Filed 12/7/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074315
v. (Super.Ct.No. 19PA001399)
TYREL MARTIN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shahla S. Sabet,
Judge. Affirmed.
Micah R. Reyner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sedival and Andrew S.
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
This court recently held in People v. Schaffer (2020) 53 Cal.App.5th 500
(Schaffer) that a parolee exposed to a 180-day jail term for a parole violation resulting
from non-criminal conduct was not entitled, under United States v. Haymond (2019) 588
1 U.S. __ [139 S.Ct. 2369] (Haymond), to have a jury determine beyond a reasonable doubt
whether he had violated his parole. In this appeal we apply our holding in Schaffer to
those who are exposed to potentially long prison sentences for similar parole violations.
I. FACTUAL AND PROCEDURAL HISTORY
Defendant and appellant Tyrel Martin was convicted in 2014 of committing a lewd
and lascivious act with a child by use of force, violence, duress, menace, or fear. (See
Pen. Code, § 288, subd. (b)(1); all undesignated statutory references are to the Penal
Code.) He was sentenced to a 5-year prison term and released on parole in 2018.
In August 2019, the Division of Adult Parole Operations of the California
Department of Corrections and Rehabilitation (DAPO) petitioned to revoke Martin’s
parole, alleging that he failed to report to his parole agent upon release from custody, that
he failed to register as a sex offender, and that he did not participate in electronic
monitoring. As part of a compromise with the DAPO, Martin admitted the allegations
regarding failure to report and failure to participate in electronic monitoring, and he was
ordered to serve a 180-day jail term with credit for time served.
A month later, the trial court set aside Martin’s admissions, vacated the sentence,
and set a formal revocation hearing, having been notified that the case should have been
governed by section 3000.08, subdivision (h). That provision provides that, for certain
parolees, a parole violation means that the parolee will be sent back to prison, with the
2 Board of Parole Hearings responsible for determining future parole consideration. It is 1 undisputed that section 3000.08, subdivision (h) applies to Martin.
Following a contested revocation hearing, the trial court found that Martin violated
parole by failing to report to his parole agent upon release from custody. Martin was
ordered to return to prison.
II. DISCUSSION
Martin contends on appeal, as he did in trial court, that the United States Supreme
Court’s decision in Haymond entitles him to have a jury determine whether he violated
parole beyond a reasonable doubt. We disagree.
We begin by discussing Haymond, followed by this court’s decision in Schaffer.
A. Haymond
Haymond considered the right to a jury determination in the context of a federal
statute, under which a “judge must impose an additional prison term of at least five years”
if the judge “finds by a preponderance of the evidence that a defendant on supervised
release committed one of several enumerated offenses.” (Haymond, supra, 139 S.Ct. at
1 In full, section 3000.08, subdivision (h) provides: “Notwithstanding any other law, if Section 3000.1 or paragraph (4) of subdivision (b) of Section 3000 applies to a person who is on parole and the court determines that the person has committed a violation of law or violated his or her conditions of parole, the person on parole shall be remanded to the custody of the Department of Corrections and Rehabilitation and the jurisdiction of the Board of Parole Hearings for the purpose of future parole consideration.” (See also Cal. Code Regs., tit. 15, § 2275.) Section 3000, subdivision (b)(4) applies to Martin because of his conviction under section 288, subdivision (b)(1). (See § 3000, subd. (b)(4)(A).) Accordingly, section 3000.08, subdivision (h) governs his case.
3 p. 2374.) One such offense was possession of child pornography, which the defendant
was found by the judge to have committed. (Ibid.)
A plurality of four justices held that the statute violated the defendant’s Fifth and
Sixth Amendment rights because “a jury must find any facts that trigger a new mandatory
minimum prison term.” (Haymond, supra, 139 S.Ct. at p. 2380 (plur. opn. of Gorsuch,
J.).) In doing so, it relied on a line of cases beginning with Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi), which held that “any fact that increases the penalty for a
crime beyond the prescribed statutory maximum” “[o]ther than the fact of a prior
conviction” “must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at
p. 490, cited in Haymond, supra, at p. 2377; see also Haymond, at p. 2379, fn. 4 [holding
that the federal statute at issue rendered the defendant’s sentence “unconstitutional in
violation of Alleyne v. United States [(2013) 570 U.S. 99]”].)
In a concurring opinion joined by no other justices, Justice Breyer began by stating
that he “agree[d] with much of the dissent” and “would not transplant the Apprendi line
of cases to the supervised-release context.” (Haymond, supra, 139 S.Ct. at p. 2385 (conc.
opn. of Breyer, J.), italics added.) Nevertheless, he believed that the statute at issue was
unconstitutional because the combination of three features that that statute possessed led
him “to think it [was] less like ordinary revocation and more like punishment for a new
offense, to which the jury right would typically attach.” (Id. at p. 2386.) The three
features were that the statute (1) “applies only when a defendant commits a discrete set of
federal criminal offenses,” (2) “takes away the judge’s discretion to decide whether
4 violation of a condition of supervised release should result in imprisonment and for how
long,” and (3) “limits the judge’s discretion in a particular manner: by imposing a
mandatory minimum term of imprisonment of ‘not less than 5 years’ upon a judge’s
finding that a defendant has ‘commit[ted] any’ listed ‘criminal offense.’” (Ibid.) It was
the combination of these features, Justice Breyer twice stated, that made the statute
unconstitutional. (Ibid.)
In a dissent joined by three other justices, Justice Alito stated that the federal
system of supervised release “is not fundamentally different” from “the old federal parole
system” and “therefore should not be treated any differently for Sixth Amendment
purposes.” (Haymond, supra, 139 S.Ct. at p. 2391 (dis. opn. of Alito, J.); see also
Horner, Haymond’s Riddles: Supervised Release, the Jury Trial Right, and the
Government’s Path Forward (2020) 57 Am. Crim. L.Rev. 275, 279 [noting that
“[f]ederal supervised release began in 1984 with the enactment of the Sentencing Reform
Act” and that “[p]reviously, the federal government used a typical parole system”].)
“Once this is understood,” Justice Alito wrote, “it follows that the procedures that must
be followed at a supervised-release revocation proceeding are the same that had to be
followed at a parole revocation proceeding, and these were settled long ago. At a parole
revocation hearing, the fundamental requisites of due process had to be observed, but a
parolee did not have a right to a jury trial. [Citations.] Neither the Confrontation Clause
nor the formal rules of evidence had to be followed. [Citations.] Due process did not
require proof beyond a reasonable doubt as is necessary at trial, [citations]; and the
5 Double Jeopardy Clause did not apply [citation].” (Haymond, at p. 2391 (dis. opn. of
Alito, J.).) Importantly, Justice Breyer’s concurrence endorsed this view, and the
plurality opinion rejected it. (Id. at pp. 2385 (conc. opn. of Breyer, J.) [“I agree with
much of the dissent, in particular that the role of the judge in a supervised-release
proceeding is consistent with traditional parole.”], 2382 (plur. opn. of Gorsuch J.) [“In
this case,” the “structural difference” between parole and supervised release “bears
constitutional consequences.”].)
“When there is no majority opinion, the narrower holding controls.” (Panetti v.
Quarterman (2007) 551 U.S. 930, 949.) For Haymond, the narrower holding is the one
articulated by Justice Breyer. (See, e.g., United States v. Seighman (3rd Cir. 2020) 966
F.3d 237, 242.)
B. Schaffer
In Schaffer, the defendant was originally convicted and sentenced to a three-year
prison term for failure to register as a sex offender. (Schaffer, supra, 53 Cal.App.5th 500
at p. 503.) He was released on parole on the condition that he wear a monitoring device
and charge it at least twice daily. (Id. at pp. 504-505.) The DAPO petitioned to revoke
the defendant’s parole, alleging that he had violated the terms of his parole by (among
other things) failing to keep his monitoring device charged. (Id. at p. 506.) Following a
parole revocation hearing, the trial court found that the defendant violated parole by
failing to keep his monitoring device charged and ordered him to serve 180 days in jail.
(Id. at p. 505.)
6 Schaffer held that Haymond did not entitle the defendant to have a jury determine
beyond a reasonable doubt whether he violated parole. (Schaffer, supra, 53 CalApp.5th
at pp. 507-513.) It applied the narrower holding of Justice Breyer’s concurring opinion to
conclude that a parole revocation for failure to keep a monitoring device charged “[does]
not present the concern . . . of bypassing a criminal defendant’s federal constitutional jury
trial right for a new criminal offense.” (Id. at p. 511.) The defendant, Schaffer noted, was
not being sentenced for a new criminal offense, but rather was sentenced for violating
one of his parole conditions. (Ibid.) Moreover, under the provisions applicable to the
defendant, his jail sentence “was limited to 180 days, or the balance of his four-year
parole period, whichever term ended earlier.” (Ibid.) Accordingly, neither the
defendant’s “maximum exposure” nor his “minimum exposure” to incarceration had
changed. (Id. at p. 512.)
C. Applying Haymond and Schaffer Here
Martin’s contention that he is constitutionally entitled to have a jury decide
whether he violated his parole beyond a reasonable doubt fails for the same reason we
held in Schaffer. Martin’s failure to report to his parole agent following his release was
plainly an example of what Justice Breyer referred to as the “‘breach of trust’” associated
with the failure to follow the conditions of his release (Haymond, supra, 139 S.Ct. at p.
2386 (conc. opn. of Breyer, J.)). It not only did not bear the hallmarks of a new criminal
prosecution, it was not even itself a criminal offense, as was the child pornography
offense at issue in Haymond. The parole violation therefore lacked the “combination” of
7 features that would have made the violation look “less like ordinary revocation and more
like punishment for a new offense, to which the jury right would typically attach.”
(Haymond, supra, 139 S.Ct. at p. 2386 (conc. opn. of Breyer, J.); see Schaffer, supra, 53
Cal.App.5th at p. 510.) It therefore fails to fall under the ambit of the controlling
Haymond holding.
For standard parole violations that do not bear the hallmarks of a new criminal
prosecution, a majority of the justices in Haymond (the four dissenting justices plus
Justice Breyer) indicated that parolees have no jury right. That is, the dissent in
Haymond stated that, under the system of federal parole in place before the 1984
Sentencing Reform Act, there was no right to have a jury apply a beyond a reasonable
doubt standard in parole revocation hearings. (Haymond, supra, 139 S.Ct. at p. 2391
(dis. opn. of Alito, J.).) Because the current federal system of supervised release was
“not fundamentally different” from that pre-1984 parole system, it “should not be treated
any differently for Sixth Amendment purposes,” in the dissent’s view. (Ibid.; see id. at p.
2385 (conc. opn. of Breyer, J.) [indicating Apprendi should not be transplanted into
parole or supervised release].)
The divergence between the plurality and the dissent in Haymond focused on the
fact that a term of supervised release does not “replace a portion of the defendant’s prison
term” but rather “encourage[s] rehabilitation after the completion” of that prison term.
(Haymond, supra, 139 S.Ct. at p. 2382 (plur. opn. of Gorsuch, J.); see id. at p. 2388 (dis.
opn. of Alito, J.).) The plurality saw the feature as “bear[ing] constitutional
8 consequences” (Id. at p. 2382 (plur. opn. of Gorsuch, J.)), but the dissent viewed it as
“purely formal” (id. at p. 2388 (dis. opn. of Alito, J.)). To the four dissenting justices,
this feature “should have no constitutional consequences,” which is why supervised
release “should not be treated any differently” from the pre-1984 federal parole system
“for Sixth Amendment purposes.” (Id. at pp. 2388, 2391 (dis. opn. of Alito, J.).) Justice
Breyer concurred in this view. (Id. at p. 2385 (conc. opn. of Breyer, J.) [“the role of the
judge in a supervised-release proceeding is consistent with traditional parole”].)
To the plurality, this feature mattered because only a violation of supervised
release could “expose a defendant to an additional mandatory minimum prison term well
beyond that authorized by the jury’s verdict.” (Haymond, supra, 139 S.Ct. at p. 2382
(conc. opn. of Gorsuch, J.); see also ibid. [noting that “probation violations generally
exposed a defendant only to the remaining prison term authorized for his crime of
conviction”].) The dissent disagreed, taking issue with the premise that the punishment
authorized by a jury’s verdict does not also include punishment for parole or supervised
release violations: “When a jury finds a federal defendant guilty of violating a particular
criminal statute, the maximum period of confinement authorized is the maximum term of
imprisonment plus the maximum term of supervised release,” which in Haymond was
life. (Id. at pp. 2390, fn. 4, 2391 (dis. opn. of Alito, J.), italics added.) “If a prisoner does
not end up spending this full period in confinement, that is because service of part of the
period is excused due to satisfactory conduct during the period of supervised release.”
(Id. at p. 2391 (dis opn. of Alito, J.), italics added.) Accordingly, to the dissenting
9 justices and Justice Breyer, the initial conviction included the possibility that a violation
of supervised release could lead to prison time exceeding that of the initially authorized
criminal term, so a jury right did not attach to revocation hearings. (Ibid.; see id. at pp.
2385-2386 (conc. opn. of Breyer, J.).)
California’s current parole system possesses the same feature the justices focused
on in Haymond and thus would likely be treated the same. Like federal supervised
release, this state’s parole system is currently premised on a period of additional
supervision following a completed prison term. (See In re Dannenberg (2005) 34 Cal.4th
1061, 1078 [under the determinate sentencing law, “[t]he offender must serve [the] entire
term, less applicable sentence credits, within prison walls, but then must be released for a
further period of supervised parole”].) Additionally, both California’s parole system and
federal supervised release are meant to “encourage rehabilitation” (Haymond, supra, 139
S.Ct. at p. 2382 (plur. opn. of Gorsuch, J.)). (See In re Roberts (2005) 36 Cal.4th 575,
589-590 [“[T]he objective of parole is, through the provision of supervision and
counseling, to assist in the parolee’s transition from imprisonment to discharge and 2 reintegration into society.”].) Thus, to the extent these features are determinative,
2 In the past, California’s parole system was similar to the old federal parole system in that parole meant early release from prison. (See In re Application of Peterson (1939) 14 Cal.2d 82, 85 [noting that, although “[t]he word ‘parole’ was originally a military term,” it “has come to signify the release of a prisoner prior to expiration of his term of imprisonment conditioned upon his continuing good behavior during the remainder of the term”].) But under the Determinate Sentencing Act enacted by the Legislature in 1977, most felons “‘must be released upon expiration of his “term” less good-time credits, with parole acting simply as a variable period of supervision after the
10 California’s current parole system and federal supervised release are indistinguishable 3 under Haymond.
D. Martin’s Greater Legal Exposure
We realize that the parole provisions governing Martin’s case are different from
those that applied in Schaffer, and that the differences are significant. For instance, as we
have noted, the defendant in Schaffer faced only a 180-day jail term. (Schaffer, supra, 53
Cal.App.5th at p. 504.) That term was further limited by the fact that, under section
3000, subdivision (b)(6)(A), once four years had passed since the defendant’s initial
parole date, he would be released, even if he had not fully served the 180-day jail term by
that point. (Id. at p. 511, citing § 3000, subd. (b)(6) [“Upon successful completion of
parole, or at the end of the maximum statutory period of parole specific for the inmate
under [section 3000, subdivisions (b)(1)-(4)], whichever is earlier, the inmate shall be
discharged from custody.”].)
Here, section 3000.08, subdivision (h) states only that a parolee falling under it
shall be returned to prison, with the Board of Parole Hearings responsible for considering
future parole eligibility; it does not expressly limit the length of commitment that an
individual like Martin may have to ultimately serve. Moreover, although Martin also
appears to be entitled to be released at the end of his statutory parole period, that does
end of the term. Parole is no longer service of the term.’” (People v. Jefferson (1999) 21 Cal.4th 86, 95, citing secondary authority.) 3 Indeed, Martin asks that we treat California’s modern parole system as akin to federal supervised release under Haymond.
11 him little good for at least one of three reasons: (1) his statutory parole period is 20.5
years (§ 3000, subd. (b)(4)(A)); (2) that period may be extended “for good cause” (ibid.);
and (3) the “notwithstanding” proviso of section 3000.08, subdivision (h) arguably means 4 the statutory period stated in section 3000, subd. (b)(4)(A) no longer applies at all. What
this means is that, unlike the defendant in Schaffer, there is no express guarantee that
Martin will ever be released from prison.
This does not mean, however, that Haymond provides the relief he seeks here, as
both rationales articulated above are unaffected by this distinction. Martin’s parole
revocation was not premised on a criminal offense, and thus Justice Breyer’s narrower
holding does not extend to this case. Additionally, a majority of the justices in Haymond
rejected the notion that parolees such as Martin have a jury right at a parole revocation
hearing for conduct that constitutes breach of the trust granted to him during parole
(failure to report), rather than one that appears similar to punishment for a new criminal
offense. This is true even though, as Martin emphasizes, it is possible he may spend
more time in prison than what was statutorily authorized for his underlying offense. But
under the majority view in Haymond, for constitutional purposes, the initial criminal
conviction authorizes not only the maximum term of imprisonment for the crime but also
authorizes the maximum term of supervised release or parole. (See Haymond, supra, 139
4 We need not determine what effect the “notwithstanding” proviso in section 3000.08, subdivision (h) has on section 3000, subdivision (b)(4)(A) here. Neither section 3000.08, subdivision (h) nor section 3000, subdivision (b)(4)(A) statutorily requires release from custody by a certain date.
12 S.Ct. at p. 2391 (dis. opn. of Alito, J.); see also People v. Nuckles (2013) 56 Cal.4th 601,
608 [“‘the length of time an offender may remain on parole or may be incarcerated for a
parole violation is measured by the statutory provisions setting the maximum parole 5 period’”], cited in Schaffer, supra, 53 Cal.App.5th at p. 511.)
Accordingly, we conclude that Martin is not entitled to have a jury make findings
using the beyond a reasonable doubt standard under Haymond, despite the possibility he
faces a lengthy prison sentence for his parole violation.
III. DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION RAPHAEL J.
We concur:
MCKINSTER Acting P. J.
SLOUGH J. 5 If Martin’s sentence becomes unduly long, he remains able to challenge his sentence under the United States and California Constitutions’ prohibitions against cruel and unusual punishment, but that issue is not before us. (See, e.g., In re Dannenberg, supra, 34 Cal.4th at p. 1071 [“Of course, no inmate may be imposed beyond a period that is constitutionally proportionate to the commitment offense or offenses.”]; In re Rodriguez (1975) 14 Cal.3d 639, 656 [holding, under pre-determinate-sentencing-law, that serving 22 years of an indeterminate sentence for lewd and lascivious act on a child constituted cruel and unusual punishment under the California Constitution on the record before it]; cf. Haymond, supra, 139 S.Ct. at 2390, fn. 4 (dis. opn. of Alito, J.) [“If the Constitution restricts the length of additional imprisonment that may be imposed based on a violation of supervised release, the relevant provision is the Eighth Amendment, not the Sixth.”].)