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California Court of Appeal: Commissioner Cannot Preside Over Parole Revocation Hearing Absent Stipulation

by Douglas Ankney

On December 5, 2018, the Court of Appeal of California, Fourth Appellate District, ruled that a commissioner may not preside over a parole revocation hearing absent a stipulation by the parties.

In June 2017, Brandon Berch was accused of violating his parole. Berch objected to Commissioner Edward Hall presiding over the preliminary hearing of the parole revocation matter, but the hearing proceeded over Berch’s objection. At the final revocation hearing on July 7, 2017, Berch renewed his objection before admitting his parole violations. Hall committed him to 120 days in jail. Berch appealed.

The Court of Appeal noted the California Penal Code provides that a petition to revoke parole shall be heard by the court in the county in which the violation is alleged to have occurred. Government Code § 71622.5 provides the appropriate court may appoint a commissioner “to conduct parole revocation hearings … and to determine violations of conditions of postrelease supervision….”

California Constitution, Article VI, § 22 states: “The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.” Section § 21 allows such “temporary judges” to preside over a cause if the parties stipulate.

The question the Court had to answer was whether parole revocation hearings constitute a subordinate judicial function.

In determining if a parole revocation hearing is a subordinate judicial duty, the Court examined the types of duties commissioners were permitted to perform in the past and contrasted those with duties they were prohibited from performing. After a lengthy analysis, the Court concluded, “The responsibility to revoke parole and sanction a defendant with jail time is not a subordinate judicial duty.”

Since presiding over the revocation hearing was not a subordinate judicial function, Commissioner Hall did not have authority to perform that judicial duty absent a stipulation by the parties. The Court explained that when, as here, “a commissioner attempts to exercise such power in the absence of a stipulation” he or she does so in violation of the California Constitution.

Accordingly, the Court reversed the post-judgment order revoking Berch’s parole and committing him to 120 days in jail. See: People v. Berch, 2018 Cal. App. LEXIS 1120 (4th Dist. 2018). 

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