Opinion
A148203
01-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY PEYTON BRYDEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contia Costa County Super. Ct. No. 5-160419-8)
Defendant Jeffrey Peyton Bryden appeals from an order made pursuant to Penal Code section 3000.08, subdivision (a), finding him in violation of his parole for possessing weapons and returning him to the Board of Prisons. Defendant claims the hearing at which the trial court found him in violation was supposed to be only a "probable cause" hearing and therefore his due process rights were violated. We conclude defendant was not provided proper notice as to the nature of the hearing, reverse, and therefore do not reach his additional claim that no substantial evidence supports the court's finding of a violation.
All further statutory references are to the Penal Code.
Defendant's parole conditions required that he not "own, use, have access to, or have under [his] control" any firearm, knife with a blade over two inches long, any weapon as defined by statute, or any "instrument or device which a reasonable person would believe to be capable of being used as a weapon."
We conclude this case is amenable to disposition by Memorandum Opinion pursuant to California Standards of Judicial Administration, section 8.1.
BACKGROUND
On March 11, 2016, the state filed a petition to revoke defendant's parole. Defendant appeared on March 14, at which time the public defender appeared on his behalf and denied the allegations of the petition. The trial court stated it had "read the probable cause statement," remanded defendant and continued the case to March 29.
At the March 29, 2016 hearing, the court asked defense counsel, "what's going to happen?" Counsel replied, "I believe at this point we'd ask to set a probable cause hearing." The court said, "All right" and set the case for hearing "well within 45 days," eventually fixing April 12 as the hearing date. On April 12, defendant asked for a continuance on the ground he had just received an incident report, and the court continued the hearing to April 19.
The hearing took place as scheduled on April 19. At the end, after presentation of evidence, the court sustained the petition to revoke as to defendant's possession of an ice pick with a tape-wrapped handle and a cane sword, stating: "I will find probable cause and Mr. Bryden will be returned to the Board of Prisons for sentencing." This triggered the following exchange between defense counsel and the court:
"Counsel: My understanding is he would—This was just a probable cause hearing.
"Court: That's it.
"Counsel: But wouldn't there have to be an actual hearing about whether the allegations are established?
"Court: No. I found there's probable cause to believe, and I find by a preponderance of the evidence that the allegations—as to probable cause. There's a pre-probable cause hearing which we often used to think we have to do, but we don't have to anymore, and there's a probable cause hearing, and you just had it, so in that regard he will be returned to the Board of Prisons.
"Prosecution: For the record, your Honor, you had dismissed Count 2, and then you said you found on Counts 1 and 2, but I think you meant 1 and 3.
"Court: I meant 1 and 3. 1 and 3. Absolutely. Thank you.
"Counsel: Your Honor, for purposes of appeal I reference Docket 5-160419-8?"
At the conclusion of the hearing, the court stated defendant would be returning to San Quentin: "Yeah. He's a prisoner with a life possibility, and the only thing we determine at this level is if there's a probable cause to believe the allegations are true. I made that determination, so they will sentence him. I don't, and can't."
"Probable Cause" Versus "Final" Hearing
A court may terminate "supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of his or her supervision, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless of whether he or she has been prosecuted for those offenses." (§ 1203.2, subd. (a).)
Williams v. Superior Court (2014) 230 Cal.App.4th 636 (Williams) discussed the revised parole revocation procedures under "Realignment," including those codified under section 1203.2 and new section 3000.08 governing parole and postrelease supervision. The court held, consistent with the due process principles articulated in Morrissey v. Brewster (1972) 408 U.S. 471 (Morrissey), an arraignment on a parole revocation petition must take place within 10 days after arrest, a "probable cause" hearing must be held within 15 days after arrest, and the "final" revocation hearing must take place within 45 days of arrest. (Williams, at p. 664.) The court did not foreclose the possibility of a single hearing—the merits hearing without the necessity of a probable cause hearing—if held soon after the parolee's arrest. (Id. at pp. 655-656 ["Morrissey—compliant probable cause hearings are required in postrealignment California, although a prompt unitary hearing may suffice."].)
The standard of proof for revocation of supervision is by a preponderance of the evidence. (See People v. Rodriguez (1990) 51 Cal.3d 437, 443 ["facts supporting revocation of probation may be proven by a preponderance of the evidence"], id. at p. 441 [due process requirements for probation revocation and parole revocation are the same].) " 'A party required to prove something by a preponderance of the evidence "need prove only that it is more likely to be true than not true." [Citation.] Preponderance of the evidence means " 'that the evidence on one side outweighs, preponderates over, is more than, the evidence on the other side, not necessarily in number of witnesses or quantity, but in its effect on those to whom it is addressed.' . . ." [Citation.] In other words, the term refers to "evidence that has more convincing force than that opposed to it." ' " (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 322, italics omitted; see also People v. Rogers (2013) 57 Cal.4th 296, 337.)
"[P]robable cause," in contrast, "signifies a level of proof below that of proof beyond a reasonable doubt, or even proof by a preponderance of the evidence. It refers to 'a state of facts as would lead a man of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.' " (People v. Hurtado (2002) 28 Cal.4th 1179, 1188-1189; see People v. Bryant (2014) 60 Cal.4th 335, 370.)
Thus, there is a clear distinction between a "probable cause" hearing—with its lower proof standard and reduced formalities—and a "final" hearing on the merits. A probable cause hearing "is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt." (Gerstein v. Pugh (1975) 420 U.S. 103, 121.) In contrast, a final revocation hearing "must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation." (Morrissey, supra, 408 U.S. at p. 488.)
It is clear from the trial court minutes that, at the first hearing on March 14, defendant was represented by counsel and waived formal arraignment, as after stating he was appearing on behalf of defendant, the public defender formally denied the allegations of the petition. As we recounted above, the court, at that time, also stated it had read the "probable cause statement," presumably referring to the parole violation report, which is before us under seal and which we have reviewed.
At the next hearing, on March 29, as we also recounted above, defense counsel, in response to the court's inquiry as to what was going to happen, stated "I believe at this point we'd ask to set a probable cause hearing." The court then set a date that was "well within the 45 days." Defense counsel did not object to this time frame or the scheduled date—even though that date, April 12, was well outside the 15-day window for a probable cause hearing required by Williams, and even though the court stated it was selecting a date within "45 days," the time period specified in Williams for a "final" revocation hearing. It is also clear from the record that defendant asked for and received the discovery attendant to a final revocation hearing. (See Williams, supra, 230 Cal.App.4th at pp. 659, 664 & fn. 13.)
If this were the only confusion in the record about the nature of the hearing, we would readily conclude defendant waived his right to a probable cause hearing within 15 days of his arrest and waived any belated objection to the April 19 hearing being the final hearing on the merits of the revocation petition.
But unfortunately, confusion about the nature of the hearing continued at the hearing, itself. While the prosecution called three witnesses and defendant cross-examined two of them, the prosecution ended its argument with the following assertion: "Clearly these items are violations of the Defendant's parole, and therefore I believe there was probable cause in this case and that the Court should find them as [sic] probable cause." Then, after the parties submitted, the colloquy we quoted above between defense counsel and the court occurred. While the court came close to stating it had made violation findings based on a preponderance of the evidence, what it actually said was that it determined by a preponderance of the evidence that there was "probable cause." When it comes to a merits determination, however, the issue is not probable cause—it is whether the court finds, by a preponderance of the evidence, that the defendant has violated the terms and conditions of his or her parole. In short, neither the defense, nor the prosecution, nor the court properly dealt with the April 19 hearing as a final revocation hearing.
The prosecution is as much to blame for the confusion about the character of the hearing as defense counsel. Both lawyers should have directed the court's attention to Williams and recognized that a hearing set well after 15 days following defendant's arrest, and within 45 days of his arrest, was a final revocation hearing, at which probable cause was no longer an issue.
While the Attorney General urges us to view the April 19 hearing as a "unitary" hearing as described in Williams, we decline to do so. What the Williams court envisioned was a full merits hearing within 15 days of arrest. There is no suggestion in Williams that a hearing can erroneously be referred to and treated by the court, the prosecution and the defense as the probable cause hearing, but nonetheless be characterized after-the-fact as the final hearing. We conclude due process requires reversal for a properly noticed final hearing.
We therefore do not reach defendant's claim that no substantial evidence supports the trial court's finding that he violated the terms and conditions of his parole. --------
DISPOSITION
The revocation order is reversed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.