Metropolitan News-Enterprise


Tuesday, May 28, 2019


Page 1


Court of Appeal:

Condition of Parole Ordering Man to Stay Away From Woman Or Son Was Impermissibly Vague

Man Was Arrested for Having Contact With His Bride


By a MetNews Staff Writer


The Court of Appeal has reversed an order finding him in violation of a condition of parole that he not contact a woman who was then his girlfriend—now his wife—or her son, holding that, under the circumstances, the condition was unconstitutionally vague.

One aspect of the case was that the defendant was arrested for having contact with a woman in supposed violation of a no-contact parole condition notwithstanding that he and the woman were now newlyweds.

The opinion by Justice William Dato of the Fourth District’s Div. One was filed May 3 and certified for publication Friday, at the request of the public defenders of Los Angeles, San Diego, Orange, and Fresno counties.

Defendant Richard Dale Austin in 2015 committed an assault on “Brent M.,” the adult son of girlfriend “Lisa H,” and was sentenced to three years of probation.

Special Condition

He violated probation through use of drugs, was sentenced in 2016 to three years in prison, and was released on parole the following year. Special Condition 25 was:

“You shall not contact or attempt to contact your crime victim(s): [No.] SCE350433 PC 245[](a)([4]) Assault w/Force Likely to Produce GBI Lisa [H.] or Brent [M.]... ‘No contact’ means no contact in any form, whether direct or indirect, personally, by telephone, by writing, electronic media, computer, or through another person, etc.”

In October 2017, the California Department of Corrections and Rehabilitation sought parole revocation based on Austin contacting Lisa H. and using drugs. He was ordered to serve 120 days in jail.

Judge’s Clarification

On Dec. 6, 2017, San Diego Superior Court Judge Ronald F. Frazier clarified that “the victim in this case was Brent [M.], . . . not Lisa [H.]” and that Lisa H. “was never a protected party” and lifted the condition as to Brent M.

Austin and Lisa H. were wed on Dec. 27, 2017. Eight days later, Austin was arrested and charged with violating Special Condition 25 by contacting Lisa H.

The case came before a different bench officer, San Diego Superior Court Judge Lorna A. Alksne. Alksne said that she had no power to modify the condition and could not ignore what was in writing based on another judge’s oral comments.

She sentenced him to six months in jail and declared that Special Condition 25 remained in effect. He served the sentence.

“The court misconstrued its authority to construe and/or invalidate a parole condition,” Dato wrote. On our record, condition 25 as worded was unconstitutionally vague, particularly given the December 6 order in the underlying case.”

He elaborated:

“The condition precluded contact with the crime victims and specified Lisa or Brent. Although the People claim referring to Lisa as a ‘crime victim’ did not render it unclear, an objective reader—especially one who attended the December 6 hearing—would view parole condition 25 as precluding contact with only Brent, not Lisa. The different statutory definitions of ‘victim’ offered by the People underscore the many interpretations of that term and the likely confusion resulting from the phrasing of the condition, particularly in light of the December 6 minute order….On our record, condition 25 lacks reasonable specificity and is unconstitutionally vague.”

The matter was remanded to leave it to the trial court to decide what to do with respect to the special condition.

The case is People v. Austin, D073523.


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