Filed 2/22/22 P. v. Williams CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

BR IAND WILL IAMS

,

Defendant and Appellant. B 310260

(Los Angeles County Super. Ct. No. 0PH 0 6161 )

ORDER MOD I FYING

OPINION

BY THE COURT:
It is ordered that the opinion filed herein on February 18,

2022 , is modified as follows:
On the caption page, delete case number 0PH6161 and
replace it with 0PH06161

. There is no change in judgment.

RUBIN, P. J. BAKER, J. MOOR, J.Filed 2/18 /22 P. v. Williams CA2/5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAND WILL IAMS

,

Defendant and Appellant. B 310260

(Los Angeles County Super. Ct. No. 0PH 0 6161 )

APPEAL from an order of the Superior Court of Los

Angeles County, Robert M. Kawahara

, Commissioner

. Affirmed.

William J. Capriola , under appointment by the Court of

Appeal, for Defendant and Appellant.

No ap pearance for Plaintiff and Respondent.

___________________________2 On June 3, 2018, defendant was released on parole. On

October 8, 2020, a petition was filed to revoke his parole, alleging

violation of multiple conditions of parole. Following a hearing
before a commissioner acting as temporary judge, parole was

revoked and reinstated. Defendant appeals.

On July 6, 2021 , defendant’s appointed counsel filed a brief

pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ). The

brief i ncluded a declaration from counsel to defendant, explaining

the brief that counsel was filing, and informing defendant of his
right to file a supplemental brief. On December 30, 2021,

defendant filed a supplemental brief , in which he argued that he

had no t stipulated to the commissioner. On January 26, 2022,

defendant submitted an amended supplemental brief making

similar arguments. 1

We have examined the entire record and are satisfied that
defendant’s attorney has fully complied with his responsibilities
and that no arguable issues exist. ( Wende, supra, 25 Cal.3d 436.)

Nor did d efendant’s supplemental brief raise an arguable

issue

. C ommiss ioner s may be appointed to preside over parole

revocation hearings

. (Gov. Code, § 71622.5, subd. (c)(1)(C).)

Howeve r, revoking parole and committing a defendant to jail for
violation of parole are not subordinate judicial duties that may be

per formed by constitutionally by a commissioner in the absence
of a stipulation by the parties. ( People v. Berch (2018)

29 Cal.App.5th 966, 969 [defendant had objected to the

1 Defendant’s supplemental brief also renewed a previous request to replace his current appointed counsel with new appointed counsel, on the basis that counsel should have pursued the argument that the commissioner lacked authority. We again deny the motion to replace counsel.3

commissioner before hearing].) 2 Here, b y participating in the
hearing before the commissioner with no objection, defen dant

, who was represented by counsel at the hearing

, impliedly

stipulated to th e commissioner acting as temporary judge. ( In re

Horton (1991) 54 Cal.3d 82, 86, 91

- 93 [commissioner may preside
over capital murder trial when defense counsel knew judicial

officer was a commissioner and did not object ]. S ee In re Mark L

. (1983) 34 Cal.3d 171, 178, 179, fn. 6 [ “ U nder the ‘tantamount
stipulation’ doctrine, the parties conf er judicial power not because

they thought in those terms; had they done so, the stipulation

presumably would be express. Rather, an implied stipulation
arises from the parties ’ common intent that the subordinate
officer hearing their case do things which , in fact, can only be

done by a judge .” ].)

DISPOSITION
The order revoking parole is affirmed. 3

RUBIN, P. J.

WE CONCUR:

BAKER, J. MOOR, J.

2 California Constitution, Art, 6, § 22, provides: “ The Legislature may provide for the appointment by trial courts of

record o f officers such as commissioners to perform subordinate judicial duties. ”

3 Defen d ant has a separate habeas petition pending under a different case number. ( Williams v. Superior Court , No.

B 317822.) We express no opinion on the merits of this petition.