Filed 9/28/17 P. v. Gordon CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Chic Gordon challenges the trial court’s finding that she violated postrelease community supervision (PRCS). The contested evidentiary hearing was presided over by Commissioner Leonard Goldkind. Defendant contends Commissioner Goldkind lacked jurisdiction to hear the matter because (1) she never stipulated Commissioner Goldkind could hear her PRCS violation and (2) she objected at the beginning of the evidentiary hearing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 22, 2015, the probation department filed a petition to revoke defendant’s PRCS. The petition alleged defendant violated the condition that she not own, possess, or have under her control any dogs. According to the petition, on October 21, 2015, defendant was in possession of a dog and told police she owned the dog.

Defendant denied the allegations during an October 30, 2015 hearing held before Commissioner Goldkind. A contested evidentiary hearing was set in November 2015, and, according to the settled statement, the matter was assigned to Commissioner Goldkind for all purposes. According to the settled statement, the parties did not provide a written stipulation to the matter proceeding before Commissioner Goldkind. Still, there was no objection to the matter proceeding before him.

During the November 23, 2015 contested hearing, Commissioner Goldkind initially confirmed counsel wished to proceed with the hearing. The first witness, a probation officer, was called and sworn. The prosecutor asked the officer’s name and his employment history, and the witness identified defendant. The witness provided preliminary details regarding defendant’s PRCS status, including (1) when she went on the officer’s PRCS caseload and (2) that she was released from a state prison. After eight such preliminary questions, defense counsel interrupted: “Your Honor, I have—can I speak to her? She has an issue with the Commissioner possibly hearing this, so—” The court responded: “I was assigned to do this. There was a stipulation that I hear this as a Judge Pro Tem at the earlier hearing when this matter was set. I assigned it. It was in front of me the whole time, and [defendant] knew that.” Defense counsel responded, “Okay,” and the court instructed, “Go ahead.” The hearing resumed, with three witnesses testifying for the People and defendant testifying on her own behalf. At the conclusion of the hearing, the court found defendant in violation of PRCS. PRCS was revoked and reinstated, and defendant was ordered to serve 90 days in jail.

DISCUSSION

Defendant contends her counsel’s statement during the November 23, 2015 hearing divested Commissioner Goldkind of jurisdiction. We disagree.

Under the California Constitution, parties litigating a cause may stipulate that a matter be heard and decided by a temporary judge. (Cal. Const., art. VI, § 21.) The Supreme Court has interpreted this to mean a stipulation is required to qualify a commissioner to act. (In re Horton (1991) 54 Cal.3d 82, 90 (Horton).) The failure to obtain a party’s stipulation renders void any ruling or judgment by the commissioner. (Ibid.) The stipulation may be in writing or by an express oral statement on the record. (Id. at p. 91.) In addition, under the “tantamount stipulation doctrine,” a valid stipulation may be implied as a result of the conduct of the parties or their counsel. (Id. at p. 91.) An implied stipulation is only valid if there is evidence that a party or his counsel “were aware that the judicial officer sitting on the bench was a commissioner rather than a judge” and nonetheless participated in the cause. (Id. at p. 99.)

In Horton, a court commissioner conducted the trial in a capital case without objection. The defendant filed a habeas corpus petition, arguing he never entered a waiver or otherwise stipulated to proceeding before the commissioner. During pretrial rulings, the defendant asked, “[A]re you a Judge or are you a Commissioner?” (Horton, supra, 54 Cal.3d at p. 89.) The commissioner identified himself as a commissioner but said he would be sitting as a judge because the defendant had signed a stipulation. The defendant appeared to disagree when he said, “I signed it,” and shook his head indicating disagreement. His counsel interrupted him and spoke about other topics. The subject was dropped, the case proceeded to trial, and the subject was not renewed until a collateral attack on the judgment. (Ibid.)

The Supreme Court concluded defense counsel’s conduct amounted to a tantamount stipulation. The court reasoned counsel traditionally has had “authority to act for the client in the procedural aspects of the case,” and therefore is able to enter a stipulation to a temporary judge, “even though the court has not secured an express waiver from the litigant.” (Horton, supra, 54 Cal.3d at pp. 97-98.) In Horton, both counsel and the defendant were aware the temporary judge was a commissioner, and counsel previously stipulated to his presiding in other cases. (Id. at p. 99.) In addition, defense counsel “participated fully and vigorously in the trial, at every point treating the commissioner as competent to rule on matters which rest solely in the discretion of a superior court judge.” (Id. at p. 98.) Moreover, counsel never objected to proceeding before the commissioner. (Id. at p. 100.) As the court explained, “ ‘An attorney [or party] may not sit back, fully participate in a trial and then claim that the court was without jurisdiction on receiving a result unfavorable to him.’ [Citation.]” (Id. at p. 91.)

Similarly here, both defendant and her counsel were aware Commissioner Goldkind was a commissioner. During all relevant proceedings, there was a name plate on the bench identifying Commissioner Goldkind by name and as a commissioner. Both defendant and her counsel previously appeared before Commissioner Goldkind, with defense counsel appearing before Commissioner Goldkind on a weekly basis. During the October 30, 2015 hearing, defendant and her counsel were made aware the matter was assigned to Commissioner Goldkind for all purposes, including the scheduled contested hearing on November 23, 2015. At that time, neither defendant nor her counsel objected to proceeding in front of the commissioner.

Even though, during the November 23, 2015 hearing, defense counsel said defendant “has an issue with the Commissioner possibly hearing [the matter],” defense counsel’s subsequent conduct implied defendant’s consent. When Commissioner Goldkind said the matter had been assigned to him the entire time and there was a stipulation during the previous hearing, defense counsel failed to pursue the matter. He responded, “Okay,” and, just as in Horton, proceeded to participate fully and vigorously in the contested hearing. We find no error.

DISPOSITION

The judgment is affirmed.

NICHOLSON , Acting P. J.

We concur:

ROBIE , J.

DUARTE , J.