Filed 9/27/16 P. v. Tye CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051003

         v.                                                            (Super. Ct. No. 10HF2304)

MATTHEW TYE,                                                           OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Vickie L. Hix, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and
remanded with directions.
                   Matthew Tye, in pro. per., for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Enlger, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James
H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
              Defendant Matthew Tye appeals from an order reinstating his probation
following a contested probation violation hearing. Defendant contends the order is void
because the probation violation hearing was conducted by a commissioner instead of a
judge, and the Attorney General concedes the point. We agree. For that reason, we will
reverse the order and remand the matter for a new probation violation hearing.
              Defendant also raises a plethora of other contentions regarding the conduct
of the probation violation hearing and the probation conditions at issue. These
contentions are (a) moot as a result of the disposition above, (b) not subject to review in
this appeal because they are outside the scope of the appealed order, (c) meritless, or (d)
waived. Consequently, we will decline to address some of them and reject the others.
                       FACTS AND PROCEDRUAL HISTORY
              In 2013 defendant pleaded guilty to five counts of oral copulation with a
minor and three counts of sexual intercourse with a minor, all pursuant to a disposition
negotiated with the prosecutor. As provided in the guilty plea form signed by defendant,
the court suspended imposition of sentence and placed defendant on probation for five
years. The terms and conditions of probation were set out on pages six and seven of the
guilty plea form and separately initialed by defendant.
              The court imposed, “all the terms and conditions of probation that are
reflected on page 6 of 7 and 7 of 7 on items numbers 1 through 31 which are initialed
‘MT.’” When the court asked defendant, “Did you understand every single term that you
had to sign[,]” defendant replied, “Yes, your honor.”
              Another provision of the guilty plea form separately initialed by defendant
stated in part: “I understand I have the right to reject probation and have the court
impose a final sentence. However, I agree to accept probation on the terms and
conditions set forth on the attached pages 6 and 7. I further understand that if I am found
in violation of any of the terms or conditions of probation, the court may sentence me
to . . . state prison . . . for a maximum period of 7 years and 8 months.”

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              Item No. 15 on page six of the guilty plea form (Presence Condition) stated:
“Do not be in the presence of children under the age of 18, unless accompanied by a
responsible adult 21 years of age or older and approved in advance by your probation or
mandatory supervision officer.”
              However, the clerk’s minute order erroneously stated a different condition
(Congregate Condition) as follows: “Do not associate with minors or frequent places
where minors congregate, including but not limited to: schoolyards, parks, amusement
parks, concerts, playgrounds, swimming pools and arcades, unless in the company of a
responsible adult over the age of 21 who is approved by the probation officer or court,
knows of your offense(s), and is willing to monitor your behavior.”1
              Defendant did not appeal from the judgment.
              On August 26, 2014, the probation department filed a “Petition for
Arraignment on Probation Violation” (Petition). The Petition alleged defendant had
violated the Congregate Condition by going to Comic Con, the beach, and the Orange
County Fair, all places where children were present.
              According to the Petition, defendant’s cell phone contained photographs
which evidenced the alleged violations, together with nude photographs of K.T. (one of
the two victims in this case) which had been posted to a tumblr account. K.T. had
complained about these postings and defendant’s continued attempts to contact her.
              At the arraignment on August 27, the court summarily revoked defendant’s
probation based upon the Petition, set the mater for a formal probation revocation hearing
on October 20, denied defendant’s request for bail and, on the request of the prosecutor
but over defendant’s objection, issued a protective order prohibiting defendant from
harassing or contacting K.T.


       1  The parties agree we should direct the clerk to correct this error. We will
instruct the clerk to do so nunc pro tunc on remand.


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              A formal probation revocation hearing was held over several days
commencing on October 20. At the outset, defendant objected to a commissioner
conducting the hearing instead of a judge. The court overruled the objection, conducted
the hearing, and found defendant had violated his probation.
              At the sentencing on October 23, the court indicated it was inclined to
reinstate defendant’s probation, with 126 days credit for time served, if he would accept
four additional probation conditions. Defendant accepted the court’s offer and the court
reinstated his probation as indicated.
              On November 13, defendant filed a timely notice of appeal which
references only the October 23 sentencing order.
                                         DISCUSSION
1. The Commissioner Had No Jurisdiction To Conduct The Violation Hearing.
              Defendant contends, and the Attorney General concedes, the commissioner
had no jurisdiction to conduct the probation violation hearing over defendant’s objection.
We agree.
              The Legislature has specified the powers of a commissioner and the
circumstances in which he or she may act as a temporary judge. However, none of these
powers permit a commissioner to act as a temporary judge without the stipulation of the
parties. The stipulation of the parties is a constitutional and jurisdictional requirement.
(In re Brittany K. (2002) 96 Cal.App.4th 805, 813.) In the absence of an express or
implied stipulation to a commissioner, the order or judgment issued by that commissioner
is void. (People v. Tijerina (1969) 1 Cal.3d 41, 49 [reversing order revoking probation].)
              Therefore, the court’s finding that defendant violated his probation, and the
court’s sentencing order reinstating his probation with four additional probation
conditions, are reversed. The matter is remanded to the trial court with instructions that a
judge shall conduct a new probation revocation hearing on the violations alleged in the
Petition, as the same may be amended to reflect the Presence Condition.

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2. The Reversal and Disposition Above Moots Many of Defendant’s Contentions.
                The reversal and disposition set out above moots the following contentions
by defendant:
                • The probation violation finding cannot be affirmed on the basis of the
Presence Condition.
                • The Congregate Condition is unreasonable.
                • The Congregate Condition is unconstitutionally vague and overbroad,
and must be stricken.
                • The Petition provided inadequate notice of any violations other than
going to Comic Con.
                • The court erroneously admitted, considered and relied upon evidence
defendant went to the beach and the Orange County Fair.
                • The court erroneously relied upon the probation department’s form,
“Definitions of No Contact with Minors.”
                • The evidence introduced at the formal revocation hearing showed
defendant did not violate probation.
                • The court erroneously relied upon statements by the prosecutor about
defendant’s alleged crimes against E.L. (the other victim in this case) which had been
dismissed as part of the negotiated disposition.
                • The four additional probation conditions imposed by the court are
unconstitutional.
                • Evidence not introduced at the formal revocation hearing due to
ineffective assistance of counsel showed defendant did not violate.
                Defendant invites us to exercise our discretion to consider some of these
contentions, even though they are moot. We decline to do so. None of them present
issues ‘“capable of repetition yet likely to evade review.’ [Citation.]” (Williams v.
Superior Court (2014) 230 Cal.App.4th 636, 654 (Williams), italics added.)

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3. The Presence Condition Is Not Subject To Review In This Appeal.
              Defendant claims the Presence Condition is unconstitutionally vague and
overbroad. The Attorney General urges us to reject this claim on the grounds that, “the
probation condition he challenges here had nothing to do with the probation revocation
order from which [defendant] filed his notice of appeal and which triggered this appeal.”2
We agree with the Attorney General.
              “It is elementary that an appeal from a portion of a judgment brings up for
review only that portion designated in the notice of appeal.” (Glassco v. El Sereno
Country Club, Inc. (1932) 217 Cal. 90, 92; see generally 9 Witkin, Cal. Procedure (5th
ed. 2008) Appeal, § 561, p. 640.) And while it is true notices of appeal are to be liberally
construed with a view to hearing appeals on their merits (6 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) Appeal, § 92, p. 266), the notice of appeal here cannot be
construed to present a challenge to the constitutionality of the Presence Condition.
              The notice of appeal states, “Defendant appeals from . . . [¶] . . . the order
or judgment: 10/23/2014.” Liberally construed, the referenced October 23 order or
judgment encompasses all of the revocation proceedings, beginning with the Petition on
August 26, 2014, and ending with the sentencing on October 23. But the Presence
Condition was not alleged as a violation in the Petition, and its constitutionality was not
litigated during the probation revocation proceedings. In fact, the court never considered
or ruled on the constitutionality of the Presence Condition. As a consequence, the
constitutionality of the Presence Condition is not subject to review in this appeal.


       2  The Attorney General also: urges us to dismiss this claim on the grounds that
defendant did not timely appeal from the 2013 judgment which imposed the Presence
Condition, and defendant was required to obtain a certificate of probable cause (Pen.
Code, §1275) but failed to do so; and contends this appeal has triggered the People’s right
to rescind the negotiated guilty plea agreement because defendant expressly waived his
right to appeal. We express no opinion on these issues.


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4. Defendant’s Other Contentions Have No Merit or Have Been Waived.
              A. Due Process Contentions
              Defendant contends his due process rights were violated because he was
not given (a) a proper and timely probable cause hearing, (b) timely discovery, or (c) a
timely formal revocation hearing. These contentions have no merit.
              First, defendant asserts he was not given a probable cause hearing which
complied with Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey). Not so. Morrissey
held parolees who have been detained for a parole violation are entitled to an informal
probable cause hearing and a formal revocation hearing. (Id. at pp. 485, 487.) These
protections have been extended and apply to probationers detained for probation
violations as well. (People v. Vickers (1972) 8 Cal.3d 451, 459 (Vickers).)
              These protections were afforded to defendant. At the arraignment on
August 27 the court made a determination based on the Petition that there was probable
cause to believe defendant had violated, and summarily revoked his probation. He had a
chance to speak on his own behalf and to question the petitioner but he did not do so.
The formal revocation hearing began on October 20. Nothing more was required under
Morrissey and Vickers. (See People v. Coleman (1975) 13 Cal.3d 867, 894.)
              To the extent defendant contends Williams required a formal probable
cause hearing prior to the summary revocation, he is simply mistaken. In that case we
held a parolee detained for a parole violation must be afforded a Morrissey-compliant
probable cause hearing within 15 days after arrest. (Williams, supra, 230 Cal.App.4th at
pp. 654-660.) In this case, defendant was afforded a Morrissey-compliant probable cause
hearing within 15 days after his arrest. Again, nothing more was required.
               Second, defendant argues Williams implied he had a right to receive “the
evidence against [him] (discovery)” before the probable cause hearing, so he could
prepare a defense. Once more, he is mistaken. Neither Williams nor any other reported
decision has held discovery must be provided before the probable cause hearing.

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                Third, defendant maintains Williams required the formal revocation hearing
to commence within 45 days after the arrest, and since it did not, the court was required
to dismiss the Petition. He is wrong. The 45-day time limit in Williams is based in part
on Penal Code section 3044, subdivision (a)(2) (all subsequent statutory references are to
this code), which applies only to parole revocation hearings.
                There are no such statutory time limits on probation revocation hearings.
Instead, they are governed by the non-statutory Morrissey rule. The hearing must begin,
“as promptly as convenient after arrest while information is fresh and sources are
available . . . .” (Morrisey, supra, 408 U.S. at p. 485 [two-month delay not
unreasonable]; see In re Williams (1974) 836 Cal.App.3d 649, 653 [two-month and 25-
day delay not unreasonable].) The 59-day delay after defendant’s arrest here was not
unreasonable.
                B. Bail Contentions
                Defendant avers the court erred by denying his bail request at the
arraignment hearing, because he was entitled to bail as a matter of right pending the
formal revocation hearing. We disagree. The court had discretion to set bail, but was not
required to do so. (§ 1272, subd. (3).) The court considered defendant’s bail request and
stated valid reasons for rejecting it. The court did not abuse its discretion to deny bail.
                C. Plea Agreement Contentions
                Defendant contends the probation department violated the guilty plea
agreement, when it assigned him to the “Adult Sex Offender Unit” (ASOU), because the
guilty plea agreement did not require him to register as a sex offender under section 290
and, as a result, section 1203f does not permit his assignment to the ASOU. He contends
we should order the probation department to remove him from the ASOU and place him
in the general nonspecialized probation caseload. These contentions, like his contentions
about the Presence Condition, are not subject to review in this appeal for all of the same
reasons discussed above.

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                Defendant insists the court also violated the guilty plea agreement at the
arraignment, when it issued over his objection a protective order under section 136.2 in
favor of K.T., because (a) there was an inadequate evidentiary showing, (b) no written
notice was given as required by section 1203.3, subdivision (b)(2), and (c) the guilty plea
agreement did not require the court to issue a protective order in favor of K.T. We are
not persuaded.
                The protective order was authorized under section 136.2, and it was
supported by an adequate showing of good cause. At the original sentencing hearing in
December 2013, the court offered to issue a protective order in favor of K.T. and she
declined. At the arraignment on the Petition in August, 2014, K.T. asked the court to
issue a protective order in her favor, based upon defendant’s conduct in the intervening
eight months.
                The purported lack of written notice under section 1203.3, subdivision
(b)(2), is irrelevant. It only requires that written notice be given to the probation officer,
not the defendant. Also, he has not explained how he was harmed, if it was not given.
                And, in any event, the guilty plea agreement did not prohibit protective
orders. In fact, a protective order in favor of E.L.was issued without objection at the time
of the guilty plea. Thus, we find no error in issuing the protective order in favor of K.T.
                D. Probation Officer Misconduct Contentions
                Defendant complains that after he was arrested on the Petition, a probation
officer contacted his then girlfriend, told her defendant had promiscuous contact with
other young females, and she should “have herself tested.” Defendant contends the
purpose of this conversation was to disrupt his relationship with his girlfriend. But
defendant has not explained what legal rights were violated, and he has not told us what
he wants us to do about it even if they were. Because these contentions are not supported
by any reasoned argument or citation to authority they have been waived. (People v.
Stanley (1995) 10 Cal.4th 764, 793.)

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              E. Supplemental Brief Contentions
              We gave defendant permission to file a supplemental opening brief and he
did. All of the contentions it raised are either moot or not subject to review in this appeal.
              Defendant first contends evidence which showed he did not violate was not
introduced at the revocation hearing due to ineffective assistance of counsel. As noted
above, this contention is mooted by our disposition of this appeal.
              Defendant next contends he was denied a Morrissey-compliant probable
cause hearing and bail on a second petition for arraignment on probation filed in April
2015, which alleged violations of the four additional probation conditions imposed by the
court in October 2014. These contentions are not subject to review in this appeal because
they occurred after the notice of appeal was filed.
              Defendant also contends two of the four conditions (sexually explicit
material and no Internet) imposed in October 2014 are unconstitutional, and were abused
when the probation department used them as the basis for the second violation. These
contentions are both moot and outside the scope of this appeal.
5. Habeas Corpus Contentions
              Defendant labeled his supplemental brief, “Appellant’s Supplemental Brief;
Writ of Habeas Corpus, Mandate, and/or Prohibition.” We undoubtedly have discretion
to construe any or all of defendant’s briefs as a petition for habeas corpus, to the extent
they raise issues not subject to review in this appeal. We decline to do so because (a)
they concern matters outside the record in this appeal, (b) further evidentiary proceedings
will likely be required, (c) defendant has not first applied for habeas relief in the superior
court, and (d) defendant has not explained why he has not done so. (In re Ramirez (2001)
89 Cal.App.4th 1312; In re Hillery (1962) 202 Cal.App.2d 293.) In this respect our
decision in this appeal is without prejudice to any subsequent petition for habeas corpus
which defendant may file in the superior court.



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                                     DISPOSITION
              The October 21, 2014 finding defendant violated his probation, and the
October 23, 2014 order reinstating his probation with four additional probation
conditions, are reversed. The matter is remanded to the trial court with directions to
conduct a new probation revocation hearing on the violations alleged in the Petition, as
the same may be amended. The hearing shall be conducted by a judge, unless the parties
stipulate that it may be heard by a commissioner.
              The clerk of the superior court is ordered to correct the erroneous
December 13, 2013, minute order nunc pro tunc as follows:
              1. Delete the entry that states, “Do not associate with minors or frequent
places where minors congregate, including but not limited to: schoolyards, parks,
amusement parks, concerts, playgrounds, swimming pools and arcades, unless in the
company of a responsible adult over the age of 21 who is approved by the probation
officer or court, knows of your offense(s), and is willing to monitor your behavior.”
              2. Insert an entry that states, “Do not be in the presence of children under
the age of 18, unless accompanied by a responsible adult 21 years of age or older and
approved in advance by your probation or mandatory supervision officer.”




                                                 THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.


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