Williams v. Superior Court , 178 Cal. Rptr. 3d 685 ( 2014 )

Filed 10/14/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
WENDY JOY WILLIAMS,
Petitioner,
v. G050280
THE SUPERIOR COURT OF ORANGE (Super. Ct. No. P-00164)
COUNTY,
OPINION
Respondent;
THE PEOPLE et al.,
Real Parties in Interest.
Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Craig E. Robison, Judge, and Gregg L. Prickett,
Supervising Judge. Petition granted.
Frank Ospino, Public Defender, Sharon Petrosino, Chief Deputy Public
Defender, Mark S. Brown, Assistant Public Defender, and Miles Jessup, Deputy Public
Defender, for Petitioner.
Tony Rackauckas, District Attorney, and Matthew Lockhart, Deputy
District Attorney, for Real Party in Interest the People of the State of California.
No appearance for Real Party in Interest the California Department of
Corrections and Rehabilitation, Division of Adult Parole Operations.
* * *
In Morrissey v. Brewer (1972) 408 U.S. 472 (Morrissey), the United States
Supreme Court held that a parolee is entitled to certain procedural due process
protections before parole may be revoked. (Id. at pp. 482-484.) Among these is the right
to a prompt evidentiary hearing on whether probable cause exists to believe the parolee
violated a condition of parole. (Id. at pp. 484, 487.)
In 2011, “California began enacting legislation, commonly known as
‘Realignment,’ that significantly altered the state’s criminal justice system.” (Valdivia v.
Brown (E.D.Cal. 2013) 956 F.Supp.2d 1125, 1126 (Valdivia III).) This legislation
established, inter alia, a uniform process for revocation of probation, parole, and
1
postrelease supervision of felons. (Sen. Bill No. 1023 (2011-2012 Reg. Sess.) § 2(a).)
The Legislature intended this uniform procedure to comply with Morrissey’s due process
requirements. (Sen. Bill No. 1023 (2011-2012 Reg. Sess.) § 2(b).) Under this uniform
procedure, the court has jurisdiction over petitions for revocation of supervision
2
(including parole). (§ 1203.2, subds. (a), (b).)
1
Under the uniform process, the term “supervision” refers to probation,
parole, and postrelease supervision. (Pen. Code, § 1203.2, subd. (a).)
All statutory references are to the Penal Code unless otherwise stated.
2
The uniform process became effective as to parolees on July 1, 2013.
(§ 3000.08, subd. (m).) Under section 3000.08, subdivision (i), certain parolees remain
subject to the jurisdiction of the Department of Corrections and Rehabilitation (DCR).
2
Petitioner Wendy Williams contends that, in the wake of realignment, the
State of California and the Orange County Superior Court have systematically denied her
and other parolees the procedural protections to which they are entitled in revocation
proceedings. Williams petitions for a writ of mandate (1) ordering the Superior Court to
arrange for her immediate release from custody and to dismiss the petition for revocation
of her parole, and (2) ordering the Superior Court and real parties in interest (the People
of the State of California and the Division of Adult Parole Operations (Parole) of the
DCR) to provide her with reasonable due process prior to any further incarceration,
including a Morrissey-compliant probable cause hearing within 15 days of arrest.
3
We grant Williams’s petition in part. We hold that, in parole revocation
proceedings, a parolee is entitled to arraignment within 10 days of an arrest for a parole
violation, a probable cause hearing within 15 days of the arrest, and a final hearing within
45 days of the arrest.
FACTS
Williams’s Parole Violation and Revocation Proceedings
4
On May 20, 2014, Williams was arrested for absconding from parole
supervision. She was placed in custody at the county jail on a parole hold.
On that date, a parole agent signed a probable cause determination form
identifying Williams’s parole violation as absconding from parole supervision, and
describing the circumstances of the charge as follows. After Williams failed to report to
3
We deny Williams’s petition for (1) arraignment within two business days
of the arrests, (2) Parole’s consideration of informal sanctions within one business day of
a parole hold, and (3) an opportunity to present evidence through counsel at any time to
mitigate sanctions.
4
All dates are in the year 2014, unless otherwise stated.
3
her supervising agent on May 6, the agent tried to locate her the next day at the Motel 6
in Orange, where she had claimed to reside. The agent spoke with Kathy, the motel’s
front desk clerk, who said Williams was not a guest at the motel. On May 13, the court
5
issued a warrant for Williams’s arrest and her parole was suspended. On May 20,
Williams was arrested by the police for being a parolee at large.
On the probable cause determination form, a Parole unit supervisor checked
a box to retain Williams’s parole hold and ordered that the matter be investigated and a
report submitted by May 28.
On May 28 — eight days after Williams’s arrest — in the parole violation
report, the parole agent and the unit supervisor recommended that Williams be returned
to custody for 135 days. The report reflected that an “evidence based tool” called the
“parole violation decision making instrument [PVDMI]” recommended that Williams be
“continue[d] on parole with remedial sanctions,” as opposed to being referred for
revocation. But Parole reported it had decided to petition for revocation due to
Williams’s “failure to comply with his or her conditions of parole or involvement in
criminal behavior,” and to recommend Williams be returned to custody for 135 days.
The report identified Williams’s risk level as “high-drug.”
The report described the circumstances of the charge similarly to the May
20 probable cause determination form, but also included the following additional details.
On May 20, Tustin police detective Breeze was at the Bel Air Motel in response to a
suspicious circumstance call for service. Breeze noticed a female standing in the
doorway of a motel room. Breeze approached Williams, who immediately went into her
room and said she did not want to talk to Breeze. Breeze contacted Kim, the motel
5
The probable cause determination form states the arrest warrant was issued
on May 31, but this is evidently an inadvertent transposition of the numbers “1” and “3,”
since the report is dated May 20 and reports a completed arrest. The People’s return to
defendant’s petition states (with no record reference) that Parole petitioned the court on
May 13 for a warrant for defendant’s arrest.
4
manager, who said the occupant of the room was Wendy Williams. A records check
revealed Williams was a parolee at large. Williams was arrested and taken to the police
station for booking.
The “Parolee Statement” section of the May 28 report stated that, while
Williams was being booked at the police station, she told the parole agent that she was
sick and unable to report, and promised to report immediately if the parole hold were
lifted.
In the “Evaluation” section of the May 28 report, Parole explained the
reasons for its recommendation to petition for revocation and a return to custody:
“Williams is a habitual absconder with no real desire or intentions to comply with her
conditions of parole. Williams travels from Riverside County to Orange County leaving
a trail of criminal arrests in both counties. Williams primarily lives out of motels and
occasionally the streets. She has been unemployed the vast majority of her adult life.
Although she has extremely supportive parents who are willing to assist her, she chooses
to live out in the streets bouncing from motel to motel. Remedial sanctions were
considered but Williams refused any type of treatment or structured program. This agent
recommends that Williams be returned to custody at this time.”
On May 29 — nine days after Williams was arrested and placed in jail —
6
Parole petitioned the court for revocation of her parole. The petition stated that on May
20, Parole had established probable cause for the alleged parole violation. Williams’s
arraignment was scheduled for June 5, — 16 days after Williams’s arrest.
6
The petition states Williams’s underlying conviction was for possession of
a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and that she was
released on supervision on September 26, 2011. Had Williams been released five days
later, on October 1, 2011, she would have qualified for postrelease community
supervision rather than parole, since her underlying offense did not disqualify her from
this type of supervision. (See § 3451, subd. (a).) Revocation of postrelease community
supervision and parole are both governed by section 1203.2. (§§ 3455, subd. (a),
3000.08, subd. (f).)
5
On June 5, Williams moved to dismiss the revocation petition for lack of
due process and pursuant to section 3044 (which gives a parolee the right to a probable
cause hearing within 15 days of arrest). She also sought release from custody pending
resolution of the due process and section 3044 issues.
It is undisputed that the court denied Williams’s motion. According to
Williams, she then sought to present evidence on probable cause, but the court denied her
request “and purported to find probable cause based solely on the ‘information and
belief’ Petition for Revocation.” It is undisputed that Williams’s revocation hearing “was
scheduled — per Court policy — three Thursdays later on June 26,” — 37 days after her
arrest.
Parole Violation and Revocation Procedures in Orange County
According to Williams, her experience is typical in Orange County, where
a 2013 survey conducted by the Orange County Public Defender staff indicated that
parolees averaged just over 16 days in custody prior to their first court appearance. Thus,
a majority of parolees were denied a probable cause hearing (or even arraignment and an
opportunity to request release on bail and appointment of counsel) within 15 days of their
arrest.
Williams describes the Orange County Superior Court’s calendaring policy
7
for parole revocation proceedings as follows. The court assigns parole revocation
matters only to department CJ1 (a courtroom located inside the Santa Ana jail), “with
some matters sent out to other courtrooms for some hearings.” The court sets such
matters only on Thursdays, refusing access to department CJ1’s available calendar slots
on Monday, Tuesday, Wednesday and Friday. The deadline for filing parole revocation
petitions to be heard on any particular Thursday is 4:00 p.m. on the immediately
7
The People’s return to defendant’s writ petition does not dispute the
accuracy of her description of the superior court’s policy.
6
preceding Monday. Thus, a revocation petition filed after the Monday deadline “will not
be calendared the same week, but rather will be placed on calendar at least 10 days later
on a non-holiday Thursday.” This filing deadline only applies to parole revocation
petitions. At the arraignment hearing, the court has refused to allow defense witnesses to
testify. Such testimony is allowed only at the final revocation hearing, which is
scheduled for three weeks after arraignment.
Parole has chosen, as a policy, not to exercise its statutory authority to
consider flash incarceration as an intermediate sanction in lieu of parole revocation.
(Couzens & Bigelow, Felony Sentencing After Realignment (Mar. 4, 2014), p. 95; at
[as of Sept. 23, 2014].)
The use of flash incarceration, i.e., detention in jail for up to 10 days, is statutorily
encouraged. (§ 3000.08, subds. (e), (f).)
DISCUSSION
Williams contends these policies “systematically ensure that in Orange
County, no parolee will ever have an audience before a magistrate within 48 hours of”
arrest and “virtually no parolee in Orange County will have a time compliant (Pen. Code,
§ 3044, subd. (a)) or Morrissey compliant probable cause hearing, much less a
meaningful opportunity to participate in such [a] hearing.”
The People counter that, in post-realignment California, Williams is not
entitled to arraignment within 48 hours of arrest nor is she entitled to a probable cause
hearing before a court at any time.
7
I
RELEVANT LEGAL PRINCIPLES AND BACKGROUND
A. Morrissey
In Morrissey, supra, 408 U.S. 471, two petitioners alleged they were denied
due process when their paroles were revoked without a hearing based on the parole
board’s review of the parole officer’s written reports. (Id. at pp. 472-474). The United
States Supreme Court stated that a parolee is not entitled to the full panoply of due
process rights, because parole revocation is not part of a criminal prosecution and
because revocation deprives a parolee of conditional liberty, not absolute liberty. (Id. at
p. 480.) Nevertheless, Morrissey held that a parolee who has been detained for a parole
violation is entitled to an informal probable cause hearing and a final revocation hearing.
(Id. at pp. 485, 487.)
The purpose of the probable cause hearing is “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.” (Morrissey, supra, 408 U.S.
at p. 485.) This “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.” (Ibid., italics added.) The determination
must be made by “someone not directly involved in the case” (ibid.), who need not be a
judicial officer (id. at p. 486). The parolee must be notified of the hearing and of the
alleged parole violations. (Id. at pp. 486-487.) “At the hearing the parolee may appear
and speak in his own behalf; he may bring letters, documents, or” witnesses. (Id. at
p. 487.) Generally, the parolee may question any “person who has given adverse
8
information on which parole revocation is to be based . . . .” (Ibid.) The hearing officer
must prepare “a summary . . . of what occurs at the hearing in terms of the responses of
8
The hearing officer may exempt a confidential informant from
“confrontation and cross-examination.” (Morrissey, supra, 408 U.S. at p. 487.)
8
the parolee and the substance of the documents or evidence given in support of parole
revocation and of the parolee’s position.” (Ibid.) The “‘decision maker should state the
reasons for his determination and indicate the evidence he relied on . . . ,’” but need not
make “‘formal findings of fact and conclusions of law.’” (Ibid.)
A final revocation hearing (if desired by the parolee) must take place within
a reasonable time after the parolee is taken into custody. (Morrissey, supra, 408 U.S. at
pp. 487-488.) A lapse of two months “would not appear to be unreasonable.” (Id. at
p. 488.) The parolee is entitled to written notice of the allegations; disclosure of adverse
evidence; an opportunity to be heard in person, to present witnesses and documentary
evidence, and generally to confront and cross-examine adverse witnesses; a “‘neutral and
detached’ hearing body”; and “a written statement by the factfinders as to the evidence
relied on and reasons for revoking parole.” (Id. at p. 489.)
The revocation decision involves two questions: Did the parolee actually
violate a parole condition? (Morrissey, supra, 408 U.S. at pp. 479-480.) And, if so,
“should the parolee be recommitted to prison or should other steps be taken to protect
society and improve chances of rehabilitation?” (Id. at p. 480.) The second question is
discretionary and entails a prediction of whether the individual is able “to live in society
without committing antisocial acts.” (Id. at p. 480; see id. at p. 484.)
Morrissey emphasized that it sought not to “create an inflexible structure
for parole revocation procedures” (Morrissey, supra, 408 U.S. at p. 490), but rather to
enunciate the “minimum requirements of due process” (id. at p. 489). It is well
established “that due process is flexible and calls for such procedural protections as the
particular situation demands.” (Id. at p. 481.)
B. Post-Morrissey History Until Realignment
Morrissey mandated that a probable cause hearing be held “as promptly as
convenient after arrest while information is fresh and sources are available.” (Morrissey,
9
supra, 408 U.S. at p. 485.) Beyond this, it provided no guidance as to the maximum
delay permitted under this standard.
In a class action lawsuit commenced in federal district court, the plaintiffs
challenged the constitutionality of California’s then-existing parole revocation system.
(Valdivia v. Davis (E.D.Cal. 2002) 206 F.Supp.2d 1068, 1069 (Valdivia I).) The
defendants were the “Governor of the State of California, and various state correctional
officials . . . .” (Ibid.) The district court held “that whether viewed as compelled by
Morrissey, or the result of a Mathews [v. Eldridge (1976) 424 U.S. 319] balancing test,
the [then] current California parole revocation system violate[d] the plaintiffs’ due
process rights.” (Id. at p. 1078.) At that time, California utilized “a wholly internal
review system from which the parolee [was] entirely excluded.” (Id. at p. 1070.) Parole
officers were authorized to place a parolee in custody on a parole hold. (Id. at pp. 1069-
1070.) After the parole officer and the unit supervisor reviewed the matter, they could
file a parole violation report with the Board of Prison Terms, containing “information on
the alleged parole violation and supporting evidence, a summary of the parolee’s
adjustment while on parole, and a recommendation as to what action should be taken.”
(Id. at p. 1170.) The system did not provide for probable cause hearings. (Ibid.) The
Board of Prison Terms would then offer the parolee a specific term of incarceration if the
parolee would waive a formal revocation hearing. If the parolee refused the offer, the
parolee remained in custody. (Ibid.) On average, revocation hearings were held 35.2
days after the parolee’s arrest and detention. (Id. at p. 1071.)
Valdivia I held that California’s system allowing a 45-day delay before a
probable cause hearing was unconstitutional. (Valdivia I, supra, 206 F.Supp.2d at
p. 1078.) The district court also noted that Morrissey’s “explanation of the requirements
for a preliminary procedure plainly suggests that it contemplated a ‘hearing’ rather than
some ex-parte process, for confirming probable cause.” (Valdivia I, at p. 1075.)
10
The district court later ordered the defendants “to file a proposed remedial
plan . . . .” (Valdivia III, supra, 956 F.Supp.2d at p. 1127.) The defendants asked the
court for guidance on what the Constitution requires as to “‘the timing and substance of
the preliminary’” hearing. (Ibid.) Reluctantly, the court advised them that a “period of
ten days strikes a reasonable balance between inevitable administrative delays and the
state’s interest in conducting its parole system, on the one hand, and the liberty interests
of parolees, on the other.” (Ibid.)
In a 2004 permanent injunction based on the parties’ stipulation (the
Injunction), the Valdivia court ordered, inter alia, that “notice of charges and rights . . . be
served on parolees not later than three business days from the placement of a parole hold”
and that probable cause hearings must be held not later than “10 business days after
parolees are served notice of charges and rights.” (Valdivia III, supra, 956 F.Supp.2d at
p. 1128.)
In 2008, “California voters passed Proposition 9, entitled ‘Victims’ Bill of
Rights Act of 2008: Marsy’s Law,’” which enacted section 3044 and “altered a number
of the parameters for the parole revocation system that had been mandated by the
Injunction.” (Valdivia III, supra, 956 F.Supp.2d at p. 1129.) Section 3044, subdivision
(a) provides that in order “to protect a victim from harassment and abuse during the
parole process,” a parolee, in the event of parole revocation, is only entitled to the
procedural rights listed in the statute. As relevant here, section 3044 entitles a parolee “to
a probable cause hearing no later than 15 days following his or her arrest for violation of
parole” (id., subd. (a)(1)), and an “evidentiary revocation hearing no later than 45 days
following his or her arrest for violation of parole” (id., subd. (a)(2)).
The Valdivia plaintiffs moved to enjoin enforcement of parts of section
3044 which conflicted with the Injunction. (Valdivia III, supra, 956 F.Supp.2d at
p. 1129.) In Valdivia v. Brown (E.D.Cal. 2012, No. CIV S-94-671 LKK/GGH) 2012 U.S.
Dist. Lexis 8092 (Valdivia II), the district court ruled that certain aspects of section 3044
11
were unconstitutional, including the statute’s requirement that probable cause hearings be
held within 15 days after the parolee’s arrest, with an evidentiary revocation hearing
within 45 days. But the court’s constitutional criticism of section 3044 was not based on
the time limits per se, but on the lack of other constitutionally mandated requirements.
Valdivia II held that “[t]he bare requirements in § 3044 fall short of the minimum due
process set forth in Morrisey.” (Valdivia II, at p. *19.) Notably absent from the limited
procedural rights accorded parolees under section 3044 were “notice, a written summary
of the proceedings and of the revocation decision, the opportunity to present documentary
evidence and witnesses, and disclosure to the parolee of the evidence against him.”
(Valdivia II, at p. *19.) In addition, Valdivia II held that section 3044 “does not
guarantee a prompt probable cause hearing with all of the minimum process set forth in
Morrissey.” (Valdivia II, at p. *21, italics added.)
C. Realignment Legislation
In 2011, the Legislature enacted realignment legislation which amended “a
broad array of statutes concerning where a defendant will serve his or her sentence and
how a defendant is to be supervised on parole.” (Couzens & Bigelow, supra, p. 6, at
[as of Sept. 23, 2014].)
The legislation “allows lower level felons to serve their sentences in county jail . . . and to
be supervised postrelease by county agencies.” (1 Witkin & Epstein, Cal. Criminal Law
(4th ed. 2012) Introduction to Crimes, § 141, p. 231.) The sentence of a felon sent to
prison must generally “include a period of parole supervision or postrelease community
supervision.” (§ 3000, subd. (a)(1).)
In 2012, as part of the realignment system, the Legislature amended section
1203.2 (which previously dealt solely with the revocation of probation) to apply to the
revocation of supervision (§ 1203.2, subds. (a), (f)(3)), thereby establishing a uniform
process for revocation of parole, probation, and postrelease supervision of most felons.
12
(3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2014 supp.) Punishment, § 687A, p.
121.) Consequently, under current section 1203.2, the court has authority to revoke the
supervision of a person on grounds specified in the statute. (§ 1203.2, subds. (a), (b).)
Previously the Board of Parole Hearings conducted parole probable cause and revocation
hearings. (Valdivia III, supra, 956 F.Supp.2d at p. 1130.) In enacting the realignment
legislation, the Legislature declared its intent that the statutory amendments that
established section 1203.2’s uniform procedure “simultaneously incorporate the
procedural due process protections held to apply to probation revocation procedures”
under Morrissey, supra, 408 U.S. 471 and People v. Vickers (1972) 8 Cal.3d 451, 459
(Vickers) (which applied the Morrissey parole revocation protections to probation
revocation), and their progeny. (Sen. Bill No. 1023 (2011-2012 Reg. Sess.) § 2.)
In July 2013, the Valdivia court determined that, in light of California’s
realignment legislation that transferred substantial responsibilities for the parole system
from Parole and the Board of Parole Hearings to county authorities and state courts
(Valdivia III, supra, 956 F. Supp.2d at p. 1130), the Valdivia class action suit was no
longer “the proper vehicle for ensuring that parolees receive Constitutionally-guaranteed
due process protections” (id. at p. 1126). The district court declared the case “moot as of
July 1, 2013, when the new parole revocation system was scheduled to go fully into
9
effect.” (Id. at pp. 1126-1127.) The Realignment “system features major new actors
(county jails; the California state courts; public defenders’ offices)” who were not parties
to the Valdivia lawsuit. (Id. at p. 1135) Accordingly, the district court dismissed the
matter. (Id. at p. 1127.) It stressed, however, 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.” (Id. at pp. 1136-1137.) The court
suggested that Parole’s “probable cause ‘determinations’ [may] represent a ‘rever[sion] to
9
Under the district court’s order, the Injunction remains in effect for parolees
arrested for violations before July 1, 2013. (Valdivia III, at p. 1142.)
13
a wholly internal review process for assessing probable cause’ [citation] of the type that
this court found unconstitutional [in Valdivia I] in 2002. Nevertheless, for the reasons set
forth above, any such infirmities will have to be addressed, if at all, in a subsequent
lawsuit or lawsuits.” (Id. at p. 1137.)
D. Relevant Realignment Statutes
Section 3000.08, governing parole supervision, contains the following
relevant provisions. If a parole agent or peace officer has probable cause to believe a
parolee is violating parole, the agent or officer may, without warrant, “arrest the person
and bring him or her before the court, or the court may, in its discretion, issue a warrant
for that person’s arrest . . . .” (Id., subd. (c), italics added.) If the supervising parole
agency finds “good cause” that the parolee violated the law or a parole condition, the
agency may impose additional conditions of supervision and “immediate, structured, and
intermediate sanctions . . . , including flash incarceration . . . .” (Id., subd. (d), italics
added.) “‘Flash incarceration’” is a period of detention in jail of up to 10 consecutive
days. (Id., subd. (e).) “Periods of ‘flash incarceration’ . . . are encouraged as one method
of punishment for violations of a parolee’s conditions of parole.” (Id., subd. (d), italics
added.) “Shorter, but if necessary more frequent, periods of detention . . . shall
appropriately punish a parolee while preventing the disruption in a work or home
establishment that typically arises from longer periods of detention.” (Id., subd. (e).) “If
the supervising parole agency has determined, following application of its assessment
processes, that intermediate sanctions up to and including flash incarceration are not
appropriate, the supervising parole agency shall, pursuant to Section 1203.2, petition [the
court] to revoke parole.” (Id., subd. (f), italics added.) If the court finds the parolee has
violated the conditions of parole, it may (1) return the person to parole supervision with
modifications of conditions, if appropriate, (2) revoke parole and order the person to
confinement in county jail, or (3) refer the person to reentry court or an evidence-based
14
program. (Ibid.) Section 3000.08, subdivision (f) provides that the California Judicial
Council shall adopt forms and rules of court to establish “the minimum contents of
supervision agency reports.”
California Rules of Court, rule 4.541(e) mandates that “a report filed by the
supervising agency in conjunction with a petition to revoke parole or postrelease
community supervision must include the reasons for that agency’s determination that
intermediate sanctions without court intervention as authorized by Penal Code sections
3000.08(f) or 3454(b) are inappropriate responses to the alleged violations.”
Section 1203.2, governing the procedure for revocation of supervision
(including parole, postrelease community supervision, probation, and mandatory county
supervision), contains the following relevant provisions. (Id., subd. (a).) If a probation
or parole officer or a peace officer “has probable cause to believe that the supervised
person is violating any term or condition of his or her supervision, the officer may,
without warrant or other process, . . . rearrest the supervised person and bring him or her
before the court,” or the court may issue a rearrest warrant. (Ibid., italics added.) The
court may revoke the supervision of the person “if the interests of justice so require and
the court, in its judgment, has reason to believe from the report of the probation or parole
officer or otherwise that the person has violated any of the conditions of his or her
supervision, has become abandoned to improper associates or a vicious life, or has
subsequently committed other offenses, regardless [of] whether he or she has been
prosecuted for such offenses.” (Ibid, italics added.) The court may also revoke
supervision upon its own motion or upon the petition of the supervised person, the
probation or parole office, or the district attorney (id., subd. (b)(1)), based on the
probation or parole officer’s written report (id., subd. (b)(2)). Nothing in section 1203.2
“affects the authority of the supervising agency to impose intermediate sanctions,
including flash incarceration, to persons supervised on parole . . . or postrelease
community supervision . . . .” (Id., subd. (g), italics added.)
15
Under section 3056, subdivision (a), a “parolee awaiting a parole
revocation hearing may be housed in a county jail while awaiting revocation
proceedings.” Local jails and Parole have treated this provision as authorizing a parole
hold, although the express language does not do so. (Couzens & Bigelow, supra, p. 77,
at [as of Sept. 23,
2014].) In addition to section 3056, the District Attorney cites section 3060 as
authorizing parole holds, but section 3060 was repealed effective July 1, 2013.
II
THE MERITS OF WILLIAMS’S PETITION
Williams requests us to order the superior court to (1) release the parole
hold and order her immediate release from custody, and (2) dismiss the revocation
petition because the State denied her minimum due process. Williams further requests an
order that she “receive reasonable due process before any further incarceration, including:
(i) actual consideration of the full range of informal sanctions up to and including flash
incarceration within one business day of any [p]arole hold and prior to any petition for
revocation; (ii) prompt access to the court and counsel without unnecessary delay (e.g.,
within two business days of arrest) with formal notice of the allegations against her
(specifically including any rules allegedly violated and factual and evidentiary basis for
that violation), (iii) an opportunity to present evidence through counsel at any time to
mitigate sanctions, (iv) a full Morrissey-compliant probable cause hearing as soon as
practical and no later than 15 days after arrest, and (v) an opportunity for final judicial
adjudication of any parole revocation petition as promptly as reasonable and in any case
within 45 days of arrest.”
The range of remedies requested by Williams is problematic on several
levels. With regard to her request for a release from the parole hold and an immediate
release from custody, we take judicial notice of the trial court minutes reflecting that on
16
July 3, 2014, Williams admitted the parole violation. The court reinstated parole, and
committed Williams to the Orange County jail for 90 days. Williams was credited with
45 days of actual custody, and was given 45 days of conduct credit, resulting in her
release on “this case only.” Ordinarily, these events would render moot her prayer for
immediate release, since we would no longer be able to provide the requested relief. But
this is “a classic example of an issue capable of repetition yet likely to evade review.”
(Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th
1425, 1444.) The accumulation of time required for briefing on the merits, oral
argument, and preparation of an opinion extend the time for decision beyond the delay
constituting the alleged due process violation. Accordingly, we will decide the due
process issues on the merits.
Based on the record before us, however, we are unable to review
Williams’s request that we command Parole in the future to consider the full range of
intermediate sanctions up to and including flash incarceration within one business day of
the placement of a parole hold. Such a review would require a more extensive
evidentiary record than has been provided in this proceeding.
Consequently, we will grant limited relief, establishing certain outer time
limits, beyond which the due process rights of parolees would be violated. We take this
cautious approach because, while it is manifest that the due process rights of parolees are
being systematically violated in Orange County, we have not been provided sufficient
information to craft a more precise solution. We begin by considering an appropriate
outer time limit for a Morrissey-compliant probable cause hearing. Other appropriate
limits will follow from this determination.
A. Probable Cause Hearing
Williams requests that, in the event of any further incarceration, she be
afforded a probable cause hearing within 15 days after arrest. The People argue Williams
17
is not entitled to a probable cause hearing in post-realignment California, citing Valdivia
III, supra, 956 F.Supp.2d 1125, People v. Coleman (1975) 13 Cal.3d 867 (Coleman), and
People v. Woodall (2013) 216 Cal.App.4th 1221 (Woodall). These cases do not support
the People’s contention.
The People assert Valdivia III “said . . . that bifurcated parole revocation
proceedings are no longer required post-Realignment.” To the contrary, Valdivia III,
which was issued on July 3, 2013 (two days after the operative date of § 3000.08),
stressed that its dismissal of the action as moot was not intended “to say that the
constitutionality of the new parole system is immune from challenge.” (Valdivia III,
supra, 956 F.Supp.2d at p. 1137.) Rather, given that the new system had scarcely started,
Valdivia III found that any claims of constitutional infirmity were speculative and not
ripe for adjudication. (Id. at p. 1138.)
Neither does Coleman support the People’s claim that because parole
revocation now involves judicial proceedings, a probable cause hearing is never required.
Coleman, a pre-realignment case, stated that “[g]enerally it is not necessary in California
to afford a probationer faced with revocation proceedings” a “‘probable cause’ [citation]
hearing of the type normally provided in the course of parole revocation proceedings.”
(Coleman, supra, 13 Cal.3d at p. 894.) Our Supreme Court explained that “[p]robation
revocation, unlike parole revocation, is in California a judicial proceeding with
concomitant procedural benefits for a probationer at all stages of the revocation process.
Usually a judicial determination of probable cause precedes the arrest of a probationer for
violations of the conditions of his probation, and the formal revocation hearing with its
full panoply of Morrissey procedural rights occurs relatively soon after the probationer
has been deprived of his conditional liberty. Since ‘the precise nature of the proceedings
for [probation] revocation need not be identical’ to the bifurcated Morrissey parole
revocation procedures, so long as ‘equivalent due process safeguards’ assure that a
probationer is not arbitrarily deprived of his conditional liberty for any significant period
18
of time [citation], a unitary hearing will usually suffice in probation revocation cases to
serve the purposes of the separate preliminary and formal revocation hearings outlined in
Morrissey.” (Id. at pp. 894-895, italics added.)
Coleman does not assist the People’s cause. First, as noted in Valdivia I, it
is unclear whether a prompt unitary hearing can pass constitutional muster in light of
10
Gagnon, supra, 411 U.S. 778. Second, 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. As Williams points out, “during the period when [a parolee] is
excluded from court, no procedural benefits are provided.” Third, Williams does not
object to a prompt unitary hearing. She even suggests a timely unitary hearing might be
in the interest of all parties: “To the extent that [she] could be provided full discovery
and immediate access to court and counsel, [she] believes she could likely be prepared to
proceed to a full adjudicatory (unitary) hearing within 15 days of arrest. That might well
satisfy due process.”
Finally, in Woodall, the defendant argued that section 1203.2 violates the
federal Constitution (both facially and as applied to him) because “it does not require a
preliminary probable cause hearing before a final revocation hearing” as required by
Morrissey. (Woodall, supra, 216 Cal.App.4th at p. 1227.) Woodall rejected the
defendant’s as-applied challenge to the statute because the trial court hearing had
comported “with the Morrissey standards for a preliminary probable cause hearing.”
10
“A year after Morrissey, the [Supreme] Court explained that in that case
‘we held that a parolee is entitled to two hearings, one a preliminary hearing at the time
of his arrest and detention to determine whether there is probable cause to believe that he
has committed a violation of his parole, and the other a somewhat more comprehensive
hearing prior to the making of the final revocation decision.’” (Valdivia I, supra, 206
F.Supp.2d at p. 1075; see Gagnon, supra, 411 U.S. at pp. 781-782; see also id. at p. 786
[“Morrissey mandated preliminary and final revocation hearings”].)
19
(Woodall, at p. 1239.) The hearing took place only nine days after the defendant’s arrest
and he was represented by counsel and allowed to participate in the hearing.
(Id. at p. 1228.) Most significantly, Woodall rejected the defendant’s facial challenge to
section 1203.2 by construing the statute “to impliedly require a probable cause hearing if
there is any significant delay between the probationer’s arrest and a final revocation
11
hearing.” (Woodall, at p. 1238, italics added.)
Thus, Morrissey-compliant probable cause hearings are required in post-
realignment California, although a prompt unitary hearing may suffice. (But see Gagnon,
supra, 411 U.S. at pp. 781-782 [two separate hearings are required].) A Morrissey-
compliant probable cause hearing requires that the parolee be given the opportunity to
“appear and speak in his own behalf; he may bring letters, documents, or” witnesses, and
may question any person “who has given adverse information on which parole revocation
is to be based . . . .” (Morrissey, supra, 408 U.S. at p. 487.) In our view, this would
include the opportunity to present evidence of Parole’s failure to comply with section
3000.08, subdivision (f), which requires parole agents to employ “assessment processes”
11
Over 40 years earlier, in Vickers, our Supreme Court observed that former
section 1203.2 (which then applied only to probation revocation) “makes no provision for
a preliminary determination of probable cause . . . in order to warrant the detention of a
probationer until a more formal hearing is had” (Vickers, supra, 8 Cal.3d at p. 458), nor
does it provide an opportunity for a probationer “to be heard in person and to present
witnesses and documentary evidence, or the right to confront and examine adverse
witnesses” (id. at p. 459). Vickers concluded former section 1203.2 “thus fails to meet
several of the mandatory requirements of due process as set out in Morrissey,” which our
Supreme Court held were equally mandatory in probation revocation proceedings.
(Vickers, at p. 459.)
The Legislature intended to comply with Vickers and Morrissey when it
created a uniform process for revocation of supervision under post-realignment section
1203.2. Yet, section 1203.2 still makes no mention of a supervised person’s right to a
probable cause hearing and to present evidence. Moreover, the statute authorizes the
court to revoke supervision based on the report of the probation or parole officer. The
parties do not raise the issue of the statute’s constitutionality.
20
to determine whether intermediate sanctions are appropriate before petitioning for parole
revocation.
The remaining question is when exactly the hearing must be held. Given
the juncture at which we find ourselves, having received several petitions for writ relief
on this subject within the last year, we will provide the parties with some guidance. The
post-realignment process for parole revocation has been in place for slightly over one
year. It appears the Orange County system is well-established and satisfactory to the
Superior Court, Parole, and the People. But the problems identified by Williams suggest
the system is due for an overhaul.
In Valdivia I, the court took the following approach to analyzing whether
California’s parole revocation system was constitutional. The court “first determine[d]
whether there is controlling precedent speaking to the particular procedures due at the
initial stage of the parole revocation process. . . . In the absence of such controlling
precedent, the task is to apply the Mathews process to the procedures at issue.” (Valdivia
I, supra, 206 F.Supp.2d at p. 1074.) The Mathews process is a balancing test used to
resolve procedural due process claims. (Mathews v. Eldridge, supra, 424 U.S. at p. 335,
(Mathews).)
There are potentially two guideposts regarding the time limit for a probable
cause hearing in parole revocation proceedings. First, the Valdivia Injunction required
probable cause hearings to be held within 13 business days of placement of a parole
12
hold. (Valdivia III, supra, 956 F.Supp.2d at p. 1128.) Second, section 3044,
subdivision (a)(1) provides that a parolee is entitled to a probable cause hearing within 15
days of being arrested for a parole violation. These time standards are not significantly
12
The Injunction required notice of charges and rights to be served on
parolees within 3 business days of placement of a parole hold, and probable cause
hearings to be held within 10 business days after parolees were served notice. (Valdivia
III, supra, 956 F.Supp.2d at p. 1128.)
21
different. Thirteen business days will encompass at least two weekends, resulting in at
least 17 calendar days, two more days than specified in section 3044.
The Injunction is a federal district court order and lacks precedential value
for us. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352 [“Decisions of the lower federal
courts interpreting federal law, though persuasive, are not binding on state courts”].)
Moreover, the Valdivia lawsuit has been dismissed because both the Injunction and the
action were rendered moot by realignment.
Section 3044 is still on the books. At first blush, the statute may seem
inconsistent with the Legislature’s intent to have all supervision revocation proceedings
governed by section 1203.2. The People argue section 3044 is moot in the wake of
realignment. Commentators have also noted: “It is unlikely section 3044 applies to the
courts. Section 3044[, subdivision (a)] provides: ‘Notwithstanding any other law, the
Board of Parole Hearings or its successor in interest shall be the state’s parole authority
and shall be responsible for protecting victims’ rights in the parole process.’ Section
3044[, subdivision (b)] instructs,” “‘The board shall report to the Governor.’ Clearly the
courts are not the ‘state’s parole authority’ after July 1, 2013. It is doubtful the courts, in
the judicial branch of government, can be a successor in interest to the Board of Parole
Hearings, in the executive branch. Finally, in no circumstances do the courts ‘report to
the Governor.’” (Couzens & Bigelow, supra, p. 105, at
[as of Sept. 23, 2014].)
Although section 3044 might appear to be superseded by the realignment
statutes, the implied repeal of a statute is disfavored. (Crosby v. Patch (1861) 18 Cal.
438, 441.) “A new statute is not construed as an ‘implied repeal’ unless it is clear that the
later enactment is intended to supersede the existing law.” (California Oak Foundation
v. County of Tehama (2009) 174 Cal.App.4th 1217, 1221.) Rather, the “two must be
construed together, and effect given, if possible, to both.” (Crosby, at p. 441.) Moreover,
section 3044 was enacted as a voter initiative, which, by its terms, may “not be amended
22
by the Legislature except by a statute passed in each house by roll-call vote entered in the
journal, three-fourths of the membership of each house concurring, or by a statute that
becomes effective only when approved by the voters.” (Voter Information Guide, Gen.
Elec. (Nov. 4, 2008) text of Prop. 9, § 9, p. 132.) Section 1203.2 was passed in its current
form as Senate Bill No. 76 in the California Senate by a vote of 30 senators (three-fourths
of the senate membership of 40), and by the California Assembly by a vote of 54 to 25 (a
margin less than three-fourths of the assembly membership). These margins thus were
less than the 75 percent concurrence in both houses as required by the terms of
Proposition 9 for an implied amendment or repeal of section 3044. (See also Cal. Const.,
art. II, § 10, subd. (c) [forbidding the Legislature from amending enactments made by
voter initiative if the amendments are inconsistent with said initiative].) Thus, while it is
undoubtedly true that (1) the courts are not the “successor in interest” to the Board of
Parole Hearings, and (2) the Board of Parole Hearings remains charged with being
“responsible for protecting victims’ rights in the parole process,” those portions of
section 3044 intended to provide minimum standards of due process protection to
parolees can easily be harmonized with section 1203.2. Prime among those minimum
standards guaranteed by section 3044 are the entitlements to a probable cause hearing
within 15 days and an “evidentiary revocation hearing” within 45 days of an arrest for
13
violation of parole.
Williams’s writ petition requests a Morrissey-compliant probable cause
hearing within 15 days of arrest. This standard would comply with the mandate of
section 3044. We must also, of course, analyze Williams’s request under the requisites of
the federal Constitution. Accordingly, we turn to the Mathews balancing test for
13
Section 3044, subdivision (a)(2) refers to the final revocation hearing as an
“evidentiary revocation hearing.” As discussed above, a parolee is also entitled to
present evidence at the probable cause hearing.
23
procedural due process claims. That test requires a court to consider three factors.
(Mathews, supra, 424 U.S. at p. 335.)
Under the first factor, we must identify “the private interest that will be
affected by the official action.” (Mathews, supra, 424 U.S. at p. 335.) At stake here is a
parolee’s conditional liberty interest. “Subject to the conditions of . . . parole, [a parolee]
can be gainfully employed and is free to be with family and friends and to form the other
enduring attachments of normal life.” (Morrissey, supra, 408 U.S. at p. 482.) Not only is
this conditional liberty valuable to the parolee, it is of value to society. “Society has a
stake in . . . restoring him to normal and useful life within the law” (id. at p. 484) and of
avoiding the costs of maintaining him in prison (id. at p. 477, fn. omitted).
The official action at issue here is the prolonged detention of a parolee in
jail without a probable cause hearing. Such detention disrupts a parolee’s work, family,
and social relationships. (Valdivia I, supra, 206 F.Supp.2d at p. 1078.) The longer it
continues, the more it endangers the chances that the parolee can successfully reintegrate
into society. “In order to protect a parolee’s liberty interest, Morrissey requires
procedures to insure . . . that parolees are not detained without some sort of assurance that
there is probable cause to suspect a parole violation.” (Ibid.)
The second Mathews factor assesses “the risk of an erroneous deprivation
of such interest through the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards.” (Mathews, supra, 424 U.S. at p. 335.) Here, the
procedures used in Orange County create a high risk of an erroneous deprivation of a
parolee’s liberty interest. According to the Orange County Public Defender’s survey,
Orange County parolees averaged just over 16 days in custody prior to their first court
appearance. This means that some parolees may have spent considerably more days in
jail before their first court hearing. At that hearing, parolees are not permitted to present
evidence. Rather, the court reviews Parole’s report.
24
A Morrissey-compliant probable cause hearing held within 15 days of
arrest would be a valuable safeguard against erroneous deprivation of a parolee’s liberty
interest. It would increase the chances that information would still be fresh and sources
would still be available at the time of the hearing. (Morrissey, supra, 408 U.S. at p. 484.)
Allowing the parolee to present a defense would reduce the risk of a court making
decisions based on erroneous information or erroneous evaluation.
The final Mathews factor considers “the Government’s interest, including
the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” (Mathews, supra, 424 U.S. at p. 335.)
Here, the State has an interest in protecting the public and “being able to return the
individual to imprisonment without the burden of a new adversary criminal trial” in the
event of an actual parole violation. (Morrissey, supra, 408 U.S. at p. 483.) “Yet, the
State has no interest in revoking parole without some informal procedural guarantees.”
(Ibid.) Indeed, as Williams argues, the State has an interest “in enforcement of rules
providing for evidence based sanctions to avoid unnecessary and counterproductive
incarcerations before the damage is done (e.g., loss of [the parolee’s] housing, social
support ties, and community stability).”
As to burdens, a 15-day time limit will probably require the Superior Court
to change its calendaring policy on these matters. Fortunately, according to Williams,
department CJ1 of the Orange County Superior Court is open every day of the week (not
just Thursdays), is located in the Central Jail in Santa Ana, is staffed daily by a judge
with “a full court support staff, representatives of the District Attorney and the Public
Defender (as well as alternate defense services), and several Sheriff’s deputies.” Apart
from scheduling concerns, the new evidentiary probable cause hearings will consume
more court time. Of course, if the parole violation is also charged as a new felony, a
preliminary hearing must be set in any event within 10 court days of defendant’s
arraignment unless waived. (See § 859b.) Under these circumstances, we would
25
anticipate the preliminary hearing would also address the probable cause issue on the
parole violation, resulting in no additional court time. If the parole violation does not
result in additional criminal charges, we anticipate that the probable cause hearing would
not consume much time. We do not believe the additional burdens imposed upon the
court or the district attorney outweigh the benefits to both the government and the parolee
in avoiding further incarceration where the alleged violation is shown to lack probable
cause.
As to the burdens placed on Parole, the 15-day time limit for a probable
cause hearing may require the division to make faster decisions on whether to seek
revocation. This burden should not be insurmountable, especially if Parole and the court
collaborate to establish a workable system. And we note that Parole has chosen not to
respond to our order to show cause.
B. Notice and Prompt Access to Court and Counsel
In the event of further incarceration, Williams contends she is entitled to
arraignment within 48 hours of arrest under sections 825 and 849 and County of Riverside
v. McLaughlin (1991) 500 U.S. 44 (McLaughlin). But section 849 and McLaughlin apply
to defendants arrested without a warrant prior to a criminal trial. (§ 849, subd. (a);
14
McLaughlin, at p. 52.) Williams was arrested pursuant to a warrant. And, the
“revocation of parole is not part of a criminal prosecution,” but “arises after the end of
the criminal prosecution, including imposition of sentence.” (Morrissey, supra, 408 U.S.
at p. 480.)
14
Parolees arrested without a warrant may be entitled to a prompt appearance
in court. Under section 3000.08, subdivision (c), if an officer arrests a parolee without a
warrant, the officer must “bring him or her before the court.” (Italics added; see also
§ 1203.2, subd. (a) [same text].)
26
Section 825 governs arraignment after arrest made pursuant to warrant, but
it too is inapplicable to Williams because it concerns defendants in a criminal prosecution
and possibly parolees on new charges. (§ 825, subd. (a)(1); People v. Hughes (1974) 38
Cal.App.3d 670, 672, 674 [parolee arrested on new charges was entitled to § 825
protection]; Cal. Const., art. I, § 14 [person charged with felony must be taken without
unnecessary delay before magistrate].) As our Supreme Court has “observed, ‘the
arraignment requirement of Penal Code section 825 has been interpreted as not applying
when [as here] a parole hold on other matters has been placed upon the defendant.’”
(People v. Hughes (2002) 27 Cal.4th 287, 326.)
Nevertheless, in order to protect Williams’s right under Morrissey to
meaningfully participate in a probable cause hearing, she is entitled to receive timely
access to counsel and notice of the allegations against her. She must receive them well
before the probable cause hearing, so she has time to prepare a defense. In Vickers,
supra, 8 Cal.3d at p. 461, our Supreme Court held that “the efficient administration of
justice [generally] requires that the defendant be assisted by . . . counsel at all revocation
proceedings . . . .”
On the other hand, if Parole decides relatively quickly to impose
intermediate sanctions or additional parole conditions (without court intervention), the
issue of a parolee’s access to the court and counsel is obviated. Parole “should be given a
reasonable period of time to investigate and review the circumstances of a violation, and
to determine the appropriate level of response, including ‘flash incarceration.’ A
reasonable period should be allowed for the implementation of any intermediate sanction,
such as acceptance into a suitable rehabilitation program.” (Couzens & Bigelow, supra,
p. 93; at [as of Sept. 23,
2014].) )
In this context, a reasonable period cannot be long, however. Under section
3000.08, subdivision (d), if a supervising parole agency finds good cause that a parolee
27
has committed a violation and the agency decides to impose intermediate sanctions, it
must do so immediately. We recognize that in cases like Williams’s, where parole
absconding is a real risk, the State has an interest in protecting the public and in keeping
track of the parolee. But a parole hold cannot be maintained indefinitely consistent with
due process.
Yet, because there is no express statutory authorization for parole holds,
there is no statutory regulation of them. Under the current system used in Orange
County, Parole can keep a parolee in custody on a parole hold until the filing of a
revocation petition, at which time the court clearly acquires jurisdiction over the parolee.
“The precise nature of the court’s authority in the absence of a revocation petition being
filed is unclear because of [Parole’s] ability to issue such holds and ambiguous nature of
the applicable [statutes].” (Couzens & Bigelow, supra, p. 89, at
[as of Sept. 23, 2014].)
Parole does have an independent duty under section 3000.08, subdivision (d), to
determine whether there is “good cause” to believe the parolee has committed a violation
of supervision (which arguably amounts to “an early determination of probable cause for
detention”). (Couzens & Bigelow, supra, p. 89, at
[as of Sept. 23, 2014].)
But the “statute does not specify when a petition to revoke supervision must be filed;
indeed, [Parole] is not permitted to file a petition unless it determines intermediate
sanctions are no longer appropriate.” (Ibid.) On the other hand, sections 1203.2 and
3000.08 require that, in the event of a warrantless arrest, the supervising officer must
bring the supervised person “before the court.” (§§ 1203.2, subd. (a), 3000.08, subd. (c),
italics added.) “Giving the emphasized language its most logical effect, it seems the
reason for requiring the person to be brought before the court is to avoid the arrested
person languishing in custody without any judicial involvement. Stated differently, the
parolee ‘“ . . . shall not be detained” pending “the hearings mandated by Morrissey and
28
Vickers for an ‘undue time.’”’” (Couzens & Bigelow, supra, p. 90, at
[as of Sept. 23, 2014].)
In Williams’s case, on the day she was arrested, Parole prepared a probable
cause determination form describing the circumstances of the charge. On the form, a unit
supervisor checked the box for “Retain Hold” and ordered another report to be filed eight
days later. Exactly eight days later, Parole prepared a parole violation report stating, inter
alia, that Parole had considered remedial sanctions, but Williams had refused any type of
treatment or structured program. The next day Parole petitioned for revocation of
Williams’s parole. By then, she had been held in jail for 10 days (including her arrest
day), i.e., the same number of days as the maximum flash incarceration. This delay is a
principal reason why Williams was not arraigned until 16 days after her arrest. Whether
Parole needed eight days to determine that remedial sanctions were inappropriate is
unclear.
Williams asserts Parole “has demonstrated the ability to process revocation
matters, including unit supervisor review and sign-off[,] within one business day.” She
also claims (and the district attorney does not deny) that the superior court provides
arraignment within 48 hours to all prisoners “other than parolees facing only parole
violations.” She concludes Parole and the superior court can easily provide her with
court access within 48 hours.
We decline to specify such a short time fuse. Parole must have adequate
time to consider intermediate sanctions. If it decides to continue a person’s parole, no
arraignment is necessary. The valuable time of all the players (the court, prosecutor,
defense counsel, and parole agent) should not be consumed unnecessarily. On the other
hand, the present procedures need overhaul. As noted, by allowing Williams to languish
in jail for nine days while a report was prepared, and another seven days before she was
brought before the court, Parole has detained her for 16 days without access to the court
29
or counsel. This is a longer period of time than permitted by the sanction of flash
incarceration — a sanction that Parole has reportedly decided not to use.
Accordingly, we conclude that under the present realignment procedures a
parolee held in custody under a parole hold must be brought before the court for
arraignment no later than the permissible period of flash incarceration, i.e., 10 days after
arrest. We do not pass upon the constitutionality of the flash incarceration procedure.
We note only that a parolee must be brought before the court for arraignment no later
than Parole is currently authorized by statute to hold the parolee without court
intervention. Thus we set the 10 day limit as an outer boundary. We do not determine
whether due process requires a shorter time before arraignment. On this record, we lack
sufficient information to do so. Given Parole’s lack of participation in this writ
proceeding, that is all we can do. We believe a period of 10 days after arrest strikes an
appropriate balance between Parole’s need for time to fulfill its statutory duty to consider
intermediate sanctions and the parolee’s need to obtain notice and counsel reasonably in
advance of the probable cause hearing, which must, as discussed above, take place within
15 days after arrest.
C. Final Revocation Hearing
Williams requests “an opportunity for final judicial adjudication of any
parole revocation petition as promptly as reasonable and in any case within 45 days of
arrest.”
According to Williams, the court’s standard procedure is “to set contested
parole revocation hearings demanded at arraignment . . . typically [on] Thursday or
Friday three weeks after arraignment.” Now that we have held arraignment must take
place within 10 days after arrest, and a probable cause hearing within 15 days after arrest,
the final hearing would fall within 45 days of arrest even if the court maintained this
same procedure. Thus, the burden on the court is not great. A 45-day deadline would
30
alleviate the risk that the parolee could languish in jail while support systems at home and
at work fray. It would increase the chance that evidence would still be available and the
parolee would not be erroneously deprived of conditional liberty. Moreover, it is also the
deadline specified in section 3044 for the final revocation hearing.
D. Consideration of Intermediate Sanctions Including Flash Incarceration
Williams also has requested that we order Parole to give “actual
consideration of the full range of informal sanctions up to and including flash
incarceration within one business day of any [parole] hold and prior to any petition for
revocation.” Williams is correct that section 3000.08, subdivision (f) establishes, in her
words, a “legislative curb upon the discretion” of parole agents. Section 3000.08,
subdivision (f) requires Parole to consider using intermediate sanctions before seeking
revocation, and section 3000.08, subdivision (d) encourages the use of flash
incarceration. Nevertheless, we are told that Parole “has decided not to use the sanction”
of flash incarceration. (Couzens & Bigelow, supra, p. 95, at
[as of Sept. 23, 2014].)
We have insufficient evidence to make any order regarding Parole’s
performance of its statutory duty to consider all intermediate sanctions. We will not
presume on this record that Parole is not fulfilling its statutory duty to do so. But, as
stated above, a parolee is entitled to present evidence at the probable cause hearing of
Parole’s failure adequately to consider intermediate sanctions. And, Parole’s report filed
with its revocation petition must state the specific reasons (individualized to the particular
parolee, as opposed to a generic statement) for its determination that intermediate
sanctions “are inappropriate responses to the alleged violations.” (Cal. Rules of Court,
rule 4.541(e).)
31
E. Opportunity to Present Evidence Through Counsel at Any Time to
Mitigate Sanctions
Williams has presented inadequate argument and no citation to legal
authority concerning her claim she is entitled to an opportunity to present evidence
through counsel to mitigate sanctions at any time. We therefore treat it as waived. (Cal.
Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793.)
DISPOSITION
Let a writ of mandate issue ordering Parole and the Orange County
Superior Court, consistent with the views expressed in this opinion, to provide reasonable
due process to Williams in the event of any further incarceration, including (1)
arraignment within 10 days of any further arrest for a parole violation, (2) a Morrissey-
compliant probable cause hearing within 15 days of any further arrest, and (3) a final
revocation hearing on an alleged parole violation within 45 days of any further arrest.
This order does not affect any shorter time periods that may be required if new criminal
charges are instituted.
IKOLA, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
THOMPSON, J.
32