People v. DeLeonPeople v. DeLeon
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
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.
II. DISCUSSION
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
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,
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 mоot 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, оr what sentence to impose. Under these circumstances, DeLeon‘s parole violation does not constitute a disadvantageous collateral consequence for purposes of assessing
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.
B. Overview of the Realignment Act
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
C. Section 3044
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
Even were we to view the statutory language as ambiguous, the ballot materials accompanying Marsy‘s Law provide further support for this conclusion. (See Morales, supra, 63 Cal.4th at pp. 406–407 [looking to the Legis. Analyst‘s analysis for evidence of the voters’ likely understanding of a proposition‘s meaning].) The analysis told voters that “[t]he Board of Parole Hearings conducts two different types of proceedings relating to parole,” release and revocation. (Voter Information Guide, Gen. Elec. (Nov. 4, 2008) analysis of Prop. 9 by the Legis. Analyst, p. 59 (2008 Voter Information Guide).) It explained that “[t]his measure changes the board‘s parole revocation procedures for offenders after they have been paroled from prison” and mentioned a federal court order directed to the Department of Corrections and Rehabilitation. (Id. at p. 60.) There is no reason to believe that the voters contemplated adopting a set of procedures for the superior courts, which then played no role in the revocation process.
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
In arguing that section 3044‘s provisions apply to prоceedings 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 statutes must be harmonized by applying the procedural requirements of section 3044 to the provisions of section 1203.2. (Williams, at pp. 658–659.)4 We reject this conclusion.
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 thе 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 burdensome and unnecessary proceedings.5 Section 3044, like the rest of Marsy‘s Law, evinces this intent. Subdivision (a) of that statute is phrased in terms of limiting a parolee‘s procedural rights: “to
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 рrocess 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 and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” (Id. at p. 480.)
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.
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 prеsent 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
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 рarole 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
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 а 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 in
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 prinсipled distinction between revocation
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
The Court of Appeal also looked to Gerstein v. Pugh (1975) 420 U.S. 103 (Gerstein) to conclude that an ex parte, nonadversarial determination of probable cause by a magistrate suffices to detain the parolee until the final revocation hearing. That case is inapposite. Gerstein held that the Fourth Amendment‘s protection against unlawful seizures entitles persons arrested on suspicion of criminal activity to a judicial determination of probable cause, either before or promptly after arrest, as a prerequisite to continued detention. (Gerstein, at pp. 111–114, 125; see also County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56 [“a jurisdiction that provides judicial determinations of probable cаuse within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein“].) For purposes of that hearing, adversary safeguards such as the right to counsel, confrontation, cross-examination, and compulsory process for witnesses “are not essential . . . . The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard—probable cause to believe the suspect has committed a crime—traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof.” (Gerstein, at p. 120, fn. omitted.)
Gerstein addressed the Fourth Amendment‘s application to an early stage of new criminal proceedings following аrrest.12 Morrissey, by contrast,
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.
The Court of Appeal expressed concern over “further burden[ing] our overworked and under-resourced superior courts” by requiring both a preliminary hearing and a final revocation hearing. This legitimate institutional concern, however, cannot justify depriving a parolee of his right to due process of law. Additionally, there are several practical solutions to address this increased burden on judicial resources. First, the preliminary hearing provides a valuable screening tool that will result in some early dismissals, thereby lessening the number of final revocation hearings the court will be required to perform. Second, Morrissey does not require that a judge conduct the preliminary hearing. (Morrissey, supra, 408 U.S. at p. 486.)
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.
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
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 fаilure to accord him a prerevocation hearing resulted in prejudice to him at the [final] revocation hearing.” (Ibid.) The test of prejudice is whether the denial of the constitutionally mandated hearing was harmless beyond a reasonable doubt. (Ibid., citing Chapman v. California (1967) 386 U.S. 18, 24.) Additionally, the reviewing court may restore a parolee to parole status even absent a showing of prejudice as a “severe sanction” based on “a showing that the Authority is unresponsive to [the] mandates of Morrissey and its progeny and must be coerced to comply therewith.” (La Croix, at p. 155.)
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 еntitled 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.