People v. Martin

Filed 12/7/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074315

v. (Super.Ct.No. 19PA001399)

TYREL MARTIN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Shahla S. Sabet,

Judge. Affirmed.

Micah R. Reyner, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sedival and Andrew S.

Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

This court recently held in People v. Schaffer (2020) 53 Cal.App.5th 500

(Schaffer) that a parolee exposed to a 180-day jail term for a parole violation resulting

from non-criminal conduct was not entitled, under United States v. Haymond (2019) 588

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U.S. __ [139 S.Ct. 2369] (Haymond), to have a jury determine beyond a reasonable doubt

whether he had violated his parole. In this appeal we apply our holding in Schaffer to

those who are exposed to potentially long prison sentences for similar parole violations.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant and appellant Tyrel Martin was convicted in 2014 of committing a lewd

and lascivious act with a child by use of force, violence, duress, menace, or fear. (See

Pen. Code, § 288, subd. (b)(1); all undesignated statutory references are to the Penal

Code.) He was sentenced to a 5-year prison term and released on parole in 2018.

In August 2019, the Division of Adult Parole Operations of the California

Department of Corrections and Rehabilitation (DAPO) petitioned to revoke Martin’s

parole, alleging that he failed to report to his parole agent upon release from custody, that

he failed to register as a sex offender, and that he did not participate in electronic

monitoring. As part of a compromise with the DAPO, Martin admitted the allegations

regarding failure to report and failure to participate in electronic monitoring, and he was

ordered to serve a 180-day jail term with credit for time served.

A month later, the trial court set aside Martin’s admissions, vacated the sentence,

and set a formal revocation hearing, having been notified that the case should have been

governed by section 3000.08, subdivision (h). That provision provides that, for certain

parolees, a parole violation means that the parolee will be sent back to prison, with the

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Board of Parole Hearings responsible for determining future parole consideration. It is
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undisputed that section 3000.08, subdivision (h) applies to Martin.

Following a contested revocation hearing, the trial court found that Martin violated

parole by failing to report to his parole agent upon release from custody. Martin was

ordered to return to prison.

II. DISCUSSION

Martin contends on appeal, as he did in trial court, that the United States Supreme

Court’s decision in Haymond entitles him to have a jury determine whether he violated

parole beyond a reasonable doubt. We disagree.

We begin by discussing Haymond, followed by this court’s decision in Schaffer.

A. Haymond

Haymond considered the right to a jury determination in the context of a federal

statute, under which a “judge must impose an additional prison term of at least five years”

if the judge “finds by a preponderance of the evidence that a defendant on supervised

release committed one of several enumerated offenses.” (Haymond, supra, 139 S.Ct. at

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In full, section 3000.08, subdivision (h) provides: “Notwithstanding any other
law, if Section 3000.1 or paragraph (4) of subdivision (b) of Section 3000 applies to a
person who is on parole and the court determines that the person has committed a
violation of law or violated his or her conditions of parole, the person on parole shall be
remanded to the custody of the Department of Corrections and Rehabilitation and the
jurisdiction of the Board of Parole Hearings for the purpose of future parole
consideration.” (See also Cal. Code Regs., tit. 15, § 2275.) Section 3000, subdivision
(b)(4) applies to Martin because of his conviction under section 288, subdivision (b)(1).
(See § 3000, subd. (b)(4)(A).) Accordingly, section 3000.08, subdivision (h) governs his
case.

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p. 2374.) One such offense was possession of child pornography, which the defendant

was found by the judge to have committed. (Ibid.)

A plurality of four justices held that the statute violated the defendant’s Fifth and

Sixth Amendment rights because “a jury must find any facts that trigger a new mandatory

minimum prison term.” (Haymond, supra, 139 S.Ct. at p. 2380 (plur. opn. of Gorsuch,

J.).) In doing so, it relied on a line of cases beginning with Apprendi v. New Jersey

(2000) 530 U.S. 466 (Apprendi), which held that “any fact that increases the penalty for a

crime beyond the prescribed statutory maximum” “[o]ther than the fact of a prior

conviction” “must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at

p. 490, cited in Haymond, supra, at p. 2377; see also Haymond, at p. 2379, fn. 4 [holding

that the federal statute at issue rendered the defendant’s sentence “unconstitutional in

violation of Alleyne v. United States [(2013) 570 U.S. 99]”].)

In a concurring opinion joined by no other justices, Justice Breyer began by stating

that he “agree[d] with much of the dissent” and “would not transplant the Apprendi line

of cases to the supervised-release context.” (Haymond, supra, 139 S.Ct. at p. 2385 (conc.

opn. of Breyer, J.), italics added.) Nevertheless, he believed that the statute at issue was

unconstitutional because the combination of three features that that statute possessed led

him “to think it [was] less like ordinary revocation and more like punishment for a new

offense, to which the jury right would typically attach.” (Id. at p. 2386.) The three

features were that the statute (1) “applies only when a defendant commits a discrete set of

federal criminal offenses,” (2) “takes away the judge’s discretion to decide whether

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violation of a condition of supervised release should result in imprisonment and for how

long,” and (3) “limits the judge’s discretion in a particular manner: by imposing a

mandatory minimum term of imprisonment of ‘not less than 5 years’ upon a judge’s

finding that a defendant has ‘commit[ted] any’ listed ‘criminal offense.’” (Ibid.) It was

the combination of these features, Justice Breyer twice stated, that made the statute

unconstitutional. (Ibid.)

In a dissent joined by three other justices, Justice Alito stated that the federal

system of supervised release “is not fundamentally different” from “the old federal parole

system” and “therefore should not be treated any differently for Sixth Amendment

purposes.” (Haymond, supra, 139 S.Ct. at p. 2391 (dis. opn. of Alito, J.); see also

Horner, Haymond’s Riddles: Supervised Release, the Jury Trial Right, and the

Government’s Path Forward (2020) 57 Am. Crim. L.Rev. 275, 279 [noting that

“[f]ederal supervised release began in 1984 with the enactment of the Sentencing Reform

Act” and that “[p]reviously, the federal government used a typical parole system”].)

“Once this is understood,” Justice Alito wrote, “it follows that the procedures that must

be followed at a supervised-release revocation proceeding are the same that had to be

followed at a parole revocation proceeding, and these were settled long ago. At a parole

revocation hearing, the fundamental requisites of due process had to be observed, but a

parolee did not have a right to a jury trial. [Citations.] Neither the Confrontation Clause

nor the formal rules of evidence had to be followed. [Citations.] Due process did not

require proof beyond a reasonable doubt as is necessary at trial, [citations]; and the

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Double Jeopardy Clause did not apply [citation].” (Haymond, at p. 2391 (dis. opn. of

Alito, J.).) Importantly, Justice Breyer’s concurrence endorsed this view, and the

plurality opinion rejected it. (Id. at pp. 2385 (conc. opn. of Breyer, J.) [“I agree with

much of the dissent, in particular that the role of the judge in a supervised-release

proceeding is consistent with traditional parole.”], 2382 (plur. opn. of Gorsuch J.) [“In

this case,” the “structural difference” between parole and supervised release “bears

constitutional consequences.”].)

“When there is no majority opinion, the narrower holding controls.” (Panetti v.

Quarterman (2007) 551 U.S. 930, 949.) For Haymond, the narrower holding is the one

articulated by Justice Breyer. (See, e.g., United States v. Seighman (3rd Cir. 2020) 966

F.3d 237, 242.)

B. Schaffer

In Schaffer, the defendant was originally convicted and sentenced to a three-year

prison term for failure to register as a sex offender. (Schaffer, supra, 53 Cal.App.5th 500

at p. 503.) He was released on parole on the condition that he wear a monitoring device

and charge it at least twice daily. (Id. at pp. 504-505.) The DAPO petitioned to revoke

the defendant’s parole, alleging that he had violated the terms of his parole by (among

other things) failing to keep his monitoring device charged. (Id. at p. 506.) Following a

parole revocation hearing, the trial court found that the defendant violated parole by

failing to keep his monitoring device charged and ordered him to serve 180 days in jail.

(Id. at p. 505.)

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 Schaffer held that Haymond did not entitle the defendant to have a jury determine

beyond a reasonable doubt whether he violated parole. (Schaffer, supra, 53 CalApp.5th

at pp. 507-513.) It applied the narrower holding of Justice Breyer’s concurring opinion to

conclude that a parole revocation for failure to keep a monitoring device charged “[does]

not present the concern . . . of bypassing a criminal defendant’s federal constitutional jury

trial right for a new criminal offense.” (Id. at p. 511.) The defendant, Schaffer noted, was

not being sentenced for a new criminal offense, but rather was sentenced for violating

one of his parole conditions. (Ibid.) Moreover, under the provisions applicable to the

defendant, his jail sentence “was limited to 180 days, or the balance of his four-year

parole period, whichever term ended earlier.” (Ibid.) Accordingly, neither the

defendant’s “maximum exposure” nor his “minimum exposure” to incarceration had

changed. (Id. at p. 512.)

C. Applying Haymond and Schaffer Here

Martin’s contention that he is constitutionally entitled to have a jury decide

whether he violated his parole beyond a reasonable doubt fails for the same reason we

held in Schaffer. Martin’s failure to report to his parole agent following his release was

plainly an example of what Justice Breyer referred to as the “‘breach of trust’” associated

with the failure to follow the conditions of his release (Haymond, supra, 139 S.Ct. at p.

2386 (conc. opn. of Breyer, J.)). It not only did not bear the hallmarks of a new criminal

prosecution, it was not even itself a criminal offense, as was the child pornography

offense at issue in Haymond. The parole violation therefore lacked the “combination” of

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features that would have made the violation look “less like ordinary revocation and more

like punishment for a new offense, to which the jury right would typically attach.”

(Haymond, supra, 139 S.Ct. at p. 2386 (conc. opn. of Breyer, J.); see Schaffer, supra, 53

Cal.App.5th at p. 510.) It therefore fails to fall under the ambit of the controlling

Haymond holding.

For standard parole violations that do not bear the hallmarks of a new criminal

prosecution, a majority of the justices in Haymond (the four dissenting justices plus

Justice Breyer) indicated that parolees have no jury right. That is, the dissent in

Haymond stated that, under the system of federal parole in place before the 1984

Sentencing Reform Act, there was no right to have a jury apply a beyond a reasonable

doubt standard in parole revocation hearings. (Haymond, supra, 139 S.Ct. at p. 2391

(dis. opn. of Alito, J.).) Because the current federal system of supervised release was

“not fundamentally different” from that pre-1984 parole system, it “should not be treated

any differently for Sixth Amendment purposes,” in the dissent’s view. (Ibid.; see id. at p.

2385 (conc. opn. of Breyer, J.) [indicating Apprendi should not be transplanted into

parole or supervised release].)

The divergence between the plurality and the dissent in Haymond focused on the

fact that a term of supervised release does not “replace a portion of the defendant’s prison

term” but rather “encourage[s] rehabilitation after the completion” of that prison term.

(Haymond, supra, 139 S.Ct. at p. 2382 (plur. opn. of Gorsuch, J.); see id. at p. 2388 (dis.

opn. of Alito, J.).) The plurality saw the feature as “bear[ing] constitutional

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consequences” (Id. at p. 2382 (plur. opn. of Gorsuch, J.)), but the dissent viewed it as

“purely formal” (id. at p. 2388 (dis. opn. of Alito, J.)). To the four dissenting justices,

this feature “should have no constitutional consequences,” which is why supervised

release “should not be treated any differently” from the pre-1984 federal parole system

“for Sixth Amendment purposes.” (Id. at pp. 2388, 2391 (dis. opn. of Alito, J.).) Justice

Breyer concurred in this view. (Id. at p. 2385 (conc. opn. of Breyer, J.) [“the role of the

judge in a supervised-release proceeding is consistent with traditional parole”].)

To the plurality, this feature mattered because only a violation of supervised

release could “expose a defendant to an additional mandatory minimum prison term well

beyond that authorized by the jury’s verdict.” (Haymond, supra, 139 S.Ct. at p. 2382

(conc. opn. of Gorsuch, J.); see also ibid. [noting that “probation violations generally

exposed a defendant only to the remaining prison term authorized for his crime of

conviction”].) The dissent disagreed, taking issue with the premise that the punishment

authorized by a jury’s verdict does not also include punishment for parole or supervised

release violations: “When a jury finds a federal defendant guilty of violating a particular

criminal statute, the maximum period of confinement authorized is the maximum term of

imprisonment plus the maximum term of supervised release,” which in Haymond was

life. (Id. at pp. 2390, fn. 4, 2391 (dis. opn. of Alito, J.), italics added.) “If a prisoner does

not end up spending this full period in confinement, that is because service of part of the

period is excused due to satisfactory conduct during the period of supervised release.”

(Id. at p. 2391 (dis opn. of Alito, J.), italics added.) Accordingly, to the dissenting

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justices and Justice Breyer, the initial conviction included the possibility that a violation

of supervised release could lead to prison time exceeding that of the initially authorized

criminal term, so a jury right did not attach to revocation hearings. (Ibid.; see id. at pp.

2385-2386 (conc. opn. of Breyer, J.).)

California’s current parole system possesses the same feature the justices focused

on in Haymond and thus would likely be treated the same. Like federal supervised

release, this state’s parole system is currently premised on a period of additional

supervision following a completed prison term. (See In re Dannenberg (2005) 34 Cal.4th

1061, 1078 [under the determinate sentencing law, “[t]he offender must serve [the] entire

term, less applicable sentence credits, within prison walls, but then must be released for a

further period of supervised parole”].) Additionally, both California’s parole system and

federal supervised release are meant to “encourage rehabilitation” (Haymond, supra, 139

S.Ct. at p. 2382 (plur. opn. of Gorsuch, J.)). (See In re Roberts (2005) 36 Cal.4th 575,

589-590 [“[T]he objective of parole is, through the provision of supervision and

counseling, to assist in the parolee’s transition from imprisonment to discharge and
2
reintegration into society.”].) Thus, to the extent these features are determinative,

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In the past, California’s parole system was similar to the old federal parole
system in that parole meant early release from prison. (See In re Application of Peterson
(1939) 14 Cal.2d 82, 85 [noting that, although “[t]he word ‘parole’ was originally a
military term,” it “has come to signify the release of a prisoner prior to expiration of his
term of imprisonment conditioned upon his continuing good behavior during the
remainder of the term”].) But under the Determinate Sentencing Act enacted by the
Legislature in 1977, most felons “‘must be released upon expiration of his “term” less
good-time credits, with parole acting simply as a variable period of supervision after the

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California’s current parole system and federal supervised release are indistinguishable
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under Haymond.

D. Martin’s Greater Legal Exposure

We realize that the parole provisions governing Martin’s case are different from

those that applied in Schaffer, and that the differences are significant. For instance, as we

have noted, the defendant in Schaffer faced only a 180-day jail term. (Schaffer, supra, 53

Cal.App.5th at p. 504.) That term was further limited by the fact that, under section

3000, subdivision (b)(6)(A), once four years had passed since the defendant’s initial

parole date, he would be released, even if he had not fully served the 180-day jail term by

that point. (Id. at p. 511, citing § 3000, subd. (b)(6) [“Upon successful completion of

parole, or at the end of the maximum statutory period of parole specific for the inmate

under [section 3000, subdivisions (b)(1)-(4)], whichever is earlier, the inmate shall be

discharged from custody.”].)

Here, section 3000.08, subdivision (h) states only that a parolee falling under it

shall be returned to prison, with the Board of Parole Hearings responsible for considering

future parole eligibility; it does not expressly limit the length of commitment that an

individual like Martin may have to ultimately serve. Moreover, although Martin also

appears to be entitled to be released at the end of his statutory parole period, that does

end of the term. Parole is no longer service of the term.’” (People v. Jefferson (1999) 21
Cal.4th 86, 95, citing secondary authority.)
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Indeed, Martin asks that we treat California’s modern parole system as akin to
federal supervised release under Haymond.

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him little good for at least one of three reasons: (1) his statutory parole period is 20.5

years (§ 3000, subd. (b)(4)(A)); (2) that period may be extended “for good cause” (ibid.);

and (3) the “notwithstanding” proviso of section 3000.08, subdivision (h) arguably means
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the statutory period stated in section 3000, subd. (b)(4)(A) no longer applies at all. What

this means is that, unlike the defendant in Schaffer, there is no express guarantee that

Martin will ever be released from prison.

This does not mean, however, that Haymond provides the relief he seeks here, as

both rationales articulated above are unaffected by this distinction. Martin’s parole

revocation was not premised on a criminal offense, and thus Justice Breyer’s narrower

holding does not extend to this case. Additionally, a majority of the justices in Haymond

rejected the notion that parolees such as Martin have a jury right at a parole revocation

hearing for conduct that constitutes breach of the trust granted to him during parole

(failure to report), rather than one that appears similar to punishment for a new criminal

offense. This is true even though, as Martin emphasizes, it is possible he may spend

more time in prison than what was statutorily authorized for his underlying offense. But

under the majority view in Haymond, for constitutional purposes, the initial criminal

conviction authorizes not only the maximum term of imprisonment for the crime but also

authorizes the maximum term of supervised release or parole. (See Haymond, supra, 139

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We need not determine what effect the “notwithstanding” proviso in section
3000.08, subdivision (h) has on section 3000, subdivision (b)(4)(A) here. Neither section
3000.08, subdivision (h) nor section 3000, subdivision (b)(4)(A) statutorily requires
release from custody by a certain date.

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S.Ct. at p. 2391 (dis. opn. of Alito, J.); see also People v. Nuckles (2013) 56 Cal.4th 601,

608 [“‘the length of time an offender may remain on parole or may be incarcerated for a

parole violation is measured by the statutory provisions setting the maximum parole
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period’”], cited in Schaffer, supra, 53 Cal.App.5th at p. 511.)

Accordingly, we conclude that Martin is not entitled to have a jury make findings

using the beyond a reasonable doubt standard under Haymond, despite the possibility he

faces a lengthy prison sentence for his parole violation.

III. DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PUBLICATION
RAPHAEL
J.

We concur:

MCKINSTER
Acting P. J.

SLOUGH
J.
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If Martin’s sentence becomes unduly long, he remains able to challenge his
sentence under the United States and California Constitutions’ prohibitions against cruel
and unusual punishment, but that issue is not before us. (See, e.g., In re Dannenberg,
supra, 34 Cal.4th at p. 1071 [“Of course, no inmate may be imposed beyond a period that
is constitutionally proportionate to the commitment offense or offenses.”]; In re
Rodriguez (1975) 14 Cal.3d 639, 656 [holding, under pre-determinate-sentencing-law,
that serving 22 years of an indeterminate sentence for lewd and lascivious act on a child
constituted cruel and unusual punishment under the California Constitution on the record
before it]; cf. Haymond, supra, 139 S.Ct. at 2390, fn. 4 (dis. opn. of Alito, J.) [“If the
Constitution restricts the length of additional imprisonment that may be imposed based
on a violation of supervised release, the relevant provision is the Eighth Amendment, not
the Sixth.”].)

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