Wednesday, January 7, 2026
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No Constitutional Issue With Commissioners Deciding Bail at Revocation Hearings—C.A.
Opinion Says, Even Absent Stipulation, Such Determinations Amount to ‘Subordinate Judicial Duties Despite Liberty Issues at Stake; Hoffstadt Writes Separately to Say Result Is Record-Dependent
By a MetNews Staff Writer
Div. Five of this district’s Court of Appeal has rejected a criminal defendant’s assertion that a court commissioner was not authorized, absent his stipulation, to preside over a bail review hearing, saying that such matters qualify as “subordinate” actions under the California Constitution even in light of the liberty issues at stake.
The hearing was held pending a petition to revoke his post-prison-release community supervision (“PRCS”).
At issue is whether such authority is provided for in §22 of Article VI of the state Constitution, which specifies that “[t]he Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.”
In support of his position, the defendant cited the 2018 decision in People v. Berch, in which Div. Three of the Fourth District declared:
“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.” ’…Because defendant did not stipulate to the commissioner revoking his parole and committing him to jail, the postjudgment order must be reversed.”
Justice Dorothy C. Kim authored Monday’s unpublished opinion, joined in by Justice Lamar Baker, saying that “[w]e disagree that Berch requires the granting of the petition here” and remarking:
“Here, the bail review hearing conducted by the commissioner resulted in a preliminary, not a final, determination about whether PRCS would be revoked. Accordingly, the liberty interest concerns articulated in Berch do not prevent a commissioner from presiding over a bail review hearing in a PRCS revocation petition.”
Presiding Justice Brian M. Hoffstadt penned a concurring opinion, asserting that “the pertinent factors” in the case before the court “tip” in favor of “upholding the use of Commissioners.” However, he opined that “a different and more fulsome record regarding how bail review hearings in the postrelease community supervision revocation process operate in general might yield a different analysis and, hence, a different outcome.”
Post-Release Supervision
The question arose after Henry Turcios was placed on PRCS after serving a prison sentence for attempted robbery, which was imposed in 2017.
PRCS was created as part of the 2011 Criminal Justice Realignment Act, which allowed certain convicts to be supervised for up to three years following release from imprisonment by a county agency rather than the state Department of Corrections and Rehabilitation. On Dec. 3, 2024, the Los Angeles County Probation Department filed a petition to revoke Turcios’ PRCS.
Records available on the Los Angeles Superior Court website relating to the filing do not indicate the reason for the request. However, a party bearing the same name as the defendant was charged with attempted murder and robbery on the same day the petition was filed.
On Dec. 26, 2024, Turcios appeared before Los Angeles Superior Court Commissioner Kjehl Johansen for arraignment on the petition. The defendant requested that he remain free of custody and objected to having Johansen conduct the bail review hearing.
Johansen overruled the objection, presided over the hearing, and ordered that Turcios be remanded into custody. The following month, the inmate filed a petition for a writ of habeas corpus, requesting an order vacating the denial of bail.
On Monday, Div. Five construed the petition as a request for a writ of mandate and denied the petition.
Statutory Scheme
Turcios acknowledged that the PRCS-authorizing statutory scheme empowers commissioners to preside over revocation hearings pursuant to Government Code §71622.5. However, he asserted that, absent a stipulation, the Constitution prevents the exercise of that legislative authority.
Kim pointed to case law establishing that courts are to first look to the powers commissioners had in 1966, when §22 was adopted, in determining the scope of “subordinate judicial duties” which may be constitutionally assigned.
Saying that “[i]t is undisputed that in 1966, commissioners were not authorized to perform bail review hearings in the context of PRCS revocation proceedings,” she turned to the question of whether “presiding over such bail review hearings is a duty that is similar in complexity to other acknowledged subordinate judicial duties.”
She noted that deciding small claims cases, issuing bench warrants upon a defendant’s failure to appear, and deciding preliminary matters in domestic relations matters are within a commissioner’s purview even in the absence of a stipulation by the parties, and remarked that “[o]ur Supreme Court has described bail hearings for pretrial arrestees” as “informal affairs.”
Even More Informal
Addressing the defendant’s petition, the jurist reasoned:
“Our record…demonstrates that the bail review hearing here was even more informal than a bail hearing for a pretrial arrestee. The parties’ arguments regarding bail comprise only three pages of the reporter’s transcript, and the commissioner’s ruling is half a page in length. No party presented testimony….Neither party argues that the proceedings here are unusual for a bail review hearing on a petition to revoke PRCS. Although the decision of whether a petitioner should be released…pending a revocation hearing is neither minor nor insignificant, the decision is ‘relatively limited and straightforward’….”
As to the Berch decision, she pointed out that the case “is distinguishable” because it dealt with “a final parole revocation hearing” rather than a preliminary bail determination.
Adding that the state legislature is not constitutionally limited in the same way as its federal counterpart to certain enumerated powers, she opined:
“Our conclusion is also consistent with the deference accorded to the Legislature’s interpretation of Government Code section 71622.5 which found the enactment constitutional.”
Hoffstadt’s View
Hoffstadt said:
“The task at issue here is a bail review hearing at the midpoint of proceedings to revoke postrelease community supervision. The pertinent factors as to whether the person presiding over such a hearing is engaged in subordinate judicial duties cut both ways. On the one hand, bail review hearings are usually contested and necessarily resolve—at least on an interim rather than final basis—the significant issue of liberty. These factors cut in favor of a finding that it is not a subordinate judicial duty.”
Continuing, he remarked that, “[o]n the other hand, the matter of bail review in this case was not complex” and concluded that “I agree that the general presumption in favor of the constitutionality of statutes tips the balance in favor of upholding the use of Commissioners.”
However, the jurist added:
“The maximum period of incarceration following the revocation of postrelease community supervision is 180 days…; if bail is denied at a bail review hearing, the time spent in jail pending the final revocation hearing may equal or exceed the jail time ultimately imposed, such that any interim deprivation of liberty may equal or exceed the final deprivation. And the twin issues involved in bail review—flight risk and danger to the community…—can also be quite nuanced and complex, particularly if the parties elect to present testimony and documentary evidence.
“Thus, a different record may significantly alter how the pertinent factors shake out. But until such a record is presented, I join the result reached by the majority in this case.”
The case is Turcios v. Superior Court (People), B343717.
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