People v. Berch
| Decision Date | 05 December 2018 |
| Docket Number | G055344 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Brandon James BERCH, Defendant and Appellant. |
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Brandon James Berch objected to having a commissioner preside over his preliminary and final parole revocation hearings. His objection was overruled. The commissioner revoked defendant’s parole and committed him to 120 days in jail.
Government Code section 71622.5 authorizes commissioners to conduct parole revocation hearings as a necessary part of the implementation of the Criminal Justice Realignment Act of 2011. However, article VI, sections 21 and 22 of the California Constitution limit commissioners to the performance of "subordinate judicial duties" in the absence of a stipulation by the parties.
We hold that revoking parole and committing a defendant to jail for violation of parole are not subordinate judicial duties that may be performed by a commissioner in the absence of a stipulation by the parties. As has long been recognized: "the issuance of an order which can have the effect of placing the violator thereof in jail is not a ‘subordinate judicial duty.’ " ( In re Plotkin (1976) 54 Cal.App.3d 1014, 1017, 127 Cal.Rptr. 190.) Because defendant did not stipulate to the commissioner revoking his parole and committing him to jail, the postjudgment order must be reversed.
Defendant was convicted of possession of a controlled substance ( Health & Saf. Code, § 11377, subd. (a) ) and carrying a concealed dirk or dagger ( Pen. Code, § 21310 ). In June 2017, defendant was accused of violating his parole by failing to (1) enroll in and complete a drug treatment program; (2) participate in and complete a batterer’s program; (3) report to and actively participate in a sex offender treatment program; and (4) charge his GPS device as instructed. The Department of Corrections and Rehabilitation petitioned for revocation of his parole.
The preliminary hearing for defendant’s parole revocation matter was set before Commissioner Edward W. Hall. Defendant refused to stipulate to a commissioner hearing the parole revocation matter. The preliminary hearing proceeded over defendant’s objection. Commissioner Hall found sufficient probable cause that defendant had violated the conditions of his parole, and set a hearing on the petition for revocation of parole.
At the final revocation hearing on July 7, 2017, defendant admitted his parole violations and was committed by Commissioner Hall to 120 days in the Orange County jail with a total of 66 days credit for time served. Defendant filed a notice of appeal.
The Attorney General initially argues the appeal is moot because defendant has already served the jail term imposed following his parole revocation. Our resolution of the appeal can provide no relief to defendant. ( People v. DeLeon (2017) 3 Cal.5th 640, 645, 220 Cal.Rptr.3d 784, 399 P.3d 13.)1
When an appeal raises an issue of public importance that is likely to recur while evading appellate review, it is appropriate for the appellate court to exercise its discretion to nevertheless decide the case on its merits. ( People v. Hurtado (2002) 28 Cal.4th 1179, 1186, 124 Cal.Rptr.2d 186, 52 P.3d 116 ; People v. Navarro (2016) 244 Cal.App.4th 1294, 1298, 198 Cal.Rptr.3d 813.) The issue raised by defendant " ‘is likely to recur, might otherwise evade appellate review, and is of continuing public interest.’ " ( People v. DeLeon, supra, 3 Cal.5th at p. 646, 220 Cal.Rptr.3d 784, 399 P.3d 13 [].) We therefore proceed to the merits of the appeal.
Defendant argues that the postjudgment order revoking his parole and committing him to jail for 120 days was not authorized because a commissioner is constitutionally barred from conducting a parole revocation hearing unless the defendant so stipulates.
Penal Code section 3000.08, subdivision (a), provides that "the court in the county ... in which an alleged violation of supervision has occurred" shall hear a petition to revoke parole. For purposes of revocation of probation, " ‘Court’ means a judge, magistrate, or revocation hearing officer described in Section 71622.5 of the Government Code." ( Pen. Code, § 1203.2, subd. (f)(1).)
Government Code section 71622.5 provides, in relevant part:
Commissioner Hall unquestionably met the requirements to serve as a parole revocation hearing officer under Government Code section 71622.5, subdivision (c)(1). Defendant does not argue otherwise.
The question before us is whether the Legislature was authorized by the California Constitution to delegate to commissioners the responsibility for conducting parole revocation hearings and committing parolees to jail without the stipulation of defendant. The California Constitution permits commissioners to perform some, but not all, judicial duties. "The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties ." ( Cal. Const., art. VI, § 22, italics added.)2 The Constitution also permits temporary judges to try a cause if the parties stipulate: "On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause." ( Cal. Const., art. VI, § 21.)
Defendant argues that, under the California Constitution, the acts of revoking parole and committing a defendant to jail are not subordinate judicial duties that a commissioner may perform in the absence of the parties' stipulation. Our Supreme Court has explained: "[T]he power of a trial court to compel the parties to submit an aspect of a judicial proceeding to a subordinate judicial officer is derived from statute, and only those issues particularly described in the statute may be referred without the consent of the parties." ( People v. Superior Court (Laff ) (2001) 25 Cal.4th 703, 734, 107 Cal.Rptr.2d 323, 23 P.3d 563.) "The scope of the subordinate judicial duties which may be constitutionally assigned to court commissioners should be examined in the context of the powers that court commissioners had and were exercising in 1966, when the present constitutional provision was adopted." ( Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 362, 110 Cal.Rptr. 353, 515 P.2d 297.)
We determine whether a judicial action is a subordinate judicial duty that may be performed by a commissioner without the parties' stipulation by first examining whether, at the time article VI, section 22 was added to the California Constitution, it was an act a commissioner was authorized by statute to perform. If it was not, we analyze whether it is similar in complexity to other acknowledged subordinate judicial duties.
In 1966, Code of Civil Procedure section 259 permitted commissioners to (1) hear and determine ex parte motions for orders and writs, (2) take proof and report factual findings, (3) take and approve bonds and undertakings and to examine sureties, (4) administer oaths and affirmations, (5) take affidavits and depositions, and (6) take acknowledgements and proof of deeds, mortgages, and other instruments. (Former Code Civ. Proc., § 259.) Since that time, section 259 has been amended to allow commissioners to act as temporary judges on the stipulation of the parties; to hear preliminary matters in family law cases and report findings of fact and conclusions of law to the court, including on matters of child custody, child and spousal support, attorney fees and costs,...
To continue reading
Request your trial