People v. Williams CA2/5

Filed 2/22/22 P. v. Williams CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B310260
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 0PH06161)
v.
ORDER MODIFYING
BRIAND WILLIAMS, OPINION
Defendant and Appellant.
BY THE COURT:
It is ordered that the opinion filed herein on February 18,
2022, is modified as follows:
On the caption page, delete case number 0PH6161 and
replace it with 0PH06161.
There is no change in judgment.
RUBIN, P. J. BAKER, J. MOOR, J.
Filed 2/18/22 P. v. Williams CA2/5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B310260
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 0PH06161)
v.
BRIAND WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert M. Kawahara, Commissioner. Affirmed.
William J. Capriola, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
___________________________
On June 3, 2018, defendant was released on parole. On
October 8, 2020, a petition was filed to revoke his parole, alleging
violation of multiple conditions of parole. Following a hearing
before a commissioner acting as temporary judge, parole was
revoked and reinstated. Defendant appeals.
On July 6, 2021, defendant’s appointed counsel filed a brief
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). The
brief included a declaration from counsel to defendant, explaining
the brief that counsel was filing, and informing defendant of his
right to file a supplemental brief. On December 30, 2021,
defendant filed a supplemental brief, in which he argued that he
had not stipulated to the commissioner. On January 26, 2022,
defendant submitted an amended supplemental brief making
similar arguments.1
We have examined the entire record and are satisfied that
defendant’s attorney has fully complied with his responsibilities
and that no arguable issues exist. (Wende, supra, 25 Cal.3d 436.)
Nor did defendant’s supplemental brief raise an arguable
issue. Commissioners may be appointed to preside over parole
revocation hearings. (Gov. Code, § 71622.5, subd. (c)(1)(C).)
However, revoking parole and committing a defendant to jail for
violation of parole are not subordinate judicial duties that may be
performed by constitutionally by a commissioner in the absence
of a stipulation by the parties. (People v. Berch (2018)
29 Cal.App.5th 966, 969 [defendant had objected to the
1 Defendant’s supplemental brief also renewed a previous
request to replace his current appointed counsel with new
appointed counsel, on the basis that counsel should have pursued
the argument that the commissioner lacked authority. We again
deny the motion to replace counsel.
2
commissioner before hearing].)2 Here, by participating in the
hearing before the commissioner with no objection, defendant,
who was represented by counsel at the hearing, impliedly
stipulated to the commissioner acting as temporary judge. (In re
Horton (1991) 54 Cal.3d 82, 86, 91-93 [commissioner may preside
over capital murder trial when defense counsel knew judicial
officer was a commissioner and did not object]. See In re Mark L.
(1983) 34 Cal.3d 171, 178, 179, fn. 6 [“Under the ‘tantamount
stipulation’ doctrine, the parties confer judicial power not because
they thought in those terms; had they done so, the stipulation
presumably would be express. Rather, an implied stipulation
arises from the parties’ common intent that the subordinate
officer hearing their case do things which, in fact, can only be
done by a judge.”].)
DISPOSITION
The order revoking parole is affirmed.3
RUBIN, P. J.
WE CONCUR:
BAKER, J. MOOR, J.
2 California Constitution, Art, 6, § 22, provides: “The
Legislature may provide for the appointment by trial courts of
record of officers such as commissioners to perform subordinate
judicial duties.”
3 Defendant has a separate habeas petition pending under a
different case number. (Williams v. Superior Court, No.
B317822.) We express no opinion on the merits of this petition.
3