those occasions defendant had not charged the battery for more than 24 hours.

On November 14, 2017, defendant was drug-tested. The preliminary results came back positive for amphetamine and methamphetamine. Defendant disputed the results, asserting that they must have been caused by the Claritin D 24 he was taking, and he demanded that the test be sent to a lab for retesting. Acosta sent the test to a lab in San Diego, and received the results on November 29, 2017; he testified that the results were conclusive for methamphetamine and amphetamines.

On December 1, 2017, Acosta called defendant and instructed him to report to the parole office on December 4. Defendant failed to report as instructed. The next day, Acosta went to defendant’s last known residence, and defendant was not there; however, Acosta did not inspect the residence to determine if defendant still lived there. Acosta also called defendant’s phone number several times and left messages until defendant’s voicemail was full.

On December 6, 2017, Acosta was notified that an EID had been turned into the Compton police station. Acosta recovered the device, and determined it was defendant’s because it had the same serial number as the device that had been attached to defendant’s ankle. The EID appeared to have been cut off. (Acosta testified that when he later interviewed defendant, defendant admitted that he had cut the EID off his ankle.) Defendant had been instructed that he was not to tamper with the EID.

On December 19, 2017, an undercover security agent at a Target store in Inglewood saw defendant put large quantities of several items in his shopping basket, walk past the checkout lanes, and exit the store. The security officer stopped him and asked him to come back inside. Defendant had in excess of $700 worth of merchandise that he had not paid for. Defendant testified that it had not been his intent to steal the items; he explained he intended to get caught at the door, where he would turn himself in because he did not trust turning himself in to Acosta. He pleaded nolo contendere to an infraction.

Acosta filed a petition for parole revocation, charging four violations of parole: (1) absconding parole supervision; (2) use of amphetamine/methamphetamine; (3) petty theft; and (4) failure to participate in electronic in-home detention. Following a hearing at which Acosta, defendant, and the Target security agent testified, the trial court found that defendant violated his parole by absconding parole supervision, committing petty theft, and failing to participate in electronic in-home detention. The court found the allegation regarding use of amphetamine/methamphetamine not proven. The court ordered defendant transferred to the Department of Corrections and Rehabilitation and the jurisdiction of the Board of Parole Hearings for future parole considerations.

Defendant timely filed a notice of appeal from the trial court’s order.

DISCUSSION

As noted, defendant filed a supplemental brief raising several issues after his appointed counsel filed a brief under People v. Wende, supra, 25 Cal.3d at page 441.

First, defendant argues he was deprived of his right to call witnesses and present evidence at a probable cause hearing. This argument has no merit. The minute order for a pre-arraignment hearing held on December 28, 2017 states that defendant “stipulates that there is probable cause for the alleged violations.” Out of an abundance of caution, the trial court confirmed at a subsequent hearing held on January 18, 2018 that defendant stipulated to probable cause. Thus, any deprivation defendant raises now was due to defendant’s own act in stipulating to probable cause.

Second, defendant argues that he and his counsel had a “conflict of interest” because counsel would not return phone calls from witnesses who wanted to testify in defendant’s defense. According to defendant, these witnesses gave statements to Acosta that were used in his declaration for defendant’s “armed and dangerous” arrest warrant. Given that Acosta’s declaration (and therefore those witnesses’ statements) were not before the trial court in the parole revocation hearing, it is likely that defense counsel determined that the witnesses’ testimony would not be relevant to the issues to be determined. The fact that defendant disagreed with counsel’s assessment does not constitute a “conflict of interest.” “When a defendant chooses to be represented by professional counsel, that counsel is ‘captain of the ship’ and can make all but a few fundamental decisions for the defendant.” (People v. Carpenter (1997) 15 Cal.4th 312, 376.)

Third, in a related contention, defendant argues his trial counsel was ineffective because he failed to use certain documents that defendant had provided him. “A meritorious claim of constitutionally ineffective assistance must establish both: ‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, “‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ [Citation.]”’ [Citation.]” (People v. Holt (1997) 15 Cal.4th 619, 703.) Here, what defendant describes is simply a difference of opinion regarding strategy, rather than unprofessional errors by counsel. Moreover, defendant failed to show prejudice. Thus, his ineffective assistance argument fails.

Fourth, defendant contends the EID turned into the Compton police station was not the EID assigned to him. He notes that the serial number that is shown on the document he signed when he started electronic in-home detention (which explained the conditions regarding electronic in-home detention, and was admitted into evidence as exhibit 3) shows that his EID’s serial number was 12-23050, but the photograph of the EID that Acosta recovered from the Compton police station showed that it’s serial number was 12-772453. Defendant is incorrect. There are two numbers written in the upper right hand corner of exhibit 3: 12-772453 (which is the serial number for the EID that had been placed on defendant’s ankle) and 14-007355 (which is the serial number for the box that had been placed in defendant’s residence).

Fifth, defendant contends the petty theft violation finding was improper because he entered into a plea agreement in which he was promised that his pleading to an infraction would not be used as grounds to revoke parole. There is no evidence in the record, however, regarding the terms of his purported plea agreement. Accordingly, his contention fails.

Sixth, defendant contends the evidence presented did not support a finding that he “absconded.” Citing section 2731, subdivision (a) of title 15 of the California Code of Regulations and a provision from a Department of Corrections manual, he argues that a parolee absconds only when he or she leaves California without permission or his or her whereabouts are unknown for 30 days. Since he did not leave California, and his whereabouts were unknown for less than 30 days, he contends the trial court erred by finding he absconded. He is incorrect. The 30-day time period in that regulation and provision does not define when a parolee can be found to have absconded; it merely refers to when a report of the absconding should be made to the appropriate authorities. The term “abscond”—which, although not defined in the Penal Code, has an ordinary meaning of “to depart secretly and hide oneself” (https://www.merriam-webster.com/dictionary/abscond)—has no minimum time period. Defendant himself testified that, despite being ordered to be in his residence from 10:00 p.m. to 6:00 a.m. every day, he did not go into his residence on the night of November 30 and stayed away for several days (other than stopping by to get some clothes) until he was caught at the Target store. This evidence clearly was sufficient to support the finding that he absconded parole supervision.

Finally, defendant contends that the evidence of dead battery status does not support the finding that he failed to participate in electronic in-home detention because the first EID he was given was defective and did not hold a charge. Even if this were true, it would not change the result at the parole hearing because the trial court’s finding of failure to participate was based on more than just the evidence of dead battery status. The trial court stated that it also based its finding on (1) the records showing that there were times when defendant waited more than 12 hours to charge his EID; (2) the records showing that defendant arrived home past 10:00 p.m. on numerous occasions in violation of his curfew; and (3) defendant’s removal of his EID in violation of the conditions of electronic in-house detention. The record supports the court’s finding.

In addition to reviewing defendant’s contentions, we have examined the entire record and are satisfied that no arguable issues exist, and that defendant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the order entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112–113.)

DISPOSITION

The parole violation order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.