Filed 12/5/18




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                        DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                         G055344

        v.                                            (Super. Ct. No. P02253)

BRANDON JAMES BERCH,                                  OPINION

    Defendant and Appellant.



                  Appeal from a postjudgment order of the Superior Court of Orange County,
Edward W. Hall, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed.
                  William Paul Melcher, under appointment by the Court of Appeal, for
Defendant and Appellant.
                  Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and
Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
                                    *          *          *
                                       INTRODUCTION
                Defendant Brandon James Berch objected to having a commissioner
preside over his preliminary and final parole revocation hearings. His objection was
overruled. The commissioner revoked defendant’s parole and committed him to 120
days in jail.
                Government Code section 71622.5 authorizes commissioners to conduct
parole revocation hearings as a necessary part of the implementation of the Criminal
Justice Realignment Act of 2011. However, article VI, sections 21 and 22 of the
California Constitution limit commissioners to the performance of “subordinate judicial
duties” in the absence of a stipulation by the parties.
                We hold that revoking parole and committing a defendant to jail for
violation of parole are not subordinate judicial duties that may be performed by a
commissioner in the absence of a stipulation by the parties. As has long been recognized:
“the issuance of an order which can have the effect of placing the violator thereof in jail
is not a ‘subordinate judicial duty.’” (In re Plotkin (1976) 54 Cal.App.3d 1014, 1017.)
Because defendant did not stipulate to the commissioner revoking his parole and
committing him to jail, the postjudgment order must be reversed.


                     STATEMENT OF FACTS AND PROCEDURAL HISTORY
                Defendant was convicted of possession of a controlled substance (Health &
Saf. Code, § 11377, subd. (a)) and carrying a concealed dirk or dagger (Pen. Code,
§ 21310). In June 2017, defendant was accused of violating his parole by failing to
(1) enroll in and complete a drug treatment program; (2) participate in and complete a
batterer’s program; (3) report to and actively participate in a sex offender treatment
program; and (4) charge his GPS device as instructed. The Department of Corrections
and Rehabilitation petitioned for revocation of his parole.



                                              2
              The preliminary hearing for defendant’s parole revocation matter was set
before Commissioner Edward W. Hall. Defendant refused to stipulate to a commissioner
hearing the parole revocation matter. The preliminary hearing proceeded over
defendant’s objection. Commissioner Hall found sufficient probable cause that defendant
had violated the conditions of his parole, and set a hearing on the petition for revocation
of parole.
              At the final revocation hearing on July 7, 2017, defendant admitted his
parole violations and was committed by Commissioner Hall to 120 days in the Orange
County jail with a total of 66 days credit for time served. Defendant filed a notice of
appeal.


                                        DISCUSSION
                                              I.
                                   IS THE APPEAL MOOT?
              The Attorney General initially argues the appeal is moot because defendant
has already served the jail term imposed following his parole revocation. Our resolution
of the appeal can provide no relief to defendant. (People v. DeLeon (2017) 3 Cal.5th 640,
     1
645.)
              When an appeal raises an issue of public importance that is likely to recur
while evading appellate review, it is appropriate for the appellate court to exercise its
discretion to nevertheless decide the case on its merits. (People v. Hurtado (2002) 28
Cal.4th 1179, 1186; People v. Navarro (2016) 244 Cal.App.4th 1294, 1298.) The issue
raised by defendant “‘is likely to recur, might otherwise evade appellate review, and is of
continuing public interest.’” (People v. DeLeon, supra, 3 Cal.5th at p. 646 [addressing
parole revocation hearings].) We therefore proceed to the merits of the appeal.
1
  Defendant does not argue that the parole revocation order might impact his criminal
record and affect future criminal proceedings against him.

                                              3
                                               II.
     WAS THE ORDER REVOKING DEFENDANT’S PAROLE AND COMMITTING HIM TO JAIL
                  AUTHORIZED BY THE CALIFORNIA CONSTITUTION?

                 Defendant argues that the postjudgment order revoking his parole and
committing him to jail for 120 days was not authorized because a commissioner is
constitutionally barred from conducting a parole revocation hearing unless the defendant
so stipulates.
                 A. Relevant Statutory Authority for Commissioners Presiding at Parole
                 Revocation Hearings.
                 Penal Code section 3000.08, subdivision (a), provides that “the court in the
county . . . in which an alleged violation of supervision has occurred” shall hear a petition
to revoke parole. For purposes of revocation of probation, “‘Court’ means a judge,
magistrate, or revocation hearing officer described in Section 71622.5 of the Government
Code.” (Pen. Code, § 1203.2, subd. (f)(1).)
                 Government Code section 71622.5 provides, in relevant part: “(a) The
Legislature hereby declares that due to the need to implement the 2011 Realignment
Legislation addressing public safety (Chapter 15 of the Statutes of 2011), it is the intent
of the Legislature to afford the courts the maximum flexibility to manage the caseload in
the manner that is most appropriate to each court. [¶] (b) . . . [T]he superior court of any
county may appoint as many hearing officers as deemed necessary to conduct parole
revocation hearings pursuant to Sections 3000.08 and 3000.09 of the Penal Code and to
determine violations of conditions of postrelease supervision pursuant to Section 3455 of
the Penal Code, and to perform related duties as authorized by the court. A hearing
officer appointed pursuant to this section has the authority to conduct these hearings and
to make determinations at those hearings pursuant to applicable law. [¶] (c)(1) A person
is eligible to be appointed a hearing officer pursuant to this section if the person meets
one of the following criteria: [¶] (A) He or she has been an active member of the State


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Bar of California for at least 10 years continuously prior to appointment. [¶] (B) He or
she is or was a judge of a court of record of California within the last five years, or is
currently eligible for the assigned judge program. [¶] (C) He or she is or was a
commissioner, magistrate, referee, or hearing officer authorized to perform the duties of a
subordinate judicial officer of a court of record of California within the last five years.”
              Commissioner Hall unquestionably met the requirements to serve as a
parole revocation hearing officer under Government Code section 71622.5,
subdivision (c)(1). Defendant does not argue otherwise.


              B. The California Constitution Limits Commissioners to Performing
              Subordinate Judicial Duties in the Absence of the Parties’ Stipulation.

              The question before us is whether the Legislature was authorized by the
California Constitution to delegate to commissioners the responsibility for conducting
parole revocation hearings and committing parolees to jail without the stipulation of
defendant. The California Constitution permits commissioners to perform some, but not
all, judicial duties. “The Legislature may provide for the appointment by trial courts of
record of officers such as commissioners to perform subordinate judicial duties.” (Cal.
                                     2
Const., art. VI, § 22, italics added.) The Constitution also permits temporary judges to
try a cause if the parties stipulate: “On stipulation of the parties litigant the court may
order a cause to be tried by a temporary judge who is a member of the State Bar, sworn
and empowered to act until final determination of the cause.” (Cal. Const., art. VI, § 21.)




2
  “The purpose of the Constitution Revision Commission in proposing this revision was
to restate the substance of the existing section [citation] concisely in modern terms
[citations] and to extend the authority to use temporary judges to justice courts.
[Citation.] Both before and after the 1966 revision of article VI, however, a stipulation of
the parties was constitutionally required for one not occupying the office of judge to
serve as a temporary judge.” (People v. Tijerina (1969) 1 Cal.3d 41, 48, fn. omitted.)

                                               5
              Defendant argues that, under the California Constitution, the acts of
revoking parole and committing a defendant to jail are not subordinate judicial duties that
a commissioner may perform in the absence of the parties’ stipulation. Our Supreme
Court has explained: “[T]he power of a trial court to compel the parties to submit an
aspect of a judicial proceeding to a subordinate judicial officer is derived from statute,
and only those issues particularly described in the statute may be referred without the
consent of the parties.” (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 734.)
“The scope of the subordinate judicial duties which may be constitutionally assigned to
court commissioners should be examined in the context of the powers that court
commissioners had and were exercising in 1966, when the present constitutional
provision was adopted.” (Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351,
362.)


              C. Examples of Subordinate Judicial Duties that May Be Performed by
              Commissioners Without a Stipulation.

              We determine whether a judicial action is a subordinate judicial duty that
may be performed by a commissioner without the parties’ stipulation by first examining
whether, at the time article VI, section 22 was added to the California Constitution, it was
an act a commissioner was authorized by statute to perform. If it was not, we analyze
whether it is similar in complexity to other acknowledged subordinate judicial duties.
              In 1966, Code of Civil Procedure section 259 permitted commissioners to
(1) hear and determine ex parte motions for orders and writs, (2) take proof and report
factual findings, (3) take and approve bonds and undertakings and to examine sureties,
(4) administer oaths and affirmations, (5) take affidavits and depositions, and (6) take
acknowledgements and proof of deeds, mortgages, and other instruments. (Former Code
Civ. Proc., § 259.) Since that time, section 259 has been amended to allow
commissioners to act as temporary judges on the stipulation of the parties; to hear


                                              6
preliminary matters in family law cases and report findings of fact and conclusions of law
to the court, including on matters of child custody, child and spousal support, attorney
fees and costs, and contempt; to hear actions to establish paternity and to establish or
enforce child and spousal support; and to determine uncontested proceedings. (Code Civ.
Proc., § 259, subds. (d)–(g), as amended by Stats. 1996, ch. 957, § 1.)
                  Section 259a of the Code of Civil Procedure, which was in effect in 1966
but has since been repealed, also permitted commissioners to perform the following
additional judicial acts in certain counties, “[s]ubject to the supervision of the court”:
acting as judge pro tempore; hearing and reporting findings of fact and conclusions of
law in preliminary family law matters; and hearing and reporting findings of fact and
conclusions of law in uncontested family law matters, other than actions for divorce,
annulment, or maintenance. (Former Code Civ. Proc., § 259a.)
                  Other codes enacted or amended since 1966 provide additional duties that
may be undertaken by a commissioner without a stipulation by the parties. “The tasks of
a commissioner are demanding and varied. Commissioners may: hear and decide small
claims cases (Gov. Code, § 72190); conduct arraignments (Gov. Code, § 72190.1); issue
bench warrants upon a defendant’s failure to appear or obey a court order (Gov. Code,
§ 72190.2); [and] sit as juvenile court hearing officers (Welf. & Inst. Code,
            [3]
§§ 247-253 ).” (Settlemire v. Superior Court (2003) 105 Cal.App.4th 666, 670.) Under
Welfare and Institutions Code sections 255 and 256, traffic hearing officers may be
appointed to hear and decide charges against a minor for nonfelony violations of the
Vehicle Code, as the adjudication of contested traffic infraction cases is a subordinate
judicial duty. (In re Kathy P. (1979) 25 Cal.3d 91, 97-98.)
                  In Rooney v. Vermont Investment Corp., supra, 10 Cal.3d at page 366, our
Supreme Court concluded that “the assignment to court commissioners of certain judicial
3
 We note that the cited Welfare and Institutions Code statutes all reference orders that
must be approved, or are subject to review, by a juvenile court judge.

                                               7
duties with respect to uncontested matters, falls squarely within the scope of the
legislative authority conferred by article VI, section 22, of the Constitution.”
A commissioner may accept a plea and sentence a defendant with respect to traffic
infractions and misdemeanors without a stipulation. (People v. Miner (1977) 68
Cal.App.3d Supp. 1, 4.) Further, a commissioner may order the forfeiture of bail of a
nonappearing defendant as either an ex parte order or as an uncontested proceeding.
(People v. Surety Ins. Co. (1975) 48 Cal.App.3d 123, 125-127; People v. Surety Ins. Co.
(1971) 18 Cal.App.3d Supp. 1, 4.)
              In Gomez v. Superior Court (2012) 54 Cal.4th 293, 297-298, the California
Supreme Court held that the summary denial of a petition for a writ of mandamus or a
writ of habeas corpus was a subordinate judicial duty that could be performed by a
commissioner without the stipulation of the parties. The court relied primarily on “the
limited nature of the contemplated decision.” (Id. at p. 312.) The court specifically noted
that “[p]etitioners in the present case do not seek release from confinement, however, and
we need not decide in the present case whether the assignment of a commissioner to a
case that challenged the prisoner’s conviction or otherwise alleged grounds for release
from confinement would be constitutional.” (Ibid.) Ultimately, the court held: “[O]ur
conclusion that making the initial determinations required at the ex parte stage of a writ
proceeding constitutes a subordinate judicial duty is not based on any belief that the
matters sought to be remedied through writs may be characterized as minor or
insignificant. Rather, it is based on our recognition that the intent of the 1966
constitutional revision was to authorize commissioners to perform those tasks that had
long been authorized under preexisting statutes, and that the tasks involved in making
such threshold determinations are relatively limited and straightforward when compared
to ‘the diversity and complexity of the other duties of a [superior] court judge.’
[Citation.] Petitioners present no reason to believe that permitting commissioners to



                                              8
make those determinations in any way compromises the availability of the writ to
perform its function of safeguarding liberties.” (Id. at pp. 312-313, italics added.)
               To summarize, in 1966, commissioners did not have the authority to
conduct parole revocation hearings or set the sanction after revoking parole. The actions
of revoking parole and committing a defendant to jail are not similar in diversity and
complexity to those judicial duties that commissioners were authorized to perform in
1966. Nor do those actions constitute an exercise of authority over an uncontested
matter, even when the defendant admits the parole violation; in such a circumstance,
whether to revoke parole and what sanction should be imposed remain contested issues.
The responsibility to revoke parole and sanction a defendant with jail time is not a
subordinate judicial duty.

               D. Examples of Judicial Duties that May Not Be Performed by a
               Commissioner Without a Stipulation.

               In Settlemire v. Superior Court, supra, 105 Cal.App.4th at page 669, one of
the parties to an order to show cause for a domestic violence restraining order refused to
stipulate to a hearing by a commissioner. The trial court then referred the matter to a
commissioner “pursuant to Code of Civil Procedure section 259(b) for a hearing, and
findings on any matter of fact upon which information is required by the Court.” (Ibid.)
The appellate court held this was an impermissible grant of authority to a commissioner.
(Id. at p. 672.)
               Our courts have routinely held that actions that may deprive an individual
of his or her liberty are not subordinate judicial duties. One appellate court explained:
“[T]he issuance of an order which can have the effect of placing the violator thereof in
jail is not a ‘subordinate judicial duty.’ Before a commissioner may act as a judge the
parties litigant must so stipulate. Since petitioner was not a party to the stipulation at
either hearing . . . the commissioner’s acts were null and void.” (In re Plotkin, supra, 54


                                              9
Cal.App.3d at p. 1017.) In Nierenberg v. Superior Court (1976) 59 Cal.App.3d 611, 620,
the appellate court held that in the absence of a stipulation, a court commissioner does not
have the authority to conduct a contempt proceeding, even if the parties stipulated to the
commissioner conducting the underlying trial.
              In People v. Tijerina, supra, 1 Cal.3d 41, 48-49, a commissioner’s order
revoking probation was reversed because the defendant did not stipulate to the
commissioner acting as a temporary judge. “When the parties have not stipulated that a
commissioner may act as a temporary judge, the commissioner has only the authority to
perform ‘“subordinate judicial [duties]”’ which do not include the power to sentence a
defendant.” (People v. Haendiges (1983) 142 Cal.App.3d Supp. 9, 15.)
              The published authorities clearly distinguish between limited duties that are
subordinate judicial duties a commissioner may perform without a stipulation, and duties
that involve the deprivation of an individual’s liberty, which are not subordinate judicial
duties. The parole revocation hearing in this case included the possibility of the
deprivation of defendant’s liberty. Our holding here is consistent with the longstanding
authority of the California Supreme Court and other California courts. Therefore, we
must reverse the July 7, 2017 postjudgment order revoking defendant’s parole and
committing him to 120 days in jail.

              E. Government Code Section 71622.5 Is Not Unconstitutional.

              Our holding that the revocation of parole and the commission of a parolee
to jail are not subordinate judicial duties that may be performed by a commissioner in the
absence of the parties’ stipulation does not mean that Government Code section 71622.5
is unconstitutional. The Legislature was constitutionally authorized to permit
commissioners to exercise the power to revoke parole if the parties stipulated to the
commissioner’s authority. When a commissioner attempts to exercise such power in the
absence of a stipulation, however, doing so violates the California Constitution.

                                             10
              Government Code section 71622.5 could be improved by adding language
to the statute that if the parties do not stipulate to allowing a commissioner to conduct the
proceedings, then the commissioner shall make a recommendation regarding revocation
of parole and a recommendation regarding the sanction to be imposed, which
recommendations must be reviewed and approved, disapproved, or modified by a judge.
              This court does not have the authority to read such saving language into the
statute. The courts generally may not add language to or delete language from a statute
in the process of interpreting it. (See, e.g., Joshua D. v. Superior Court (2007) 157
Cal.App.4th 549, 558 [“Where the terms of a statute are plain and not absurd, a court may
not presume a drafting error and thereby substitute its judgment for the Legislature’s.
[Citation.] To do so would contravene our constitutional role, tread into the domain of a
coequal branch, and inject intolerable uncertainty into the drafting and lawmaking
process, since neither the Legislature nor the public could rely on a court to follow plain
statutory language”].) It is permissible to do so in exceptional circumstances, however,
to avoid invalidating an entire statute as unconstitutional. “Our own cases reveal that,
consistently with Welsh [v. United States (1970) 398 U.S. 333] and its numerous high
court predecessors and progeny, it is appropriate in some situations for courts to reform—
i.e., ‘rewrite’—enactments in order to avoid constitutional infirmity, when doing so ‘is
more consistent with legislative intent than the result that would attend outright
invalidation.’ [Citation.] As explained below, like the high court, we have reformed
statutes to preserve their constitutionality in cases concerning classifications otherwise
invalid under the equal protection clause, and in cases involving criminal statutes
otherwise unconstitutionally vague or overbroad. In addition, our decisions have
reformed statutes to confer necessary procedural due process protections, to avoid
classifications impermissible under the First Amendment, and to avoid nullification under
the judicial powers provision of our own Constitution.” (Kopp v. Fair Pol. Practices
Com. (1995) 11 Cal.4th 607, 641.)

                                             11
                Adding an express requirement of judicial oversight of a commissioner’s
parole revocation recommendations would not be consistent with the intent of the statute,
which by its terms was intended to allow the delegation of certain judicial duties to
subordinate judicial officers. (See Gov. Code, § 71622.5, subds. (a), (b).) Accordingly,
we respectfully urge the Legislature to make any appropriate amendments to Government
Code section 71622.5.


                F. The Attorney General’s Arguments Are Without Merit.
                Each of the Attorney General’s arguments for affirmance fails. First, the
Attorney General argues that defendant’s admission of the parole violation at the final
revocation hearing means defendant cannot challenge the commissioner’s acts of
revoking his parole and committing him to jail. Defendant made his objection to the
commissioner at the preliminary hearing; at that time, he specifically objected to the
commissioner’s participation at both the preliminary and final hearings. Defendant’s
admission of his parole violations did not frustrate or cancel his refusal to stipulate to the
commissioner. Because the commissioner lacked the authority to conduct the revocation
hearing in the absence of a stipulation, the ensuing postjudgment order based on the
commissioner’s findings was in excess of his authority, no matter what defendant
            4
admitted.
                The Attorney General also relies heavily on the California Supreme Court’s
holding in People v. DeLeon, supra, 3 Cal.5th 640 in opposing defendant’s appeal. As
we will explain, however, that case does not address the issue presented by defendant on
appeal.



4
  The Attorney General states in his respondent’s brief on appeal, “Admitted parole
violations are appealable post-judgment orders.” (See People v. Castel (2017) 12
Cal.App.5th 1321; People v. Hronchak (2016) 2 Cal.App.5th 884.)

                                              12
              Parolees facing revocation are entitled to due process protections.
(Morrissey v. Brewer (1972) 408 U.S. 471, 482.) One of those protections is the right to
a preliminary hearing “as promptly as convenient after arrest . . . 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.” (Id. at p. 485.) In
People v. DeLeon, supra, 3 Cal.5th at page 644, the California Supreme Court held that
the Criminal Justice Realignment Act of 2011 did not affect this due process right.
              In reaching its conclusion, the court provided the following analysis: “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. [Citation.] Section 1203.2, subdivision (f) provides that the revocation
proceedings may take place before a ‘judge, magistrate, or revocation hearing officer
described in Section 71622.5 of the Government Code.’ That section authorizes the
superior court to ‘appoint as many hearing officers as deemed necessary to conduct
parole revocation hearings pursuant to Sections 3000.08 and 3000.09 . . . .’ [Citation.]
Third, section 3000.08 contemplates review by the parole agency before the case is
submitted to the superior court for revocation. [Citation.] This review may satisfy
Morrissey’s preliminary hearing requirement if it includes a probable cause
determination, conducted reasonably near the place of the alleged parole violation or
arrest, by someone not directly involved in the case, with notice to the parolee and an
opportunity to appear and defend.” (People v. DeLeon, supra, 3 Cal.5th at p. 658.)

                                             13
              Although People v. DeLeon considered the possibility that a commissioner
may conduct a preliminary hearing under Government Code section 71622.5 without
violating Morrissey v. Brewer’s requirement of due process, it did not address the
constitutionality of section 71622.5’s authorization of commissioners to conduct final
parole revocation hearings, at which the parolee’s liberty is at issue, in the absence of a
stipulation by the defendant.
              The Attorney General, wisely, does not argue that by enacting Government
Code section 71622.5, the Legislature itself was determining that the revocation of parole
and imposition of sanctions were subordinate judicial duties within the meaning of the
California Constitution. “In deciding whether the Legislature has exceeded its power, we
are guided ‘by well settled rules of constitutional construction. Unlike the federal
Constitution, which is a grant of power to Congress, the California Constitution is a
limitation or restriction on the powers of the Legislature. [Citations.] Two important
consequences flow from this fact. First, the entire law-making authority of the state,
except the people’s right of initiative and referendum, is vested in the Legislature, and
that body may exercise any and all legislative powers which are not expressly or by
necessary implication denied to it by the Constitution. [Citations.] In other words, “we
do not look to the Constitution to determine whether the legislature is authorized to do an
act, but only to see if it is prohibited.” [Citation.] [¶] Secondly, all intendments favor the
exercise of the Legislature’s plenary authority: “If there is any doubt as to the
Legislature’s power to act in any given case, the doubt should be resolved in favor of the
Legislature’s action. Such restrictions and limitations [imposed by the Constitution] are
to be construed strictly, and are not to be extended to include matters not covered by the
language used.”’ [Citations.] On the other hand, ‘we also must enforce the provisions of
our Constitution and “may not lightly disregard or blink at . . . a clear constitutional
mandate.”’” (County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 284-285.)



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                                     DISPOSITION
             The postjudgment order is reversed for further proceedings on defendant’s
parole revocation matter.




                                               FYBEL, J.

WE CONCUR:



ARONSON, ACTING P. J.



THOMPSON, J.




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