The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
Before the Court is Defendant Gerardo Martinez-Martinez's ("Defendant") Motion to Dismiss Supervised Release Revocation Proceedings. [Doc. No. 98.] Plaintiff United States of America ("the Government") has filed an Opposition. [Doc. No. 99.] For the reasons stated below, the Court DENIES Defendant's Motion to Dismiss Supervised Release Revocation Proceedings.
On October 4, 2003, Defendant began serving a two-year term of supervised release.
Pet. for Warrant at 1.) Defendant's term of supervised release was set to expire on October 4, 2005. (Id. at 3.) On September 20, 2004, United States Probation Officer Mark C. Riedling filed a Petition for Warrant alleging that Defendant had violated conditions of his supervised release. (Id. at 2.) The Petition for Warrant was unsworn. (See id. at 3.) The Petition for Warrant set forth the following allegations of noncompliance:
1. On July 16, 2004, Mr. Martinez committed terrorist threats, in violation of California Penal Code Section 422, as evidenced by the complaint filed in the Superior Court of California, Los Angeles County, Case Number 04CF2177.
2. On July 16, 2004, Mr. Martinez committed street terrorism, in violation of California Penal Code Section 186.22(a), as evidenced by the complaint filed in the Superior Court of California, Los Angeles County, Case Number 04CF2177.
3. On July 16, 2004, Mr. Martinez was unsuccessfully terminated from the Salvation Army Residential Treatment Program in the Central District of California.
4. On February 20, 2004, Mr. Martinez submitted a urine sample at Detection Treatment Resources in the Central District of California which tested positive for amphetamine and methamphetamine.
On March 29, 2005, Mr. Riedling filed an Amended Petition for Warrant. [Doc. No. 86.] Unlike the original Petition for Warrant, the Amended Petition was sworn. (See Am. Pet. for Warrant.) The Amended Petition did not state the basis for probable cause on its face, but rather stated that probable cause was based on attached documents. However, the record did not show that any documents establishing probable cause accompanied the amended petition at the time the warrant was issued. This Court thus concluded that the amended petition was insufficient to support a finding of probable cause. [See Doc. No. 101.] The Court ordered supplemental briefing on the issues of whether Defendant received adequate notice of the conditions of supervised release and whether Defendant's term of supervised release was tolled. [See id.] Defendant and the Government filed supplemental briefs on these issues. [Doc. Nos. 102, 104.]
In his Motion to Dismiss, Defendant argues that he did not receive adequate notice of all of the conditions of his supervised release, and that no valid warrant for his arrest issued during the term of his supervised release. (Mot. to Dismiss at 2.) After being ordered by the Court to provide additional briefing on the issues of whether Defendant received actual notice of the conditions of supervised release and whether Defendant's supervised release term was tolled, Defendant filed a Supplemental Brief conceding that he received actual notice of the conditions underlying Allegations 3 and 4 of the Petition for Warrant. (Def.'s Supp. Mem. at 2.) However, Defendant maintains that he did not receive written or oral notice of the condition that he not violate any federal, state, or local laws. (Id.) Defendant does not address whether his supervised release term was tolled. The Government argues that Defendant had imputed knowledge of the condition that he not commit another crime. (Pl.'s Supp. Mem. at 2-3.) The Government also asserts that Defendant's term of supervised release was tolled during the time in which Defendant was imprisoned in connection with a conviction for a state crime. (Id. at 6.)
I. Whether Defendant Received Sufficient Notice of the Condition that He Not Violate State Law
Defendant alleges that the Court must dismiss Allegations 1 and 2 of the supervised release revocation proceedings because he received neither written nor actual notice of the condition that he not violate any federal, state, or local laws. (Def.'s Supp. Mem. at 2.) However, the Ninth Circuit has repeatedly stated that courts may impute notice and knowledge of conditions of supervision when violation of such conditions entails a criminal act. See United States v. Ortuno-Higareda, 450 F.3d 406, 411 (9th Cir. 2006), vacated as moot, 479 F.3d 1153 (9th Cir. 2007); United States v. Laughlin, 933 F.2d 786, 790 (9th Cir. 1991); United States v. Simmons, 812 F.2d 561, 565 (9th Cir. 1987); United States v. Dane, 570 F.2d 840 (9th Cir. 1977). Defendant is thus presumed to have had notice that his conduct in committing street terrorism and terrorist threats violated the conditions of supervised release. Because the Court ...