Metropolitan News-Enterprise


Thursday, December 6, 2018


Page 3


Court of Appeal:

Parole Revocation, Absent Stipulation, Beyond Power of Commissioner


By a MetNews Staff Writer




The Fourth District Court of Appeal yesterday reversed a parole revocation order and ensuing 120-day jail sentence imposed by a court commissioner because the defendant had declined to stipulate to a subordinate judicial officer presiding over the matters.

The opinion was written by Justice Richard D. Fybel of Div. Three, who commented the language of the statute authorizing commissioners to revoke parole is in need of refinement by the Legislature.

Defendant Brandon J. Berch had objected to Orange Superior Court Commissioner Edward W. Hall presiding over the hearing, which was requested by the Department of Corrections and Rehabilitation after Berch allegedly failed to comply with several conditions of his parole, including enrollment in drug and sex offender treatment programs.

Fybel’s opinion addresses the question of “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.”

Constitutional Authorization

Answering in the negative, Fybel explained that because a parole revocation order results in jail time, it is not one of the “subordinate judicial duties” which article IV, §22 of the Constitution permits the Legislature to delegate to commissioners.

The Legislature, citing the need to “afford the courts the maximum flexibility to manage the caseload in the manner that is most appropriate to each court,” enacted Government Code §71622.5, which provides that “the superior court of any county may appoint as many hearing officers as deemed necessary to conduct parole revocation hearings….”

Persons eligible to serve as such a hearing officer, under the section, is anyone who “was a commissioner…within the last five years.”

Other Duties Compared

Fybel looked to prior cases defining the subordinate duties which commissioners can perform without a stipulation from the parties. Such duties include accepting a plea and sentencing the defendant in traffic infractions and misdemeanors, ordering the forfeiture of bail of a nonappearing defendant, and ordering the summary denial of petition for a writ of habeas corpus where the defendant was not seeking his release.

The jurist said:

“The published authorities clearly distinguish between limited duties that are subordinate judicial duties a commissioner may perform without a stipulation, and duties that involve the deprivation of an individual’s liberty, which are not subordinate judicial duties. The parole revocation hearing in this case included the possibility of the deprivation of defendant’s liberty. Our holding here is consistent with the longstanding authority of the California Supreme Court and other California courts.”

Sec. 71622.5 Criticized

He declared:

“Our holding that the revocation of parole and the commission of a parolee to jail are not subordinate judicial duties that may be performed by a commissioner in the absence of the parties’ stipulation does not mean that Government Code section 71622.5 is unconstitutional. The Legislature was constitutionally authorized to permit commissioners to exercise the power to revoke parole if the parties stipulated to the commissioner’s authority. When a commissioner attempts to exercise such power in the absence of a stipulation, however, doing so violates the California Constitution.

“Government Code section 71622.5 could be improved by adding language to the statute that if the parties do not stipulate to allowing a commissioner to conduct the proceedings, then the commissioner shall make a recommendation regarding revocation of parole and a recommendation regarding the sanction to be imposed, which recommendations must be reviewed and approved, disapproved, or modified by a judge.

“This court does not have the authority to read such saving language into the statute.”

The case is People v. Berch, 2018 S.O.S. 5781.

Yesterday’s opinion concerns a parole revocation on July 7, 2017. In a June 12, 2017 opinion, which was not certified for publication, the Fourth District’s Div. Three affirmed a 180-day period of incarceration, with 134 days of presentence credits, based on failing to wear a GPS device and failing to report to his probation officer.

His parole relates to convictions for possession of a controlled substance and carrying a concealed dirk or dagger. He has also been convicted of rape by force or fear and oral copulation by force or fear.


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