People v. Johnson CA4/1

Filed 3/30/21 P. v. Johnson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077899
Plaintiff and Respondent,
v. (Super. Ct. No. PLE63602)
KEVIN ANTOINE JOHNSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Peter C. Deddeh, Judge. Affirmed.
Heather L. Beugen, 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, Charles C.
Ragland and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Kevin Antoine Johnson was charged in People v. Johnson,
San Diego County Superior Court case No. SCD286261, with committing new
criminal offenses while on parole. After a contested parole hearing held
concurrently with a preliminary hearing in case No. SCD286261, the court on
July 27, 2020, found defendant violated parole, revoked his parole, and
remanded him to the custody of the sheriff pending the conclusion of case No.
SCD286261.
Defendant contends that the court violated his right to due process of
law by holding a single parole violation and revocation hearing; that he was
prejudiced by the simultaneous proceeding because his counsel was
unprepared for the parole revocation hearing; and that hearsay testimony,
which was properly introduced at the preliminary hearing, was improperly
presented for parole revocation. As we explain, we reject these contentions
and affirm the order revoking defendant’s parole.
FACTUAL BACKGROUND
At about 9:00 p.m. on June 5, 2020, defendant went to his aunt’s second
floor apartment located in an apartment complex in San Diego. About 45
minutes later, San Diego Police Department officers responded to a report of
a fire at the complex. On arrival, officers saw no fire, but activity in an alley
behind the complex. Two other officers who had already arrived at the scene
motioned the officers to a broken window of a second floor apartment.
Directly below the window was a microwave oven resting on the roof of a
parked car. The officers heard a woman screaming from what appeared to be
the same second floor apartment. Officers then went to that apartment and,
while in the doorway, saw an elderly woman sitting against the wall and a
man later identified as defendant kneeling in the middle of the apartment
with his hands up. He was screaming and appeared to be under the
influence.
Defendant became violent when officers entered the apartment. One of
the officers felt defendant attempting to tug at his duty belt where his gun
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was holstered. After defendant was in custody, that officer felt pain in his
mid and lower back. The officer went to urgent care that night, where he was
diagnosed with a back strain and given medication. He was placed on light
duty for four days and thereafter felt lingering back pain for approximately
two weeks.
Once the scene was secured, officers observed a microwave oven on top
of a 2000 Toyota parked below the apartment window. There was dirt and
debris on the car and a dent on its hood. Its owner stated there had been no
damage to the car when he parked it, and estimated the damage at $1,500.
Officers also observed another parked car, a 2002 Saturn, that had a three-
inch dent on the top of the hood and there was dirt and debris on that car as
well. The Saturn owner also indicated there had been no damage when she
parked it, and estimated repairs at approximately $500. A vacuum canister
was found next to the cars.
PROCEDURAL BACKGROUND
A felony complaint was filed in case No. SCD286261, charging
defendant with assault on a police officer in violation of Penal Code1 section
243, subdivision (b); being under the influence of a controlled substance in
violation of Health and Safety Code section 11550, subdivision (a); and felony
vandalism in violation of section 594, subdivision (b)(1).
As noted, defendant was on parole at the time of the June 5 apartment
incident. One of defendant’s parole conditions was to obey all state, federal,
and municipal laws. Another parole condition prohibited him from being
under the influence of a controlled substance. He was informed his parole
1 Unless indicated otherwise, all additional statutory references are to
the Penal Code.
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could be violated without a criminal conviction. Defendant signed an
acknowledgment of his parole conditions when he was released on
February 15, 2018.
Based on the charges filed in case No. SCD286261, the following three
parole violations were filed against defendant in case No. PLE63602: 1)
assault on a police officer; 2) being under the influence; and 3) vandalism.
Discussions between counsel followed as to whether and when the
parole revocation and preliminary hearing would be held. On July 27, the
day of the hearing, defense counsel for the first time stated defendant
objected to a concurrent hearing. The prosecution argued a single hearing
was appropriate because some of the same witnesses would be testifying at
the revocation and preliminary hearings, and because there were COVID
restrictions that could be satisfied by holding the proceedings
simultaneously. The court concluded a concurrent hearing was proper.
During the contested revocation hearing, the court in case No.
PLE63602 found insufficient evidence that defendant was under the
influence of a controlled substance. However, based on a preponderance of
the evidence standard, it found defendant violated his parole by committing
assault on a police officer and vandalism. The court revoked his parole.
Based on the same evidence, the court concluded in case No. SCD286261
there was sufficient cause shown that defendant committed all three counts
and held him to answer on the charges. The court remanded defendant to the
custody of the sheriff pending the conclusion of case No. SCD286261.
Defendant filed a timely notice of appeal.
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DISCUSSION
A. Guiding Principles
The due process rights of parole violators are set forth in Morrissey v.
Brewer (1972) 408 U.S. 471 (Morrissey). In that case the court did not set a
time limit when a parole violation hearing must be held, but rather stated it
must be “as promptly as convenient after arrest while information is fresh
and sources are available.” (Id. at 485.) Our high court adopted the
Morrissey standard in People v. Coleman (1975) 13 Cal.3d 867 (Coleman).
In Coleman, our high court reiterated that a probationer has a right to
defend him or herself against a petition filed to revoke probation. This
includes the right to speak on his or her own behalf, present mitigating
factors, and argue that generally, the ends of justice do not warrant
revocation. (Coleman, supra, 13 Cal.3d at p. 873.) A parolee has equivalent
rights in terms of due process requirements. (People v. Rodriguez (1990) 51
Cal.3d 437, 441.)
Coleman addresses the question of the timing of a revocation hearing
vis-à-vis a preliminary hearing or trial on the charges for offenses that form
the basis of the revocation. The court there stated, “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.”
(Coleman, supra, 13 Cal.3d at p. at 896.) However, as the People point out,
Coleman did not bar probation revocation proceedings from being held in
advance of trial. Rather, Coleman concluded that on a timely objection by the
probationer, the probationer’s testimony would be inadmissible at a
subsequent criminal trial, except as impeachment or on rebuttal. (Id. at
p. 889.)
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This rule—the Coleman 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” (Coleman, supra,
13 Cal.3d at p. 889); and allows the probationer to present a full defense at
the revocation hearing without running the risk of prejudicing a defense at a
subsequent trial. (Id. at pp. 893–894.) The Coleman Rule thus “affords
ample protection to a probationer who is fearful that the People will make
improper use of the evidence elicited at the revocation hearing.” (People v.
Jasper (1983) 33 Cal.3d 931, 934–935 (Jasper).)
As Jasper points out, the Coleman Rule makes clear that a
probationer’s rights are not impaired by the timing of a revocation hearing.
(Jasper, supra, 33 Cal.3d at p. 935.) Although Jasper approved of Coleman’s
observation that the most desirable procedure would be to wait until the
criminal charges are completed, it noted “whether a revocation hearing
should be held before trial rests in the reasonable discretion of the trial
court.” (Ibid.; Coleman, supra, 13 Cal.3d at p. 897.)
Moreover, section 1203.2, subdivision (a) authorizes parole revocation
“at any time” and “regardless of whether the person has been prosecuted for
[the new] offenses.” As was stated in People v. Weaver (1985) 39 Cal.3d 654,
659, it therefore would be improper to adopt a supervisory rule mandating
the staying of revocation hearings until after the pending criminal charges
are completed. (See People v. Preyer (1985) 164 Cal.App.3d 568, 573 (Preyer)
[noting “there may be different reasons to hold the probation revocation
hearing before a related trial,” such as when a court tries to “avoid
unnecessary appearances of witnesses” or “avoid recycling a probation
revocation in one court waiting for completion of matters not even filed yet in
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another court”; and further noting such “matters [are] appropriately left to
the discretion of the trial court,” as section 1203.2 “does not prohibit hearing
probation revocation matters before disposition of a related criminal case”].)
B. Analysis
In light of section 1203.2 and Coleman and its progeny, we reject
defendant’s due process of law challenge in this case. The question here is
whether the trial court abused its discretion in holding the parole revocation
hearing simultaneously with the preliminary hearing. Defendant’s argument
rests on the assertion his counsel allegedly did not have sufficient time to
prepare for the revocation hearing and he was prejudiced because the two
proceedings employ different evidentiary standards and rules. We conclude
there was no abuse of discretion.
As to the preparation time, we note defense counsel at the July 27,
2020, concurrent hearing did not object to the revocation hearing on the
ground of lack of preparedness. Instead, defense counsel merely noted
defendant’s “preference” was “to have the two hearings separate.” (Italics
added.) Nor did defense counsel at that time request a continuance of the
revocation hearing.
In addition, the record shows the parties had been negotiating between
themselves and with the court as to when the two hearings would be held.
The prosecution notified the defendant about a month before, and again
about two weeks before, the July 27 hearing of its intent to have the
preliminary hearing and parole revocation heard in a single proceeding
because of overlapping witnesses and COVID restrictions. We thus conclude
there was no undue surprise that the hearings would be held on the day
scheduled, or that they would be held together.
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We conclude the court’s decision to proceed with a single hearing based
on considerations of judicial economy and COVID restrictions was a proper
exercise of its discretion. (People v. Arreola (1994) 7 Cal.4th 1144, 1159
[recognizing that as a “means of avoiding needless duplication and promoting
judicial economy, in some instances the preliminary hearing on the charges
that give rise to the probation revocation proceeding may be coordinated with
the final revocation hearing, in a single proceeding”].) Here, the court
avoided duplication of witnesses and unnecessary multiple appearances by
witnesses in what was an otherwise straightforward proceeding. Case law
has consistently held such considerations are appropriate in determining
whether substantial justice will be gained or defeated. (See ibid.; Preyer,
supra, 164 Cal.App.3d at p. 573; People v. Samuels (1983) 147 Cal.App.3d
1108, 1113.)
As to the difference in evidentiary standards between the two
proceedings, that difference was clearly known by the court. Indeed, for
purposes of revocation the court concluded the preponderance of the evidence
standard had not been met that defendant was under the influence of a
controlled substance during the June 5 incident; but was met for purposes of
the good cause standard for the preliminary hearing on that charge and
others. We thus reject defendant’s claim he was prejudiced by the court’s
decision to conduct the preliminary hearing and revocation in a single
hearing.
Finally, defendant contends the court improperly considered hearsay
for purposes of the revocation hearing. The People point out that there is no
evidence the court considered hearsay under Proposition 115 for any purpose
except at the preliminary hearing. The record shows the trial court in any
event had sufficient evidence without the alleged hearsay statements to find
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a violation of parole. Because defendant fails to demonstrate it was
reasonably probable that he would have received a more favorable result if
the hearings were separately held, we conclude there was no prejudice even if
the court erred in admitting hearsay at the single hearing. (People v. Watson
(1956) 46 Cal.2d 818, 836.)
DISPOSITION
The order revoking defendant’s parole is affirmed.
BENKE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
DO, J.
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