Full Opinion

Filed 11/6/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, A172950 v. KENNETH ADRIAN FULLER, (Sonoma County Super. Ct. No. 25CR01184) Defendant and Appellant. At a parole revocation hearing, the prosecution failed to introduce any evidence that defendant and appellant Kenneth Adrian Fuller was actually on parole at the time he allegedly committed a parole violation. Nonetheless, the trial court found that he violated parole. Fuller now contends that there is insufficient evidence to support this finding. After briefing was complete, we asked the parties to submit supplemental briefs addressing “[w]hether under People v. Perez (1994) 30 Cal.App.4th 900 [(Perez)], the prosecutor had to prove that [Fuller] was on parole at the time of the alleged violation to establish a parole violation where, as here, [Fuller] did not raise the issue below?” We now conclude that Perez is distinguishable and that the prosecutor did have to prove that Fuller was on parole at the time of the alleged violation at his parole revocation hearing. Because the prosecution failed to do so here, we reverse. 1 BACKGROUND On January 11, 2022, Fuller was convicted of arson (Pen. Code, § 451, subd. (c)) and sentenced to two years in prison. On February 13, 2025, the Sonoma County District Attorney filed a “Petition for Revocation” (petition) against Fuller based on his arrest for violating Vehicle Code section 14601.2, subdivision (a) (section 14601.2). The petition did not, however, specify what the petition sought to revoke. But at a hearing the next day, the trial court explained that Fuller was “on parole” and that “[t]his is a parole matter.” The court proceeded to “[s]ummarily [r]evoke[ ]” Fuller’s “[p]arole [s]upervision” and declined to release him from custody. At a hearing on February 27, 2025, the trial court granted Fuller’s request to represent himself. Fuller then denied the parole violation but stated that he would plead guilty to the misdemeanor violation of section 14601.2. Five days later, Fuller’s request for a private investigator for “both the parole violation and the misdemeanor” was denied. The trial court held a hearing on the petition on March 12, 2025. After Fuller admitted that he was found guilty of violating section 14601.2 and sentenced on that violation on March 10, the court found him “in violation of [his] parole by operation of law based upon [that] finding of guilt” without asking him if he wanted to be heard on the matter. The court did, however, ask Fuller if he wanted “to be heard on” the “term of confinement.” After hearing from Fuller on that issue, the court revoked and reinstated his parole supervision under “the same terms and conditions” and sentenced him to 120 days in county jail with credit for 57 days. Fuller timely appealed. 2 DISCUSSION To establish a parole violation, the prosecution must establish by a preponderance of the evidence that the defendant was on parole at the time of the violation.1 (See People v. Belche (2020) 53 Cal.App.5th 956, 963 [demurrer to petition for revocation should have been sustained because the defendant’s probation had been terminated at the time of the violation]; Rodriguez, supra, 51 Cal.3d at p. 447 [“proof of facts supporting the revocation of probation . . . may be made by a preponderance of the evidence”].) The People do not dispute that the prosecutor failed to present any evidence that Fuller was on parole at the time he allegedly violated the terms of his parole at his parole revocation hearing. Nonetheless, the People contend that there is sufficient evidence to uphold Fuller’s parole violation. Reviewing the trial court’s order revoking Fuller’s parole for abuse of discretion and the court’s factual findings for substantial evidence (People v. Butcher (2016) 247 Cal.App.4th 310, 318), we disagree. As a threshold matter, we decline to consider the records in the People’s request for judicial notice, none of which were before the trial court, in determining the sufficiency of the evidence. “It is elementary that an appellate court, in passing on the sufficiency of the evidence, cannot consider evidence not before the trial court.” (Brodie v. Barnes (1942) 56 Cal.App.2d 315, 319.) We therefore deny the request.2 (See Johnston-Rossi v. Rossi (2023) 88 Cal.App.5th 1081, 1089 [denying request for judicial notice of records that were “not relevant to [the] decision”].) 1 “Parole and probation revocation hearings are equivalent in terms of the requirements of due process.” (People v. Rodriguez (1990) 51 Cal.3d 437, 441 (Rodriguez).) 2 We grant the People’s application for leave to file a reply. 3 We also reject the People’s argument that references in the record “to the proceedings as parole revocation proceedings” constitute substantial evidence that Fuller was, in fact, on parole at the time of the alleged violation. That the proceeding was labeled a “parole revocation” proceeding has no bearing on Fuller’s parole status. Otherwise, labeling a proceeding a “criminal” proceeding would be relevant in determining whether a defendant is a criminal. Similarly, Fuller’s “verbal acknowledge[ment] that the matter was on for a parole violation hearing” cannot be construed as an admission of any allegations in the petition. Indeed, he expressly denied those allegations at his arraignment. Finally, we conclude that the prosecution cannot be excused from proving that Fuller was on parole at the time of the alleged violation under Perez, supra, 30 Cal.App.4th 900. In Perez, the defendant was placed on probation under the name “Jesus Palafox Huerto.” (Id. at p. 902.) During the probation revocation hearing, however, the trial court referenced an additional name for the defendant, “Miguel Morales Perez.” (Ibid.) Rather than ask the defendant whether he went by both names, the court only asked him for his “ ‘true name.’ ” (Id. at p. 903.) In response, the defendant replied “ ‘Miguel Perez.’ ” (Ibid.) After the close of evidence, the defendant argued that “ ‘[i]dentity wasn’t proven on the probationer.’ ” (Ibid.) The court rejected the argument and found that the defendant violated probation, using the name “Miguel Morales Perez” for the defendant. (Ibid.) The Court of Appeal affirmed. (Perez, supra, 30 Cal.App.4th at p. 908.) In explaining why, the court began by recognizing the limited due process protections afforded defendants in probation revocation hearings. As the Court of Appeal explained, “[t]he only rubrics prescribed for such a hearing” by the United States Supreme Court are “that it provide the alleged violator 4 written notice of the claimed violations, disclosure of the evidence against him, opportunity to be heard in person and to present witnesses and documents, confrontation of adverse witnesses (unless the hearing officer specifically finds good cause for denial of confrontation), a neutral factfinder, and a written statement of the evidence relied upon and reasons for revocation.” (Id. at p. 904.) And in determining the “form of these ‘informal hearings’ ” in light of these rubrics, courts have balanced the probationers’ “ ‘conditional liberty’ ” interest—which does “not require a full-blown adversarial deployment”—with “the obligation of the criminal justice system to provide fairness even to those citizens who have transgressed.” (Ibid.) After balancing “the probationer’s limited rights, the state’s limited resources, and the judicial imperative of a fair hearing,” the Court of Appeal held that a trial court may “dispense with” proof that “the person who appears in court, steps forward when the case is called, and sits next to defense counsel throughout the hearing is in fact the probationer” “unless that person somehow indicates it is at issue” before the hearing. (Perez, supra, 30 Cal.App.4th at pp. 904–905.) In support of this holding, the court observed that “there is almost never any issue regarding the identity of the person at the counsel table.” (Id. at p. 905.) And in the rare instances when the probationer’s identity is an issue, “it should be possible to determine with a fair amount of certainty whether the person before the court denies being the probationer” at the arraignment. (Ibid.) Thus, “requiring the probationer to notify the court of an identity challenge at the arraignment stage” would “reduce the likelihood of holding the wrong person until the hearing.” (Id. at p. 906.) On the other hand, requiring the prosecution to prove the identity of the probationer at every hearing would result in “chaos, backlog, and expense neither intended by the Legislature nor required by the 5 Constitution. And to no legitimate end, since, in the overwhelming majority of cases, this input would be wholly unnecessary.” (Ibid.) The same is not true for the issue in this case: whether Fuller was on parole at the time of the alleged violation. Unlike the issue of identity, the issue of parole or probation status does arise in revocation proceedings with some frequency. (See, e.g., People v. Faial (2025) 18 Cal.5th 199, 205 [considering whether the defendant was entitled to have his probation reduced to two years pursuant to a change in the law; thereby, granting him “relief from the consequences of acts occurring beyond the two-year period”]; People v. Leiva (2013) 56 Cal.4th 498, 502 [considering whether the defendant’s probation term had been tolled and whether the alleged violation occurred while he was still on probation].) And the existence of that issue is not always obvious at the arraignment—even to attorneys. Finally, unlike proof of identity, which would require subpoenaing “judges,” “probation officers,” “fingerprint experts,” or “booking records with photographs” (Perez, supra, 30 Cal.App.4th at pp. 905–906), proof of parole status may be accomplished in most, if not all, cases through judicial notice of the relevant court file. Indeed, the prosecutor in Perez did just that. (Id. at p. 903.) Thus, disputes over the parole status of a defendant are not so rare that the burden should be shifted to the defendant to raise it. And requiring a defendant to raise the issue of his parole status at the arraignment stage would not be fair because neither the defendant nor defense counsel may be aware of it at that time. Finally, proving when a defendant was on parole should not be unduly burdensome for the prosecutor in most cases. Accordingly, balancing the interests identified in Perez—a defendant’s limited due process rights, the burden on the state, and the defendant’s right to a fair hearing—leads to only one conclusion: that the prosecutor must 6 prove that the defendant was actually on parole at the time of the alleged violation even if the defendant does not raise the issue before the parole revocation hearing.3 As the People appear to concede, the prosecution did not present any evidence at the hearing that Fuller was on parole at the time of the alleged violation. We therefore reverse. DISPOSITION The order revoking parole, reinstating parole, and imposing jail time is reversed. CHOU, J. WE CONCUR. SIMONS, Acting P. J. BURNS, J. 3 Although the People’s supplemental brief is somewhat hard to decipher, it appears that they concede that a challenge to the sufficiency of the evidence cannot be forfeited. In any event, the People did not argue that Fuller forfeited the issue. 7 A172950/ P. v. Fuller Trial Court: Superior Court of the County of Sonoma Trial Judge: Laura Passaglia Counsel: Micah Reyner, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland and Jeffrey M. Laurence, Assistant Attorneys General, Catherine A. Rivlin and Ashley Harlan, Deputy Attorneys General, for Plaintiff and Respondent. 8