Court Solano County, No. FCR302185, Ct.App. 1/3 A140050,
Robert S. Bowers Judge
Roberta Simon, under appointment by the Supreme Court, for
Defendant and Appellant.
Petrosino, Public Defender (Orange), Daniel J. Cook, Chief
Deputy Public Defender, and David Dworakowski, Assistant
Public Defender, for Orange County Public Defender as Amicus
Curiae on behalf of Defendant and Appellant.
Adachi, Public Defender (San Francisco), Matt Gonzalez, Chief
Attorney, and Dorothy Bischoff, Deputy Public Defender, for
San Francisco Public Defender's Office as Amicus Curiae
on behalf of Defendant and Appellant.
D. Harris and Xavier Becerra, Attorneys General, Dane R.
Gillette and Gerald A. Engler, Chief Assistant Attorneys
General, Michael P. Farrell, Assistant Attorney General,
Allen R. Crown, Allan Yannow, Stephen G. Herndon, Rachelle A.
Newcomb and Darren K. Indermill, Deputy Attorneys General,
for Plaintiff and Respondent.
Lacey, District Attorney (Los Angeles), Steven Katz, Head
Deputy District Attorney, Phyllis C. Asayama and Ruth M. Low,
Deputy District Attorneys, for Los Angeles County District
Attorney as Amicus Curiae on behalf of Plaintiff and
Morrissey v. Brewer (1972) 408 U.S. 471
(Morrissey), parolees facing revocation are
constitutionally entitled to certain due process protections.
These include the right to a prompt preliminary hearing after
arrest to determine whether there is probable cause to
believe a parole violation has occurred. (Id. at pp.
485-487.) The Criminal Justice Realignment Act of 2011 (the
Realignment Act) transferred jurisdiction over most parole
revocation hearings from the Board of Parole Hearings (BPH)
to the superior courts. The question here is whether this
enactment makes a preliminary hearing unnecessary. The Court
of Appeal held that it did. We reject this conclusion, and
hold that the Morrissey preliminary hearing
requirement applies to parole revocation proceedings
conducted in superior court.
Allen Dimen DeLeon was paroled in January 2012 after serving
a prison sentence for committing a lewd act on a minor and
failing to register as a sex offender. On August 23, 2013, he
was arrested for possessing pornographic material in
violation of a condition of his parole.
August 26, 2013, a supervising parole agent with the
Department of Corrections and Rehabilitation found probable
cause to revoke DeLeon's parole and gave him written
notice of the alleged parole violation. A petition to revoke
was filed in the superior court on September 4, 2013. On
September 6, a judicial officer conducted an ex parte review,
found probable cause, and summarily revoked DeLeon's
parole. A hearing was set for September 11, 19 days after
scheduled hearing date, DeLeon appeared with counsel and
moved to dismiss the petition because he had not received a
preliminary hearing within 15 days of his arrest, as
specified in Penal Code section 3044. Over his objection,
the court continued the motion and set a briefing schedule.
On September 25, 2013, the court denied the motion to
dismiss. It found that the ex parte determination of probable
cause, made 14 days after DeLeon's arrest, satisfied due
October 3, 2013, 41 days after DeLeon's arrest, the court
held a revocation hearing, found him in violation, sentenced
him to serve 180 days in custody, and reinstated parole.
‘[W]hen, pending an appeal from the judgment of a lower
court, and without any fault of the [opposing party], an
event occurs which renders it impossible for this court, if
it should decide the case in favor of [defendant], to grant
him any effectual relief whatever, the court will not proceed
to a formal judgment, but will dismiss the appeal'
” as moot. (Paul v. Milk Depots, Inc. (1964)
62 Cal.2d 129, 132, quoting Consol. etc. Corp. v. United
A. etc. Workers (1946) 27 Cal.2d 859, 863.)
has completed his county jail term. Counsel has informed us
that parole supervision ended on June 27, 2014, one day after
the Court of Appeal briefing was complete, and 16 months
before that court issued its opinion. DeLeon's appeal is
technically moot because a reviewing court's resolution
of the issues could offer no relief regarding the time he
spent in custody or the parole term that has already
terminated. (See People v. Morales (2016) 63 Cal.4th
399, 409 (Morales) [order discharging defendant from
parole rendered appeal moot].)
argues that his appeal is not moot because he faces
disadvantageous collateral consequences from the fact that he
was found in violation of parole. (See Carafas v.
LaVallee (1968) 391 U.S. 234, 237 [discussing collateral
consequences of a criminal conviction]; People v.
DeLong (2002) 101 Cal.App.4th 482, 487-492 [collecting
cases].) He points out that unsatisfactory performance on
parole is a criterion affecting eligibility for probation and
mandatory supervision (Cal. Rules of Court, rules
4.414(b)(2), 4.415(c)(5)), and is an aggravating circumstance
in selecting a term of imprisonment (id., rule
Supreme Court rejected a similar claim in Spencer v.
Kemna (1998) 523 U.S. 1 (Spencer). There the
court considered whether the defendant's appeal from a
parole revocation was mooted by the fact that he had
completed the entire term of imprisonment underlying the
revocation. (Id. at p. 3.) Interpreting the
case-or-controversy requirement of article III, section 2 of
the federal Constitution (id. at p. 7), the court
held that a violation of parole does not result in civil
disabilities resembling those that stem from a criminal
conviction (id. at p. 12, citing Lane v.
Williams (1982) 455 U.S. 624, 632). The court further
rejected the argument that the defendant faced
“collateral consequences” from the
potential use of the parole violation in a future
proceeding. (Spencer, at p. 12.) This possibility
did not show an injury in fact. First, it was contingent upon
the defendant again violating the law, a circumstance that
was wholly within his control. Second, a prior parole
violation did not mandate a particular consequence, but was
simply one factor among many that could be considered in a
discretionary decision by the parole authority. (Id.
at p. 13.)
contrast, two Court of Appeal opinions lend support to
DeLeon's position. People v. Gonzalez (2017) 7
Cal.App.5th 370 held that the defendant's appeal from an
order revoking postrelease community supervision was not made
moot by his discharge from supervision because his
unsatisfactory performance could have disadvantageous
collateral consequences should he be convicted of a new
offense. (Id. at pp. 380-381 [citing Cal. Rules of
Court, rules 4.414(b)(2), 4.421(b)(5)].) Gonzalez
did not discuss the high court's contrary holding in
Spencer, supra, 523 U.S. 1. People v.
Osorio (2015) 235 Cal.App.4th 1408 did acknowledge
Spencer, but observed that it could not say
“with reasonable certainty” that the
defendant's appeal was moot given the possibility that
the parole revocation might be used against him in a future
criminal sentencing proceeding, employment determination, or
child custody matter. (Id. at p. 1412.)
analysis is persuasive, and we adopt it. The trial
court's finding that DeLeon violated his parole does not
involve the same collateral consequences that attach to a
criminal conviction. Future consequences will not arise
unless there is additional criminal conduct. Even then, his
parole violation is just one of many factors a court may
consider in deciding whether to grant probation, or what
sentence to impose. Under these circumstances, DeLeon's
parole violation does not constitute a disadvantageous
collateral consequence for purposes of assessing
mootness. We disapprove contrary language in
People v. Gonzalez, supra, 7 Cal.App.5th at
pages 380-381, and People v. Osorio, supra,
235 Cal.App.4th at page 1412.
though DeLeon's appeal is moot, we exercise our
discretion to decide what procedure should govern parole
revocation proceedings under the Realignment Act. The issue
“is likely to recur, might otherwise evade appellate
review, and is of continuing public interest.”
(Morales, supra, 63 Cal.4th at p. 409;
accord, Williams v. Superior Court (2014) 230
Cal.App.4th 636, 654 (Williams); cf. People v.
Moran (2016) 1 Cal.5th 398, 408, fn. 8; People v.
Hronchak (2016) 2 Cal.App.5th 884, 889.) Accordingly, we
resolve the legal question that prompted our grant of review.
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