Filed 10/15/13 In re Denson CA4/3
Opinion received for posting 10/17/13




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE




In re WAYNE DENSON                                                     G048279

     on Habeas Corpus.                                                 (Super. Ct. Nos. 11HF0576 &
                                                                       R00513)

                                                                       OPINION


                   Original proceedings; petition for a writ of habeas corpus to challenge an
order of the Superior Court of Orange County, Arthur K. Sawyer, Vicki L. Hix, and
Christopher J. Evans, Temporary Judges. (Pursuant to Cal. Const., art. VI, § 21.)
Petition granted.
                   Frank Ospino, Public Defender, Jean Wilkinson, Chief Deputy Public
Defender, Mark S. Brown, Assistant Public Defender and Miles David Jessup,
Deputy Public Defender, for Defendant and Petitioner.
                   Nicholas S. Chrisos, County Counsel, Adam C. Clanton and Nicole M.
Walsh, Deputy County Counsel for Real Party in Interest, Orange County Probation
Department.
              The Criminal Justice Realignment Act of 2011 (Stats. 2011, ch. 15, § 1)
(the Realignment Act), which, together with subsequent related legislation, significantly
changed the sentencing and supervision of convicted felons. The Legislature’s stated
purpose for the Realignment Act “‘is to reduce recidivism and improve public safety,
while at the same time reducing corrections and related criminal justice spending.’
[Citation.]” (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48-50.)
              The Postrelease Community Supervision Act of 2011 (Pen. Code, § 3450
et seq.)1 (PRCS) was a small part of the Realignment Act. The Legislature’s stated
purpose for PRCS was to reinvest California’s criminal justice resources to improve
public safety. (See § 3450, subd. (b)(4).) The Legislature implemented this policy by
transferring postrelease supervision of certain felons to local correction programs that
utilize enhanced supervision strategies, evidence-based practices, and community-based
punishment. (§ 3450, subd. (b)(5).) A person is released to PRCS subject to conditions
(§ 3453), and if the person violates one or more conditions, he or she can be subject to
punishment (§ 3450, subd. (b)). PRCS authorizes “flash incarceration . . . as one method
of punishment for violations of an offender’s condition of [PRCS].” (§ 3454, subd. (b).)
Flash incarceration is a brief stint in jail not exceeding 10 days. One of the conditions of
release into PRCS is the person must waive the right to judicial review before flash
incarceration is imposed. (§ 3453, subd. (q).)
              Petitioner Wayne Denson filed a petition for writ of habeas corpus alleging
his six-day flash incarceration violated his federal constitutional right to due process. As
we explain below, we agree Denson’s due process rights were violated but not because of
the flash incarceration. Denson’s due process rights were violated because the arrest
warrant was invalid and his arrest was unreasonable. The petition is granted.


1             All further statutory references are to the Penal Code, unless otherwise
indicated.


                                             2
                                           FACTS
              In March 2011, a first amended complaint charged Denson with 13 theft
related offenses (§§ 470, subd. (a), 459, 460, subd. (b), 530.5, subd. (a), 487, subd. (a),
664, 496, subd. (a)), and nine counts of displaying or possessing a forged driver’s license
or identification card (§ 470a). The complaint also alleged he suffered four prior prison
terms within the meaning of section 667.5, subdivision (b).
              In May 2011, Denson pled guilty to all the charges and admitted the prior
prison allegations. The next month, the trial court sentenced Denson to prison for
two years on one of the counts and either stayed (§ 654), or ran the sentences concurrent
on the remaining counts. The court awarded Denson 188 days credit.
              On September 15, 2011, Denson was advised of, appeared to understand,
and signed a “Notice and Conditions of Post Release Community Supervision” (the
Notice of PRCS). The Notice of PRCS advised Denson that pursuant to section 3450 he
was “subject to community supervision provided by a county agency for a period not
exceeding three years.” The Notice of PRCS’s conditions included an extradition waiver,
psychiatric evaluation if necessary, search conditions, and a detainer by another
jurisdiction condition. The Notice of PRCS advised Denson he had to “report to [his]
[s]upervising county agency within two working days following [his] release.” The
Notice of PRCS added: “You will inform your supervising county agency of your
residence, employment, education, or training. Any change or anticipated changes in
residence, employment, education, or training shall be reported to your supervising
county agency in advance. You shall inform the supervising county agency of new
employment within [three] business days of that entry.” The Notice of PRCS included
travel restrictions, a prohibition against committing any criminal conduct, and a
prohibition against owning, using, or possessing any weapons. The Notice of PRCS
states: “FLASH INCARCERATION: You agree to waive any right to a court hearing
prior to the imposition of a period of ‘flash incarceration’ in a county jail of not more

                                              3
than 10 consecutive days for any violation of your postrelease supervision conditions.
You agree to participate in rehabilitation programming as recommended by the
supervising county agency.” The Notice of PRCS concludes: “You shall sign this
agreement and any special conditions imposed upon you by the supervising county
agency or the court. If you refuse to sign these or any other conditions impose [sic] upon
you, the supervising county agency may refer the case to a court for revocation
proceedings.”
                Denson signed a second Notice of PRCS on February 3, 2012, indicating it
was effective the following day. Denson remained in prison until March 2012, when he
was extradited to Multnomah County, Oregon for an open case and remained in custody
there.
                On April 4, 2012, Orange County Deputy Probation Officer Juan Rodriguez
spoke with Ronee Hunter of the Multnomah County Pretrial Services Program.
Rodriguez told Hunter that if Denson was released, he was expected to report to the
Orange County Probation Department because he was not authorized to live in Oregon.
Denson was released from custody in Oregon on April 14, 2012, on pretrial custody
supervision.
                Denson remained in Oregon and from April 17, 2012, to December 19,
2012, where he was in the Multnomah County Close Street Supervision Program under
the supervision of Corrections Deputy Larry Wenzel. At their initial meeting that April,
Denson informed Wenzel of his criminal history, he was on probation in California, and
he was living with his mother in Eugene, Oregon.
                Meanwhile, on May 11, 2012, Orange County Deputy Probation Officer
Anthony Wade called Wenzel and informed him that Denson was required to report to
the Orange County Probation Department when he was released from custody in Oregon.
Based on Wenzel’s prior conversation with Denson, Wenzel informed Wade that Denson



                                             4
had no intention of reporting to the Orange County Probation Department. Wenzel
subsequently spoke with Denson, who said he was not required to report to the
Orange County Probation Department.
              On May 14, 2012, Wade, without any direct communication with Denson,
filed a “Petition for Warrant of Arrest Community Supervision,” (the Petition) for
Denson. The next day, there was a hearing on the Petition before Judicial Hearing
Officer Arthur K. Sawyer. After reading and considering the Petition, Sawyer found
good cause to issue the no bail arrest warrant for Denson. Sawyer signed the arrest
warrant, and it was processed.
              On December 17, 2012, Denson called the Orange County Probation
Department and spoke with Deputy Probation Officer Thomas Hinkle. Denson told
Hinkle that he was in Oregon, he was going to be placed on probation, and he would be
allowed to travel to Orange County. Hinkle advised Denson to turn himself in on the
outstanding arrest warrant and gave him Rodriguez’s telephone number.
              Two days later, Denson was transferred to the Multnomah County Parole
and Probation Office where he was under the supervision of Deputy Probation Officer
Russ Martin, who had the authority to give Denson permission to leave Oregon. The
same day, Denson prepared the “Offender’s Application for Interstate Compact
Transfer.” Denson requested his probation be transferred from Oregon to California and
stated he intended to live with Kathleen S. at a specified address in the City of Orange.
              On December 27, 2012, the reporting instructions were issued indicating
Denson had to report by telephone to the Orange County Probation Department
immediately upon arrival in Orange County on January 4, 2013. Martin called Denson
and informed him of the reporting instructions, but Denson indicated he might have to
delay his flight to California. Denson was caring for his mother and had to remain with
her in Oregon until his brother arrived.



                                             5
               On January 3, 2013, Denson again spoke with Martin and informed him he
could not leave for California until February 15, 2013.
               In a letter dated February 12, 2013, C. Lane Borg, Denson’s public
defender in Oregon, wrote Denson a letter. Borg explained that as of December 2012, his
case was closed. He explained that “[o]nce our [p]robation [d]epartment clears you under
the Interstate Compact on Probation and Parole, you will be legally able to travel to
California.”
               On February 21, 2013, Denson spoke with Martin and again postponed his
departure date, this time to March 1, 2013, at the earliest.
               On March 13, 2013, Rodriguez and Martin spoke on the telephone about
the arrest warrant. Martin told Rodriguez that he did not know there was a warrant for
Denson’s arrest or he would have ordered Denson to report to the Orange County
Probation Department earlier. Martin informed Rodriguez that he gave Denson one week
to report to the Orange County Probation Department.2 The same day, Martin spoke with
Denson, who told Martin that he was angry about the arrest warrant. Martin advised
Denson to call Rodriguez and call Martin the following day. Rodriguez also spoke with
Denson that day and told him to report to the Orange County Probation Department by
March 31, 2013.
               The next day, Denson called Martin and told him that he was going to
report to the Orange County Probation Department no later than March 31, 2013.
Denson was angry and wanted to argue about the Orange County Probation Department.
Almost two weeks later, Denson called Martin and informed him he would leave for
California during the first week in April.

2             Orange County Public Defender Investigator Spring Jaentsch declared she
spoke with Martin on April 11, 2013. Martin told her that in his March 13, 2013,
conversation with Rodriguez, Rodriguez requested Martin order Denson to return to the
Orange County Probation Department within one week, and Martin responded that was
not possible because of processing.

                                              6
              In a report dated March 27, 2013, Martin provided the factual history of the
case, including that when Denson first reported to him in December 2012, Denson
provided him with two addresses: A Eugene, Oregon address of his mother who Denson
was caring for; and an Orange, California address that was his permanent address. The
report states: “An Interstate Compact Investigation was sent to the State of California on
[December 19, 2012], it was recently denied as . . . Denson has still been caring for his
mother in Eugene, Oregon. [¶] . . . Denson has been restricted to the State of Oregon due
to his pending charges (now adjudicated). He was ordered to remain in Oregon while his
Interstate Compact Application was processed. According to his case plan, he [h]as been
approved to return to California between [April 5, 2013,] and [April 12, 2013].” The
report stated his travel permit and compact application would be resubmitted and
recommended Denson leave Oregon for California on April 5, 2013. The report ended by
stating Denson had maintained weekly contact with Martin as required.
              Orange County Deputy Public Defender Terri Bianchi represents Denson.
On April 4, 2013, in anticipation of Denson arriving by April 9, 2013, Bianchi calendared
a court hearing on April 9, 2013, to address the outstanding arrest warrant. Denson left
Oregon for Orange County on or about April 5, 2013.
              On April 9, 2013, Rodriguez left Denson a voicemail message reminding
him there was a warrant for his arrest, he was to report to the Orange County Probation
Department, and he was required to provide his current residence address. That same
day, upon Bianchi’s request, Commissioner Vickie Hix trailed the matter to the next day,
April 10, 2013, and ordered the arrest warrant to remain. Denson arrived in Orange
County later that night, and he left Rodriguez a voicemail message indicating he was in
Anaheim or Orange.
              The next morning, Rodriguez spoke to Denson on the telephone.
Rodriguez asked Denson for his residential address, but Denson said he did not have one
because he was “‘hotel hopping.’” Rodriguez asked where he was currently staying and

                                             7
told him to report when he moved to a new motel. Denson refused to report his current
location. Denson told Rodriguez he had a court hearing at 8:30 a.m. that morning
concerning the arrest warrant and he was on his way to court. Because it was already
8:30 a.m., Rodriguez believed Denson did not intend to attend the hearing. Rodriguez
told Denson to report to the Orange County Probation Department, which he did. As he
waited to speak with Rodriguez, two Orange County Sheriff’s Department deputies
arrested him and took him to jail. Denson was booked and told he was receiving a
six-day flash incarceration. Denson was provided only a booking sheet, which did not
advise him of the basis for the flash incarceration.
              Early that afternoon, Bianchi called Rodriguez and inquired why Denson
had been arrested when Rodriguez knew Denson intended to appear in court to address
the arrest warrant. Rodriguez replied, “‘I took care of the warrant’ by having him
arrested.” Rodriguez told Bianchi he had imposed a flash incarceration because Denson
had not provided him with a residence address.
              Orange County Public Defender Miles Jessup also called Rodriguez, who
referred him to Rodriguez’s supervisor, Orange County Probation Officer Scott
Chandler.3 Chandler told Jessup that Denson had been flash incarcerated for six days.
When Jessup requested “all . . . documentation” justifying the flash incarceration,
Chandler said Jessup would have to file a subpoena. Chandler explained the following
policies governing notice of flash incarceration: (1) When the Orange County Probation
Department takes a supervisee into custody, it gives the supervisee notice, the reason(s)
and duration, immediately; and (2) when an outside agency takes a supervisee into
custody, the Orange County Probation Department serves the notice as soon as possible
and ideally within one business day. According to Jessup, Chandler would not commit to


3             Jessup did not prepare a declaration in this case. But he did prepare the
petition for writ of habeas corpus and verified all facts not supported by citation to
evidence are true of his own personal knowledge.

                                              8
providing Denson notice by the next morning. Chandler told Jessup that Denson was
arrested for failing to provide Rodriguez with a residence address and because he was
arrested without substantial personal property, he must be residing somewhere.
              About an hour later, there was a hearing before Commissioner Christopher
Evans. Denson’s counsel, Bianchi, requested the trial court set a hearing to determine the
following three issues: (1) whether there was probable cause to arrest Denson (§ 3453,
subd. (s)); (2) whether Denson’s due process rights were violated; and (3) an order to
show cause to validate the flash incarceration. The prosecutor argued the court did not
have jurisdiction to rule on the validity of the flash incarceration, the Orange County
Probation Department was justified in issuing an arrest warrant, and the flash
incarceration was proper. Analogizing to parole, the court denied Denson’s request citing
separation of powers. The court did grant Denson’s request to set a hearing the following
day for “a P[R]CS supervision modification with a [r]emoval [o]rder.”
              Sometime that same day, Rodriguez wrote a letter to the Orange County
Superior Court, department C-58. He recited the facts concerning the arrest warrant and
Denson’s arrest. The letter stated: “On [April 10, 2013], the warrant was served by the
Orange County Sheriff’s Department . . . and [Denson] was booked into the Orange
County Jail . . . .” The letter added the “intermediate sanctions as authorized by . . .
section 3454[, subdivision](c)[,] are appropriate responses to the alleged violations and
that [c]ourt intervention is not needed at this time.” Rodriguez’s letter requested the trial
court recall the arrest warrant.
              In a request for detainer subsequent to the arrest, Rodriguez stated the
Orange County Sheriff’s Department arrested Denson for violating PRCS and requested
Denson be detained on a six-day flash incarceration because he had “not provided an
address of residency and absconded P[R]CS supervision.”
              On Thursday, April 11, 2013, there was another hearing before
Commissioner Evans. Denson was present with his counsel, Bianchi. Bianchi requested

                                              9
Denson be released from his six-day flash incarceration pending filing of a petition for
writ of habeas corpus. The district attorney opposed that request. The court denied the
request, again citing separation of powers. Bianchi requested the basis for the flash
incarceration in writing, and the trial judge said he thought it was for not providing a
residence address.4 A representative from the Orange County Probation Department
indicated Denson would be released from jail on Monday, April 15, and she would
facilitate written notice to Bianchi and/or Denson as soon as possible.
              Orange County Deputy Probation Officer Neal Heidenreich visited Denson
in jail the next day, on April 12, 2013. Heidenreich brought a document entitled,
“‘Notice of Flash Incarceration’” (the Notice), which contained a description of Denson’s
violations, the start date, the duration, and an area for Denson to contest the PRCS
violation and request administrative review. Heidenreich read the Notice to Denson and
advised him of his right to an administrative hearing. Denson declined the opportunity to
contest his flash incarceration, and stated he would refuse to discuss the matter any
further. Heidenreich noted Denson’s refusals on the Notice.
              That same day, Denson filed a petition for writ of habeas corpus. Denson
submitted many exhibits, including declarations from Jaentsch, Bianchi, and himself. In
his declaration, Denson stated Rodriguez assured him that he would not be arrested at the
Orange County Probation Department. In her declaration, Jaentsch stated she spoke with
Martin on April 11, 2013, and he stated Denson could not leave Oregon until sometime
between April 5, 2013, and April 12, 2013. According to Jaentsch, Martin said Denson
was caring for his mother and could not leave until his brother arrived. Jaentsch claimed



4              Denson states that at this hearing, the Orange County Probation Department
represented the bases for the flash incarceration were the arrest warrant and Denson’s
failure to provide a residence address. We have reviewed the transcript of the hearing,
and the Orange County Probation Department made no such representation in the
reported transcript.

                                             10
Martin told Rodriguez that he had to wait for his brother. Additionally, Denson included
exhibits concerning judicial hearing officer Sawyer’s California State Bar history.5
              In response to our order, the Orange County County Counsel and the
Orange County Public Defender filed informal responses that same day. We immediately
ordered the Orange County Sheriff’s Department and the Orange County Probation
Department to show cause why a writ of habeas corpus should not issue. We ordered the
Orange County Sheriff’s Department to release Denson immediately and stayed his
remaining time to be served pending further order from this court.
              The Orange County County Counsel filed a formal written return. County
counsel submitted many exhibits, including declarations from Rodriguez, Wenzel,
Hinkle, Martin, and Heidenreich. In his declaration, Rodriguez claimed he made no
representation to Denson whether he would be arrested.
              The Orange County Public Defender filed a traverse. The public defender
submitted many exhibits, including declarations from Jaentsch and Bianchi. To the
extent we have not discussed each of the exhibits specifically, they provide the factual
background detailed above.
                                       DISCUSSION
Standard of Review
              “Our state Constitution guarantees that a person improperly deprived of his
or her liberty has the right to petition for a writ of habeas corpus. [Citations.] Because a
petition for a writ of habeas corpus seeks to collaterally attack a presumptively final
criminal judgment, the petitioner bears a heavy burden initially to plead sufficient
grounds for relief, and then later to prove them. ‘For purposes of collateral attack, all
presumptions favor the truth, accuracy, and fairness of the conviction and sentence;

5              Arthur Kimball Sawyer, State Bar of California No. 59970, resigned from
the State Bar of California on July 9, 1995, with charges pending, 17 years before sitting
as a judicial hearing officer. Sawyer never regained his California bar membership.


                                             11
defendant thus must undertake the burden of overturning them. Society’s interest in the
finality of criminal proceedings so demands, and due process is not thereby offended.’
[Citation.]
               “To satisfy the initial burden of pleading adequate grounds for relief, an
application for habeas corpus must be made by petition, and ‘[i]f the imprisonment is
alleged to be illegal, the petition must also state in what the alleged illegality consists.’
[Citation.] The petition should both (i) state fully and with particularity the facts on
which relief is sought [citations], as well as (ii) include copies of reasonably available
documentary evidence supporting the claim, including pertinent portions of trial
transcripts and affidavits or declarations. [Citation.] ‘Conclusory allegations made
without any explanation of the basis for the allegations do not warrant relief, let alone an
evidentiary hearing.’ [Citation.] We presume the regularity of proceedings that resulted
in a final judgment [citation], and, as stated above, the burden is on the petitioner to
establish grounds for his release. [Citations.]
               “An appellate court receiving such a petition evaluates it by asking
whether, assuming the petition’s factual allegations are true, the petitioner would be
entitled to relief. [Citation.] If no prima facie case for relief is stated, the court will
summarily deny the petition. If, however, the court finds the factual allegations, taken as
true, establish a prima facie case for relief, the court will issue an OSC. [Citations.]
‘When an order to show cause does issue, it is limited to the claims raised in the petition
and the factual bases for those claims alleged in the petition. It directs the respondent to
address only those issues.’ [Citation.] Issuance of an OSC, therefore, indicates the
issuing court’s preliminary assessment that the petitioner would be entitled to relief if his
factual allegations are proved.” (People v. Duvall (1995) 9 Cal.4th 464, 474-475
(Duvall), original italics omitted, italics added.)




                                               12
PRCS Overview
              The PRCS authorizes flash incarcerations as punishment for violations of
its conditions. Section 3450, subdivision (b)(8), defines “community-based punishment”
as the following: “‘Community-based punishment’ means evidence-based correctional
sanctions and programming encompassing a range of custodial and noncustodial
responses to criminal or noncompliant offender activity. Intermediate sanctions may be
provided by local public safety entities directly or through public or private correctional
service providers and include, but are not limited to, the following: [¶] (A) Short-term
‘flash’ incarceration in jail for a period of not more than 10 days.”
              Section 3453 details the PRCS’s 19 conditions. There are three
subdivisions that are of particular relevance here. Section 3453, subdivision (h), states,
“The person shall inform the supervising county agency of the person’s place of
residence, employment, education, or training.” Section 3453, subdivision (q), provides,
“The person shall waive any right to a court hearing prior to the imposition of a period of
‘flash incarceration’ in a county jail of not more than 10 consecutive days for any
violation of his or her postrelease supervision conditions.” Section 3453, subdivision (s),
states, “The person shall be subject to arrest with or without a warrant by a peace officer
employed by the supervising county agency or, at the direction of the supervising county
agency, by any peace officer when there is probable cause to believe the person has
violated the terms and conditions of his or her release.”
              Section 3454, subdivision (b), authorizes each supervising county agency to
impose additional supervision conditions, “and determine and order appropriate
responses to alleged violations,” including flash incarceration in a county jail.
Section 3454, subdivision (b), states, “Periods of flash incarceration are encouraged as
one method of punishment for violations of an offender’s condition of postrelease
supervision.” Section 3454, subdivision (c), provides, “‘Flash incarceration’ is a period
of detention in county jail due to a violation of an offender’s conditions of postrelease

                                             13
supervision. The length of the detention period can range between one and 10
consecutive days. Flash incarceration is a tool that may be used by each county agency
responsible for postrelease supervision. Shorter, but if necessary more frequent, periods
of detention for violations of an offender’s postrelease supervision conditions shall
appropriately punish an offender while preventing the disruption in a work or home
establishment that typically arises from longer term revocations.” (Italics added.)
Analysis
              Although we agree with Denson that his due process rights were violated,
we do not do so based on the conclusion flash incarceration on its face violates due
process. Instead, we conclude the warrant for Denson’s arrest was invalid and his arrest
was unreasonable.
              Arrest Warrant
              Here, based on the record before us, we conclude Denson was taken into
custody based on the arrest warrant and not for the technical violation of PRCS. First,
numerous telephone conversations between the Orange County Probation Department,
first Hinkle and then Rodriguez, and Denson establish the Orange County Probation
Department sought Denson’s return pursuant to the authority of the arrest warrant.
Second, when Denson arrived at the Orange County Probation Department,
Orange County Sheriff’s Department deputies arrested Denson, not the Orange County
Probation Department. Although Rodriguez told Bianchi he had imposed a flash
incarceration because Denson had not provided him with a residence address, Rodriguez
also told Bianchi, “‘I took care of the [arrest] warrant’ by having him arrested.” Finally,
our conclusion is supported Rodriguez’s letter to the Orange County Superior Court
stating Orange County Sheriff’s Department deputies arrested Denson on the arrest
warrant and requesting the court recall the arrest warrant. Contrary to Denson’s claim he




                                             14
was detained for the technical violation of PRCS,6 overwhelming evidence establishes
Orange County Sheriff’s Department deputies arrested Denson pursuant to the arrest
warrant. Thus, we must determine whether the arrest warrant was valid. We conclude it
was not.
              The Legislature enacted Government Code section 71622.5,
subdivision (a), to provide courts with the additional judicial hearing officers necessary to
implement the Realignment Act. Government Code section 71622.5, subdivision (b),
authorizes court to appoint judicial hearing officers to conduct parole revocation hearings
and determine violations of conditions of PRCS, and vests judicial hearing officers with
the authority to perform those duties. Government Code section 71622.5, subdivision
(c)(1), provides: “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 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.”
              Here, the State Bar of California issued an order to show cause as to
Sawyer in February 1994. The order alleged he failed to return client funds and failed to
promptly pay client funds and provide an accounting. The following year, May 2, 1995,

6              At oral argument, Denson’s counsel confirmed he raises the following two
arguments in his habeas petition: (1) That because Sawyer was not qualified to sit as a
judicial hearing officer, the arrest warrant was invalid; and (2) flash incarceration violates
due process. Denson’s counsel, however, implored this court to decide the case based on
the flash incarceration issue to provide the superior court with guidance on the issue.
“An appellate court should decide a case upon grounds as narrow as possible and not
reach out for bases not necessary to the disposition” of the case. (Morris v. Superior
Court (1976) 57 Cal.App.3d 521, 534.)

                                             15
Sawyer resigned from the State Bar of California, and the State Bar of California
dismissed the proceedings without prejudice. On June 9, 1995, the California Supreme
Court accepted Sawyer’s resignation without prejudice to refiling disciplinary
proceedings. Sawyer has not been authorized to practice law in California since 1995.
Sawyer issued the arrest warrant 17 years later on May 15, 2012.
              Based on Government Code section 71622.5, subdivision (c)(1), Sawyer
was not qualified to be appointed as a judicial hearing officer.7 He had not been an active
member of the State Bar of California for the previous 10 years. Indeed, he had not been
an active member of the State Bar of California for 17 years and 10 days. Sawyer was
certainly not a superior court judge, commissioner, magistrate, or referee, nor was he
eligible for the assigned judge program (Cal. Rules of Court, rule 2.812(b)(1) [presiding
judge may appoint attorney to serve as temporary judge who is “member in good
standing of the State Bar and has no disciplinary action pending”]). Pursuant to
Government Code section 71622.5, Sawyer was ineligible to sit as a judicial hearing
officer and did not have the authority to issue the arrest warrant. Therefore, his issuance
of the arrest warrant for Denson was invalid.8




7             Nor was Sawyer eligible to be appointed a judicial hearing officer
according to the Orange County Superior Court’s job description for judicial hearing
officers. The job description states one of the minimum qualifications is, “Active
membership in good standing with the State Bar of California for five years or more.”
(<http://agency.governmentjobs.com/occourts/default.cfm?action=viewclassspec&ClassS
pecID=5432> [as of October 9, 2013].)

8              County counsel asserts Denson has made no viable claim regarding the
arrest warrant. We disagree. In his petition, Denson states Sawyer was unqualified to sit
as a judicial hearing officer and his acts were unlawful. Denson supported his claim with
exhibits demonstrating Sawyer is not licensed to practice law in California. Denson has
made a viable claim in his petition.

                                            16
              PRCS
              We must determine whether the arrest was lawful based on an independent
ground. (People v. Chimel (1968) 68 Cal.2d 436, 442 [if the arresting officer had been
proceeding without a warrant in arresting defendant, would the arrest have been lawful?],
overruled on other grounds in Chimel v. California (1969) 395 U.S. 752.) The only bases
independent of the arrest warrant to lawfully arrest Denson were that he absconded
supervision and he failed to provide Rodriguez with a residence address when he returned
to Orange County as required by the PRCS conditions. Based on the record before us, we
conclude neither ground supported Denson’s arrest. We look to the standard when
assessing whether it is reasonable to arrest a probationer without a warrant.
              “The inapplicability of the warrant clause to a probationer does not mean a
probationer may be arrested without limitation under any circumstances. ‘The touchstone
of the Fourth Amendment is reasonableness, and the reasonableness of a search [or
seizure] is determined “by assessing, on the one hand, the degree to which it intrudes
upon an individual’s privacy [or liberty] and, on the other, the degree to which it is
needed for the promotion of legitimate governmental interests.”’ [Citations.] Under
section 1203.2, the arrest of a probationer requires probable cause to believe he or she is
violating the terms of probation, as determined by a probation or police officer or by a
court that receives information from the authorities to this effect.” (People v. Woodall
(2013) 216 Cal.App.4th 1221, 1234.)
              As to absconding supervision,9 the record before us establishes Denson’s
supervision was legally transferred to Oregon and Rodriguez knew Denson was residing
in Oregon under the supervision of the Multnomah County Parole and Probation Office.
Additionally, there is evidence the Orange County Probation Department was aware


9             We recognize the basis for the arrest warrant was the fact Denson allegedly
absconded supervision. Although the arrest warrant was invalid, absconding supervision
was a valid basis, if true, to arrest Denson.

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Denson remained in Oregon to care for his mother until his brother arrived. Moreover,
Wade never bothered to contact Denson to inquire of his intentions before obtaining the
arrest warrant. The record demonstrates Denson remained in Oregon until he was legally
authorized to leave between April 5, 2013, and April 12, 2013, and he arrived in
Orange County on April 9, 2013. Thus, the record is void of any evidence Denson
absconded supervision.
              With regard to the requirement Denson provide his residence address, the
record established Denson returned to California with the intent to address the illegally
issued arrest warrant. When he was in Oregon, Denson spoke with his public defender,
Bianchi, and told her when he planned to arrive Orange County. Bianchi set a court
hearing for Denson to address the arrest warrant. When he arrived in Orange County,
Denson called Rodriguez and left him a voicemail message. When he spoke with
Rodriguez the next morning, Denson told him that he was on his way to court to clear the
arrest warrant and that he was “‘hotel hopping.’” Although Denson did not tell
Rodriguez where he was staying, Denson did repeatedly communicate with him and tell
him where he was going. The evidence clearly establishes Denson returned to
Orange County and intended to be in court on the morning of April 10 to clear the arrest
warrant. Based on the fact Denson communicated with his public defender before
arriving in Orange County and his intent to appear in court on the morning of April 10 to
clear the arrest warrant, which he was upset about, we are convinced Denson would not
have gone to the Orange County Probation Department unless some representation was
made he would not be arrested. But that is exactly what happened when he arrived there.
Based on the record before us, we conclude Denson’s arrest was unreasonable. Because
the arrest warrant was invalid and Denson’s arrest was unreasonable, his federal due
process rights were violated.




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                                     DISPOSITION
             The petition is granted.10




                                                O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




10            For the first time in his traverse, Denson states the remedy “has expanded”
from that stated in his petition. He requests this court to discharge him from PRCS
supervision immediately. Denson’s counsel repeated this request at oral argument. We
decline his invitation. Although the traverse may allege additional facts to support a
claim in the petition, a habeas corpus petitioner may not raise additional issues in the
traverse. (Duvall, supra, 9 Cal.4th at p. 478.)

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