by Mark Wilson

The California Court of Appeals held that a lower court erred in holding that failing to register as a sex offender does not authorize parole supervision as a high-risk sex offender.

In 1989, Charles Andre Toussain was convicted of assault with intent to rape and sentenced to six years in prison. In April 2013, Toussain was convicted of failing to register as a sex offender.

On March 13, 2014, the California Department of Corrections and Rehabilitation (CDCR) released Toussain on parole on the condition that he submit to electronic monitoring via Global Positioning System (GPS) technology.

Ten days after he was released, Toussain's parole agent was notified by the GPS tracking company that Toussain's GPS unit had been tampered with or was malfunctioning.

Toussain, a transient, was found lying on the ground in front of the Santa Ana Public Defender's office. His GPS device was on the ground next to him.

Toussain claimed the GPS unit came off his leg when he fell down, but he admitted that he did not attempt to contact his parole agent.

In April 2014, Toussain's parole agent filed a parole revocation petition in superior court, alleging that he violated parole by tampering with his GPS device.

Toussain moved to dismiss the parole revocation petition, arguing that the court lacked jurisdiction. He claimed that CDCR had no authority to supervise him on parole because his most recent prison commitment was not for an offense requiring parole supervision under California Penal Code § 3000.08. The district attorney argued that parole supervision was required because CDCR classified Toussain as a high-risk sex offender with a Static-99 score of 7.

The trial court agreed with Toussain and dismissed the petition for lack of jurisdiction. The court stated that "supervision should be transferred to the probation department where defendant is to be placed on post-release community supervision (PRCS)."

The California Court of Appeals reversed, holding that "the statutory language does not tie the high-risk classification to the person's current commitment or release from prison. Rather, parole supervision is required based on having served a prison term for 'Any crime' resulting in a high-risk sex offender classification."

See: People v. Toussain, Ca1.4th  P3 d(Cal App, 4th Dist., Div 3, 2015)

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