PEOPLE v. DELEONAppellant’s Response to Amicus Curiae BriefCal.October 11, 2016SUPREME COURT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) ) No. §230906 ) Plaintiff and Respondent, ) ) First District Court ofAppeal V. ) No. A140050 ) ALLEN DIMEN DELEON, ) ) Solano County Defendant and Appellant. ) No. FCR382185 ) SUPREME COURT FILED Appeal from a Judgmentofthe Superior Court > of the County of Solano, State of California OCT 112016 Honorable Robert Bowers, Judge Jorge Navarrete Clerk APPELLANT'S CONSOLIDATED ANSWER Deputy TO AMICUS CURIAE BRIEFS Roberta Simon Attorney at Law State Bar No. 139807 Post Office Box 10728 Oakland, CA 94610 (510) 763-7226 rsarasimon@hotmail.com Attorney for Appellant By Appointmentofthe SupremeCourt of California TABLE OF CONTENTS Page INTRODUCTION ...00 20000.eeecee eee eens 1 ARGUMENT. ......00 00.0.0. ceeeee ene e eee nee e eens 2 IL. APPELLANT'S PAROLE REVOCATION HEARING, CONDUCTED AFTER THE TRIAL COURT FAILED TO HOLD A PRELIMINARY PROBABLE CAUSE HEARING, DID NOT COMPLY WITH PENAL CODE SECTIONS1203.2 OR 3000.08, AND VIOLATED APPELLANT'S DUE PROCESS RIGHTS ............. 0... .0.0.000. 2 A. Parole Revocation is Different from Probation and PRCS RevocationS ..........0. 0000 eee eee eee eee eee teen een eeee2 B. Appellant Was Denied Due Process at His Revocation Hearing ....... 9 Il. ALTHOUGH DUE PROCESSIS FLEXIBLE, A PRELIMINARY PROBABLE CAUSE HEARING IS A MANDATORY REQUIREMENT OF DUE PROCESS, AND THE POWER OF LOCAL COURTS TO DEVELOP REVOCATION RULES REMAINS SUBJECT TO THE SUPERVISORY ROLE OF THIS COURT TO ENSURE THE EQUAL AND ORDERLYADMINISTRATION OF JUSTICE. ................. 13 A. This Court Must Set an Overarching Rule of Due Process ........... 13 B. Requiring A Probable Cause Hearing Within 15 Days ofArrest Would Not Impose an Undue Burden on Trial Courts... ............ 15 CONCLUSION... 0...cececee teen n eee 24 TABLE OF AUTHORITIES Cases Fuentes v. Shevin (1975) 407 U.S 67 Greenholtz v. Inmates, Nebraska Penal & Correctional Complex (1979) 442 U.S. 1 Kelly v. State (2014) 436 S.W.3d 313 Mathewsv. Eldridge (1976) 424 U.S. 319 Morrissey v. Brewer (1972) 408 U.S. 471 People v. Adelmann (2016) 2 Cal.App.5" 188 207 Cal.Rptr.3d 301 People v. Buena Vista Mines (1996) 48 Cal.App.4™ 1030 People v. Byron (2016) 246 Cal.App.4" 1009 review denied July 13, 2016 People v. Coleman (1975) 13 Cal.3d 867 People v. Curry (2016) 1 Cal.App.5" 1073 People v. Espinoza (2014) 226 Cal.App.4" 635 People v. Vickers (1972) 8 Cal.3d 451 Williams v. Superior Court (2014) 230 Cal.App.4" 636 Constitutions U.S. Const. Amend. XIV li 11, 12, 20 12 13, 14 10, 17 passim 5, 6, 7,9, 11 4 7 4 3, 6, 8 passim passim Statutes Penal Code § 1203.2 3,5, 6, 8,9 § 3000.08 35 § 3044 9,15 § 3451 4 § 3455 5 Other Authorities Assembly Bill No. 109, Legislative Counsel's Digest 14 Couzens & Bigelow, Felony Sentencing After Realignment, May 2016. 3, 7,8 EdmundG. Brown,Jr., State of the State Address, January 22, 2014 13 Judicial Council of Cal., Court Statistics Report (2015) 19 Office of Research, CDCR, Population Projections, Spring 2016, May 2016 17, 18 Office of Research, CDCR, 2015 Outcome Evaluation Report, An Examination of Offenders Released in Fiscal Year 2010-2011, August 2016 18 Senate Bill No. 1023, 2011 Realignment Legislation, Sec. 2(a), eff. June 27, 2012 1,8 iil IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) ) No. 8230906 Plaintiff and Respondent, ) ) V. ) A140050 ) ~ ALLEN DIMEN DELEON, ) Solano County ) No. FCR302185 Defendant and Appellant. ) ) APPELLANT'S CONSOLIDATED ANSWER TO AMICUS CURIAE BRIEFS STATEMENT OF THE ISSUE In light of the changes madeto the parole revocation processin the 2011 realignmentlegislation (Stats. 2011, ch. 15; 2012, ch. 43), is a paroleeis entitled to a probable cause hearing conducted according to the proceduresoutlined in Morrissey v. Brewer (1972) 408 U.S. 471 before parole can be revoked? INTRODUCTION This Consolidated Answer to Amicus Curiae Briefs is designed to respondto the Los Angeles County District Attorney's contentions in their amicusbrief which require further discussion for proper determination of the issue raised on appeal. It also elaborates on information set forth in the amici briefs prepared by the San Francisco County Public Defender and the Orange County Public Defender. This brief does not respond to issues or contentions that appellant believes were adequately discussed in his Opening and Reply Briefs on the Merits. Further, the Amicus Curiae Brief of the San Francisco Public Defender addresses certain legal concepts that appellant joins but will not repeat here. Appellant intends no waiverof any ofthese issues or contentions by not expressly reiterating them herein. ARGUMENT 1. APPELLANT'S PAROLE REVOCATION HEARING, CONDUCTED AFTER THE TRIAL COURT FAILED TO HOLD A PRELIMINARY PROBABLE CAUSE HEARING, DID NOT COMPLY WITH PENAL CODE SECTIONS1203.2 OR 3000.08, AND VIOLATED APPELLANT'S DUE PROCESS RIGHTS A. | Parole Revocation is Different from Probation and PRCS Revocations The Los Angeles District Attorney (District Attorney) begins by incorrectly conflating parole revocation and probation revocation. She wrongly submits that “parole violations and probation violations should be treated uniformly.” (LADAat 6, 12.) She also incorrectly states, “Thus,to effectuate the legislative intent for consistency in revocation procedures among different types of supervision, in practice, because the court need not conduct formal probable cause hearings for probation revocations, courts need not conduct them for PRCSor parole revocations. (Couzens & Bigelow, supra, at p. 151.)” (LADAat 13.) This argument is unavailing, as it improperly conflates revocations of parole and revocations of probation or post-release community supervision (PRCS). Further, there was clearly moreto the legislative intent of Realignment than consistency. Rehabilitation is a primary goal in post-incarceration supervision following Realignment. There are valid justifications for the procedural differences between parole and probation revocation. Unitary hearings may besufficient for probation; a defendant who allegedly violates his probation is still involved in an ongoing criminal case in court, with the full panoply of criminal procedural rights. While Morrissey v.Brewer (1972) 408 U.S. 471 addressed only revocation ofparole, in People v. Vickers (1972) 8 Cal.3d 451, 461, this Court extended Morrissey due process protections to probation revocations. However, as appellant acknowledged in his opening brief on the merits (OBM 27-29), this Court has held, “Since 'the precise nature of the proceedings for [probation] revocation need not be identical' to the bifurcated Morrissey parole revocation procedures, so long as ‘equivalent due process safeguards’ assure that a probationeris not arbitrarily deprivedofhis conditional liberty for any significant period of time [citation], a unitary hearing will usually suffice in probation revocation cases to serve the purposesofthe separate preliminary and formal revocation hearings outlined in Morrissey. [Citations.]” (People v. Coleman (1975) 13 Cal.3d 867, 894-895,fn. omitted.) Therefore, although Coleman authorized unitary revocation hearingsin the probation context, this Court clearly contemplated the continued use of preliminary probable cause hearings in the parole revocation context. There are valid justifications for the procedural differences between PRCS and traditional parole revocation proceedings, each ofwhich involves different types of offenders. Parole applies to high-level offenders,i.e., third strikers, high-risk sex offenders, and persons imprisoned for serious or violent felonies or who have a severe mental disorder and committed specified crimes. (Pen. Code, § 3451, subd. (b).) All other persons are placed on PRCS. (Pen. Code, §§ 3000.08, subd. (b); 3451, subd. (a).) Under the Realignment Act, parole and PRCSare two separate forms of supervision. (People v. Espinoza (2014) 226 Cal.App.4" 635, 639.) There is no requirement that PRCS revocations and parole revocations use the identical procedures or timelines. Penal Codesection 1203.2 describes the general procedure to be followed when an individual is subject to revocation underdistinct forms of supervision. That different types of supervision are dealt with in the same statute does not demonstrate a legislative intent to treat them all the same throughoutall of their different proceedings. Parole revocations are governed by section 3000.08, which requires that the supervising agencyfile a superior court petition pursuant to section 1203.2 for revocation ofparole. Penal Codesection 3044, subdivision (a), provides that the parolee is entitled to a probable cause hearing notlater than 15 days followinghis or her arrest for violating parole and a revocation hearing nolater than 45 days following his or her arrest. Citing section 3044, subdivision (a), Williams v. Superior Court held that a Morrissey-compliant probable cause hearing must take place within 15 days of a parolee's arrest. (Williams v. Superior Court (2014) 230 Cal.App.4" 636, 657-685.) Section 3455, subdivision (c), which governs PRCSrevocations, makes different provisions. A unitary revocation hearing in which the supervising agency can make “waiver offers” and in which the defendant can admit a PRCSviolation, is authorized by section 3455, subdivision (a). The District Attorney's argument was recently rejected in People v. Byron (2016) 246 Cal.App.4"" 1009, where the appellant arguedthat parole, probation, and PRCS revocation hearings are constitutionally indistinguishable and subject to “uniform supervision revocation process.” Relying on Williams v. Superior Court, supra, 230 Cal.App.4" 636, the appellantin Byron appealed an order revoking her PRCSsupervision and requiring her to serve 140 daysin jail. She contended that her procedural due process rights were violated because she wasnotarraignedin superior court within 10 days of her arrest or provided with a Morrissey-compliant probable cause hearing. She urged that PRCSrevocations must afford Morrissey-compliant protections. The Court ofAppeal — affirmed, holding that nothing in the PRCS revocation procedures employed in the case violated due process. There was noright to Morrissey-compliant probable cause hearings in the PRCSrevocation context. The Byron court stated, “The argument is based on an uncodifed section of the Postrelease Community Supervision Act of 2011 (Realignment Act) which also provides: 'By amending . . . subdivision (a) of .. . Section 1203.2 of the Penal Code,it is the intent of the Legislature that these amendments simultaneously incorporate the procedural due process protections held to apply to probation revocation procedures under Morrissey v. Brewer (1972) 408 U.S. 471, and People v. Vickers (1972) 8 Cal.3d 451, and their progeny.’ (Vol. 6 West's Cal. Legislative Service (Stats 2012) ch. 43, Sec. 2(b), p. 1969.)” Byron continued, “To so rule, we would haveto rewrite the various statutes whichtreat parole, probation, and PRCSdifferently. That is not our legitimate function. (See e.g., People v. Buena Vista Mines (1996) 48 Cal.App.4™ 1030, 1034.) If the legislature wants 'uniform'rules, it should enact uniform rules, not separate statutory revocation procedures for parole, probation, and PRCS.” (People v. Byron, supra, at 1014.) The District Attorney's argumentis based upon a faulty conflation of procedures for different types of revocation. Thus, nothing the District Attorney argues compels a different view of the law than that set forth in appellant's briefing on the merits. People v. Byron, supra, 246 Cal.App.4" 1009 provides the better-reasoned argument, and should be followed here. The issue before this Court relates to parole revocation only. However, should this Court seek to establish uniform procedures for all types of revocation, then for all of the reasons set forth in appellant's briefs on the merits, as well as the argumentofthe appellant in People v. Byron, supra, 246 Cal.App.4" 1009, this Court should hold that a preliminary probable cause hearing is a mandatory requirementof due processfor all revocations. The District Attorney cites several times to Couzens & Bigelow, Felony Sentencing After Realignment, May 2016. That is not dispositive legal authority. Thattreatise states, “The Criminal Justice Realignment Act of 2011 makes significant changesto the sentencing and supervision ofpersons convicted of felony offenses. The new legislation amendsa broad array ofstatutes concerning where a defendantwill serve his or her sentence and how a defendantis to be supervised on parole. There are a numberof issues related to this legislation, some of which will only be resolved by further changes by the Legislature or interpretation by the courts. The following is a discussion of someofthe sentencing issues related to realignment as the statutes currently exist after the enactment of cleanuplegislation.” (Jd. at 6; see also People v. Curry (2016) 1 Cal.App.5" 1073, 1082 [referring to “a publication by the authors of the leading treatise on sentencing”]; Peoplev. Adelmann (2016) 2 Cal.App.5" 188; 207 Cal.Rptr.3d 301, 304 [calling Couzens and Bigelow “legal commentators”].) TheDistrict Attorney alludes to a passage in Couzens & Bigelow whichstates in full: “In July 2012 the Governorsigned into law budgettrailer bills that included various statutory amendments designed to promote uniform revocation procedures for probation, mandatory supervision, postrelease community supervision, and parole. Thelegislation wasalso designed to simultaneously incorporate the procedural due process protections held to apply to probation revocation procedures under Morrissey v. Brewer, supra, 408 U.S. 471, and People v. Vickers (1972) 8 Cal.3d 451, and their progeny. (2011 Realignment Legislation, SB 1023, Sec. 2(b), effective June 27, 2012.) As a result, courts generally will apply longstanding revocation procedures under section 1203.2 to parole revocations.” (LADA at5, citing Couzens & Bigelow, supra, at p. 124.) This statement of Couzens & Bigelow does not compela different result. The above passage says only “generally.” A design to promote uniform revocation procedures does not mean thatall procedures across the board mustbe exact. The passage refers to both Morrissey and Vickers, which cometo different conclusions regarding preliminary probable cause hearings for parole and probation. The District Attorney also notes that Couzens & Bigelow says that because courts need not conduct formal probable cause hearings for probation revocations, courts need not conduct them for PRCSor parole revocations. (Couzens & Bigelow, supra, at 151; LADAat 13.) Later on that same page, however, the treatise says something the District Attorney fails to mention: “The express holding of Williams concernsviolations ofparole. While nothing in the opinion suggests its mandated procedure should be extended to other forms of supervision, its holding distinguishes the application of Woodall and Coleman to parolees. (Williams at pp. 654-656.) Courts may anticipate a Williams-type challenge in circumstances where detention has become prolonged. Prudent courts may wish to implement uniform procedures for the arraignment and determination of probable cause for all persons arrested for violations of supervision.” (Couzens & Bigelow, supra, at 151.) Couzens & Bigelow thus clearly acknowledges the distinctions made by Williams v. Superior Court, supra, 230 Cal.App.4" 636 in parole revocation proceedings. It is up to this Court to decide which position to adopt; Williams is clearly the better position. Appellant disagrees with the District Attorney's statement, “The statutes do not contain timetables or schedules of when hearings must be held.... ” (LADAat 12.) Tellingly, the District Attorney does not discuss Penal Code section 3044 at all. That section deals solely with a parolee's rights upon revocation of parole, and requires a preliminary probable cause hearing within 15 days. But Williams v. Superior Court, supra, 230 Cal.App.4" 636 and People v. Byron, supra, 246 Cal.App.4" 1009 properly acknowledge the continuing application of the statutes governing parole revocation, including Penal Code section 3044, in the parole revocation context. B. Appellant Was Denied Due Process at His Revocation Hearing The District Attorney incorrectly argues that appellant “received due process under Morrissey and sections 1203.2 and 3000.08” (LADAat 15), and that “prompt probable cause review of the charges and the parole violation report by a judicial officer as specified in section 1203.2, subdivisions (a)(1) and (b)(2) guarded against the risk of an erroneous deprivation of liberty pending a fully revocation hearing.” (LADAat 17.) The District Attorney elaborates that appellant's parole revocation procedure “included notice and the appointment of counsel, a timely arraignment and judicial determination that probable cause existed to revokehis parole, the functional equivalent of a probable cause hearing, and a full and expeditious adversarial unitary revocation hearing.” (LADA at 15.) Due process was not accorded as appellant was not given the opportunity to appear and speak on his own behalf, to present witnesses or evidence, or to question his parole agent who authored the probable cause determination form and parole violation report. The judicial determination ofprobable cause wasnot sufficient as it was an ex parte proceeding for which appellant was not present. Norwasappellant provided with the “functional equivalent of a preliminary probable cause hearing.” (LADAat 20.) As thetrial judge below pointed out, the case was on for a motion to dismiss (RT [9/25/13 4), and the parties were “litigating whether [appellant] had a probable cause determination within a reasonable amountof time.” (RT [9/25/13] 9.) The parties did notlitigate whether or not there was probable cause, which would have been the purpose of doing things right and having a probable cause hearing. Appellant disagrees with the District Attorney's procedural due process analysis under Mathews v. Eldridge (1976) 424 U.S. 319, directing this Court to his own balancing (OBMat21-26) which reached the conclusion that a parolee must be afforded a prompt preliminary probable cause hearing , and also to the Attorney General's argument in their answer brief on the merits that due process was not met in this case. (ABM at 35-36.) 10 Appellant disagrees with the District Attorney's statements that “[t]here are no additional procedures that could add more confidence to the determination of temporary detentionat this stage of the revocation proceedings” (LADAat 17), and that “requiring a preliminary probable cause hearing addslittle benefit to the fair determination of parole revocation.”” (LADA at 19.) To the contrary, evidentiary rules and cross-examination increasethe likelihood that people will not be wrongly held accountable and incarcerated for certain charged conduct against them. Appellant further disagrees with the District Attorney's attempts to fault appellant for the timeliness of the proceeding in this case because he challenged the failure to hold a probable cause hearing. (LADA at 18.) Trial counsel wasprotecting appellant's rights; the prosecutor requested a written motion; and the judge ordered briefing and continued the hearing. (RT [9/11/13] 5, 7.) Appellant also takes issue with the District Attorney's statement, “When the motion to dismiss was heard and denied 14 days later, he had the functional equivalent of a preliminary probable cause hearing with all of its attendant due process rights.” (LADA at 18.) Appellant cites without avail to People v. Byron, supra, 246 Cal.App.4" 1009; as argued above,it is fallacious to equate parole with PRCS. Appellant simply did not receive what he was entitled to at a prompt probable cause hearing. Morrissey v. Brewer, supra, 408 U.S. 471, and California's statutory scheme, mandate this particular due process requirement for parole revocation. While due process is flexible, there are still certain basic minimum standards that due process requires. Fuentes v. Shevin (1975) 407 U.S. 67, 80, notes that the “central meaning ofprocedural 11 due process”is the “right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Greenholtz v. Inmates, Nebraska Penal and Correctional Complex (1979) 442 U.S.1, 13, notes that the function of legal process as that conceptis embodied in the Constitution and in the realm of factfinding is to minimize the risk of erroneous decisions. Preliminary probable cause hearings serve these fundamental aims of procedural due process. 12 IL ALTHOUGH DUE PROCESSIS FLEXIBLE, A PRELIMINARY _ PROBABLE CAUSE HEARING IS A MANDATORY REQUIREMENT OF DUE PROCESS, AND THE POWER OF LOCAL COURTS TO DEVELOP REVOCATION RULES REMAINS SUBJECT TO THE SUPERVISORY ROLE OF THIS COURT TO ENSURE THE EQUALAND ORDERLY ADMINISTRATION OF JUSTICE A. This Court Must Set an Overarching Rule of Due Process The District Attorney argues that the flexibility of due process does not mandate preliminary probable cause hearings, and local courts should develop their own revocation rules. (LADAat 2-3, 6, 20.) The District Attorney's quotation from Governor Brown's State of the State address does not signify that Realignment has transferred all powers to the county level. (LADAat 20-21.) Local governments are not in a position to define what process is due. Such a completely localized system could lead to equal protection challenges, as noted in appellant's Reply Brief on the Merits. (RBM at 3, 20.) Noris this conclusion consistent with 2011 Realignmentlegislative intent. Due process may be flexible, but it is not completely inchoate. There must be a statewide rule. This Court must determine what processis due. Appellant disagrees with the District Attorney's statement that “The Realignment Legislation embracedthe principles of ‘subsidiarity’ when it created a new system for handling parole and probation revocations.” (LADAat 20.) There is no authority cited for this proposition. Instead, the District Attorney goes on to discuss the concept of “subsidarity” found in a concurring opinion from a Texas appellate court case. (LADAat 20, discussing Kelly v. State (2014) 436 S.W.3d 313.) She advocates “subsidiarity”in permitting local courts to adopt localrules for parole revocation. Kelly held that courts of 13 appeal havethe ultimate responsibility to ensure that indigent appellants are granted access to appellate records so they mayfile responses to no-issue briefs. In a one-paragraph opinion — joined by no other justice — the concurring justice in Kelly invoked “subsidiarity” in support of her belief that imposing new requirements on the courts of appeal with regard to no-issue briefs would result in an unnecessary micromanaging of those courts' administrative procedures, and would absolve appellate lawyers of their official duty to assist their clients in such cases up to the point whenthey are given permission to withdraw. Perhaps the District Attorney is saying that courts should not be conscripted into handling matters for which local attorneys should be responsible. Perhaps the District Attorney is suggesting that this Court will be imposing an unnecessary burden on the superior courts if it mandates probable cause hearings in parole violation cases. But the Kelly court settled on a statewide rule. Subsidiarity — as vaguely defined — did not carry the day in Kelly. Appellant further disagrees that “Realignment's purpose wasnot to impose uniformity throughout the State of California; its purpose wasto treat all supervised personsin a particular locality uniformly.” (LADA at 21.) There are nolegalcitations after that statement. The passage from the Legislative Counsel's Digest cited by the District Attorney does not give full power to the counties. (LADAat 21.) To the contrary, the Legislative Counsel's Digest to AB 109 states at paragraph 13: “By imposing additional burdens on local government entities, this bill would impose a state-mandated local program.” (Emphasis added.) 14 The District Attorney adds, “In order to effectuate the purpose of Realignment, local courts must be free to adopt local rules.” (LADAat 21.) No citation to legal authority is provided here either. Local courts may adopt somerules, but only within the parameters of due process, which, in the context of a parole revocation proceeding, requires a preliminary probable cause hearing. The United States Supreme Court and the Legislature - in the form of Penal Code section 3044 - have said what process is due upon revocation of parole. B. Requiring A Probable Cause Hearing Within 15 Days ofArrest Would Not Impose an Undue Burden on Trial Courts The District Attorney maintains that due process does not require a probable cause hearing unlessthere is a significant delay between the time ofarrest and the final revocation hearing, and a great distance exists between the place wherethe alleged violation occurred and the place where the revocation hearing will take place. (LADA at 22.) Thereis no legal citation given for that contention, and for good reason — it isn't true. It twists around something Morrissey v. Brewer, supra, 408 U.S. 471 said in mandating the two stages of probable cause hearing and final revocation hearing. In analyzing what processis due a parolee, Morrissey stated, “Before reaching the issue ofwhether due process applies to the parole system, it is important to recall the function of parole in the correctional process.” (Id. at 477.) Morrissey goes on to say, “Implicit in the system's concern with parole violation is the notion that the parolee is entitled to retain his liberty as long as he substantially abides by the conditions of his parole. Thefirst step in a revocation decision thus involves a wholly retrospective factual question whether the 15 parolee has in fact, acted in violation of one or more conditions of his parole. Onlyifit is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison, or should other steps be taken to protect society and improve chancesofrehabilitation?” (/d. at 479-480.) The high court next considered the question of whether requirements of due process in general apply to parole revocations. (/d. at 481.) Then, deciding the nature of the process due for revocation of parole, and “bearing in mindthat the interest of both State and parolee will be furthered by an effective but informal hearing,” Morrissey saw “two important stages in the typical process of parole revocation.” (/d. at 484-485.) The high court continued, “The first stage occurs whenthe parolee is arrested and detained, usually at the direction of his parole officer. The second occurs whenparole is formally revoked. Thereis typically a substantial lag between the arrest and the eventual determination by the parole board whether parole should be revoked. Additionally it may bethat the paroleeis arrested at a place distant from the state institution, to which he may be returned before the final decision is made concerning revocation. Given these factors, due process would seem to require that some minimal inquiry may be conductedat or reasonably nearthe place of the alleged parole violation or arrest and as promptly as convenientafter arrest while information is fresh and sources are available. [Citation.] Such an inquiry should be seen as in the nature ofa 'preliminary hearing’ to determine whetherthere is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions. [Citation.]” (/d. at 485.) 16 Thus, Morrissey does not say or mean that due process does not require a probable cause hearing unless two factors occur, as the District Attorney contends. What Morrissey actually says is there are many and complex considerations for holding that due process requires a probable cause hearing for parole revocations. The District Attorney alleges that complying with a timetable would place a substantial burden on California counties, and in particular on Los Angeles County due to its large population of parolees. Burdens on the judicial system should be dealt with along with the other two factors in the procedural due process balancing under Mathewsv. Eldridge, supra, 424 U.S. 319. The effects on the judicial system should not be considered in isolation. Regardingthestatistics provided by the District Attorney, it is important to note that the numberofparolees in California seems to be decreasing. The following additional information is provided by the publications cited by the District Attorney, going beyond the statistics they cite. (LADAat 22-23.) The Office of Research publication cited by the District Attorney says, “CDCR projects the active parolee population to decrease each of the nextfivefiscal years to 43,273 (4.8 percent) on June 30, 2016 and 42,499 (1.8 percent) on June 30, 2017. The Proposition 47-related increase in the parole population is temporary and has begun to wane. This effect on the parole population is expected to be substantially completed by 2017 with the anticipated discharge of most offenders on parole because of Proposition 47. After the first two years of the projection cycle, CDCR expects the parole population to 17 experienceslight decreases of less than 1 percent each year, with the population reaching 42,072 on June 30, 2020 for a net five-year decrease of 7.5 percent (see Table 6).” (Office of Research, CDCR, Population Projections, Spring 2016, May 2016, p. 17.) The Outcome Evaluation Report states, “Although a longer follow-up period is needed to examinethe full impact of Realignment, preliminary findings show that decreases in parole violations and the three-year return-to-prison rate have not been offset by a spike in arrests and convictions.” (Office of Research, CDCR, 2015 Outcome Evaluation Report, An Examination of Offenders Released in Fiscal Year 201I 1, August 2016, p. vii.) The report further states, “As Realignmentis in effect for longer amounts of time during each offender's follow-up period and as offenders continue to be released post- Realignment, the numberofreturns for parole violations is expected to decrease with future cohorts studied by the CDCR. With the passage of Proposition 47 in November 2014, continued decreases in drug and property crimes are also expected in future cohorts examined by the CDCR.” (id, p. ix.) Regarding burdens on counties created by a preliminary probable cause hearing, the Judicial Council of California report cited by the District Attorney (LADAat 23) explains, “Because different types of cases require different amounts ofjudicial and staff resources, a weighted caseload approachis the standard method, nationwide, to estimate the workload and resource needs of the courts. Weighted caseload distinguishes between different categoriesoffilings so that the resources required to process a felony case, for example, are recognized as being muchgreater than the resources required to process a traffic 18 infraction.” That report further notes that the most complex types of cases includefelony, personal injury/property damage/wrongful death, juvenile dependency, probation, and mental health. (Judicial Council of Cal., Court Statistics Report (2015), Preface.) Thus, the type of case must beconsideredin assessing a court's workload. A preliminary probable cause hearing in a parole revocation case should not be considered very complex comparatively. Comparedto criminal hearings,it already has “relax[ed] evidentiary rules,” something the District Attorney advocates. (LADAat 24.) The District Attorney suggests, “To lessen the judicial strain, local courts should be able to enact a local rule that provides for a preliminary probable cause hearing upon offer of proof and timely request, but deeming the hearing waived uponfailure to make the request.” (LADAat 23.) This appears unworkable. How would a parolee — sitting in jail, unrepresented by counsel, with no court date — learn of the duty to make such a request? The scheme proposed by the District Attorney would create more questions than answers and pose unique and unnecessary challenges on appeal, such as whether a probable cause hearing was requested, whether the request was received, whether the request was timely, whether the request was presented in the proper form, and whether there was a sufficient offer of proof. The District Attorney thus presents a complicated, inefficient scheme for handling alleged parole violations, which unreasonably (and unconstitutionally) places the burden on the parolee. Their plan would result in a greater judicial workload, not to mention more work for attorneys. Far simpler is to mandate a preliminary probable cause hearing. Such 19 a hearing would not be necessary if it is otherwise taken care of by a preliminary hearing concerning an independent felony. Based on what the District Attorney suggests,the preliminary probable cause hearing might also be subject to waiver by the parolee, similar to the way a preliminary hearing may be waived in a criminalcase. TheDistrict Attorney states, “Moreover, since the preliminary probable cause hearing, like a preliminary hearing in a criminalcase, is simply to determine whether there is probable cause for revocation andnota determination of credibility or weighing of evidence,it is duplicative of the judicial officer's determination of probable cause held just 5 days before.” (LADAat 23.) Appellant disagrees. Morrissey does require an evidentiary preliminary probable cause hearing for the determination ofprobable cause in a parole revocation case. Moreover, a full probable cause hearing is not duplicative of a judicial determination ofprobable cause. To the contrary, evidentiary rules and cross- examination increasethe likelihood a parolee will not be wrongly held accountable and incarcerated for charged conduct against him. In the absence of a full hearing, a parolee is denied the right to “an opportunity to be heard at a meaningful time and in a meaningful manner.” (See Fuentes v. Shevin, supra, 407 U.S.at 80.) Further, a probable cause hearing requires an inquiry and that a summary be made and an evaluation take place to determine whether probable cause exists. (Morrissey v. Brewer, supra, 408 U.S. at 485-487.) Such a summary is best done at an evidentiary hearing. That work then need not be duplicated at the final revocation hearing; it would reduce later work, as a summary ofthe state's evidence will already be on record. 20 The District Attorneystates,“In reality, the majority of parole violations are straightforward and are admitted to by the parolee withoutthe necessity for a full hearing.” (LADAat 23.) There is no citation to legal authority. It would seem thatalleged parole violations run a gamut, and that a parolee might want to present affirmative defenses or other legitimate issues. Further, if most parole violations are in fact resolved by admission, then holding probable cause hearings would still serve a beneficial purpose,as the full presentation of adverse evidence may convince moreparolees to make such an admission, thereby ensuring that only cases with genuinely triable issues will proceed to full revocation hearings. Moreover, the District Attorney's analysis does not take into accountthe parole violation cases in which an independentfelony is charged, and the probable cause hearing gets combined with the preliminary hearing in the criminal case. Nor doesit take into accountthe fact that holding preliminary probable cause hearings would meanthat numerouscases do not makeit to the final revocation hearing — 16.2% in Orange County. (OCPD Amicus Brief— Exhibit B.) That could mean lot of cases would get disposed of early in Los Angeles County. Andperhaps, to turn the District Attorney's suggestion around, an alleged parole violator, with the advice of counsel, might choose to waive a preliminary probable cause hearing. Further, as the San Francisco Public Defender points out, having the 15-day rule has inspired earlier disposition of parole violation cases. (SFPD AmicusBriefp. 7.) 21 Twootherlarge counties, San Francisco and Orange, have weighed in with this Court by filing amicus briefs, and they seem to be dealing successfully under Williamsv. Superior Court, supra, 230 Cal.App.4" 636. Ifthe problems cited by the Los Angeles District Attorney are due to the county's size and the concomitant numberofparole violation cases, it would seem axiomatic that the smaller counties wouldn't have such problems. Morrissey's probable cause hearing requirement is a fundamentalrule that works. While Los Angeles may have problemsdueto its unique size, the District Attorney fails to offer a compelling justification for discarding this rule andforthe entire state to re- organize its parole revocation framework around Los Angeles. The exception should not make the rule. The limited nautre of the burden attributable to holding probable cause hearingsis borne out by the experience of the two counties which havefiled amicus curiae briefs in support of appellant. As noted in the amicusbrief of the San Francisco Public Defender, having a 15-day limit is far from being a burden. Rather, according parolees due process has had a positive and efficient influence on the parolees, the district attorney, and the entire process. (SFPD Amicus Briefat 7.) Orange County hada lot of alleged parole violators from January 1, 2016, to August 31, 2016, and has done well under Williams v. Superior Court, supra, 230 Cal.App.4" 636, too. According to their amicus brief, some parolees got days in custody even though no probable cause was found at the probable cause hearing; those are entered in red in Exhibit A.Forty three probable cause hearings were held out of 420petitions resolved. Seven of 22 those cases ended in dismissal. It appears that a few petitions went right to final revocation hearing. There were many admissionsat the arraignments, so a lot of cases were not on the table anywayfor the question of whether due process requires a probable cause hearing. Other cases were disposed of earlier. (OCPD AmicusBrief.) Thus, requiring an evidentiary probable cause hearing within 15 days of a parolee's arrest would not impose an undue burden ontrial courts. 23 CONCLUSION Appellant respectfully submits that for all of the reasons set forth above andin his Opening and Reply Briefs on the Merits, this Court should reject the arguments advanced by Respondentand their amicus and reverse the judgment ofthe Court ofAppeal. Dated: October 6, 2016 Respectfully submitted, feteYo ROBERTA SIMON Attorney for Appellant Allen Dimen DeLeon 24 CERTIFICATE OF LENGTH Re: People v. Allen Dimen DeLeon $230906 I, Roberta Simon, counsel for Allen Dimen DeLeon,certify pursuantto the California Rules of Court that the word count for this documentis 5,674 words, excludingthetables, this certificate, and any attachment. This document was prepared in Microsoft Word, and this is the word count generated by the program for this document. I declare underpenalty of perjury of the laws of the State of California that the foregoing is true and correct. Executed on October 6, 2016, at Oakland, California. ROBERTA SIMON Attorney for Appellant Allen Dimen DeLeon DECLARATION OF SERVICE Re: People v. Allen Dimen DeLeon $230906 I, the undersigned, declare that I am over 18 years of age and not a party to the within cause; my business address is P. O: Box 10728, Oakland, California 94610. My electronic serving address is rsarasimon@hotmail.com. On October 7, 2016, I served a true copy of the enclosed Appellant's Consolidated Answer to Amicus Curiae Briefs on each of the following, by placing same in an envelope addressed respectively as follows: Solano County District Attorney 675 Texas Street, Suite 4500 Fairfield, CA 94533 For Plaintiff, The People of California Honorable Robert Bowers c/o Clerk, Solano County Superior Court 600 Union Avenue Fairfield, CA 94533 ~ Los Angeles County District Attorney Appellate Division 320 Temple Street, Suite 540 Los Angeles, CA 90012 Amicus Curiae/Respondent Allen Dimen DeLeon c/o Nicholas Filloy, Esq. Solano County Public Defender 355 TuolumneStreet, Suite 2200 Vallejo, CA 94590 Defendant/Appellant San Francisco County Public Defender 555 Seventh Street San Francisco, CA 94103 Amicus Curiae/Appellant Orange County Public Defender 14 Civic Center Plaza Santa Ana, CA 92710 Amicus Curiae/Appellant Each said envelope was then sealed and deposited in the United States Mail at Oakland, California, with the postage thereon fully prepaid. On October7, 2016, I transmitted a PDF version of this documentby electronic mail to each of the following via TrueFiling: First District Appellate Project Attention: Jeremy Price, Esq. Office of the Attorney General For Respondent, The People of California Court ofAppeal, First Appellate District (Div. 3) I declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct. Executed on October 7, 2016, at Oakland, C alifornia. teaC 4 . ADECLARANTY”
