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People v. DeLeon

Supreme Court of California

July 24, 2017

THE PEOPLE, Plaintiff and Respondent,
ALLEN DIMEN DeLEON, Defendant and Appellant.


         Superior 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.

          Sharon 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.

          Jeff 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.

          Kamala 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.

          Jackie 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 Respondent.

          Corrigan, J.

         Under 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.

         I. BACKGROUND

         Defendant 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.

         On 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 DeLeon's arrest.

         On the 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[1] 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 process.

         On 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.


         A. Mootness

         “ ‘[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.)

         DeLeon 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].)

         DeLeon 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 4.421(b)(5)).

         The 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.)

         By 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.)

         Spencer's 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.[2] 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.

         Even 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.

         B. Overview of ...

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