People v. Deleon

• Court: California Court of Appeals
• Writing for the Court: Siggins, J.
• Citation: People v. Deleon, 241 Cal.App.4th 1059, 194 Cal.Rptr.3d 352 (Cal. App. 2015)
• Decision Date: 28 October 2015
• Docket Number: A140050
• Parties: The PEOPLE, Plaintiff and Respondent, v. Allen Dimen DELEON, Defendant and Appellant.

241 Cal.App.4th 1059

194 Cal.Rptr.3d 352

The PEOPLE, Plaintiff and Respondent,

v.Allen Dimen DELEON, Defendant and Appellant.

A140050

Court of Appeal, First District, Division 3, California.

Filed October 28, 2015

Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald R. Engler, Senior Assistant Attorney General, Allen R. Crown, Allan Yannow, Deputy Attorneys General for Plaintiff and Respondent.

Opinion

Siggins, J.Allen DeLeon appeals following the revocation of his parole. He contends his revocation must be reversed and vacated due to the superior court's failure to timely conduct a preliminary probable cause hearing. We conclude that under the parole revocation scheme embodied in Penal Code ¹ sections 1203.2and 3000.08as amended by the 2011 Realignment Act, superior courts are not required to conduct preliminary probable cause hearings as specified in Morrissey v. Brewer(1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484(Morrissey) before revoking parole, and that a timely single hearing procedure can suffice. In light of the judicial probable cause determination made within 14 days of DeLeon's arrest, his appearance before the court on the 20th day of his detention and the other procedural protections afforded to DeLeon in this case and under the Realignment Act, the hearing conducted within 45 days of his arrest afforded him constitutionally adequate process. Moreover, because he suffered no prejudice, any delay in promptly bringing him before a judge was harmless. Thus, we affirm.

I.

In 2013, DeLeon was on parole following a 2003 conviction for a lewd act committed on a minor. He was released to parole on July 25, 2010. Among the conditions of parole were prohibitions against DeLeon possessing any pornographic material, material that depicted adults or children in undergarments, or devices for viewing sexually explicit programming.

On August 23, 2013, DeLeon's parole agent conducted a sex offender compliance check at DeLeon's motel room. His parole agent found DeLeon in possession of a mobile phone that contained a video of an adult male exposing his penis and masturbating, and pictures of women with their breasts and vaginas exposed and engaged in sexual acts. He was charged with a violation of parole and booked into county jail.

The Department of Corrections and Rehabilitation determined there was probable cause for the charges and DeLeon was given written notice of the parole violations on August 26, 2013. The petition to revoke was referred to the superior court on August 30, and a petition to revoke parole was filed in the superior court on September 4, 2013. A judicial officer reviewed the rules violation report, concluded there was probable cause to support revocation and revoked DeLeon's parole supervision on September 6, 2013. A revocation hearing was scheduled for September 11.

When DeLeon appeared with appointed counsel at the September 11 hearing,²he moved to dismiss charges on the grounds that he did not get a probable cause hearing within 15 days of his arrest as specified in Penal Code section 3044. The court set a further hearing and a briefing schedule. When the motion to dismiss was heard on September 25, the court determined that, in light of the Department of Corrections' statutory authority to subject a parolee to flash incarceration for up to 10 days, the petition to revoke referred to the court on August 30 and filed on September 4 was not unreasonably delayed. Nor was there an unreasonable delay in finding probable cause because a judicial officer reviewed the charges and passed upon probable cause on September 6, the fourteenth day after DeLeon's detention. The motion was denied.

The revocation charges proceeded to a hearing on the merits on October 3rd, 41 days after DeLeon was taken into custody. A parole agent testified that he went to DeLeon's room and found two cell phones. The agent confirmed with DeLeon that the phones were his, and on one of the phones the agent discovered a considerable amount of sexually explicit material that he described or provided to the court.

The court concluded that DeLeon violated his parole by possessing pornography and material that depicted children in their undergarments. He was sentenced to 180 days in custody with credit for 84 days before reinstatement to parole. His appeal of the order was timely.

II.

In Morrissey,the Supreme Court held that due process requires that revocation of parole by an administrative agency afford a parolee an informal preliminary hearing to determine whether there is reasonable cause to believe he or she has violated parole; and an opportunity for a more formal hearing with written notice of the charges, disclosure of the evidence to be used against the parolee, an opportunity for the parolee to be heard and present evidence, the right to confront and cross-examine witnesses, a neutral and detached hearing body, and a written statement of the reasons for revoking parole. (Morrissey, supra,408 U.S. at pp. 485–490, 92 S.Ct. 2593.)

Historically in California the power to grant and revoke parole was vested in the executive branch in the Department of Corrections and Rehabilitation, not the courts. (In re Prather(2010) 50 Cal.4th 238, 254, 112 Cal.Rptr.3d 291, 234 P.3d 541.) In 1994 a class of California parolees challenged this system of parole on the grounds that parole revocation processes did not comport with the due process requirements prescribed for such proceedings by the Supreme Court of the United States in Gagnon v. Scarpelli(1973) 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656and Morrissey. That litigation resulted in comprehensive changes to the parole revocation process as administered by the department. (Valdivia v. Brown(2013) 956 F.Supp.2d 1125, 1127–1129.)

However, “[t]his system began to change on April 4, 2011, when the Governor signed Assembly Bill 109, entitled ‘The 2011 Realignment Legislation Addressing Public Safety.’ ” (Valdivia v. Brown, supra,956 F.Supp.2d at p. 1130.) Among other changes to the parole system, AB 109 called for the state courts, not the Department of Corrections and Rehabilitation, to perform various functions related to parole. (Ibid.) Subsequent legislation narrowed the role of the state courts to conducting parole revocation proceedings. (Ibid.)

That system is codified in sections 1203.2and 3000.08. The statutes vest parole authorities with the option to impose an intermediate sanction of flash incarceration of up to 10 days upon a parole violator. But if an intermediate sanction is not appropriate, parole authorities must petition the superior court to revoke parole. (section 3000.08.) Upon arrest of the parolee or issuance of a warrant in such cases, “the court may revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of his or her supervision.” (§ 1203.2, subd. (a); see § 3000.08, subd. (f).) Cal.Rules of Court, Rule 4.541sets forth the information to be reported to the court by the supervising agency seeking revocation. The Legislature intended “to provide for a uniform supervision revocation process for petitions to revoke probation, mandatory supervision, postrelease community supervision, and parole,” that complies with the due process protections prescribed in Morrisseyand People v. Vickers(1972) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313(Vickers). (Stats. 2012, ch. 43, § 2.) Implicitly, this requires the court to hold an evidentiary hearing to revoke parole.

In Vickersour Supreme Court applied the due process requirements articulated in Morrisseyto revocation of probation. Those procedures included Morrissey's preliminary probable cause hearing requirement and the more formal procedural guarantees it identified in connection with the revocation hearing. (Vickers, supra,8 Cal.3d at pp. 458–459, 461–462, 105 Cal.Rptr. 305, 503 P.2d 1313.) Three years later, the court clarified that since “probation revocation, unlike parole revocation, is in California a judicial proceeding with concomitant procedural benefits for a probationer at all stages of the revocation process.... [S]o long as ‘equivalent due process safeguards' assure that a probationer is not arbitrarily deprived of his conditional liberty for any significant period of time [citation], a unitary hearing will usually suffice in probation revocation cases to serve the purposes of the separate preliminary and formal revocation hearings outlined in Morrissey.” (People v. Coleman(1975) 13 Cal.3d 867, 894–895, 120 Cal.Rptr. 384, 533 P.2d 1024(Coleman).)

DeLeon argues that the failure of the superior court to hold a timely preliminary probable cause hearing on revocation of his parole denied him due process and required dismissal of the petition for revocation. He bases his argument primarily on Morrisseyand In re Marquez(2007) 153 Cal.App.4th 1, 62 Cal.Rptr.3d 429, where the court of appeal held that the Department of Corrections and Rehabilitation's failure to provide a parolee “a revocation hearing with due process protections within 35 days, or a revocation hearing with due process protections within a reasonable time beyond the 35 days,” warranted the parolee's release. (In re Marquezat p. 16, 62 Cal.Rptr.3d 429.) But since realignment, parole revocation is no longer an administrative proceeding conducted by an agency in the executive branch of government. Rather, it is a judicial proceeding before the superior court, and as recognized in Coleman,cases such as Morrisseystating the due process requirements for revocation of parole by executive branch agencies do not clearly mandate the process that must be employed by the courts. (§ 3000.08; Coleman, supra,13 Cal.3d at p. 894, 120 Cal.Rptr. 384, ...