Filed 10/14/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

WENDY JOY WILLIAMS,

 Petitioner,

v.

THE SUPERIOR COURT OF ORANGE 

COUNTY,

 Respondent;

THE PEOPLE et al.,

 Real Parties in Interest.

 G050280

 (Super. Ct. No. P-00164)

 O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of 

the Superior Court of Orange County, Craig E. Robison, Judge, and Gregg L. Prickett, 

Supervising Judge. Petition granted.

Frank Ospino, Public Defender, Sharon Petrosino, Chief Deputy Public 

Defender, Mark S. Brown, Assistant Public Defender, and Miles Jessup, Deputy Public 

Defender, for Petitioner.
2

Tony Rackauckas, District Attorney, and Matthew Lockhart, Deputy 

District Attorney, for Real Party in Interest the People of the State of California.

No appearance for Real Party in Interest the California Department of 

Corrections and Rehabilitation, Division of Adult Parole Operations.

* * *

In Morrissey v. Brewer (1972) 408 U.S. 472 (Morrissey), the United States 

Supreme Court held that a parolee is entitled to certain procedural due process

protections before parole may be revoked. (Id. at pp. 482-484.) Among these is the right 

to a prompt evidentiary hearing on whether probable cause exists to believe the parolee 

violated a condition of parole. (Id. at pp. 484, 487.)

In 2011, “California began enacting legislation, commonly known as 

‘Realignment,’ that significantly altered the state’s criminal justice system.” (Valdivia v. 

Brown (E.D.Cal. 2013) 956 F.Supp.2d 1125, 1126 (Valdivia III).) This legislation 

established, inter alia, a uniform process for revocation of probation, parole, and 

postrelease supervision of felons.

1

 (Sen. Bill No. 1023 (2011-2012 Reg. Sess.) § 2(a).) 

The Legislature intended this uniform procedure to comply with Morrissey’s due process 

requirements. (Sen. Bill No. 1023 (2011-2012 Reg. Sess.) § 2(b).) Under this uniform 

procedure, the court has jurisdiction over petitions for revocation of supervision 

(including parole). (§ 1203.2, subds. (a), (b).)

2

 

1

Under the uniform process, the term “supervision” refers to probation, 

parole, and postrelease supervision. (Pen. Code, § 1203.2, subd. (a).) 

All statutory references are to the Penal Code unless otherwise stated.

2

The uniform process became effective as to parolees on July 1, 2013. 

(§ 3000.08, subd. (m).) Under section 3000.08, subdivision (i), certain parolees remain 

subject to the jurisdiction of the Department of Corrections and Rehabilitation (DCR).
3

 Petitioner Wendy Williams contends that, in the wake of realignment, the 

State of California and the Orange County Superior Court have systematically denied her 

and other parolees the procedural protections to which they are entitled in revocation 

proceedings. Williams petitions for a writ of mandate (1) ordering the Superior Court to 

arrange for her immediate release from custody and to dismiss the petition for revocation 

of her parole, and (2) ordering the Superior Court and real parties in interest (the People 

of the State of California and the Division of Adult Parole Operations (Parole) of the 

DCR) to provide her with reasonable due process prior to any further incarceration, 

including a Morrissey-compliant probable cause hearing within 15 days of arrest.

We grant Williams’s petition in part.

3

 We hold that, in parole revocation 

proceedings, a parolee is entitled to arraignment within 10 days of an arrest for a parole 

violation, a probable cause hearing within 15 days of the arrest, and a final hearing within 

45 days of the arrest.

FACTS

Williams’s Parole Violation and Revocation Proceedings

On May 20, 2014,

4

Williams was arrested for absconding from parole 

supervision. She was placed in custody at the county jail on a parole hold.

On that date, a parole agent signed a probable cause determination form

identifying Williams’s parole violation as absconding from parole supervision, and 

describing the circumstances of the charge as follows. After Williams failed to report to 

 

3 We deny Williams’s petition for (1) arraignment within two business days 

of the arrests, (2) Parole’s consideration of informal sanctions within one business day of 

a parole hold, and (3) an opportunity to present evidence through counsel at any time to 

mitigate sanctions. 

4

All dates are in the year 2014, unless otherwise stated.
4

her supervising agent on May 6, the agent tried to locate her the next day at the Motel 6 

in Orange, where she had claimed to reside. The agent spoke with Kathy, the motel’s 

front desk clerk, who said Williams was not a guest at the motel. On May 13, the court 

issued a warrant for Williams’s arrest and her parole was suspended.

5

 On May 20, 

Williams was arrested by the police for being a parolee at large.

On the probable cause determination form, a Parole unit supervisor checked

a box to retain Williams’s parole hold and ordered that the matter be investigated and a 

report submitted by May 28. 

On May 28 — eight days after Williams’s arrest — in the parole violation 

report, the parole agent and the unit supervisor recommended that Williams be returned 

to custody for 135 days. The report reflected that an “evidence based tool” called the 

“parole violation decision making instrument [PVDMI]” recommended that Williams be 

“continue[d] on parole with remedial sanctions,” as opposed to being referred for 

revocation. But Parole reported it had decided to petition for revocation due to 

Williams’s “failure to comply with his or her conditions of parole or involvement in

criminal behavior,” and to recommend Williams be returned to custody for 135 days. 

The report identified Williams’s risk level as “high-drug.”

The report described the circumstances of the charge similarly to the May 

20 probable cause determination form, but also included the following additional details.

On May 20, Tustin police detective Breeze was at the Bel Air Motel in response to a 

suspicious circumstance call for service. Breeze noticed a female standing in the 

doorway of a motel room. Breeze approached Williams, who immediately went into her 

room and said she did not want to talk to Breeze. Breeze contacted Kim, the motel 

 

5

The probable cause determination form states the arrest warrant was issued 

on May 31, but this is evidently an inadvertent transposition of the numbers “1” and “3,” 

since the report is dated May 20 and reports a completed arrest. The People’s return to 

defendant’s petition states (with no record reference) that Parole petitioned the court on 

May 13 for a warrant for defendant’s arrest.
5

manager, who said the occupant of the room was Wendy Williams. A records check 

revealed Williams was a parolee at large. Williams was arrested and taken to the police 

station for booking.

The “Parolee Statement” section of the May 28 report stated that, while 

Williams was being booked at the police station, she told the parole agent that she was 

sick and unable to report, and promised to report immediately if the parole hold were 

lifted.

In the “Evaluation” section of the May 28 report, Parole explained the 

reasons for its recommendation to petition for revocation and a return to custody: 

“Williams is a habitual absconder with no real desire or intentions to comply with her 

conditions of parole. Williams travels from Riverside County to Orange County leaving 

a trail of criminal arrests in both counties. Williams primarily lives out of motels and 

occasionally the streets. She has been unemployed the vast majority of her adult life. 

Although she has extremely supportive parents who are willing to assist her, she chooses 

to live out in the streets bouncing from motel to motel. Remedial sanctions were 

considered but Williams refused any type of treatment or structured program. This agent 

recommends that Williams be returned to custody at this time.” 

On May 29 — nine days after Williams was arrested and placed in jail —

Parole petitioned the court for revocation of her parole.

6

 The petition stated that on May 

20, Parole had established probable cause for the alleged parole violation. Williams’s 

arraignment was scheduled for June 5, — 16 days after Williams’s arrest.

 

6

The petition states Williams’s underlying conviction was for possession of 

a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and that she was 

released on supervision on September 26, 2011. Had Williams been released five days 

later, on October 1, 2011, she would have qualified for postrelease community 

supervision rather than parole, since her underlying offense did not disqualify her from 

this type of supervision. (See § 3451, subd. (a).) Revocation of postrelease community 

supervision and parole are both governed by section 1203.2. (§§ 3455, subd. (a), 

3000.08, subd. (f).)
6

On June 5, Williams moved to dismiss the revocation petition for lack of 

due process and pursuant to section 3044 (which gives a parolee the right to a probable 

cause hearing within 15 days of arrest). She also sought release from custody pending 

resolution of the due process and section 3044 issues.

It is undisputed that the court denied Williams’s motion. According to 

Williams, she then sought to present evidence on probable cause, but the court denied her 

request “and purported to find probable cause based solely on the ‘information and 

belief’ Petition for Revocation.” It is undisputed that Williams’s revocation hearing “was 

scheduled — per Court policy — three Thursdays later on June 26,” — 37 days after her 

arrest. 

Parole Violation and Revocation Procedures in Orange County

According to Williams, her experience is typical in Orange County, where 

a 2013 survey conducted by the Orange County Public Defender staff indicated that 

parolees averaged just over 16 days in custody prior to their first court appearance. Thus, 

a majority of parolees were denied a probable cause hearing (or even arraignment and an 

opportunity to request release on bail and appointment of counsel) within 15 days of their 

arrest.

Williams describes the Orange County Superior Court’s calendaring policy 

for parole revocation proceedings as follows.

7

 The court assigns parole revocation 

matters only to department CJ1 (a courtroom located inside the Santa Ana jail), “with 

some matters sent out to other courtrooms for some hearings.” The court sets such 

matters only on Thursdays, refusing access to department CJ1’s available calendar slots 

on Monday, Tuesday, Wednesday and Friday. The deadline for filing parole revocation

petitions to be heard on any particular Thursday is 4:00 p.m. on the immediately 

 

7

The People’s return to defendant’s writ petition does not dispute the 

accuracy of her description of the superior court’s policy.
7

preceding Monday. Thus, a revocation petition filed after the Monday deadline “will not 

be calendared the same week, but rather will be placed on calendar at least 10 days later 

on a non-holiday Thursday.” This filing deadline only applies to parole revocation 

petitions. At the arraignment hearing, the court has refused to allow defense witnesses to 

testify. Such testimony is allowed only at the final revocation hearing, which is 

scheduled for three weeks after arraignment.

Parole has chosen, as a policy, not to exercise its statutory authority to 

consider flash incarceration as an intermediate sanction in lieu of parole revocation. 

(Couzens & Bigelow, Felony Sentencing After Realignment (Mar. 4, 2014), p. 95; at

<www.courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Sept. 23, 2014].) 

The use of flash incarceration, i.e., detention in jail for up to 10 days, is statutorily 

encouraged. (§ 3000.08, subds. (e), (f).)

DISCUSSION

Williams contends these policies “systematically ensure that in Orange 

County, no parolee will ever have an audience before a magistrate within 48 hours of”

arrest and “virtually no parolee in Orange County will have a time compliant (Pen. Code,

§ 3044, subd. (a)) or Morrissey compliant probable cause hearing, much less a 

meaningful opportunity to participate in such [a] hearing.”

The People counter that, in post-realignment California, Williams is not

entitled to arraignment within 48 hours of arrest nor is she entitled to a probable cause 

hearing before a court at any time.
8

I

RELEVANT LEGAL PRINCIPLES AND BACKGROUND

A. Morrissey

In Morrissey, supra, 408 U.S. 471, two petitioners alleged they were denied 

due process when their paroles were revoked without a hearing based on the parole 

board’s review of the parole officer’s written reports. (Id. at pp. 472-474). The United 

States Supreme Court stated that a parolee is not entitled to the full panoply of due 

process rights, because parole revocation is not part of a criminal prosecution and 

because revocation deprives a parolee of conditional liberty, not absolute liberty. (Id. at 

p. 480.) Nevertheless, Morrissey held that a parolee who has been detained for a parole 

violation is entitled to an informal probable cause hearing and a final revocation hearing. 

(Id. at pp. 485, 487.)

The purpose of the probable cause hearing is “to determine whether there is 

probable cause or reasonable ground to believe that the arrested parolee has committed 

acts that would constitute a violation of parole conditions.” (Morrissey, supra, 408 U.S. 

at p. 485.) This “minimal inquiry [must] be conducted at or reasonably near the place of 

the alleged parole violation or arrest and as promptly as convenient after arrest while 

information is fresh and sources are available.” (Ibid., italics added.) The determination

must be made by “someone not directly involved in the case” (ibid.), who need not be a 

judicial officer (id. at p. 486). The parolee must be notified of the hearing and of the 

alleged parole violations. (Id. at pp. 486-487.) “At the hearing the parolee may appear 

and speak in his own behalf; he may bring letters, documents, or” witnesses. (Id. at 

p. 487.) Generally, the parolee may question any “person who has given adverse 

information on which parole revocation is to be based . . . .” (Ibid.)

8

 The hearing officer 

must prepare “a summary . . . of what occurs at the hearing in terms of the responses of 

 

8

The hearing officer may exempt a confidential informant from 

“confrontation and cross-examination.” (Morrissey, supra, 408 U.S. at p. 487.)
9

the parolee and the substance of the documents or evidence given in support of parole 

revocation and of the parolee’s position.” (Ibid.) The “‘decision maker should state the 

reasons for his determination and indicate the evidence he relied on . . . ,’” but need not 

make “‘formal findings of fact and conclusions of law.’” (Ibid.)

A final revocation hearing (if desired by the parolee) must take place within 

a reasonable time after the parolee is taken into custody. (Morrissey, supra, 408 U.S. at 

pp. 487-488.) A lapse of two months “would not appear to be unreasonable.” (Id. at 

p. 488.) The parolee is entitled to written notice of the allegations; disclosure of adverse 

evidence; an opportunity to be heard in person, to present witnesses and documentary 

evidence, and generally to confront and cross-examine adverse witnesses; a “‘neutral and 

detached’ hearing body”; and “a written statement by the factfinders as to the evidence 

relied on and reasons for revoking parole.” (Id. at p. 489.)

The revocation decision involves two questions: Did the parolee actually

violate a parole condition? (Morrissey, supra, 408 U.S. at pp. 479-480.) And, if so, 

“should the parolee be recommitted to prison or should other steps be taken to protect 

society and improve chances of rehabilitation?” (Id. at p. 480.) The second question is

discretionary and entails a prediction of whether the individual is able “to live in society 

without committing antisocial acts.” (Id. at p. 480; see id. at p. 484.) 

Morrissey emphasized that it sought not to “create an inflexible structure 

for parole revocation procedures” (Morrissey, supra, 408 U.S. at p. 490), but rather to 

enunciate the “minimum requirements of due process” (id. at p. 489). It is well 

established “that due process is flexible and calls for such procedural protections as the 

particular situation demands.” (Id. at p. 481.)

B. Post-Morrissey History Until Realignment

Morrissey mandated that a probable cause hearing be held “as promptly as 

convenient after arrest while information is fresh and sources are available.” (Morrissey, 
10

supra, 408 U.S. at p. 485.) Beyond this, it provided no guidance as to the maximum 

delay permitted under this standard. 

In a class action lawsuit commenced in federal district court, the plaintiffs 

challenged the constitutionality of California’s then-existing parole revocation system. 

(Valdivia v. Davis (E.D.Cal. 2002) 206 F.Supp.2d 1068, 1069 (Valdivia I).) The 

defendants were the “Governor of the State of California, and various state correctional 

officials . . . .” (Ibid.) The district court held “that whether viewed as compelled by 

Morrissey, or the result of a Mathews [v. Eldridge (1976) 424 U.S. 319] balancing test, 

the [then] current California parole revocation system violate[d] the plaintiffs’ due 

process rights.” (Id. at p. 1078.) At that time, California utilized “a wholly internal 

review system from which the parolee [was] entirely excluded.” (Id. at p. 1070.) Parole 

officers were authorized to place a parolee in custody on a parole hold. (Id. at pp. 1069-

1070.) After the parole officer and the unit supervisor reviewed the matter, they could 

file a parole violation report with the Board of Prison Terms, containing “information on 

the alleged parole violation and supporting evidence, a summary of the parolee’s 

adjustment while on parole, and a recommendation as to what action should be taken.” 

(Id. at p. 1170.) The system did not provide for probable cause hearings. (Ibid.) The 

Board of Prison Terms would then offer the parolee a specific term of incarceration if the 

parolee would waive a formal revocation hearing. If the parolee refused the offer, the 

parolee remained in custody. (Ibid.) On average, revocation hearings were held 35.2 

days after the parolee’s arrest and detention. (Id. at p. 1071.)

Valdivia I held that California’s system allowing a 45-day delay before a

probable cause hearing was unconstitutional. (Valdivia I, supra, 206 F.Supp.2d at 

p. 1078.) The district court also noted that Morrissey’s “explanation of the requirements 

for a preliminary procedure plainly suggests that it contemplated a ‘hearing’ rather than 

some ex-parte process, for confirming probable cause.” (Valdivia I, at p. 1075.) 
11

The district court later ordered the defendants “to file a proposed remedial 

plan . . . .” (Valdivia III, supra, 956 F.Supp.2d at p. 1127.) The defendants asked the 

court for guidance on what the Constitution requires as to “‘the timing and substance of 

the preliminary’” hearing. (Ibid.) Reluctantly, the court advised them that a “period of 

ten days strikes a reasonable balance between inevitable administrative delays and the 

state’s interest in conducting its parole system, on the one hand, and the liberty interests 

of parolees, on the other.” (Ibid.)

In a 2004 permanent injunction based on the parties’ stipulation (the 

Injunction), the Valdivia court ordered, inter alia, that “notice of charges and rights . . . be 

served on parolees not later than three business days from the placement of a parole hold” 

and that probable cause hearings must be held not later than “10 business days after 

parolees are served notice of charges and rights.” (Valdivia III, supra, 956 F.Supp.2d at 

p. 1128.)

In 2008, “California voters passed Proposition 9, entitled ‘Victims’ Bill of 

Rights Act of 2008: Marsy’s Law,’” which enacted section 3044 and “altered a number 

of the parameters for the parole revocation system that had been mandated by the 

Injunction.” (Valdivia III, supra, 956 F.Supp.2d at p. 1129.) Section 3044, subdivision 

(a) provides that in order “to protect a victim from harassment and abuse during the 

parole process,” a parolee, in the event of parole revocation, is only entitled to the

procedural rights listed in the statute. As relevant here, section 3044 entitles a parolee “to 

a probable cause hearing no later than 15 days following his or her arrest for violation of 

parole” (id., subd. (a)(1)), and an “evidentiary revocation hearing no later than 45 days 

following his or her arrest for violation of parole” (id., subd. (a)(2)).

The Valdivia plaintiffs moved to enjoin enforcement of parts of section

3044 which conflicted with the Injunction. (Valdivia III, supra, 956 F.Supp.2d at 

p. 1129.) In Valdivia v. Brown (E.D.Cal. 2012, No. CIV S-94-671 LKK/GGH) 2012 U.S. 

Dist. Lexis 8092 (Valdivia II), the district court ruled that certain aspects of section 3044 
12

were unconstitutional, including the statute’s requirement that probable cause hearings be 

held within 15 days after the parolee’s arrest, with an evidentiary revocation hearing 

within 45 days. But the court’s constitutional criticism of section 3044 was not based on 

the time limits per se, but on the lack of other constitutionally mandated requirements. 

Valdivia II held that “[t]he bare requirements in § 3044 fall short of the minimum due 

process set forth in Morrisey.” (Valdivia II, at p. *19.) Notably absent from the limited

procedural rights accorded parolees under section 3044 were “notice, a written summary 

of the proceedings and of the revocation decision, the opportunity to present documentary 

evidence and witnesses, and disclosure to the parolee of the evidence against him.” 

(Valdivia II, at p. *19.) In addition, Valdivia II held that section 3044 “does not 

guarantee a prompt probable cause hearing with all of the minimum process set forth in 

Morrissey.” (Valdivia II, at p. *21, italics added.) 

C. Realignment Legislation

In 2011, the Legislature enacted realignment legislation which amended “a 

broad array of statutes concerning where a defendant will serve his or her sentence and 

how a defendant is to be supervised on parole.” (Couzens & Bigelow, supra, p. 6, at 

<www.courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Sept. 23, 2014].) 

The legislation “allows lower level felons to serve their sentences in county jail . . . and to 

be supervised postrelease by county agencies.” (1 Witkin & Epstein, Cal. Criminal Law 

(4th ed. 2012) Introduction to Crimes, § 141, p. 231.) The sentence of a felon sent to 

prison must generally “include a period of parole supervision or postrelease community 

supervision.” (§ 3000, subd. (a)(1).)

In 2012, as part of the realignment system, the Legislature amended section 

1203.2 (which previously dealt solely with the revocation of probation) to apply to the 

revocation of supervision (§ 1203.2, subds. (a), (f)(3)), thereby establishing a uniform 

process for revocation of parole, probation, and postrelease supervision of most felons. 
13

(3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2014 supp.) Punishment, § 687A, p. 

121.) Consequently, under current section 1203.2, the court has authority to revoke the 

supervision of a person on grounds specified in the statute. (§ 1203.2, subds. (a), (b).) 

Previously the Board of Parole Hearings conducted parole probable cause and revocation 

hearings. (Valdivia III, supra, 956 F.Supp.2d at p. 1130.) In enacting the realignment 

legislation, the Legislature declared its intent that the statutory amendments that 

established section 1203.2’s uniform procedure “simultaneously incorporate the 

procedural due process protections held to apply to probation revocation procedures” 

under Morrissey, supra, 408 U.S. 471 and People v. Vickers (1972) 8 Cal.3d 451, 459

(Vickers) (which applied the Morrissey parole revocation protections to probation 

revocation), and their progeny. (Sen. Bill No. 1023 (2011-2012 Reg. Sess.) § 2.)

In July 2013, the Valdivia court determined that, in light of California’s

realignment legislation that transferred substantial responsibilities for the parole system 

from Parole and the Board of Parole Hearings to county authorities and state courts

(Valdivia III, supra, 956 F. Supp.2d at p. 1130), the Valdivia class action suit was no 

longer “the proper vehicle for ensuring that parolees receive Constitutionally-guaranteed 

due process protections” (id. at p. 1126). The district court declared the case “moot as of 

July 1, 2013, when the new parole revocation system was scheduled to go fully into 

effect.” (Id. at pp. 1126-1127.)

9

 The Realignment “system features major new actors 

(county jails; the California state courts; public defenders’ offices)” who were not parties 

to the Valdivia lawsuit. (Id. at p. 1135) Accordingly, the district court dismissed the 

matter. (Id. at p. 1127.) It stressed, however, that “[w]hether the new system provides 

adequate due process must be demonstrated in practice, without untoward judicial 

interference until the need for intervention is clear.” (Id. at pp. 1136-1137.) The court 

suggested that Parole’s “probable cause ‘determinations’ [may] represent a ‘rever[sion] to 

 

9

Under the district court’s order, the Injunction remains in effect for parolees 

arrested for violations before July 1, 2013. (Valdivia III, at p. 1142.)
14

a wholly internal review process for assessing probable cause’ [citation] of the type that 

this court found unconstitutional [in Valdivia I] in 2002. Nevertheless, for the reasons set 

forth above, any such infirmities will have to be addressed, if at all, in a subsequent 

lawsuit or lawsuits.” (Id. at p. 1137.)

D. Relevant Realignment Statutes

Section 3000.08, governing parole supervision, contains the following 

relevant provisions. If a parole agent or peace officer has probable cause to believe a 

parolee is violating parole, the agent or officer may, without warrant, “arrest the person 

and bring him or her before the court, or the court may, in its discretion, issue a warrant 

for that person’s arrest . . . .” (Id., subd. (c), italics added.) If the supervising parole 

agency finds “good cause” that the parolee violated the law or a parole condition, the 

agency may impose additional conditions of supervision and “immediate, structured, and 

intermediate sanctions . . . , including flash incarceration . . . .” (Id., subd. (d), italics 

added.) “‘Flash incarceration’” is a period of detention in jail of up to 10 consecutive 

days. (Id., subd. (e).) “Periods of ‘flash incarceration’ . . . are encouraged as one method 

of punishment for violations of a parolee’s conditions of parole.” (Id., subd. (d), italics 

added.) “Shorter, but if necessary more frequent, periods of detention . . . shall 

appropriately punish a parolee while preventing the disruption in a work or home 

establishment that typically arises from longer periods of detention.” (Id., subd. (e).) “If 

the supervising parole agency has determined, following application of its assessment 

processes, that intermediate sanctions up to and including flash incarceration are not 

appropriate, the supervising parole agency shall, pursuant to Section 1203.2, petition [the 

court] to revoke parole.” (Id., subd. (f), italics added.) If the court finds the parolee has 

violated the conditions of parole, it may (1) return the person to parole supervision with 

modifications of conditions, if appropriate, (2) revoke parole and order the person to 

confinement in county jail, or (3) refer the person to reentry court or an evidence-based 
15

program. (Ibid.) Section 3000.08, subdivision (f) provides that the California Judicial 

Council shall adopt forms and rules of court to establish “the minimum contents of 

supervision agency reports.”

California Rules of Court, rule 4.541(e) mandates that “a report filed by the 

supervising agency in conjunction with a petition to revoke parole or postrelease 

community supervision must include the reasons for that agency’s determination that 

intermediate sanctions without court intervention as authorized by Penal Code sections 

3000.08(f) or 3454(b) are inappropriate responses to the alleged violations.”

Section 1203.2, governing the procedure for revocation of supervision

(including parole, postrelease community supervision, probation, and mandatory county 

supervision), contains the following relevant provisions. (Id., subd. (a).) If a probation 

or parole officer or a peace officer “has probable cause to believe that the supervised 

person is violating any term or condition of his or her supervision, the officer may, 

without warrant or other process, . . . rearrest the supervised person and bring him or her 

before the court,” or the court may issue a rearrest warrant. (Ibid., italics added.) The 

court may revoke the supervision of the person “if the interests of justice so require and 

the court, in its judgment, has reason to believe from the report of the probation or parole 

officer or otherwise that the person has violated any of the conditions of his or her 

supervision, has become abandoned to improper associates or a vicious life, or has 

subsequently committed other offenses, regardless [of] whether he or she has been 

prosecuted for such offenses.” (Ibid, italics added.) The court may also revoke 

supervision upon its own motion or upon the petition of the supervised person, the 

probation or parole office, or the district attorney (id., subd. (b)(1)), based on the 

probation or parole officer’s written report (id., subd. (b)(2)). Nothing in section 1203.2 

“affects the authority of the supervising agency to impose intermediate sanctions, 

including flash incarceration, to persons supervised on parole . . . or postrelease 

community supervision . . . .” (Id., subd. (g), italics added.)
16

Under section 3056, subdivision (a), a “parolee awaiting a parole 

revocation hearing may be housed in a county jail while awaiting revocation 

proceedings.” Local jails and Parole have treated this provision as authorizing a parole 

hold, although the express language does not do so. (Couzens & Bigelow, supra, p. 77, 

at <www.courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Sept. 23, 

2014].) In addition to section 3056, the District Attorney cites section 3060 as 

authorizing parole holds, but section 3060 was repealed effective July 1, 2013.

II

THE MERITS OF WILLIAMS’S PETITION

Williams requests us to order the superior court to (1) release the parole 

hold and order her immediate release from custody, and (2) dismiss the revocation 

petition because the State denied her minimum due process. Williams further requests an 

order that she “receive reasonable due process before any further incarceration, including:

(i) actual consideration of the full range of informal sanctions up to and including flash 

incarceration within one business day of any [p]arole hold and prior to any petition for 

revocation; (ii) prompt access to the court and counsel without unnecessary delay (e.g., 

within two business days of arrest) with formal notice of the allegations against her 

(specifically including any rules allegedly violated and factual and evidentiary basis for 

that violation), (iii) an opportunity to present evidence through counsel at any time to 

mitigate sanctions, (iv) a full Morrissey-compliant probable cause hearing as soon as 

practical and no later than 15 days after arrest, and (v) an opportunity for final judicial 

adjudication of any parole revocation petition as promptly as reasonable and in any case 

within 45 days of arrest.”

The range of remedies requested by Williams is problematic on several 

levels. With regard to her request for a release from the parole hold and an immediate 

release from custody, we take judicial notice of the trial court minutes reflecting that on 
17

July 3, 2014, Williams admitted the parole violation. The court reinstated parole, and 

committed Williams to the Orange County jail for 90 days. Williams was credited with 

45 days of actual custody, and was given 45 days of conduct credit, resulting in her 

release on “this case only.” Ordinarily, these events would render moot her prayer for 

immediate release, since we would no longer be able to provide the requested relief. But 

this is “a classic example of an issue capable of repetition yet likely to evade review.” 

(Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 

1425, 1444.) The accumulation of time required for briefing on the merits, oral 

argument, and preparation of an opinion extend the time for decision beyond the delay 

constituting the alleged due process violation. Accordingly, we will decide the due 

process issues on the merits.

Based on the record before us, however, we are unable to review 

Williams’s request that we command Parole in the future to consider the full range of 

intermediate sanctions up to and including flash incarceration within one business day of 

the placement of a parole hold. Such a review would require a more extensive 

evidentiary record than has been provided in this proceeding.

Consequently, we will grant limited relief, establishing certain outer time 

limits, beyond which the due process rights of parolees would be violated. We take this 

cautious approach because, while it is manifest that the due process rights of parolees are 

being systematically violated in Orange County, we have not been provided sufficient 

information to craft a more precise solution. We begin by considering an appropriate 

outer time limit for a Morrissey-compliant probable cause hearing. Other appropriate 

limits will follow from this determination.

 A. Probable Cause Hearing

Williams requests that, in the event of any further incarceration, she be 

afforded a probable cause hearing within 15 days after arrest. The People argue Williams 
18

is not entitled to a probable cause hearing in post-realignment California, citing Valdivia 

III, supra, 956 F.Supp.2d 1125, People v. Coleman (1975) 13 Cal.3d 867 (Coleman), and

People v. Woodall (2013) 216 Cal.App.4th 1221 (Woodall). These cases do not support 

the People’s contention.

The People assert Valdivia III “said . . . that bifurcated parole revocation 

proceedings are no longer required post-Realignment.” To the contrary, Valdivia III, 

which was issued on July 3, 2013 (two days after the operative date of § 3000.08), 

stressed that its dismissal of the action as moot was not intended “to say that the 

constitutionality of the new parole system is immune from challenge.” (Valdivia III, 

supra, 956 F.Supp.2d at p. 1137.) Rather, given that the new system had scarcely started, 

Valdivia III found that any claims of constitutional infirmity were speculative and not 

ripe for adjudication. (Id. at p. 1138.)

Neither does Coleman support the People’s claim that because parole 

revocation now involves judicial proceedings, a probable cause hearing is never required. 

Coleman, a pre-realignment case, stated that “[g]enerally it is not necessary in California 

to afford a probationer faced with revocation proceedings” a “‘probable cause’ [citation] 

hearing of the type normally provided in the course of parole revocation proceedings.” 

(Coleman, supra, 13 Cal.3d at p. 894.) Our Supreme Court explained that “[p]robation 

revocation, unlike parole revocation, is in California a judicial proceeding with 

concomitant procedural benefits for a probationer at all stages of the revocation process. 

Usually a judicial determination of probable cause precedes the arrest of a probationer for 

violations of the conditions of his probation, and the formal revocation hearing with its 

full panoply of Morrissey procedural rights occurs relatively soon after the probationer 

has been deprived of his conditional liberty. Since ‘the precise nature of the proceedings 

for [probation] revocation need not be identical’ to the bifurcated Morrissey parole 

revocation procedures, so long as ‘equivalent due process safeguards’ assure that a 

probationer is not arbitrarily deprived of his conditional liberty for any significant period 
19

of time [citation], a unitary hearing will usually suffice in probation revocation cases to 

serve the purposes of the separate preliminary and formal revocation hearings outlined in 

Morrissey.” (Id. at pp. 894-895, italics added.)

Coleman does not assist the People’s cause. First, as noted in Valdivia I, it 

is unclear whether a prompt unitary hearing can pass constitutional muster in light of 

Gagnon, supra, 411 U.S. 778.

10

 Second, Coleman’s approval of a single revocation 

hearing is conditional; it presumes the hearing will be held relatively soon after the 

person is arrested, and that the person will be afforded procedural benefits at all stages of 

the revocation process. As Williams points out, “during the period when [a parolee] is 

excluded from court, no procedural benefits are provided.” Third, Williams does not 

object to a prompt unitary hearing. She even suggests a timely unitary hearing might be 

in the interest of all parties: “To the extent that [she] could be provided full discovery 

and immediate access to court and counsel, [she] believes she could likely be prepared to 

proceed to a full adjudicatory (unitary) hearing within 15 days of arrest. That might well 

satisfy due process.”

Finally, in Woodall, the defendant argued that section 1203.2 violates the 

federal Constitution (both facially and as applied to him) because “it does not require a 

preliminary probable cause hearing before a final revocation hearing” as required by 

Morrissey. (Woodall, supra, 216 Cal.App.4th at p. 1227.) Woodall rejected the 

defendant’s as-applied challenge to the statute because the trial court hearing had 

comported “with the Morrissey standards for a preliminary probable cause hearing.” 

 

10

“A year after Morrissey, the [Supreme] Court explained that in that case 

‘we held that a parolee is entitled to two hearings, one a preliminary hearing at the time 

of his arrest and detention to determine whether there is probable cause to believe that he 

has committed a violation of his parole, and the other a somewhat more comprehensive 

hearing prior to the making of the final revocation decision.’” (Valdivia I, supra, 206 

F.Supp.2d at p. 1075; see Gagnon, supra, 411 U.S. at pp. 781-782; see also id. at p. 786 

[“Morrissey mandated preliminary and final revocation hearings”].)
20

(Woodall, at p. 1239.) The hearing took place only nine days after the defendant’s arrest 

and he was represented by counsel and allowed to participate in the hearing. 

(Id. at p. 1228.) Most significantly, Woodall rejected the defendant’s facial challenge to 

section 1203.2 by construing the statute “to impliedly require a probable cause hearing if 

there is any significant delay between the probationer’s arrest and a final revocation 

hearing.” (Woodall, at p. 1238, italics added.)

11

Thus, Morrissey-compliant probable cause hearings are required in postrealignment California, although a prompt unitary hearing may suffice. (But see Gagnon, 

supra, 411 U.S. at pp. 781-782 [two separate hearings are required].) A Morrisseycompliant probable cause hearing requires that the parolee be given the opportunity to 

“appear and speak in his own behalf; he may bring letters, documents, or” witnesses, and 

may question any person “who has given adverse information on which parole revocation 

is to be based . . . .” (Morrissey, supra, 408 U.S. at p. 487.) In our view, this would 

include the opportunity to present evidence of Parole’s failure to comply with section 

3000.08, subdivision (f), which requires parole agents to employ “assessment processes” 

 

11

Over 40 years earlier, in Vickers, our Supreme Court observed that former 

section 1203.2 (which then applied only to probation revocation) “makes no provision for 

a preliminary determination of probable cause . . . in order to warrant the detention of a 

probationer until a more formal hearing is had” (Vickers, supra, 8 Cal.3d at p. 458), nor 

does it provide an opportunity for a probationer “to be heard in person and to present 

witnesses and documentary evidence, or the right to confront and examine adverse 

witnesses” (id. at p. 459). Vickers concluded former section 1203.2 “thus fails to meet 

several of the mandatory requirements of due process as set out in Morrissey,” which our 

Supreme Court held were equally mandatory in probation revocation proceedings. 

(Vickers, at p. 459.)

The Legislature intended to comply with Vickers and Morrissey when it 

created a uniform process for revocation of supervision under post-realignment section 

1203.2. Yet, section 1203.2 still makes no mention of a supervised person’s right to a 

probable cause hearing and to present evidence. Moreover, the statute authorizes the 

court to revoke supervision based on the report of the probation or parole officer. The 

parties do not raise the issue of the statute’s constitutionality.
21

to determine whether intermediate sanctions are appropriate before petitioning for parole 

revocation. 

The remaining question is when exactly the hearing must be held. Given 

the juncture at which we find ourselves, having received several petitions for writ relief 

on this subject within the last year, we will provide the parties with some guidance. The 

post-realignment process for parole revocation has been in place for slightly over one 

year. It appears the Orange County system is well-established and satisfactory to the 

Superior Court, Parole, and the People. But the problems identified by Williams suggest 

the system is due for an overhaul.

In Valdivia I, the court took the following approach to analyzing whether 

California’s parole revocation system was constitutional. The court “first determine[d]

whether there is controlling precedent speaking to the particular procedures due at the 

initial stage of the parole revocation process. . . . In the absence of such controlling 

precedent, the task is to apply the Mathews process to the procedures at issue.” (Valdivia 

I, supra, 206 F.Supp.2d at p. 1074.) The Mathews process is a balancing test used to 

resolve procedural due process claims. (Mathews v. Eldridge, supra, 424 U.S. at p. 335, 

(Mathews).)

There are potentially two guideposts regarding the time limit for a probable 

cause hearing in parole revocation proceedings. First, the Valdivia Injunction required 

probable cause hearings to be held within 13 business days of placement of a parole 

hold.

12

 (Valdivia III, supra, 956 F.Supp.2d at p. 1128.) Second, section 3044, 

subdivision (a)(1) provides that a parolee is entitled to a probable cause hearing within 15 

days of being arrested for a parole violation. These time standards are not significantly 

 

12

The Injunction required notice of charges and rights to be served on 

parolees within 3 business days of placement of a parole hold, and probable cause 

hearings to be held within 10 business days after parolees were served notice. (Valdivia 

III, supra, 956 F.Supp.2d at p. 1128.)
22

different. Thirteen business days will encompass at least two weekends, resulting in at 

least 17 calendar days, two more days than specified in section 3044.

The Injunction is a federal district court order and lacks precedential value 

for us. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352 [“Decisions of the lower federal 

courts interpreting federal law, though persuasive, are not binding on state courts”].) 

Moreover, the Valdivia lawsuit has been dismissed because both the Injunction and the 

action were rendered moot by realignment.

Section 3044 is still on the books. At first blush, the statute may seem 

inconsistent with the Legislature’s intent to have all supervision revocation proceedings 

governed by section 1203.2. The People argue section 3044 is moot in the wake of 

realignment. Commentators have also noted: “It is unlikely section 3044 applies to the 

courts. Section 3044[, subdivision (a)] provides: ‘Notwithstanding any other law, the 

Board of Parole Hearings or its successor in interest shall be the state’s parole authority 

and shall be responsible for protecting victims’ rights in the parole process.’ Section

3044[, subdivision (b)] instructs,” “‘The board shall report to the Governor.’ Clearly the 

courts are not the ‘state’s parole authority’ after July 1, 2013. It is doubtful the courts, in 

the judicial branch of government, can be a successor in interest to the Board of Parole 

Hearings, in the executive branch. Finally, in no circumstances do the courts ‘report to 

the Governor.’” (Couzens & Bigelow, supra, p. 105, at 

<www.courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Sept. 23, 2014].) 

Although section 3044 might appear to be superseded by the realignment 

statutes, the implied repeal of a statute is disfavored. (Crosby v. Patch (1861) 18 Cal. 

438, 441.) “A new statute is not construed as an ‘implied repeal’ unless it is clear that the 

later enactment is intended to supersede the existing law.” (California Oak Foundation 

v. County of Tehama (2009) 174 Cal.App.4th 1217, 1221.) Rather, the “two must be 

construed together, and effect given, if possible, to both.” (Crosby, at p. 441.) Moreover, 

section 3044 was enacted as a voter initiative, which, by its terms, may “not be amended 
23

by the Legislature except by a statute passed in each house by roll-call vote entered in the 

journal, three-fourths of the membership of each house concurring, or by a statute that 

becomes effective only when approved by the voters.” (Voter Information Guide, Gen. 

Elec. (Nov. 4, 2008) text of Prop. 9, § 9, p. 132.) Section 1203.2 was passed in its current 

form as Senate Bill No. 76 in the California Senate by a vote of 30 senators (three-fourths 

of the senate membership of 40), and by the California Assembly by a vote of 54 to 25 (a 

margin less than three-fourths of the assembly membership). These margins thus were 

less than the 75 percent concurrence in both houses as required by the terms of 

Proposition 9 for an implied amendment or repeal of section 3044. (See also Cal. Const., 

art. II, § 10, subd. (c) [forbidding the Legislature from amending enactments made by 

voter initiative if the amendments are inconsistent with said initiative].) Thus, while it is 

undoubtedly true that (1) the courts are not the “successor in interest” to the Board of 

Parole Hearings, and (2) the Board of Parole Hearings remains charged with being 

“responsible for protecting victims’ rights in the parole process,” those portions of 

section 3044 intended to provide minimum standards of due process protection to 

parolees can easily be harmonized with section 1203.2. Prime among those minimum 

standards guaranteed by section 3044 are the entitlements to a probable cause hearing 

within 15 days and an “evidentiary revocation hearing” within 45 days of an arrest for 

violation of parole.

13

Williams’s writ petition requests a Morrissey-compliant probable cause 

hearing within 15 days of arrest. This standard would comply with the mandate of 

section 3044. We must also, of course, analyze Williams’s request under the requisites of 

the federal Constitution. Accordingly, we turn to the Mathews balancing test for 

 

13

Section 3044, subdivision (a)(2) refers to the final revocation hearing as an 

“evidentiary revocation hearing.” As discussed above, a parolee is also entitled to 

present evidence at the probable cause hearing.
24

procedural due process claims. That test requires a court to consider three factors. 

(Mathews, supra, 424 U.S. at p. 335.)

Under the first factor, we must identify “the private interest that will be 

affected by the official action.” (Mathews, supra, 424 U.S. at p. 335.) At stake here is a 

parolee’s conditional liberty interest. “Subject to the conditions of . . . parole, [a parolee]

can be gainfully employed and is free to be with family and friends and to form the other 

enduring attachments of normal life.” (Morrissey, supra, 408 U.S. at p. 482.) Not only is 

this conditional liberty valuable to the parolee, it is of value to society. “Society has a 

stake in . . . restoring him to normal and useful life within the law” (id. at p. 484) and of 

avoiding the costs of maintaining him in prison (id. at p. 477, fn. omitted).

The official action at issue here is the prolonged detention of a parolee in 

jail without a probable cause hearing. Such detention disrupts a parolee’s work, family, 

and social relationships. (Valdivia I, supra, 206 F.Supp.2d at p. 1078.) The longer it

continues, the more it endangers the chances that the parolee can successfully reintegrate

into society. “In order to protect a parolee’s liberty interest, Morrissey requires 

procedures to insure . . . that parolees are not detained without some sort of assurance that 

there is probable cause to suspect a parole violation.” (Ibid.)

The second Mathews factor assesses “the risk of an erroneous deprivation 

of such interest through the procedures used, and the probable value, if any, of additional 

or substitute procedural safeguards.” (Mathews, supra, 424 U.S. at p. 335.) Here, the 

procedures used in Orange County create a high risk of an erroneous deprivation of a 

parolee’s liberty interest. According to the Orange County Public Defender’s survey, 

Orange County parolees averaged just over 16 days in custody prior to their first court 

appearance. This means that some parolees may have spent considerably more days in 

jail before their first court hearing. At that hearing, parolees are not permitted to present 

evidence. Rather, the court reviews Parole’s report.
25

A Morrissey-compliant probable cause hearing held within 15 days of 

arrest would be a valuable safeguard against erroneous deprivation of a parolee’s liberty 

interest. It would increase the chances that information would still be fresh and sources 

would still be available at the time of the hearing. (Morrissey, supra, 408 U.S. at p. 484.) 

Allowing the parolee to present a defense would reduce the risk of a court making 

decisions based on erroneous information or erroneous evaluation.

The final Mathews factor considers “the Government’s interest, including 

the function involved and the fiscal and administrative burdens that the additional or 

substitute procedural requirement would entail.” (Mathews, supra, 424 U.S. at p. 335.) 

Here, the State has an interest in protecting the public and “being able to return the 

individual to imprisonment without the burden of a new adversary criminal trial” in the 

event of an actual parole violation. (Morrissey, supra, 408 U.S. at p. 483.) “Yet, the 

State has no interest in revoking parole without some informal procedural guarantees.” 

(Ibid.) Indeed, as Williams argues, the State has an interest “in enforcement of rules 

providing for evidence based sanctions to avoid unnecessary and counterproductive 

incarcerations before the damage is done (e.g., loss of [the parolee’s] housing, social 

support ties, and community stability).”

As to burdens, a 15-day time limit will probably require the Superior Court 

to change its calendaring policy on these matters. Fortunately, according to Williams, 

department CJ1 of the Orange County Superior Court is open every day of the week (not 

just Thursdays), is located in the Central Jail in Santa Ana, is staffed daily by a judge 

with “a full court support staff, representatives of the District Attorney and the Public 

Defender (as well as alternate defense services), and several Sheriff’s deputies.” Apart 

from scheduling concerns, the new evidentiary probable cause hearings will consume 

more court time. Of course, if the parole violation is also charged as a new felony, a 

preliminary hearing must be set in any event within 10 court days of defendant’s 

arraignment unless waived. (See § 859b.) Under these circumstances, we would 
26

anticipate the preliminary hearing would also address the probable cause issue on the 

parole violation, resulting in no additional court time. If the parole violation does not 

result in additional criminal charges, we anticipate that the probable cause hearing would 

not consume much time. We do not believe the additional burdens imposed upon the 

court or the district attorney outweigh the benefits to both the government and the parolee 

in avoiding further incarceration where the alleged violation is shown to lack probable 

cause.

As to the burdens placed on Parole, the 15-day time limit for a probable 

cause hearing may require the division to make faster decisions on whether to seek 

revocation. This burden should not be insurmountable, especially if Parole and the court 

collaborate to establish a workable system. And we note that Parole has chosen not to 

respond to our order to show cause.

B. Notice and Prompt Access to Court and Counsel

In the event of further incarceration, Williams contends she is entitled to 

arraignment within 48 hours of arrest under sections 825 and 849 and County of Riverside 

v. McLaughlin (1991) 500 U.S. 44 (McLaughlin). But section 849 and McLaughlin apply 

to defendants arrested without a warrant prior to a criminal trial. (§ 849, subd. (a); 

McLaughlin, at p. 52.) Williams was arrested pursuant to a warrant.

14

 And, the 

“revocation of parole is not part of a criminal prosecution,” but “arises after the end of 

the criminal prosecution, including imposition of sentence.” (Morrissey, supra, 408 U.S. 

at p. 480.)

 

14

Parolees arrested without a warrant may be entitled to a prompt appearance 

in court. Under section 3000.08, subdivision (c), if an officer arrests a parolee without a 

warrant, the officer must “bring him or her before the court.” (Italics added; see also 

§ 1203.2, subd. (a) [same text].)
27

Section 825 governs arraignment after arrest made pursuant to warrant, but 

it too is inapplicable to Williams because it concerns defendants in a criminal prosecution 

and possibly parolees on new charges. (§ 825, subd. (a)(1); People v. Hughes (1974) 38 

Cal.App.3d 670, 672, 674 [parolee arrested on new charges was entitled to § 825 

protection]; Cal. Const., art. I, § 14 [person charged with felony must be taken without 

unnecessary delay before magistrate].) As our Supreme Court has “observed, ‘the 

arraignment requirement of Penal Code section 825 has been interpreted as not applying 

when [as here] a parole hold on other matters has been placed upon the defendant.’” 

(People v. Hughes (2002) 27 Cal.4th 287, 326.) 

Nevertheless, in order to protect Williams’s right under Morrissey to 

meaningfully participate in a probable cause hearing, she is entitled to receive timely 

access to counsel and notice of the allegations against her. She must receive them well 

before the probable cause hearing, so she has time to prepare a defense. In Vickers, 

supra, 8 Cal.3d at p. 461, our Supreme Court held that “the efficient administration of 

justice [generally] requires that the defendant be assisted by . . . counsel at all revocation 

proceedings . . . .”

On the other hand, if Parole decides relatively quickly to impose 

intermediate sanctions or additional parole conditions (without court intervention), the 

issue of a parolee’s access to the court and counsel is obviated. Parole “should be given a 

reasonable period of time to investigate and review the circumstances of a violation, and 

to determine the appropriate level of response, including ‘flash incarceration.’ A 

reasonable period should be allowed for the implementation of any intermediate sanction, 

such as acceptance into a suitable rehabilitation program.” (Couzens & Bigelow, supra,

p. 93; at <www.courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Sept. 23, 

2014].) )

In this context, a reasonable period cannot be long, however. Under section 

3000.08, subdivision (d), if a supervising parole agency finds good cause that a parolee 
28

has committed a violation and the agency decides to impose intermediate sanctions, it 

must do so immediately. We recognize that in cases like Williams’s, where parole 

absconding is a real risk, the State has an interest in protecting the public and in keeping 

track of the parolee. But a parole hold cannot be maintained indefinitely consistent with 

due process.

Yet, because there is no express statutory authorization for parole holds, 

there is no statutory regulation of them. Under the current system used in Orange 

County, Parole can keep a parolee in custody on a parole hold until the filing of a 

revocation petition, at which time the court clearly acquires jurisdiction over the parolee.

“The precise nature of the court’s authority in the absence of a revocation petition being 

filed is unclear because of [Parole’s] ability to issue such holds and ambiguous nature of 

the applicable [statutes].” (Couzens & Bigelow, supra, p. 89, at 

<www.courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Sept. 23, 2014].) 

Parole does have an independent duty under section 3000.08, subdivision (d), to 

determine whether there is “good cause” to believe the parolee has committed a violation 

of supervision (which arguably amounts to “an early determination of probable cause for 

detention”). (Couzens & Bigelow, supra, p. 89, at 

<www.courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Sept. 23, 2014].) 

But the “statute does not specify when a petition to revoke supervision must be filed; 

indeed, [Parole] is not permitted to file a petition unless it determines intermediate 

sanctions are no longer appropriate.” (Ibid.) On the other hand, sections 1203.2 and 

3000.08 require that, in the event of a warrantless arrest, the supervising officer must 

bring the supervised person “before the court.” (§§ 1203.2, subd. (a), 3000.08, subd. (c), 

italics added.) “Giving the emphasized language its most logical effect, it seems the 

reason for requiring the person to be brought before the court is to avoid the arrested 

person languishing in custody without any judicial involvement. Stated differently, the 

parolee ‘“ . . . shall not be detained” pending “the hearings mandated by Morrissey and 
29

Vickers for an ‘undue time.’”’” (Couzens & Bigelow, supra, p. 90, at 

<www.courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Sept. 23, 2014].) 

In Williams’s case, on the day she was arrested, Parole prepared a probable 

cause determination form describing the circumstances of the charge. On the form, a unit 

supervisor checked the box for “Retain Hold” and ordered another report to be filed eight

days later. Exactly eight days later, Parole prepared a parole violation report stating, inter 

alia, that Parole had considered remedial sanctions, but Williams had refused any type of 

treatment or structured program. The next day Parole petitioned for revocation of 

Williams’s parole. By then, she had been held in jail for 10 days (including her arrest 

day), i.e., the same number of days as the maximum flash incarceration. This delay is a 

principal reason why Williams was not arraigned until 16 days after her arrest. Whether 

Parole needed eight days to determine that remedial sanctions were inappropriate is 

unclear.

Williams asserts Parole “has demonstrated the ability to process revocation 

matters, including unit supervisor review and sign-off[,] within one business day.” She 

also claims (and the district attorney does not deny) that the superior court provides 

arraignment within 48 hours to all prisoners “other than parolees facing only parole 

violations.” She concludes Parole and the superior court can easily provide her with 

court access within 48 hours.

We decline to specify such a short time fuse. Parole must have adequate 

time to consider intermediate sanctions. If it decides to continue a person’s parole, no 

arraignment is necessary. The valuable time of all the players (the court, prosecutor, 

defense counsel, and parole agent) should not be consumed unnecessarily. On the other 

hand, the present procedures need overhaul. As noted, by allowing Williams to languish 

in jail for nine days while a report was prepared, and another seven days before she was 

brought before the court, Parole has detained her for 16 days without access to the court 
30

or counsel. This is a longer period of time than permitted by the sanction of flash 

incarceration — a sanction that Parole has reportedly decided not to use.

Accordingly, we conclude that under the present realignment procedures a 

parolee held in custody under a parole hold must be brought before the court for 

arraignment no later than the permissible period of flash incarceration, i.e., 10 days after 

arrest. We do not pass upon the constitutionality of the flash incarceration procedure. 

We note only that a parolee must be brought before the court for arraignment no later 

than Parole is currently authorized by statute to hold the parolee without court 

intervention. Thus we set the 10 day limit as an outer boundary. We do not determine 

whether due process requires a shorter time before arraignment. On this record, we lack 

sufficient information to do so. Given Parole’s lack of participation in this writ 

proceeding, that is all we can do. We believe a period of 10 days after arrest strikes an 

appropriate balance between Parole’s need for time to fulfill its statutory duty to consider 

intermediate sanctions and the parolee’s need to obtain notice and counsel reasonably in 

advance of the probable cause hearing, which must, as discussed above, take place within 

15 days after arrest.

C. Final Revocation Hearing

Williams requests “an opportunity for final judicial adjudication of any 

parole revocation petition as promptly as reasonable and in any case within 45 days of 

arrest.”

According to Williams, the court’s standard procedure is “to set contested 

parole revocation hearings demanded at arraignment . . . typically [on] Thursday or 

Friday three weeks after arraignment.” Now that we have held arraignment must take 

place within 10 days after arrest, and a probable cause hearing within 15 days after arrest, 

the final hearing would fall within 45 days of arrest even if the court maintained this 

same procedure. Thus, the burden on the court is not great. A 45-day deadline would 
31

alleviate the risk that the parolee could languish in jail while support systems at home and 

at work fray. It would increase the chance that evidence would still be available and the 

parolee would not be erroneously deprived of conditional liberty. Moreover, it is also the 

deadline specified in section 3044 for the final revocation hearing.

D. Consideration of Intermediate Sanctions Including Flash Incarceration

Williams also has requested that we order Parole to give “actual 

consideration of the full range of informal sanctions up to and including flash 

incarceration within one business day of any [parole] hold and prior to any petition for 

revocation.” Williams is correct that section 3000.08, subdivision (f) establishes, in her 

words, a “legislative curb upon the discretion” of parole agents. Section 3000.08, 

subdivision (f) requires Parole to consider using intermediate sanctions before seeking 

revocation, and section 3000.08, subdivision (d) encourages the use of flash 

incarceration. Nevertheless, we are told that Parole “has decided not to use the sanction” 

of flash incarceration. (Couzens & Bigelow, supra, p. 95, at 

<www.courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Sept. 23, 2014].)

We have insufficient evidence to make any order regarding Parole’s 

performance of its statutory duty to consider all intermediate sanctions. We will not 

presume on this record that Parole is not fulfilling its statutory duty to do so. But, as 

stated above, a parolee is entitled to present evidence at the probable cause hearing of 

Parole’s failure adequately to consider intermediate sanctions. And, Parole’s report filed 

with its revocation petition must state the specific reasons (individualized to the particular 

parolee, as opposed to a generic statement) for its determination that intermediate 

sanctions “are inappropriate responses to the alleged violations.” (Cal. Rules of Court, 

rule 4.541(e).)
32

E. Opportunity to Present Evidence Through Counsel at Any Time to 

Mitigate Sanctions

Williams has presented inadequate argument and no citation to legal 

authority concerning her claim she is entitled to an opportunity to present evidence 

through counsel to mitigate sanctions at any time. We therefore treat it as waived. (Cal. 

Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793.)

DISPOSITION

Let a writ of mandate issue ordering Parole and the Orange County 

Superior Court, consistent with the views expressed in this opinion, to provide reasonable 

due process to Williams in the event of any further incarceration, including (1) 

arraignment within 10 days of any further arrest for a parole violation, (2) a Morrisseycompliant probable cause hearing within 15 days of any further arrest, and (3) a final 

revocation hearing on an alleged parole violation within 45 days of any further arrest. 

This order does not affect any shorter time periods that may be required if new criminal 

charges are instituted. 

IKOLA, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

THOMPSON, J.