People v. Berch

241 Cal. Rptr. 3d 51, 29 Cal. App. 5th 966
CourtCalifornia Court of Appeal, 5th District
DecidedDecember 5, 2018
DocketG055344
StatusPublished
Cited by2 cases

This text of 241 Cal. Rptr. 3d 51 (People v. Berch) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Berch, 241 Cal. Rptr. 3d 51, 29 Cal. App. 5th 966 (Cal. Ct. App. 2018).

Opinion

FYBEL, J.

INTRODUCTION

*969Defendant 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 *970defendant did not stipulate to the commissioner revoking his parole and committing him to jail, the postjudgment order must be reversed.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

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 *55and 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.

DISCUSSION

I.

IS THE APPEAL MOOT ?

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. ( *971People 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 [addressing parole revocation hearings].) We therefore proceed to the merits of the appeal.

II.

WAS THE ORDER REVOKING DEFENDANT'S PAROLE AND COMMITTING HIM TO JAIL AUTHORIZED BY THE CALIFORNIA CONSTITUTION ?

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.

A. Relevant Statutory Authority for Commissioners Presiding at Parole Revocation Hearings.

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: "(a) The Legislature hereby declares that due to the need to implement the 2011 Realignment Legislation addressing public safety (Chapter 15 of the Statutes of 2011), it is the intent of the Legislature to afford the courts the maximum flexibility to manage the caseload in the manner that is most appropriate to each court. [¶] (b) ... [T]he superior court of any county may appoint as many hearing officers as deemed necessary to conduct parole revocation hearings pursuant to Sections 3000.08 and 3000.09 of the Penal Code and to determine violations of conditions of postrelease supervision pursuant to Section 3455 of the Penal Code, and to perform related duties as authorized by the court. A hearing officer appointed pursuant to this section has the authority to conduct these hearings and to make determinations at those hearings pursuant to applicable law.

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Cite This Page — Counsel Stack

Bluebook (online)
241 Cal. Rptr. 3d 51, 29 Cal. App. 5th 966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-berch-calctapp5d-2018.