People v. Jasper , 33 Cal. 3d 931 ( 1983 )

Opinion

RICHARDSON, J.

Defendant, appealing from the revocation of his probation, asks us to reconsider and disapprove People v. Coleman (1975) 13 Cal.3d 867 [120 Cal.Rptr. 384, 533 P.2d 1024], which permits a probation revocation hearing to precede the trial of pending criminal charges on which revocation is based. As will appear, we conclude that Coleman should not be disapproved.

In 1978, following a plea of guilty to second degree burglary, defendant was sentenced to three years in state prison. Execution of his sentence was suspended, and he was placed on a five-year probation.

On February 11,1981, the district attorney moved to revoke defendant’s probation following his arrest for a burglary allegedly committed on October 20, 1980. On April 6, 1981, after defendant was held to answer on the burglary charge, but before trial of that charge, a probation revocation hearing was held. The court denied defendant’s motion to continue the hearing until the burglary charge was tried. At the hearing, defendant declined to testify or offer any evidence. On the basis of the transcript of the preliminary hearing on the burglary charge, the court found defendant had violated his probation and committed him to state prison. This appeal followed.

Defendant’s sole contention is that the trial court erred in denying his motion to continue the probation revocation hearing until completion of trial of the burglary charge. He asserts that he was improperly forced to choose between exercising his right to remain silent at the revocation hearing, thereby risking the revocation of his probation, and presenting a defense to revocation, thereby providing the People with pretrial “discovery” regarding the theory and details of his defense to the burglary charge.

An identical contention was considered by us in People v. Coleman, supra, 13 Cal.3d 867. There, we indeed acknowledged the “tails we win, heads you lose” dilemma which theretofore probationers had faced during pretrial probation revocation hearings. (Pp. 876-878.) Rather than adopt an absolute rule barring such hearings prior to trial on pending criminal charges, however, we unanimously concluded that the lesser remedy of a limited exclusionary rule, precluding subsequent prosecutorial use of a probationer’s testimony or its fruits, affords a defendant an adequate safeguard.

As we noted in Coleman, “This exclusionary rule allows the state to continue to press for revocation of probation either before or after a probationer’s trial on related charges, but insures that this scheduling discretion will not be influenced by the illegitimate desire to gain an unfair advantage at trial. ” (P. 889, italics added.)

We further explained in Coleman that “The exclusionary rule applies to the fruits of the probationer’s prior revocation hearing in order to remove completely any illegitimate incentive to schedule revocation hearings in advance of trial. [Citation.] Moreover, protection against derivative as well as direct use of testimony would seem to be necessary to obtain that testimony over a claim of Fifth Amendment privilege. [Citation.] Since it affords protection against both direct and derivative use of a probationer’s pretrial revocation hearing testimony, our judicially declared exclusionary rule provides protection ‘coextensive with the scope of the privilege against self-incrimination’ [citation], thereby permitting us to decline to decide defendant’s constitutional claim that pretrial revocation hearings force probationers to forego their Fifth Amendment right to remain silent at trial. Even if we assume, arguendo, that defendant’s constitutional claim has merit, the exclusionary rule we propound today gives probationers all the relief to which they are constitutionally entitled.” (Pp. 891-892, italics added.)

We agreed in Coleman that requiring a probationer to choose between testifying at his revocation hearing and incriminating himself at a later trial may create a “tension” between countervailing constitutional rights. Nevertheless, we also observed that “it is far from clear that we are under any constitutional duty to obviate this tension. The federal law on the subject is currently in a state of confusion.” (P. 878.) Defendant fails to cite any post -Coleman federal cases suggesting that the constitutional issue has been resolved in his favor, and our independent research indicates that the opposite may be true. (See Ryan v. State of Montana (9th Cir. 1978) 580 F.2d 988, 993-994; United States v. Dozier (M.D.La. 1982) 543 F.Supp. 880, 885-888.) A recent Arizona case has marshalled the pertinent authorities in concluding that “all have found no violation of the Constitution in conducting the revocation hearing first. [Citations].” (State v. Boyd (1981) 128 Ariz.App. 381 [625 P.2d 970, 971].)

Defendant, urging reconsideration of Coleman, stresses recent decisions by us in the area of prosecutorial discovery. (E.g., People v. Collie (1981) 30 Cal.3d 43 [177 Cal.Rptr. 458, 634 P.2d 534]; People v. Belton (1979) 23 Cal.3d 516 [153 Cal.Rptr. 195, 591 P.2d 485]; Allen v. Superior Court (1976) 18 Cal.3d 520 [134 Cal.Rptr. 774, 557 P.2d 65].) These cases impose substantial additional restrictions upon the People’s use of pretrial discovery procedures to compel disclosure of incriminating evidence. Yet a probationer’s voluntary testimony or defense presented at a probation revocation hearing cannot fairly be characterized as a “compelled disclosure” within the scope of the foregoing cases.

As stated in People v. King (1979) 89 Cal.App.3d 506 [152 Cal.Rptr. 566], rejecting a similar argument, “the taking of testimony of defense witnesses voluntarily called by the defendant at a revocation hearing cannot be equated with pretrial discovery in the sense that it is the result of a prosecution demand to compel the defense to produce anything or provide information.” (P. 510; accord Ryan v. State of Montana, supra, 580 F.2d at pp. 991-993.)

Moreover, as Coleman itself acknowledges, the limited exclusionary rule fashioned by us in that case affords ample protection to a probationer who is fearful that the People will make improper use of the evidence elicited at the revocation hearing. Indeed, the People bear a heavy burden of proving a lack of relationship between the defense testimony at the revocation hearing and the prosecution’s evidence later offered at the criminal trial. (13 Cal.3d at pp. 890-891.)

Defendant and an amicus curiae complain of an asserted “routine practice” in San Francisco Superior Court of scheduling all probation revocation hearings in advance of trial on the criminal charges. The record does not reflect that this practice exists, or that it was followed in the present case. In any event, we decline to reverse defendant’s conviction solely on that basis, for as Coleman makes clear, by reason of its limited exclusionary rule, a probationer’s rights are not impaired by reason of the timing of his revocation hearing. (Accord People v. Sharp (1976) 58 Cal.App.3d 126, 130 [129 Cal.Rptr. 476]; see also Pen. Code, § 1203.2, subd. (a), authorizing probation revocation “at any time” and “regardless whether [the defendant] has been prosecuted for such [new] offenses. ”) Nevertheless, if such a routine practice does in fact exist, it is inconsistent with Coleman’s admonition that “the most desirable method of handling the problems of concurrent criminal and probation revocation proceedings may well be for revocation proceedings not even to be initiated until after disposition of the related criminal proceedings.” (13 Cal.3d at p. 896.)

In this regard, in Coleman we contemplated the exercise of judicial “discretion in deciding whether to permit probation revocation proceedings to commence in advance of the disposition of related criminal proceedings . . . .” (P. 897.) Moreover, in People v. Belleci (1979) 24 Cal.3d 879, at page 888, footnote 7 [157 Cal.Rptr. 503, 598 P.2d 473], we implicitly disapproved any routine disregard of Coleman’s admonition that “the most desirable method” of handling revocation hearings may be to await trial of criminal proceedings. To the extent People v. Sharp, supra, is inconsistent with this conclusion, it is disapproved. Whether a revocation hearing should be held before trial rests in the reasonable discretion of the trial court.

Because the probation revocation hearing preceded the adoption of new section 28, subdivision (d), to article I of the state Constitution by the recent passage of Proposition 8 at the June 1982 election, we do not examine the question of the continued validity of Coleman’s, limited exclusionary rule post Proposition 8.

The judgment is affirmed.

Mosk, J., Kaus, J., and Panelli, J.,^* concurred.

* Assigned by the Chairperson of the Judicial Council.