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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. John DENMON, Defendant and Appellant.

No. E015879.

Decided: June 11, 1996

Kenneth D. Noel, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle B. Davis, Supervising Deputy Attorney General, David I. Friedenberg and Niki Cox Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant John Denmon (defendant) pleaded guilty to sale or transportation of cocaine base (Health & Saf.Code, § 11352).   On July 2, 1992, he was placed on three years' probation.

On August 9, 1994, defendant was arrested, and subsequently he was charged with shooting at an inhabited dwelling (Pen.Code, § 246) and discharging a firearm with gross negligence (Pen.Code, § 246.3).   On August 29, 1994, defendant was also charged with violation of his probation.   On November 29, 1994, the case was assigned to Municipal Court Commissioner Glenn S. Jones for all further proceedings.   Beginning on November 29, 1994, and continuing on December 14, 1994, Commissioner Jones presided over a combined preliminary hearing and probation revocation hearing.   At the end of the hearing, Commissioner Jones found defendant in violation of his probation.   On February 15, 1995, Commissioner Jones sentenced defendant to four years in prison.

In this appeal, defendant contends for the first time that Commissioner Jones lacked authority to act as judge because he was only a traffic trial commissioner, and had never taken an oath of office.   Defendant also contends that Commissioner Jones could not act as a “temporary judge” because he was regularly hearing cases assigned to him.

Although these “facts” are not in the record, and are shown, if at all, only by a declaration not clearly worthy of judicial notice, we assume for purposes of this opinion that they are true.   Even if so, however, defendant is not entitled to relief.

Defense counsel's knowing participation in the proceedings before Commissioner Jones was tantamount to a stipulation to appoint Commissioner Jones as a temporary judge.   This stipulation was effective even if Commissioner Jones was only a traffic trial commissioner.   If indeed Commissioner Jones failed to take an oath of office as commissioner, under California law going back to 1866, his official acts were nevertheless valid.   Finally, even if Commissioner Jones was regularly hearing cases, he was nevertheless a “temporary” judge, because with respect to each such case he was a judge only until the case was determined.



Defendant's appeal is premised on the following supposed facts:  at all relevant times, Commissioner Jones was employed as a traffic trial commissioner rather than a court commissioner;  Commissioner Jones has never taken an oath of office;  and Commissioner Jones regularly hears cases assigned to him by the judges of the trial court.

Not one of these supposed facts is shown by the record, as defendant did not raise his present contentions below.   Defendant, however, has asked us to take judicial notice of the following facts, which are shown by a declaration by the Clerk of the Consolidated/Coordinated Courts of Riverside County (Clerk):

(1) The only records the Clerk has regarding Commissioner Jones' status are:

(a) “Oath taken by Mr. Jones when he was hired by the Public Defender's Office on or about August 29, 1974.”

(b) “Verification of his employment as a Municipal Court Traffic Trial Commissioner on or about December 28, 1989.”

(c) “Verification of change of status to a Commissioner of the Consolidated and Coordinated Courts on or about March 2, 1995.”

(2) “Commissioner Jones hears matters or calendars as assigned by the Judges of the Desert Municipal Court, Riverside County.”

The People vehemently object to this request for judicial notice.   Alternatively, they request that if we do take judicial notice, we give them an opportunity to respond to defendant's factual claims.

We have grave doubts about whether the requested judicial notice is proper.   (See Evid.Code, §§ 453, subd. (b), 459, subd. (a).)  Moreover, even if we were to take judicial notice, it would not necessarily show the ultimate facts defendant is hoping to show.   For example, the fact (if it is a fact) that the Clerk has no record of Commissioner Jones's oath of office falls short of conclusively demonstrating that Commissioner Jones was never sworn.   First, a commissioner's oath is supposed to be kept by the county clerk, not the court clerk.  (Gov.Code, § 1363, subd. (b).) 1  Second, Commissioner Jones did take an oath as deputy public defender;  defendant has not shown that a second oath, as commissioner, was required.

However, if we were to refuse to take the requested judicial notice, defendant presumably would file a petition for habeas corpus on the same grounds.   We have concluded that, even if defendant's factual assumptions are correct, he is not entitled to relief.   In the interest of judicial economy, we will assume, without deciding, that:  (1) the requested judicial notice is proper, and (2) if we were to take the requested judicial notice, it would establish the facts defendant claims it establishes.   Also, to the extent necessary to obviate any jurisdictional objection to reaching the somewhat hypothetical questions presented on appeal, we will treat defendant's notice of appeal, briefs, and request for judicial notice as a petition for habeas corpus.  (People v. Roe (1983) 148 Cal.App.3d 112, 118–119, 195 Cal.Rptr. 802;  In re Dormio (1981) 127 Cal.App.3d 788, 790, 179 Cal.Rptr. 669;  People v. Barlow (1980) 103 Cal.App.3d 351, 364, 163 Cal.Rptr. 664.) 2  Accordingly, we turn to the merits.



 We accept that as a general rule, only a duly elected or appointed judge can exercise the judicial power of a trial court of this state.   The California Constitution, however, provides two pertinent exceptions to this rule.   First, it provides for temporary judges.  (Cal. Const., art. VI, § 21.)   A temporary judge is created by stipulation of the parties.   (Ibid.;  In re Horton (1991) 54 Cal.3d 82, 90, 284 Cal.Rptr. 305, 813 P.2d 1335.)   Such a stipulation empowers a temporary judge to do anything a regular judge could do, but only in the proceeding in which the stipulation is entered.   Any member of the State Bar can act as a temporary judge.   (Ibid.)

 Second, the Constitution provides for commissioners.3  (Cal. Const., art. VI, § 22.)   A commissioner is appointed by the trial court and remains under its direction and supervision.  (Ibid.;  Code Civ. Proc., § 259;  Gov.Code, §§ 70144, 72190.)   A commissioner can perform only “subordinate judicial duties.”  (Cal. Const., art. VI, § 22.)   Such duties include ruling on specified ex parte, uncontested, or collateral matters, and making tentative factual findings.  (Code Civ. Proc., § 259;  In re Kathy P. (1979) 25 Cal.3d 91, 97–98, 157 Cal.Rptr. 874, 599 P.2d 65;  In re Edgar M., supra, 14 Cal.3d at p. 735, 122 Cal.Rptr. 574, 537 P.2d 406;  Rooney v. Vermont Investment Corp., supra, 10 Cal.3d at pp. 360–366, 110 Cal.Rptr. 353, 515 P.2d 297.)   A commissioner, as such, has no power to preside over a criminal trial (In re Horton, supra, 54 Cal.3d at p. 90, 284 Cal.Rptr. 305, 813 P.2d 1335,) revoke probation or impose sentence.   (People v. Tijerina (1969) 1 Cal.3d 41, 47–49, 81 Cal.Rptr. 264, 459 P.2d 680;  People v. Oaxaca (1974) 39 Cal.App.3d 153, 158, 114 Cal.Rptr. 178.)   Any person who is a citizen of the United States and a resident in California is eligible to be a commissioner (Gov.Code, § 70142);  the appointing court, however, will almost invariably have other, more stringent requirements.

 It is crucial to remember that, if the parties so stipulate, a commissioner may be made a temporary judge.  (Code Civ. Proc., § 259, subd. (e).)  As a temporary judge, a commissioner is not limited to performing subordinate judicial duties, but can exercise plenary judicial power.   Moreover, under the “tantamount stipulation doctrine,” the stipulation necessary to elevate a commissioner to the status of a temporary judge need not be express, but may be implied from conduct.   The leading case (although far from the first) is In re Horton, supra, 54 Cal.3d 82, 284 Cal.Rptr. 305, 813 P.2d 1335.   There, the defendant was charged with robbery and murder with special circumstances.  (Id., at p. 86, 284 Cal.Rptr. 305, 813 P.2d 1335.)   He was tried before a commissioner.   He never formally stipulated to trial by a commissioner, but he never objected, either.   A jury found him guilty, found the charged special circumstances true, and returned a verdict of death.   The commissioner imposed the death sentence.  (Id., at p. 87, 284 Cal.Rptr. 305, 813 P.2d 1335.)

The Supreme Court “ratified a line of cases recognizing that a valid stipulation for purposes of the constitutional provision may arise as a result of the conduct of the parties.   These cases hold that conduct short of an express oral or written stipulation may be tantamount to a stipulation that a court commissioner may sit as a temporary judge.”  (In re Horton, supra, 54 Cal.3d at p. 91, 284 Cal.Rptr. 305, 813 P.2d 1335.)   Such a stipulation may be based on conduct of the defendant's counsel.  (See generally id., at pp. 92–99, 284 Cal.Rptr. 305, 813 P.2d 1335.)  “Here, ․ counsel participated fully and vigorously in the trial, at every point treating the commissioner as competent to rule on matters which rest solely in the discretion of a superior court judge.   This conduct was a tacit recognition of, and reliance upon, the authority of the commissioner to act as a temporary judge.”  (Id., at p. 98, 284 Cal.Rptr. 305, 813 P.2d 1335.)  “ ‘An attorney may not sit back, fully participate in a trial and then claim that the court was without jurisdiction on receiving a result unfavorable to him.’ ”  (Id., at p. 91, 284 Cal.Rptr. 305, 813 P.2d 1335, quoting Estate of Lacy (1975) 54 Cal.App.3d 172, 182, 126 Cal.Rptr. 432.)

The court distinguished Yetenekian v. Superior Court (1983) 140 Cal.App.3d 361, 189 Cal.Rptr. 458, as follows:  “[There] counsel announced ‘ready,’ under the mistaken impression that the commissioner was sitting only as a master calendar court.   The Court of Appeal found no stipulation, since counsel objected to the commissioner's authority as soon as he realized that the commissioner proposed to try the case.   This case lends no support to petitioner's position, however, since here counsel never objected to trial by the commissioner, though they were well aware that he was a commissioner and that he proposed to try the case.”  (In re Horton, supra, 54 Cal.3d at p. 99, 284 Cal.Rptr. 305, 813 P.2d 1335.)

In sum, “an implied stipulation results from the conduct of counsel in participating in the proceedings and thus tacitly recognizing the authority of the temporary judge.”  (In re Julio N. (1992) 3 Cal.App.4th 1120, 1123, 5 Cal.Rptr.2d 86.)   Here, defendant does not contend his counsel was unaware that Commissioner Jones was a commissioner; 4  equally, he does not contend his counsel ever objected to Commissioner Jones.   Defendant therefore virtually concedes that the tantamount stipulation doctrine would apply here, but for three things:  (1) Commissioner Jones was a traffic trial commissioner rather than a full-fledged court commissioner, (2) Commissioner Jones had not taken an oath of office, and (3) Commissioner Jones adjudicated cases regularly and routinely, and therefore was not a “temporary” judge.   The People, rather unhelpfully, do not respond to or discuss these attempted distinctions.   Nevertheless, we find them unpersuasive.

A. Application of the Tantamount Stipulation Doctrine to a Traffic Trial Commissioner.

 In every case we have found which applied the doctrine of tantamount stipulation, the officer acting as a temporary judge was either a commissioner or a referee.   In In re Horton, supra, when the court refused to require that the defendant be advised, on the record, of the right to be tried before a regular judge, it reasoned, in part, that a defendant tried before a duly qualified, appointed, and supervised commissioner rather than a judge is unlikely to suffer substantial prejudice.  (54 Cal.3d at p. 93, 284 Cal.Rptr. 305, 813 P.2d 1335.)   Defendant therefore poses this hypothetical:  “How about if the regular judge is on vacation and Joe the licensed [i.e., as an attorney] court librarian sits in his chair and no one objects?   Does [the defendant's] conviction stand?”

We assume for purposes of our opinion that the tantamount stipulation doctrine only applies if the bench officer is a commissioner.   But defendant was not tried by a librarian;  he was tried by a traffic trial commissioner.   Defendant strives valiantly to distinguish traffic trial commissioners from court commissioners;  however, he concedes, as he must, that a traffic trial commissioner, just like a court commissioner, is appointed to pursuant to article VI, section 22 of the Constitution.   In addition, the statute governing the appointment of traffic trial commissioners specifically provides that:  “A traffic trial commissioner may exercise all the powers and perform all the duties authorized by law to be performed by commissioners of municipal courts.”  (Gov.Code, § 72450.)   A “traffic trial commissioner” is an entirely different creature from a “traffic hearing officer,” who serves exclusively in juvenile court and whose powers are more limited.  (Welf. & Inst.Code, §§ 255–256.) 5  We conclude that the tantamount stipulation doctrine applies even where the presiding officer is a traffic trial commissioner.

B. A Commissioner's Failure to Be Sworn.

 The Constitution requires a temporary judge to be “sworn.”   (Cal. Const., art. VI, § 21.)   By court rule, any temporary judge other than a court commissioner must sign and file a written oath of office.   (Cal. Rules of Court, rule 244(b).)   A court commissioner is excused from this requirement (ibid.), presumably because a commissioner has already taken an oath of office.  (See Cal. Const., art. XX, § 3;  Gov.Code, § 1360.)

A commissioner's failure to take the required oath, however, does not invalidate his or her official actions.  “One who claims to be a public officer while in possession of an office, ostensibly exercising its functions lawfully and with the acquiescence of the public, is a de facto officer.   His lawful acts, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of office, as valid and binding as if he were the officer legally elected and qualified for the office and in full possession of it.”  (Ensher, Alexander & Barsoom, Inc. v. Ensher (1965) 238 Cal.App.2d 250, 255, 47 Cal.Rptr. 688.)   Thus, a public officer who fails to take a required oath is nevertheless a de facto officer.  (Jarrett, De Facto Public Officers:  The Validity of Their Acts and Their Rights to Compensation (1936) 9 So.Cal.L.Rev. 189, 193–194.)

These principles apply fully to judges.  “In respect of judges, the de facto doctrine operates for the soundness of judgments, orders and decrees.”   (Ensher, Alexander & Barsoom, Inc. v. Ensher, supra, 238 Cal.App.2d at p. 255, 47 Cal.Rptr. 688.)   It follows that a judge's qualifications for office cannot be questioned on direct appeal or in a collateral attack;  the only remedy is a quo warranto action to remove the judge from office.  (People v. Sassovich (1866) 29 Cal. 480, 485 [judge appointed to 15th Judicial District when constitution provided for only 14];  People v. Kwolek (1995) 40 Cal.App.4th 1521, 1531, 48 Cal.Rptr.2d 325 [municipal court judge assigned to superior court];  People v. Bowen (1991) 231 Cal.App.3d 783, 789–790, 283 Cal.Rptr. 35 [judge failed to comply with residency requirement];  Ensher, Alexander & Barsoom, Inc. v. Ensher, supra, 238 Cal.App.2d at pp. 255–257, 47 Cal.Rptr. 688 [judge continued to sit after being appointed to another state office].)

We believe these principles apply equally to a commissioner.   Even if Commissioner Jones never took an oath of office,6 his acts as commissioner are nevertheless valid, including his acts as temporary judge pursuant to defendant's tantamount stipulation.

C. Acting as a Permanent “Temporary” Judge.

 Defendant argues that Commissioner Jones cannot be deemed a temporary judge, because he regularly heard matters assigned to him.   In support of this argument, he asks us to take judicial notice of the dictionary definition of the word “temporary.”

The phrase “temporary judge,” however, has been given a controlling judicial construction:  “[T]he fact that ․ commissioners are permanent employees of the courts does no violence to the constitutional concept of a ‘temporary judge.’   The word temporary, as used in this context, does not speak to the employment status or frequency of appointment of the temporary judge vis-à-vis the employing court.   Instead, it indicates that the temporary judge becomes a judge only on stipulation of the parties litigant and remains a judge only until the stipulated cause is determined.”  (Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1092, 201 Cal.Rptr. 194.)   Commissioner Jones was within this definition of the word “temporary.”

Defendant also contends that the regular employment of a commissioner as a temporary judge violates a host of constitutional provisions, including article III, section 3 [separation of powers], article VI, sections 5 [Legislature shall provide numbers and qualifications of municipal court judges], 15 [judge must have been member of the bar for five (municipal court) or ten years (superior court) ], 16 [election or appointment of judges;  length of judges' terms], and 18 [removal of judges from office].  Article VI, section 21, however, gives express permission for the use of a temporary judge;  if its provisions are complied with, there can be no constitutional objection to the employment of a temporary judge.   Any party genuinely alarmed by the fact that a commissioner need not comply with these constitutional provisions can simply refuse to stipulate to have the commissioner sit as temporary judge.

In sum, we hold that defendant's conduct was tantamount to a stipulation that Commissioner Jones could act as a temporary judge in his case, and that this tantamount stipulation was effective even if Commissioner Jones was only a traffic trial commissioner, even if Commissioner Jones was unsworn, and even if Commissioner Jones regularly heard cases as a temporary judge.



The judgment is affirmed.   To the extent that this appeal may be deemed a habeas corpus proceeding, the petition is summarily dismissed for failure to state a prima facie case for relief.  (See People v. Duvall (1995) 9 Cal.4th 464, 474–475, 37 Cal.Rptr.2d 259, 886 P.2d 1252.)


1.   On the other hand, if Commissioner Jones has taken an oath of office as commissioner, we would have expected the People to request judicial notice of it.

2.   We know we cannot treat every appeal that depends on facts outside the record as a habeas corpus proceeding.   However, we find no barrier to doing so here.   In particular, we believe a verified petition is unnecessary, and no additional notice to the People is required, because we will summarily deny the writ.  (See generally Adoption of Alexander S. (1988) 44 Cal.3d 857, 864–866, 245 Cal.Rptr. 1, 750 P.2d 778.)

3.   To be more precise, the Constitution provides for “officers such as commissioners.”  (Cal. Const., art. VI, § 22.)   This also authorizes the appointment of referees.  (In re Edgar M. (1975) 14 Cal.3d 727, 733–734, 122 Cal.Rptr. 574, 537 P.2d 406;  Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 361–362, 110 Cal.Rptr. 353, 515 P.2d 297.)   Thus, although the statutes concerning them differ in detail, commissioners and referees stand on the same constitutional footing.

4.   Defendant does contend he was never advised that Commissioner Jones was not a judge.  [AOB 2] However, the tantamount stipulation doctrine does not require either “an on the record admonition of the defendant, or the defendant's express, on the record waiver of the right.”  (In re Horton, supra, 54 Cal.3d at p. 98, 284 Cal.Rptr. 305, 813 P.2d 1335.)

5.   At oral argument, defendant raised this additional hypothetical:  Since commissioners are not required to be attorneys, could a defendant be tried by a nonattorney commissioner under the tantamount stipulation doctrine?Once again, this question is not presented in this case, so our thoughts on the subject are utter dictum.   We note, however, that while a nonattorney can be made a commissioner, a nonattorney cannot be made a temporary judge—not even by written stipulation.  (Cal. Const., art. VI, § 21.)   It would seem that, a fortiori, a nonattorney commissioner cannot be made a temporary judge by tantamount stipulation.   Moreover, permitting a nonattorney to preside over a criminal trial would in itself be a due process violation.  (See generally Gordon v. Justice Court (1974) 12 Cal.3d 323, 115 Cal.Rptr. 632, 525 P.2d 72.)

6.   Defendant may also be claiming (although his briefs are not entirely clear on this point) that Commissioner Jones was never validly appointed by a written order of court.  (See Gov.Code, § 70144.)   Again, however, even assuming there was no such order, Commissioner Jones's official acts would still be valid.

RICHLI, Associate Justice.

HOLLENHORST, Acting P.J., and McDANIEL, J.*, concur.

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