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Name: People v. Berch
Case #: G055344
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 12/05/2018

In the absence of a stipulation by the parties, a commissioner is not authorized to conduct parole revocation hearings. The Department of Corrections and Rehabilitation petitioned for revocation of Berch’s parole based on a number of allegations that he failed to participate in various treatment programs and that he failed to charge his GPS device as instructed. At the preliminary hearing for his parole revocation matter, Berch refused to stipulate to a commissioner hearing the matter. The preliminary hearing proceeded over his objection. The commissioner found sufficient probable cause that Berch had violated the parole conditions and set a hearing on the petition for parole revocation. At the final revocation hearing, Berch admitted his violations, and the commissioner committed him to 120 days in county jail. Berch appealed. Held: Reversed. Although commissioners are statutorily authorized to conduct parole revocation hearings, the California Constitution limits commissioners to the performance of “subordinate judicial duties” in the absence of a stipulation by the parties. Examples of such duties that may be performed without a stipulation include hearing and determining ex parte motions for orders and writs, taking proof and reporting factual findings, taking and approving bonds and undertakings and to examine sureties, taking affidavits and depositions, and taking acknowledgments and proof of deeds, mortgages, and other instruments. However, the issuance of an order that can have the effect of placing the violator in jail is not a “subordinate judicial duty.” (In re Plotkin (1976) 54 Cal.App.3d 1014, 1017.) Because Berch did not stipulate to the commissioner revoking his parole and committing him to jail, the postjudgment order must be reversed.

The full opinion is available on the court’s website here: