People v. Andre
| Decision Date | 25 February 1974 |
| Docket Number | Cr. 23816,24070 |
| Citation | 37 Cal.App.3d 516,112 Cal.Rptr. 438 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Robert Nelson ANDRE, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Willie Lawrence HOUSTON, Defendant and Appellant. |
Ruth Ohanessian, West Covina, under appointment by the Court of Appeal, for defendant and appellant Andre.
G. Tom Thompson, Long Beach, under appointment by the Court of Appeal, for defendant and appellant Houston.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore and William E. James, Asst. Attys. Gen., Edward T. Fogel, Jr., Anthony D. Blankley, and Russell Iungerich, Deputy Attys. Gen., for plaintiff and respondent.
These two cases involve related problems concerning the procedures proper in cases of revocation of probation in the light of Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, as construed in People v. Vickers (1972) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313. We have consolidated them for the purpose of this opinion.
In each case, defendant had been duly convicted of a criminal offense 1 and had been placed on probation. 2 On allegations of violation of his probation, each defendant's probation was revoked, and sentences of imprisonment 3 were imposed. Each defendant has appealed. 4
The principle underlying the Morrissey-Vickers rules is that the limited and conditional personal liberty afforded to a parolee or to a probationer may not constitutionally be terminated or restricted arbitrarily and without probable cause. To implement that principle, the cases require that (except in the case of an absconding defendant) his parole or probation should not be revoked until after a two-stage hearing: (a) a preliminary and summary hearing, before some impartial hearing officer, at or near the place of the defendant's physical arrest and within a brief period after that event; 5 followed by (b) a more formal hearing, on written notice, with right to counsel, and with opportunity both to summon witnesses and to cross-examine witnesses against him. 6 Defendant must have the right to counsel at both stages except in case of absconding. 7
In further implementation of those requirements, the California cases have set down the rule that, where a probationer or parolee has been arrested and charged with a new offense, the preliminary hearing on the new charge will ordinarily satisfy the Morrissey-Vickers requirement of the first-stage hearing and the trial and conviction on the new charge will simplify and sometimes satisfy the second stage requirement. 8
However, both Morrissey and Vickers make it clear that the first stage (summary) proceeding need not comply with the full panoply of procedure involved in a criminal case. Nor do the California cases require, even where a new offense is involved, that the parole or revocation proceedings must be combined with the proceedings in a new prosecution. Prosecuting officers and courts must be permitted a reasonable pragmatism in dealing with such cases. In one case, the new charge may carry with it the potential of a heavier or longer punishment than would result from revocation only; in another case, experience may show that prosecution of the new charge, accompanied by revocation, would be likely to result only in concurrent sentences not substantially increasing either the severity or the length of actual punishment. Morrissey-Vickers require only that the proper hearings be held under some appropriate pleadings.
Furthermore, the standards of proof differ in the two methods. Probation and parole are granted in the hope and expectation that the conditional release, under supervision, will better serve to rehabilitate a defendant than would supervised incarceration. The court, or the paroling authority, need not wait until the defendant proves, by new acts of criminality, that the hope and expectation were unfounded. Acts short of criminality, or evidence which leaves a criminal violation still uncertain, may well, in the judgment of the court or authority, indicate that the hoped for rehabilitation is on the road to complete failure and that a more restrictive process is required both to protect society and to assist the defendant toward ultimate rehabilitation. (Cf. People v. Hayko (1970) 7 Cal.App.3d 604, 86 Cal.Rptr 726.)
With those concepts in mind, we turn to examine the events in the two cases before us at this time.
On August 7, 1970, after a plea of guilty to a violation of section 11910 of the Health and Safety Code, Andre was granted probation for three years. On May 11, 1973, Andre was brought before the trial court by his probation officer and the following brief proceedings followed:
'MR. O'ROURKE: I am Deputy Probation Officer O'Rourke. I have been supervising Mr. Andre. He was released from the county jail on the 3rd day of May. On the 6th of May, he was re-arrested.
'I haven't had a chance to go over the police reports to any extent, but it apparently involved the use of drugs and the death or overdose of a companion.
'On the basis of this, I would request that the Court revoke or find him in violation of his probation in that I feel that he is a danger to himself and a danger to the community and ask that he be remanded to the custody of the sheriff and a new hearing, further hearing set for May the 31st.
'THE COURT: Very well.
'Based upon the report, oral report of the probation officer, the defendant is preliminarily found to be in violation of probation.
'Probation is revoked.
'Mr. Andre, do you have a lawyer?
'. . .URT
'I think rather than formally arraigning the defendant at this time, if that is all right with you, Mr. MacMillan, we will continue it for two weeks, get a supplemental report and then have a hearing on it at your convenience.
'Mr. MacMILLAN: I would appreciate it if the Court would do that. I think there may possibly be a formal hearing in regard to that since the procedure is being used of bringing him straight to the Superior Court.
'THE COURT: Very well.
'This matter will be continued for hearing on violation of probation to May 18--strike that. May 25, 9:00 a.m. in this department.
'A supplemental probation report is ordered for that time.
'Defendant is remanded without bail.' DP On May 25, 1973, andre appeared with appointed counsel, and admitted the violation charged against him. His probation was formally revoked and a prison sentence was imposed.
Clearly, the 'hearing' on May 11, 1973, failed completely to satisfy the Morrissey-Vickers requirements for a first-stage hearing on the alleged violation. Andre had no lawyer; he received only an oral indication of the supposed violation, stated in the most vague terms; he was given no chance to deny or explain. However, on May 25, 1973, he did receive an adequate second-stage hearing, with counsel, was aware of the charge 9 and made a complete admission. Whatever rights Andre may have had if he had attacked his incarceration during the 14-day interval, no court can now repair the deficiency then involved. 10 We see no reason, at this stage and on this appeal, to reverse the prison sentence ultimately imposed. 11
On May 15, 1970, Houston was found guilty of assault in violation of section 245 of the Penal Code. On June 12, 1970, he was sentenced to one year in the county jail; execution was suspended and he was granted probation for three years.
The record before us shows only that, on May 25, 1973, Houston's probation officer had filed with the court a report alleging violations of Houston's conditions of probation and recommending a revocation. Endorsed on that document is the notation 'Defendant Notified by County Clerk to Appear' (apparently on May 29, 1973). On the latter date Houston did appear and the following proceedings occurred on that date and on the following day:
'In this matter the defendant was previously placed on probation on certain terms and conditions.
'He hasn't paid the restitution, he hasn't paid the fine and he's suffered subsequent convictions.
'At this time probation is revoked. The defendant will be remanded to custody.
'(The matter was trailed until the following day, Wednesday, May 30, 1973, at 9:00 a.m.)'
'Are you ready to proceed at this time, Mr. Waco?
'MR. WACO: Yes, Your Honor.
'I would indicate to the Court again that the probation officer did tell the defendant he would get more time to pay the fine. That's one of the reasons he was perhaps a little lax in paying the remaining balance.
'THE COURT: In this matter probation will remain revoked. The sentence of one year in the Los Angeles County Jail heretofore imposed but ordered suspended by Judge Powell is now ordered into full force and effect. He's entitled to 22 days credit.
'(Proceedings concluded.)'
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