In re Denson
Filed 10/15/13 In re Denson CA4/3
Opinion received for posting 10/17/13
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
>
In re WAYNE DENSON on Habeas Corpus. | G048279 (Super. Ct. Nos. 11HF0576 & R00513) O P I N I O N |
Original proceedings;
petition for a writ of habeas corpus
to challenge an order of the Superior Court of Orange County, Arthur K. Sawyer,
Vicki L. Hix, and Christopher J. Evans, Temporary Judges. (Pursuant to Cal.
Const., art. VI, § 21.) Petition
granted.
Frank Ospino, Public
Defender, Jean Wilkinson, Chief Deputy Public Defender, Mark S. Brown,
Assistant Public Defender and Miles David Jessup,
Deputy
Public Defender, for Defendant and Petitioner.
Nicholas S. Chrisos, County
Counsel, Adam C. Clanton and Nicole
M. Walsh, Deputy County Counsel for Real Party in Interest, Orange County
Probation Department.
The
Criminal Justice Realignment Act of 2011 (Stats. 2011, ch. 15, § 1) (the
Realignment Act), which, together with subsequent related legislation,
significantly changed the sentencing and supervision of convicted felons. The Legislature’s stated purpose for the
Realignment Act “‘is to reduce recidivism and improve public safety, while at
the same time reducing corrections and related criminal justice spending.’ [Citation.]â€
(People v. Rajanayagam (2012)
211 Cal.App.4th 42, 48-50.)
The Postrelease
Community Supervision Act of 2011 (Pen. Code, § 3450
et
seq.)
(PRCS) was a small part of the Realignment Act.
The Legislature’s stated purpose for PRCS was to reinvest California’s
criminal justice resources to improve public safety. (See § 3450, subd. (b)(4).) The Legislature implemented this policy by
transferring postrelease supervision of certain felons to local correction
programs that utilize enhanced supervision strategies, evidence-based
practices, and community-based punishment.
(§ 3450, subd. (b)(5).) A person
is released to PRCS subject to conditions (§ 3453), and if the person violates
one or more conditions, he or she can be subject to punishment (§ 3450, subd.
(b)). PRCS authorizes “flash
incarceration . . . as one method of punishment for violations of an offender’s
condition of [PRCS].†(§ 3454, subd.
(b).) Flash incarceration is a brief
stint in jail not exceeding 10 days. One
of the conditions of release into PRCS is the person must waive the right to
judicial review before flash incarceration is imposed. (§ 3453, subd. (q).)
Petitioner Wayne Denson
filed a petition for writ of habeas corpus alleging his six-day flash
incarceration violated his federal constitutional right to due process. As we explain below, we agree Denson’s due
process rights were violated but not because of the flash incarceration. Denson’s due process rights were violated
because the arrest warrant was invalid and his arrest was unreasonable. The petition is granted.
FACTS
In March 2011, a first
amended complaint charged Denson with 13 theft related offenses (§§ 470, subd.
(a), 459, 460, subd. (b), 530.5, subd. (a), 487, subd. (a), 664, 496, subd.
(a)), and nine counts of displaying or possessing a forged driver’s license or
identification card (§ 470a). The
complaint also alleged he suffered four prior prison terms within the meaning
of section 667.5, subdivision (b).
In May 2011, Denson pled
guilty to all the charges and admitted the prior prison allegations. The next month, the trial court sentenced
Denson to prison for
two
years on one of the counts and either stayed (§ 654), or ran the sentences
concurrent on the remaining counts. The
court awarded Denson 188 days credit.
On September 15, 2011,
Denson was advised of, appeared to understand, and signed a “Notice and
Conditions of Post Release Community Supervision†(the Notice of PRCS). The Notice of PRCS advised Denson that
pursuant to section 3450 he was “subject to community supervision provided by a
county agency for a period not exceeding three years.†The Notice of PRCS’s conditions included an
extradition waiver, psychiatric evaluation if necessary, search conditions, and
a detainer by another jurisdiction condition.
The Notice of PRCS advised Denson he had to “report to [his]
[s]upervising county agency within two working days following [his]
release.†The Notice of PRCS added: “You will inform your supervising county
agency of your residence, employment, education, or training. Any change or anticipated changes in
residence, employment, education, or training shall be reported to your
supervising county agency in advance.
You shall inform the supervising county agency of new employment within
[three] business days of that entry.â€
The Notice of PRCS included travel restrictions, a prohibition against
committing any criminal conduct, and a prohibition against owning, using, or
possessing any weapons. The Notice of
PRCS states: “FLASH INCARCERATION: You agree to waive any right to a court
hearing prior to the imposition of a period of ‘flash incarceration’ in a
county jail of not more than 10 consecutive days for any violation of your
postrelease supervision conditions. You
agree to participate in rehabilitation programming as recommended by the
supervising county agency.†The Notice
of PRCS concludes: “You shall sign this
agreement and any special conditions imposed upon you by the supervising county
agency or the court. If you refuse to
sign these or any other conditions impose [sic]
upon you, the supervising county agency may refer the case to a court for
revocation proceedings.â€
Denson signed a second
Notice of PRCS on February 3, 2012, indicating it was effective the following
day. Denson remained in prison until
March 2012, when he was extradited to
County, Oregon for an open case and remained in custody there.
On April 4, 2012, Orange
County Deputy Probation Officer Juan Rodriguez spoke with Ronee Hunter of the
Multnomah County Pretrial Services Program.
Rodriguez told Hunter that if Denson was released, he was expected to
report to the Orange County Probation Department because he was not authorized
to live in Oregon. Denson was released
from custody in Oregon on April 14, 2012, on pretrial custody supervision.
Denson remained in
Oregon and from April 17, 2012, to December 19, 2012, where he was in the
Multnomah County Close Street Supervision Program under the supervision of
Corrections Deputy Larry Wenzel. At
their initial meeting that April, Denson informed Wenzel of his criminal
history, he was on probation in California, and he was living with his mother
in Eugene, Oregon.
Meanwhile, on May 11,
2012, Orange County Deputy Probation Officer Anthony Wade called Wenzel and
informed him that Denson was required to report to the Orange County Probation
Department when he was released from custody in Oregon. Based on Wenzel’s prior conversation with
Denson, Wenzel informed Wade that Denson had no intention of reporting to the
Orange County Probation Department.
Wenzel subsequently spoke with Denson, who said he was not required to
report to the
Orange
County Probation Department.
On May 14, 2012, Wade,
without any direct communication with Denson, filed a “Petition for Warrant of
Arrest Community Supervision,†(the Petition) for Denson. The next day, there was a hearing on the
Petition before Judicial Hearing Officer Arthur K. Sawyer. After reading and considering the Petition,
Sawyer found good cause to issue the no bail arrest warrant for Denson. Sawyer signed the arrest warrant, and it was
processed.
On December 17, 2012,
Denson called the Orange County Probation Department and spoke with Deputy
Probation Officer Thomas Hinkle. Denson
told Hinkle that he was in Oregon, he was going to be placed on probation, and
he would be allowed to travel to Orange County.
Hinkle advised Denson to turn himself in on the outstanding arrest
warrant and gave him Rodriguez’s telephone number.
Two
days later, Denson was transferred to the Multnomah County Parole and Probation
Office where he was under the supervision of Deputy Probation Officer Russ
Martin, who had the authority to give Denson permission to leave Oregon. The same day, Denson prepared the “Offender’s
Application for Interstate Compact Transfer.â€
Denson requested his probation be transferred from Oregon to California
and stated he intended to live with Kathleen S. at a specified address in the
City of Orange.
On December 27, 2012,
the reporting instructions were issued indicating Denson had to report by
telephone to the Orange County Probation Department immediately upon arrival in
Orange County on January 4, 2013. Martin
called Denson and informed him of the reporting instructions, but Denson
indicated he might have to delay his flight to California. Denson was caring for his mother and had to
remain with her in Oregon until his brother arrived.
On January 3, 2013,
Denson again spoke with Martin and informed him he could not leave for
California until February 15, 2013.
In a letter dated
February 12, 2013, C. Lane Borg, Denson’s public defender in Oregon, wrote
Denson a letter. Borg explained that as
of December 2012, his case was closed.
He explained that “[o]nce our [p]robation [d]epartment clears you under
the Interstate Compact on Probation and Parole, you will be legally able to
travel to California.â€
On February 21, 2013,
Denson spoke with Martin and again postponed his departure date, this time to
March 1, 2013, at the earliest.
On March 13, 2013,
Rodriguez and Martin spoke on the telephone about the arrest warrant. Martin told Rodriguez that he did not know
there was a warrant for Denson’s arrest or he would have ordered Denson to
report to the Orange County Probation Department earlier. Martin informed Rodriguez that he gave Denson
one week to report to the Orange County Probation Department.
told Martin that he was angry about the arrest warrant. Martin advised Denson to call Rodriguez and
call Martin the following day. Rodriguez
also spoke with Denson that day and told him to report to the Orange County
Probation Department by March 31, 2013.
The next day, Denson
called Martin and told him that he was going to report to the Orange County
Probation Department no later than March 31, 2013. Denson was angry and wanted to argue about
the Orange County Probation Department.
Almost two weeks later, Denson called Martin and informed him he would
leave for California during the first week in April.
In a report dated March
27, 2013, Martin provided the factual history of the case, including that when
Denson first reported to him in December 2012, Denson provided him with two addresses: A Eugene, Oregon address of his mother who
Denson was caring for; and an Orange, California address that was his permanent
address. The report states: “An Interstate Compact Investigation was sent
to the State of California on [December 19, 2012], it was recently denied as .
. . Denson has still been caring for his mother in Eugene, Oregon. [¶] .
. . Denson has been restricted to the State of Oregon due to his pending
charges (now adjudicated). He was
ordered to remain in Oregon while his Interstate Compact Application was
processed. According to his case plan,
he [h]as been approved to return to California between [April 5, 2013,] and
[April 12, 2013].†The report stated his
travel permit and compact application would be resubmitted and recommended
Denson leave Oregon for California on April 5, 2013. The report ended by stating Denson had
maintained weekly contact with Martin as required.
Orange County Deputy
Public Defender Terri Bianchi represents Denson. On April 4, 2013, in anticipation of Denson
arriving by April 9, 2013, Bianchi calendared a court hearing on April 9, 2013,
to address the outstanding arrest warrant.
Denson left Oregon for Orange County on or about April 5, 2013.
On April 9, 2013,
Rodriguez left Denson a voicemail message reminding him there was a warrant for
his arrest, he was to report to the Orange County Probation Department, and he
was required to provide his current residence address. That same day, upon
Bianchi’s request, Commissioner Vickie Hix trailed the matter to the next day,
April 10, 2013, and ordered the arrest warrant to remain. Denson arrived in Orange County later that
night, and he left Rodriguez a voicemail message indicating he was in Anaheim
or Orange.
The next morning,
Rodriguez spoke to Denson on the telephone.
Rodriguez asked Denson for his residential address, but Denson said he
did not have one because he was “‘hotel hopping.’†Rodriguez asked where he was currently
staying and told him to report when he moved to a new motel. Denson refused to report his current
location. Denson told Rodriguez he had a
court hearing at 8:30 a.m. that morning concerning the arrest warrant and he
was on his way to court. Because it was
already 8:30 a.m., Rodriguez believed Denson did not intend to attend the
hearing. Rodriguez told Denson to report
to the Orange County Probation Department, which he did. As he waited to speak with Rodriguez, two
Orange County Sheriff’s Department deputies arrested him and took him to
jail. Denson was booked and told he was
receiving a
six-day
flash incarceration. Denson was provided
only a booking sheet, which did not advise him of the basis for the flash
incarceration.
Early that afternoon,
Bianchi called Rodriguez and inquired why Denson had been arrested when Rodriguez
knew Denson intended to appear in court to address the arrest warrant. Rodriguez replied, “‘I took care of the
warrant’ by having him arrested.â€
Rodriguez told Bianchi he had imposed a flash incarceration because
Denson had not provided him with a residence address.
Orange County Public
Defender Miles Jessup also called Rodriguez, who referred him to Rodriguez’s
supervisor, Orange County Probation Officer Scott Chandler.
flash incarcerated for six days. When
Jessup requested “all . . . documentation†justifying the flash incarceration,
Chandler said Jessup would have to file a subpoena. Chandler explained the following policies
governing notice of flash incarceration:
(1) When the Orange County Probation Department takes a supervisee into
custody, it gives the supervisee notice, the reason(s) and duration,
immediately; and (2) when an outside agency takes a supervisee into custody,
the Orange County Probation Department serves the notice as soon as possible
and ideally within one business day.
According to Jessup, Chandler would not commit to providing Denson
notice by the next morning. Chandler
told Jessup that Denson was arrested for failing to provide Rodriguez with a
residence address and because he was arrested without substantial personal
property, he must be residing somewhere.
About an hour later,
there was a hearing before Commissioner Christopher Evans. Denson’s counsel, Bianchi, requested the
trial court set a hearing to determine the following three issues: (1) whether there was probable cause to
arrest Denson (§ 3453, subd. (s)); (2) whether Denson’s due process rights were
violated; and (3) an order to show cause to validate the flash incarceration. The prosecutor argued the court did not have
jurisdiction to rule on the validity of the flash incarceration, the Orange
County Probation Department was justified in issuing an arrest warrant, and the
flash incarceration was proper.
Analogizing to parole, the court denied Denson’s request citing
separation of powers. The court did
grant Denson’s request to set a hearing the following day for “a P[R]CS
supervision modification with a [r]emoval [o]rder.â€
Sometime that same day,
Rodriguez wrote a letter to the Orange County Superior Court, department
C-58. He recited the facts concerning
the arrest warrant and Denson’s arrest.
The letter stated: “On [April 10,
2013], the warrant was served by the Orange County Sheriff’s Department . . .
and [Denson] was booked into the Orange County Jail . . . .†The letter added the “intermediate sanctions
as authorized by . . . section 3454[, subdivision](c)[,] are appropriate
responses to the alleged violations and that [c]ourt intervention is not needed
at this time.†Rodriguez’s letter
requested the trial court recall the arrest warrant.
In a request for
detainer subsequent to the arrest, Rodriguez stated the Orange County Sheriff’s
Department arrested Denson for violating PRCS and requested Denson be detained
on a six-day flash incarceration because he had “not provided an address of
residency and absconded P[R]CS supervision.â€
On Thursday, April 11,
2013, there was another hearing before Commissioner Evans. Denson was present with his counsel,
Bianchi. Bianchi requested Denson be
released from his six-day flash incarceration pending filing of a petition for
writ of habeas corpus. The district
attorney opposed that request. The court
denied the request, again citing separation of powers. Bianchi requested the basis for the flash
incarceration in writing, and the trial judge said he thought it was for not
providing a residence address.
name="_ftnref4" title="">[4] A representative from the Orange County
Probation Department indicated Denson would be released from jail on Monday,
April 15, and she would facilitate written notice to Bianchi and/or Denson as
soon as possible.
Orange County Deputy
Probation Officer Neal Heidenreich visited Denson in jail the next day, on
April 12, 2013. Heidenreich brought a
document entitled, “‘Notice of Flash Incarceration’†(the Notice), which
contained a description of Denson’s violations, the start date, the duration,
and an area for Denson to contest the PRCS violation and request administrative
review. Heidenreich read the Notice to
Denson and advised him of his right to an administrative hearing. Denson declined the opportunity to contest
his flash incarceration, and stated he would refuse to discuss the matter any
further. Heidenreich noted Denson’s refusals
on the Notice.
That same day, Denson
filed a petition for writ of habeas corpus.
Denson submitted many exhibits, including declarations from Jaentsch,
Bianchi, and himself. In his
declaration, Denson stated Rodriguez assured him that he would not be arrested
at the Orange County Probation Department.
In her declaration, Jaentsch stated she spoke with Martin on April 11,
2013, and he stated Denson could not leave Oregon until sometime between April
5, 2013, and April 12, 2013. According
to Jaentsch, Martin said Denson was caring for his mother and could not leave
until his brother arrived. Jaentsch
claimed Martin told Rodriguez that he had to wait for his brother. Additionally, Denson included exhibits
concerning judicial hearing officer Sawyer’s California State Bar history.
In response to our
order, the Orange County County Counsel and the Orange County Public Defender
filed informal responses that same day.
We immediately ordered the Orange County Sheriff’s Department and the
Orange County Probation Department to show cause why a writ of habeas corpus
should not issue. We ordered the Orange
County Sheriff’s Department to release Denson immediately and stayed his
remaining time to be served pending further order from this court.
The Orange County County
Counsel filed a formal written return.
County counsel submitted many exhibits, including declarations from
Rodriguez, Wenzel, Hinkle, Martin, and Heidenreich. In his declaration, Rodriguez claimed he made
no representation to Denson whether he would be arrested.
The Orange County Public
Defender filed a traverse. The public
defender submitted many exhibits, including declarations from Jaentsch and
Bianchi. To the extent we have not
discussed each of the exhibits specifically, they provide the factual
background detailed above.
DISCUSSION
“Our state Constitution
guarantees that a person improperly deprived of his or her liberty has the
right to petition for a writ of habeas corpus.
[Citations.] Because a petition
for a writ of habeas corpus seeks to collaterally attack a presumptively final
criminal judgment, the petitioner bears a heavy burden initially to plead
sufficient grounds for relief, and then later to prove them. ‘For purposes of collateral attack, all
presumptions favor the truth, accuracy, and fairness of the conviction and
sentence; defendant thus must undertake the burden of overturning them. Society’s interest in the finality of
criminal proceedings so demands, and due process is not thereby offended.’ [Citation.]
“To satisfy the initial
burden of pleading adequate grounds for relief, an application for habeas
corpus must be made by petition, and ‘[i]f the imprisonment is alleged to be
illegal, the petition must also state in what the alleged illegality
consists.’ [Citation.] The petition should both (i) state fully and
with particularity the facts on which relief is sought [citations], as well as
(ii) include copies of reasonably available documentary evidence supporting the
claim, including pertinent portions of trial transcripts and affidavits or
declarations. [Citation.] ‘Conclusory allegations made without any
explanation of the basis for the allegations do not warrant relief, let alone
an evidentiary hearing.’
[Citation.] We presume the regularity
of proceedings that resulted in a final judgment [citation], and, as stated
above, the burden is on the petitioner to establish grounds for his
release. [Citations.]
“An appellate court
receiving such a petition evaluates it by asking whether, assuming the
petition’s factual allegations are true, the petitioner would be entitled to
relief. [Citation.] If no prima facie case for relief is stated,
the court will summarily deny the petition.
If, however, the court finds the factual allegations, taken as true,
establish a prima facie case for relief, the court will issue an OSC. [Citations.]
‘When an order to show cause does
issue, it is limited to the claims raised in the petition and the factual bases
for those claims alleged in the petition.
It directs the respondent to address only those issues.’ [Citation.]
Issuance of an OSC, therefore, indicates the issuing court’s preliminary
assessment that the petitioner would be entitled to relief if his factual
allegations are proved.†(
474-475 (Duvall), original italics
omitted, italics added.)
The PRCS authorizes
flash incarcerations as punishment for violations of its conditions. Section 3450, subdivision (b)(8), defines
“community-based punishment†as the following:
“‘Community-based punishment’ means evidence-based correctional
sanctions and programming encompassing a range of custodial and noncustodial
responses to criminal or noncompliant offender activity. Intermediate sanctions may be provided by
local public safety entities directly or through public or private correctional
service providers and include, but are not limited to, the following: [¶] (A) Short-term ‘flash’ incarceration in
jail for a period of not more than 10 days.â€
Section 3453 details the
PRCS’s 19 conditions. There are three
subdivisions that are of particular relevance here. Section 3453, subdivision (h), states, “The
person shall inform the supervising county agency of the person’s place of
residence, employment, education, or training.â€
Section 3453, subdivision (q), provides, “The person shall waive any
right to a court hearing prior to the imposition of a period of ‘flash
incarceration’ in a county jail of not more than 10 consecutive days for any
violation of his or her postrelease supervision conditions.†Section 3453, subdivision (s), states, “The
person shall be subject to arrest with or without a warrant by a peace officer
employed by the supervising county agency or, at the direction of the
supervising county agency, by any peace officer when there is probable cause to
believe the person has violated the terms and conditions of his or her
release.â€
Section 3454,
subdivision (b), authorizes each supervising county agency to impose additional
supervision conditions, “and determine and order appropriate responses to
alleged violations,†including flash incarceration in a county jail.
Section
3454, subdivision (b), states, “Periods of flash incarceration are encouraged
as one method of punishment for violations of an offender’s condition of
postrelease supervision.†Section 3454,
subdivision (c), provides, “‘Flash incarceration’ is a period of detention in
county jail due to a violation of an offender’s conditions of postrelease
supervision. The length of the detention
period can range between one and 10 consecutive days. Flash incarceration is a tool that may be
used by each county agency responsible for postrelease supervision. Shorter, but if necessary more frequent,
periods of detention for violations of an offender’s postrelease supervision conditions
shall appropriately punish an offender while
preventing the disruption in a work or home establishment that typically arises
from longer term revocations.â€
(Italics added.)
Although we agree with
Denson that his due process rights were violated, we do not do so based on the
conclusion flash incarceration on its face violates due process. Instead, we conclude the warrant for Denson’s
arrest was invalid and his arrest was unreasonable.
Here,
based on the record before us, we conclude Denson was taken into custody based
on the arrest warrant and not for the technical violation of PRCS. First, numerous telephone conversations
between the Orange County Probation Department, first Hinkle and then
Rodriguez, and Denson establish the Orange County Probation Department sought
Denson’s return pursuant to the authority of the arrest warrant. Second, when Denson arrived at the Orange
County Probation Department,
Orange County Sheriff’s Department deputies
arrested Denson, not the Orange County Probation Department. Although Rodriguez told Bianchi he had
imposed a flash incarceration because Denson had not provided him with a
residence address, Rodriguez also told Bianchi, “‘I took care of the [arrest]
warrant’ by having him arrested.â€
Finally, our conclusion is supported Rodriguez’s letter to the Orange
County Superior Court stating Orange County Sheriff’s Department deputies
arrested Denson on the arrest warrant and requesting the court recall the
arrest warrant. Contrary to Denson’s
claim he was detained for the technical violation of PRCS,
overwhelming evidence establishes Orange County Sheriff’s Department deputies
arrested Denson pursuant to the arrest warrant.
Thus, we must determine whether the arrest warrant was valid. We conclude it was not.
The Legislature enacted Government Code section 71622.5,
subdivision (a), to provide courts with the
additional judicial hearing officers necessary to implement the Realignment
Act. Government Code section 71622.5,
subdivision (b), authorizes court to appoint judicial hearing officers to
conduct parole revocation hearings and determine violations of conditions of
PRCS, and vests judicial hearing officers with the authority to perform those
duties. Government Code section 71622.5,
subdivision (c)(1), provides: “A person
is eligible to be appointed a hearing officer pursuant to this
section if the person meets one of the
following criteria: [¶] (A) He or she has been an active member of
the State Bar of California for at least 10 years continuously prior to appointment. [¶]
(B) He or she is or was a judge of a court of record of California
within the last five years, or is currently eligible for the assigned judge
program. [¶] (C) He or she is or was a commissioner,
magistrate, referee, or hearing officer authorized to perform the duties of a
subordinate judicial officer of a court of record of California within the last
five years.â€
Here,
the State Bar of California issued an order to show cause as to Sawyer in
February 1994. The order alleged
he failed to return client funds and failed to promptly pay client funds and
provide an accounting. The following
year, May 2, 1995, Sawyer resigned from the State Bar of California, and the
State Bar of California dismissed the proceedings without prejudice. On June 9, 1995, the California Supreme Court
accepted Sawyer’s resignation without prejudice to refiling disciplinary
proceedings. Sawyer has not been
authorized to practice law in California since 1995. Sawyer issued the arrest warrant 17 years
later on May 15, 2012.
Based on Government Code
section 71622.5, subdivision (c)(1), Sawyer was not qualified to be appointed
as a judicial hearing officer.
name="_ftnref7" title="">[7] He had not been an active member of the State
Bar of California for the previous 10 years.
Indeed, he had not been an active member of the State Bar of California
for 17 years and 10 days. Sawyer was
certainly not a superior court judge, commissioner, magistrate, or referee, nor
was he eligible for the assigned judge program (Cal. Rules of Court, rule
2.812(b)(1) [presiding judge may appoint attorney to serve as temporary judge
who is “member in good standing of the State Bar and has no disciplinary action
pendingâ€]). Pursuant to Government Code
section 71622.5, Sawyer was ineligible to sit as a judicial hearing officer and
did not have the authority to issue the arrest warrant. Therefore, his issuance of the arrest warrant
for Denson was invalid.
name="_ftnref8" title="">[8]
We must determine
whether the arrest was lawful based on an independent ground. (People
v. Chimel (1968) 68 Cal.2d 436, 442 [if the arresting officer had been
proceeding without a warrant in arresting defendant, would the arrest have been
lawful?], overruled on other grounds in Chimel
v. California (1969) 395 U.S. 752.)
The only bases independent of the arrest warrant to lawfully arrest
Denson were that he absconded supervision and he failed to provide Rodriguez
with a residence address when he returned to Orange County as required by the
PRCS conditions. Based on the record
before us, we conclude neither ground supported Denson’s arrest. We look to the standard when assessing
whether it is reasonable to arrest a probationer without a warrant.
“The inapplicability of
the warrant clause to a probationer does not mean a probationer may be arrested
without limitation under any circumstances.
‘The touchstone of the Fourth Amendment is reasonableness, and the
reasonableness of a search [or seizure] is determined “by assessing, on the one
hand, the degree to which it intrudes upon an individual’s privacy [or liberty]
and, on the other, the degree to which it is needed for the promotion of
legitimate governmental interests.â€â€™
[Citations.] Under section
1203.2, the arrest of a probationer requires probable cause to believe he or
she is violating the terms of probation, as determined by a probation or police
officer or by a court that receives information from the authorities to this
effect.†(People v. Woodall (2013) 216 Cal.App.4th 1221, 1234.)
As to absconding
supervision,
title="">[9]
the record before us establishes Denson’s supervision was legally transferred
to Oregon and Rodriguez knew Denson was residing in Oregon under the
supervision of the Multnomah County Parole and Probation Office. Additionally, there is evidence the Orange
County Probation Department was aware Denson remained in Oregon to care for his
mother until his brother arrived.
Moreover, Wade never bothered to contact Denson to inquire of his
intentions before obtaining the arrest warrant.
The record demonstrates Denson remained in Oregon until he was legally
authorized to leave between April 5, 2013, and April 12, 2013, and he arrived
in
Orange
County on April 9, 2013. Thus, the
record is void of any evidence Denson absconded supervision.
With regard to the
requirement Denson provide his residence address, the record established Denson
returned to California with the intent to address the illegally issued arrest
warrant. When he was in Oregon, Denson
spoke with his public defender, Bianchi, and told her when he planned to arrive
Orange County. Bianchi set a court
hearing for Denson to address the arrest warrant. When he arrived in Orange County, Denson
called Rodriguez and left him a voicemail message. When he spoke with Rodriguez the next
morning, Denson told him that he was on his way to court to clear the arrest
warrant and that he was “‘hotel hopping.’â€
Although Denson did not tell Rodriguez where he was staying, Denson did
repeatedly communicate with him and tell him where he was going. The evidence clearly establishes Denson returned
to
Orange
County and intended to be in court on the morning of April 10 to clear the
arrest warrant. Based on the fact Denson
communicated with his public defender before arriving in Orange County and his
intent to appear in court on the morning of April 10 to clear the arrest
warrant, which he was upset about, we are convinced Denson would not have gone
to the Orange County Probation Department unless some representation was made
he would not be arrested. But that is
exactly what happened when he arrived there.
Based on the record before us, we conclude Denson’s arrest was
unreasonable. Because the arrest warrant
was invalid and Denson’s arrest was unreasonable, his federal due process
rights were violated.
DISPOSITION
The petition is granted.
O’LEARY,
P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
name="_ftn1" title="">[1]
All further statutory references are to the Penal
Code, unless otherwise indicated.
name="_ftn2" title="">[2]
Orange County Public Defender Investigator Spring
Jaentsch declared she spoke with Martin on April 11, 2013. Martin told her that in his March 13, 2013,
conversation with Rodriguez, Rodriguez requested Martin order Denson to return
to the Orange County Probation Department within one week, and Martin responded
that was not possible because of processing.
