People v. DeLeonPeople v. DeLeon
- Reporters:
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- Before:
- Corrigan
I. BACKGROUND
Defendant Allen Dimen DeLeon was paroled in January 2012 after serving a prison sentence for committing a lewd act on a minor and failing to register as a sex offender. On August 23, 2013, he was arrested for possessing pornographic material in violation of a condition of his parole.
On August 26, 2013, a supervising parole agent with the Department of Corrections and Rehabilitation found probable cause to revoke DeLeon‘s parole and gave him written notice of the alleged parole violation. A petition to revoke was filed in the superior court on September 4, 2013. On September 6, a judicial officer conducted an ex parte review, found probable cause, and summarily revoked DeLeon‘s parole. A hearing was set for September 11, 19 days after DeLeon‘s arrest.
On the scheduled hearing date, DeLeon appeared with counsel and moved to dismiss the petition because he had not received a preliminary hearing within 15 days of his arrest, as specified in
On October 3, 2013, 41 days after DeLeon‘s arrest, the court held a revocation hearing, found him in violation, sentenced him to serve 180 days in custody, and reinstated parole.
A. Mootness
” ‘[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [opposing party], an event occurs which renders it impossible for this court, if it should decide the case in favor of [defendant], to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal’ ” as moot. (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132, quoting Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.)
DeLeon has completed his county jail term. Counsel has informed us that parole supervision ended on June 27, 2014, one day after the Court of Appeal briefing was complete, and 16 months before that court issued its opinion. DeLeon‘s appeal is technically moot because a reviewing court‘s resolution of the issues could offer no relief regarding the time he spent in custody or the parole term that has already terminated. (See People v. Morales (2016) 63 Cal.4th 399, 409 (Morales) [order discharging defendant from parole rendered appeal moot].)
DeLeon argues that his appeal is not moot because he faces disadvantageous collateral consequences from the fact that he was found in violation of parole. (See Carafas v. LaVallee (1968) 391 U.S. 234, 237 [discussing collateral consequences of a criminal conviction]; People v. DeLong (2002) 101 Cal.App.4th 482, 487–492 [collecting cases].) He points out that unsatisfactory performance on parole is a criterion affecting eligibility for probation and mandatory supervision (
The Supreme Court rejected a similar claim in Spencer v. Kemna (1998) 523 U.S. 1 (Spencer). There the court considered whether the defendant‘s appeal from a parole revocation was mooted by the fact that he had completed the entire term of imprisonment underlying the revocation. (Id. at p. 3.) Interpreting the case-or-controversy requirement of article III, section 2 of the federal Constitution (id. at p. 7), the court held that a violation of parole does not result in civil disabilities resembling those that stem from a criminal conviction (id. at p. 12, citing Lane v. Williams (1982) 455 U.S. 624, 632). The court further rejected the argument that the defendant faced “collateral consequences” from the potential use of the parole violation in a future proceeding. (Spencer, at p. 12.) This possibility did not show an injury in fact. First, it was contingent
By contrast, two Court of Appeal opinions lend support to DeLeon‘s position. People v. Gonzalez (2017) 7 Cal.App.5th 370 held that the defendant‘s appeal from an order revoking postrelease community supervision was not made moot by his discharge from supervision because his unsatisfactory performance could have disadvantageous collateral consequences should he be convicted of a new offense. (Id. at pp. 380–381 [citing
Spencer‘s analysis is persuasive, and we adopt it. The trial court‘s finding that DeLeon violated his parole does not involve the same collateral consequences that attach to a criminal conviction. Future consequences will not arise unless there is additional criminal conduct. Even then, his parole violation is just one of many factors a court may consider in deciding whether to grant probation, or what sentence to impose. Under these circumstances, DeLeon‘s parole violation does not constitute a disadvantageous collateral consequence for purposes of assessing mootness.2 We disapprove contrary language in People v. Gonzalez, supra, 7 Cal.App.5th at pages 380–381, and People v. Osorio, supra, 235 Cal.App.4th at page 1412.
Even though DeLeon‘s appeal is moot, we exercise our discretion to decide what procedure should govern parole revocation proceedings under the Realignment Act. The issue “is likely to recur, might otherwise evade appellate review, and is of continuing public interest.” (Morales, supra, 63 Cal.4th at p. 409; accord, Williams v. Superior Court (2014) 230 Cal.App.4th 636, 654 (Williams); cf. People v. Moran (2016) 1 Cal.5th 398, 408, fn. 8; People v. Hronchak (2016) 2 Cal.App.5th 884, 889.) Accordingly, we resolve the legal question that prompted our grant of review.
Historically, BPH was responsible for conducting parole revocation hearings. (In re Prather (2010) 50 Cal.4th 238, 249, 254 (Prather).) Under the Realignment Act, jurisdiction over most petitions to revoke parole shifted to the superior courts. (
Together, sections 1203.2 and 3000.08 establish a statutory framework for parole revocation. A parolee may be arrested, with or without a warrant, based on probable cause to believe that a parole violation has occurred. (
Section 1203.2 does not expressly provide for a preliminary hearing. DeLeon argues that another statutory provision, section 3044, and the due process clause of the federal Constitution, require one. The Court of Appeal rejected these arguments. It held that section 3044 is directed to BPH, not the superior courts. It further held that, under the Realignment Act, “superior courts are not required to conduct preliminary probable cause hearings as specified in [Morrissey, supra, 408 U.S. 471] before revoking parole, and that a timely single hearing procedure can suffice.” The court noted that a judicial probable cause determination was made within 14 days of DeLeon‘s arrest, he appeared before the court on the 20th day of his detention, and he received other procedural protections. In light of these circumstances, “the hearing conducted within 45 days of his arrest afforded him constitutionally adequate process.”
We first address DeLeon‘s claim of statutory error. Section 3044 sets forth several procedural rights to be afforded parolees in revocation hearings conducted by BPH. As relevant here, a parolee is entitled to a probable cause hearing within 15 days after an arrest for a parole violation. (
Section 3044 was enacted by the voters in 2008 as part of Proposition 9, commonly known as “The Victims’ Bill of Rights Act of 2008: Marsy‘s Law.” (In re Vicks (2013) 56 Cal.4th 274, 278; Prop. 9, § 5.3, as approved by voters, Gen. Elec. (Nov. 4, 2008) eff. Nov. 5, 2008 (Marsy‘s Law).) At that time, BPH was responsible for conducting parole revocation hearings. (Prather, supra, 50 Cal.4th at p. 254.) Section 3044 is directed to the “Board of Parole Hearings or its successor in interest.” (
The fact that the statute is bookended by directives to BPH provides context for its procedural provisions. ” ‘[W]e look to “the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]” [Citation.] That is, we construe the words in question ” ‘in context, keeping in mind the nature and obvious purpose of the statute . . . .’ [Citation.]” [Citation.] We must harmonize “the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.” ’ ” (People v. Acosta (2002) 29 Cal.4th 105, 112.) “[O]ur interpretation of a ballot initiative is governed by the same rules that apply in construing a statute enacted by the Legislature.” (People v. Park (2013) 56 Cal.4th 782, 796.) The statute as a whole makes clear that its procedures were drafted to apply to BPH when acting as the arbiter of parole revocation hearings.
The voters did make section 3044 applicable to BPH or “its successor in interest.” (
We also find no evidence that the Legislature intended to incorporate section 3044‘s procedures into the Realignment Act. The act inserted parole revocation provisions into section 1203.2, which falls under part 2, title 8, of the Penal Code (
The Legislature‘s reference to Morrissey, and its omission of any reference to section 3044, is significant in light of the protracted and ongoing litigation over parole revocation proceedings, including section 3044. In 1994, California parolees filed a class action lawsuit in federal district court challenging various aspects of the state‘s unitary parole revocation process. (See Valdivia v. Brown (E.D.Cal. 2013) 956 F.Supp.2d 1125, 1126 [summarizing procedural history].) That system was found unconstitutional (Valdivia v. Davis (E.D.Cal. 2002) 206 F.Supp.2d 1068, 1075–1078), and the parties ultimately filed a stipulated order for injunctive relief, which the court entered in 2004. (See Valdivia v. Brown, supra, 956 F.Supp.2d at pp. 1128–1129 [summarizing injunction].) Marsy‘s Law took aim at this injunction by adopting minimum procedural protections to be afforded parolees under section 3044. (2008 Voter Information Guide, supra, analysis of Prop. 9 by the Legis. Analyst, p. 60 [discussing Valdivia litigation].) Section 3044, in turn, was challenged in federal court. The district court issued an order in March 2009 invalidating four provisions of the statute because they conflicted with the 2004 injunction. (Valdivia v. Schwarzenegger (E.D.Cal. 2009) 603 F.Supp.2d 1275, 1282–1283.) The Ninth Circuit reversed and remanded with directions that the district court review the statute against constitutional standards. (Valdivia v. Schwarzenegger (9th Cir. 2010) 599 F.3d 984, 994–995.) In January 2012, the district court found six provisions of section 3044, including subdivision (a)(1), unconstitutional. Concluding these provisions were not severable from the remainder of the statute, it struck section 3044 down in its entirety. The district court accordingly granted the plaintiffs’ motion to reinstate the injunction, albeit with one modification. (Valdivia v. Brown (E.D.Cal. Jan. 24, 2012, No. CIV. S-94-671 LKK/GGH) 2012 WL 219342 at pp. *4–*13.) We presume that the Legislature was aware of this ongoing litigation when it amended section 1203.2 on June 27, 2012. (People v. Scott (2014) 58 Cal.4th 1415, 1424; see fn. 4, post.) The Legislature‘s reference to Morrissey as the constitutional baseline, rather than section 3044 (Stats. 2012, ch. 43, § 2, subd. (b)), is consistent with this presumption, and it suggests an intent to avoid any constitutional infirmity in the statute‘s provisions. Notably, in 2013 the district court held that California‘s passage of the Realignment Act had rendered the Valdivia legislation moot. (Valdivia v. Brown, supra, 956 F.Supp.2d at pp. 1135–1137.)
In arguing that section 3044‘s provisions apply to proceedings in superior court, DeLeon reasons that section 3044 was enacted by a voter initiative and was not properly amended according to the initiative‘s terms. Williams, supra, 230 Cal.App.4th 636, concluded that, because the requisite voting margin was not achieved in amending section 1203.2 as part of the Realignment Act, the
Under
“[F]or purposes of
We “start[] with the presumption that the Legislature acted within its authority” and uphold the validity of the legislative amendment “if, by any reasonable construction, it can be said that the statute furthers the purposes” of the initiative. (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1256.) Marsy‘s Law sought to curtail the procedural rights of parolees to spare crime victims and their families from
Moreover, we may consider later statutory amendments in deciding the validity of an implied amendment. (See People v. Ewoldt (1994) 7 Cal.4th 380, 390–393 (Ewoldt).) Here, two statutory amendments are significant. The first was part of Proposition 47, the Safe Neighborhoods and Schools Act, enacted by the voters on November 4, 2014. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014) eff. Nov. 5, 2014.) That proposition added section 1170.18. It allows someone serving a sentence for a crime that the proposition reduced to a misdemeanor to petition for recall of the sentence. (
The second relevant action, Senate Bill No. 517 (2015–2016 Reg. Sess.), amended and reenacted sections 1203.2 and 3000.08 in 2015.7 (Stats. 2015, ch. 61, §§ 1, 2.) That bill was passed with the required three-fourths’ vote in each house.8 It added a substantive provision to each statute authorizing the court to order the release of a supervised person, “who has been arrested under this section,” from custody “under any terms and conditions the court deems appropriate.” (Stats. 2015, ch. 61, § 1 [amending § 1203.2]; see id., § 2 [amending § 3000.08].) As Ewoldt explained, under
D. Procedural Due Process
We now consider whether DeLeon was denied his right to due process under the federal Constitution. (
Over four decades ago, Morrissey, supra, 408 U.S. 471, established the minimum due process protections for parolees facing revocation. There, two parolees complained that their parole had been revoked based on a written report but without a hearing. (Id. at p. 473.) Holding that due process required a hearing, the court observed that “[i]mplicit in the system‘s concern with parole violations is the notion that the parolee is entitled to retain his liberty as long as he substantially abides by the conditions of his parole.” (Id. at p. 479; see also id. at p. 482.) At the same time, however, the court emphasized that “revocation of parole is not part of a criminal prosecution
The court identified “two important stages” of the process. (Morrissey, supra, 408 U.S. at p. 485.) First, “some minimal inquiry [must] be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available. [Citation.] Such an inquiry should be seen as in the nature of a ‘preliminary hearing’ to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.” (Ibid.) The determination must be made by someone uninvolved in the case. (Id. at pp. 485–486.) The procedure is informal. (Id. at pp. 484–485.) It requires notice to the parolee and a chance to appear and speak on his own behalf. (Id. at pp. 486–487.) “[H]e may bring letters, documents, or individuals who can give relevant information to the hearing officer.” (Id. at p. 487.) At the parolee‘s request, witnesses to the parole violation must generally be available for questioning. (Ibid.)9 The officer then decides whether probable cause supports continued incarceration pending a final revocation hearing. (Morrissey, at p. 487.) The officer must prepare “a summary . . . of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given” at the hearing, and shall ” ‘state the reasons for his determination and indicate the evidence he relied on . . . .’ ” (Ibid.) However, ” ‘formal findings of fact and conclusions of law’ ” are not required. (Ibid.)
Second, the parolee must have an opportunity for a final hearing to determine if parole should be revoked. The minimum due process requirements for this hearing are: (1) written notice of the alleged parole violations; (2) disclosure of the evidence against the parolee; (3) an opportunity for the parolee “to be heard in person and to present witnesses and documentary evidence“; (4) “the right to confront and cross-examine adverse witnesses,” unless good cause exists to deny confrontation; (5) a ” ‘neutral and detached’ hearing body“; and (6) a written decision regarding the evidence and the reasons for revoking parole. (Morrissey, supra, 408 U.S. at p. 489.)
In re La Croix (1974) 12 Cal.3d 146 (La Croix) recognized Morrissey‘s application to California parolees, including the first-stage preliminary hearing: “It is thus clear that in all instances of alleged parole violations within this state a parolee who has not waived his right is entitled to a prerevocation hearing as mandated by Morrissey” (La Croix, at p. 152), if the parolee is in custody for the parole violation (id. at p. 152, fn. 2). For over 40 years, incarcerated California parolees have been
Although section 1203.2 does not expressly provide for a preliminary hearing, that right is firmly established in constitutional precedent. (Morrissey, supra, 408 U.S. at pp. 485–487; La Croix, supra, 12 Cal.3d at p. 152.) In amending the statutes, the Legislature stated its intent “that these amendments simultaneously incorporate the procedural due process protections held to apply to probation revocation procedures under Morrissey v. Brewer (1972) 408 U.S. 471, and People v. Vickers (1972) 8 Cal.3d 451, and their progeny.”10 (Stats. 2012, ch. 43, § 2, subd. (b).)
The Attorney General properly concedes that parolees who face revocation under section 1203.2 are entitled to a preliminary hearing, and that the less formal procedures employed here did not comply with Morrissey‘s due process requirements. Morrissey requires that the parolee be given notice of the preliminary hearing and an opportunity to appear, be heard, present documents and witnesses, and question adverse witnesses, absent good cause to deny cross-examination. (Morrissey, supra, 408 U.S. at pp. 486–487.) Here, two initial probable cause determinations were made: one by the parole agency three days after DeLeon‘s arrest, and a second by the court 14 days after the arrest. However, in neither instance was DeLeon allowed to appear, be heard, present evidence, or question his parole agent who reported the violation. These procedures did not satisfy Morrissey. (Id. at p. 487.)
In reaching a contrary conclusion, the Court of Appeal looked to People v. Coleman (1975) 13 Cal.3d 867 (Coleman), a probation revocation case. It reasoned that, under the Realignment Act, both parole and probation revocations are judicial proceedings “and as recognized in Coleman, cases such as Morrissey stating 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.” Applying the three-factor test from Mathews v. Eldridge (1976) 424 U.S. 319,11 the appellate court observed that a parolee has only “conditional liberty,” and that “[t]he prompt probable cause review of the charges and the parole violation report by a judicial officer as specified
The Court of Appeal‘s conclusion that superior court revocation proceedings are not subject to Morrissey‘s procedural due process requirements falters. Vickers, supra, 8 Cal.3d at page 458, found Morrissey applicable to probation revocation proceedings, which have long been conducted in superior court under section 1203.2. It found no principled distinction between revocation of parole and of probation “insofar as the demands of due process are concerned.” (Vickers, at p. 458.) “Certainly the nature of a probationer‘s interest in his liberty . . . is at least as great as that of a parolee and is entitled to at least the same due process safeguards before it is terminated. Morrissey is thus equally applicable in the case of a revocation of probation insofar as it assures that revocation can be had only with due process protections.” (Ibid.) Vickers found former section 1203.2 deficient in part because it made “no provision for a preliminary determination of probable cause to believe that a violation of probation has occurred in order to warrant the detention of a probationer until a more formal hearing is had.” (Vickers, at p. 458.) “The statutory provision . . . fails to meet several of the mandatory requirements of due process as set out in Morrissey and as now held by us to be applicable in probation revocation proceedings.” (Id. at p. 459.)
The high court confirmed Vickers‘s conclusion a year later in Gagnon v. Scarpelli (1973) 411 U.S. 778: “Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one. Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty. Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer, supra.” (Id. at p. 782, fns. omitted.) Far from authorizing fewer procedural protections, these authorities support the conclusion that Morrissey‘s preliminary hearing requirement applies to both parole and probation revocation proceedings under section 1203.2. (See People v. Woodall (2013) 216 Cal.App.4th 1221, 1238 [given “well-established case authority” the court “construe[s] section 1203.2 to impliedly require a probable cause hearing if there is any significant delay between the probationer‘s arrest and a final revocation hearing“].)
The Court of Appeal also looked to Gerstein v. Pugh (1975) 420 U.S. 103 (Gerstein) to conclude that an ex parte,
Gerstein addressed the Fourth Amendment‘s application to an early stage of new criminal proceedings following arrest.12 Morrissey, by contrast, envisioned a different set of procedures for parolees facing revocation, as a component of due process. (Morrissey, supra, 408 U.S. at pp. 486–487.) Morrissey‘s citation to Goldberg v. Kelly (1970) 397 U.S. 254, 267–271, along with its description of the procedures due, made clear that the parolee was not merely entitled to an ex parte determination of probable cause, but to an opportunity to be heard and to defend at an early stage. (Morrissey, at p. 487; accord, Valdivia v. Davis, supra, 206 F.Supp.2d at p. 1075.) Gerstein reaffirmed the justifications for Morrissey‘s holding, even as it declined to extend it to the limited probable cause determination required by the Fourth Amendment. (Gerstein, supra, 420 U.S. at pp. 121–122, fn. 22.) Nothing in Gerstein casts doubt on Morrissey‘s preliminary hearing procedure as applied to parolees.
We therefore reject the Court of Appeal‘s conclusion that Morrissey is inapplicable because the parole revocation process is conducted by the superior court, rather than the parole board. Accordingly, we have no need to resort to the three-factor test of Mathews v. Eldridge, supra, 424 U.S. 319. Morrissey has already established that an incarcerated parolee is entitled to a prerevocation preliminary hearing. DeLeon was deprived of that hearing.
Both parties ask us to address additional questions not directly implicated by the facts of this case in order to provide broader guidance. The Attorney General urges us to approve a unitary hearing procedure for parole revocations conducted under section 1203.2 (see Coleman, supra, 13 Cal.3d at pp. 894–895), even as he concedes that the final revocation hearing, conducted 41 days after DeLeon‘s arrest, could not be considered a timely unitary hearing. (See Williams, supra, 230 Cal.App.4th at p. 655 [”Coleman‘s approval of a single revocation hearing is conditional; it presumes the hearing will be held relatively soon after the person is arrested, and that the person will be afforded procedural benefits at all stages of the revocation process“].) We decline the Attorney General‘s invitation. The due process question is necessarily informed by the particular procedures employed by the court. (Morrissey, supra, 408 U.S. at p. 481.) It is therefore best to resolve the constitutionality of a unitary hearing in the context of a proceeding that purports to satisfy the minimum requirements for such a hearing.
DeLeon urges us to hold that due process requires that the preliminary hearing take place within 15 days of arrest. We decline this invitation as well. When faced with systemic constitutional violations, some courts have found it necessary to impose a mandatory time limit for conducting a Morrissey preliminary hearing. In Williams, supra, 230 Cal.App.4th 636, the court found
There is no evidence in this record of the timelines for conducting preliminary hearings in Solano County, or of systemic violations of parolees’ constitutional rights. DeLeon points to a remark by defense counsel on the date set for the preliminary hearing that the prosecutor “is well aware of this issue. I made the same objection last week. And it is an ongoing problem, and it is an easy fix.” After the trial court ordered briefing, however, defense counsel offered no argument or evidence that the Morrissey procedures had been systematically violated. Nor did the trial court make a finding in this regard. We agree with the federal district court‘s observation in Valdivia that “[w]hether the new system provides adequate due process must be demonstrated in practice, without untoward judicial interference until the need for intervention is clear.” (Valdivia v. Brown, supra, 956 F.Supp.2d at pp. 1136–1137.) Accordingly, we decline to resolve whether an outer time limit is constitutionally compelled. Instead, we reiterate Morrissey‘s command that the preliminary hearing should occur “as promptly as convenient after arrest.” (Morrissey, supra, 408 U.S. at p. 485.)
E. Prejudice
“The denial of [a parolee‘s] right to a timely prerevocation hearing notwithstanding his timely effort to assert it does not necessarily mean that he is automatically entitled to relief therefrom.” (La Croix, supra, 12 Cal.3d at p. 154.) Someone “whose parole has been revoked after a properly conducted revocation hearing is not entitled to have the revocation set aside unless it appears that the failure to accord him a prerevocation hearing resulted in prejudice to him at the [final] revocation hearing.” (Ibid.) The test of
As explained, this record does not support DeLeon‘s assertion that Morrissey has been systematically violated. Nor are we called upon to evaluate whether case-specific prejudice occurred because subsequent events have mooted DeLeon‘s claim for relief.
III. DISPOSITION
We conclude that incarcerated parolees facing revocation under section 1203.2 are entitled to a timely preliminary hearing. DeLeon was denied such a hearing, but he has completed his period of incarceration, and his parole supervision has terminated. Because these events occurred during the pendency of his appeal, we reverse the judgment of the Court of Appeal and remand with directions to dismiss the appeal as moot.13
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.