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Name: In re Wagner
Case #: G031641
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 02/24/2005

A court order summarily revoking a defendant’s probation and remanding him to the county jail without bail for nearly a month without a hearing violated due process. The defendant was on probation and had appeared in court in response to a warrant issued for a previous failure to appear. Neither the prosecutor nor any defense counsel were present. The judge discharged the warrant and ordered the defendant to meet with a judicial assistant discuss a payment schedule for his fees and for a mandatory donation to a woman’s program selected by the judge. Defendant met with the assistant but said that he would not make a donation to the program. The judicial assistant then returned to the bench, “slammed” down the case file, and told the judge that the defendant had refused to cooperate. The judge then ordered that the defendant be taken into custody without bail, and set a follow-up hearing for nearly a month in the future. In response to defendant’s habeas petition, the Court of Appeal solicited an informal response from the People, who refused to become involved. The People likewise refused to file a return to an order to show cause, but the judge hired private counsel and filed a return on her own behalf. The Court of Appeal issued the writ, noting that “contempt of judicial assistant” is not a crime and that even if it were a crime the defendant would have been entitled to due process. Moreover, it was error for the court to select the specific charity to which the defendant should make payments. Finally, the judge acted improperly in filing a return to the order to show cause, because “it is inappropriate for trial judges to make their voices heard in the appellate process.” The court ordered defendant’s release, vacated the finding that he had violated his probation, and ordered a new hearing before a different judge.