Coughlin, In re

• Decision Date: 04 February 1976
• Docket Number: Cr. 18659
• Citation: 127 Cal.Rptr. 337,545 P.2d 249,16 Cal.3d 52
• Court: California Supreme Court
• Parties: , 545 P.2d 249 In re Robert Michael COUGHLIN on Habeas Corpus.

Page 337

127 Cal.Rptr. 337

16 Cal.3d 52, 545 P.2d 249

In re Robert Michael COUGHLIN on Habeas Corpus.

Cr. 18659.

Supreme Court of California,

In Bank.

Feb. 4, 1976.

Jay J. Plotkin, North Hollywood, under appointment by the Supreme Court, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci and Michael Buzzell, Deputy Attys. Gen., for respondent.

John E. Howard, Acting Dist. Atty., Los Angeles, Harry B. Sondheim and Jay J. Becker, Deputy Dist. Attys., as amici curiae on behalf of respondent.

RICHARDSON, Justice.

In the present case, and in the companion case of In re Dunham, Cal., 127 Cal.Rptr. 343, 545 P.2d 255, we consider whether a court, at a probation revocation hearing, or the Adult Authority, at a parole revocation hearing (Dunham), may property consider evidence indicating that the probationer or parolee has committed another criminal offense during the period of his probation or parole, despite the fact that he was acquitted of the criminal charge at trial. We have concluded that the consideration of such evidence (together with all other evidence bearing upon the question of the offender's right to probation or parole) is properly admissible at the revocation hearing. To hold otherwise, under some novel application of the doctrines of res judicata or double jeopardy, would have the unfortunate consequence of depriving the decision-making body of information which might be essential to an appropriate disposition of the matter. Although the offender must be protected from undue harassment, the interest of society in preventing a premature release of the offender from confinement deserves equal, perhaps paramount, attention. Only by examining All the available evidence may the decision-making body exercise the informed discretion which the Legislature has conferred upon it.

Petitioner is presently imprisoned at Soledad having been convicted in 1972 of burglary and the receipt of stolen property. (Pen.Code, §§ 459, 496.) On March 12, 1973, following his conviction for these offenses, petitioner was granted probation for a period of four years. On April 5, 1973, petitioner was arrested on a burglary charge. On April 10, 1973, pursuant to information received by petitioner's probation officer, the court summarily revoked probation. A tentative date of April 30, 1973, was set for petitioner's formal revocation hearing; that hearing was continued from time to time until June 7, 1973.

Sometime prior to June 7, 1973, petitioner was acquitted of the pending burglary charge following a trial on the merits in municipal court. On June 7 the probation revocation hearing took place in superior court. The court heard testimony from two witnesses and the arresting officer. Evidently, much of their testimony paralleled their prior testimony at the criminal trial. Petitioner did not testify on his own behalf, and he called no witnesses. Petitioner's counsel objected to the proceedings on the grounds that petitioner had been denied a timely revocation hearing, and that his prior acquittal should bar the revocation proceedings on a 'double jeopardy' theory. The court denied both objections.

Following the hearing, the court found that petitioner had violated the terms and conditions of his probation. Explaining its decision, the court stated that: 'The Court believes that he (petitioner) did participate in an attempted burglary on the morning of April 5, 1973, even though the evidence might not have been sufficient to convince the Court in the Whittier Municipal Court beyond a reasonable doubt and to a moral certainty of the proof of the charge against the defendant. This Court's convinced that he did, indeed, attempt to burglarize the Candlewood Burger on April 5, 1973, and he thus is in violation of the terms and conditions of probation granted by this Court.'

The court ordered petitioner's probation revoked and remanded him to the Department of Corrections to serve his sentence. Petitioner's appeal from the judgment of conviction, including the order revoking probation, was unsuccessful.

Although habeas corpus ordinarily cannot serve as a second appeal, that general rule is primarily a discretionary policy which may be overlooked where 'special circumstances' are deemed to exist. (In re Black (1967) 66 Cal.2d 881, 886--887, 59 Cal.Rptr. 429, 428 P.2d 293 (review of order denying probation).) Moreover, it has been held that habeas corpus may be used to challenge the procedure employed during petitioner's trial, where a denial of due process or other fundamental jurisdictional defect is alleged. (See In re Winchester (1960) 53 Cal.2d 528, 531, 2 Cal.Rptr. 296, 348 P.2d 904, cert. den. (1960) 363 U.S. 852, 80 S.Ct. 1631, 4 L.Ed.2d 1734; People v. Adamson (1949) 34 Cal.2d 320, 327, 210 P.2d 13.) As stated in Winchester, 'Fundamental jurisdictional defects, like constitutional defects, do not become irremediable when a judgment of conviction becomes final, Even after affirmance on appeal. (Citation.).' (P. 531 of 53 Cal.2d, p. 298 of 2 Cal.Rptr., p. 906 of 348 P.2d, italics added.)

Under petitioner's theory, the trial court's consideration of evidence regarding the burglary offense of which petitioner was acquitted constituted a violation of due process principles and placed him in double jeopardy. Although these asserted violations occurred at a probation revocation hearing, rather than at a trial, the contentions are sufficiently substantial to justify our consideration in the present proceedings, despite petitioner's prior appeal. We note that the Attorney General has not contended that habeas corpus is not a proper remedy in this case.

We turn to the merits of petitioner's claim. Penal Code section 1203.2, subdivision (a), authorizes the court to revoke probation '. . . if the interests of justice so require and the court, in its judgment, Has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his probation, has become abandoned to improper associates or a vicious life, Or has subsequently committed other offenses, regardless whether he has been prosecuted for such offenses.' (Italics added.)

As the language of section 1203.2 would suggest, the determination whether to grant or revoke probation is largely discretionary. (In re Larsen (1955) 44 Cal.2d 642, 645, 283 P.2d 1043; In re Davis (1951) 37 Cal.2d 872, 875, 236 P.2d 579.) The correct standard of proof to be used by the trial court in assessing whether there exists 'reason to believe' the probationer has violated his probation or committed a new offense has been variously stated (compare People v. Hayko (1970) 7 Cal.App.3d 604, 609, 86 Cal.Rptr. 726 ('clear and satisfactory' proof required) with People v. Coleman (1975) 13 Cal.3d 867, 877, fn. 8, 120 Cal.Rptr. 384, 533 P.2d 1024 ('clear and convincing' proof required); see also Evid.Code, § 115 ('proof by a preponderance of the evidence' except as otherwise provided by law)). Yet the authorities are unanimous in concluding that the standard of proof used in a criminal trial, namely the 'beyond a reasonable doubt' standard (Pen.Code, § 1096) is inapplicable to the probation revocation hearing. (People v. Ruelas (1973) 30 Cal.App.3d 71, 74, 106 Cal.Rptr. 132; People v. Youngs (1972) 23 Cal.App.3d 180, 188, fn. 6, 99 Cal.Rptr. 901; People v. Hayko, supra, 7 Cal.App.3d at p. 609, 86 Cal.Rptr. 726; People v. Vanella (1968) 265 Cal.App.2d 463, 470, 71 Cal.Rptr. 152.) Accordingly, probation may be revoked despite the fact that the evidence of the probationer's guilt may be insufficient to convict him of the new offense. (People v. Andre (1974) 37 Cal.App.3d 516, 521, 112 Cal.Rptr. 438; People v. Hayko, supra, at p. 609, 86 Cal.Rptr. 726.) Petitioner does not assert a Quantitative challenge by contending that the evidence introduced at the revocation hearing was insufficient to justify revocation. His contention is that the evidence was Inadmissible by reason of his prior acquittal.

It is uniformly held that the Reversal of a conviction on appeal does not preclude the court from considering the underlying evidence in deciding whether or not to revoke probation. (People v. Rafter (1974) 41 Cal.App.3d 557, 560--561, 116 Cal.Rptr. 281; People v. Hayko, supra, 7 Cal.App.3d at pp. 609--611, 86 Cal.Rptr. 726; People v. Muniz (1970) 4 Cal.App.3d 562, 571, 84 Cal.Rptr. 501; People v. Lynn (1969) 271 Cal.App.2d 670, 674, 76 Cal.Rptr. 801; People v. Vanella, supra, 265 Cal.App.2d at p. 470, 71 Cal.Rptr. 152.) In Hayko, for example, defendant's probation was revoked in reliance upon his conviction of a new offense. Although that conviction was reversed on appeal on the ground that an illegal search and seizure took place, thereby necessitating reconsideration of the probation revocation order, the Court of Appeal ruled that the reversal 'does not foreclose further inquiry into the subject matter of that case by the court, and the court may properly determine whether appellant has engaged in conduct which constitutes cause for revocation of probation.' (P. 611, of 7 Cal.App.3d, p. 731 of 86 Cal.Rptr.) Moreover, the court explained, at the new probation revocation hearing, the trial court would not be precluded from considering evidence which was the product of the illegal search and seizure. (See In re Martinez (1970) 1 Cal.3d 641, 650, 83 Cal.Rptr. 382, 463 P.2d 734, upholding the right of the Adult Authority to consider illegally obtained evidence in revoking parole.) The court noted that '. . . the role of a judge in considering the question of whether a convicted offender's probation should be revoked is analogous to the role of the Adult Authority in determining whether a parolee's parole should be revoked. The judge is not determining whether the defendant is guilty or innocent of a crime. Rather, he must determine whether the convicted...