People v. Calais

• Decision Date: 13 March 1974
• Docket Number: Cr. 7073
• Citation: 112 Cal.Rptr. 685,37 Cal.App.3d 898
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles CALAIS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 685

112 Cal.Rptr. 685

37 Cal.App.3d 898

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles CALAIS, Defendant and Appellant.

Cr. 7073.

Court of Appeal, Third District, California.

March 13, 1974.

As Modified on Denial of Rehearing April 10, 1974.

Hearing Denied May 8, 1974.

Evelle J. Younger, Atty. Gen. by G. Michael Gates, Deputy Atty. Gen., Sacramento, for plaintiff-respondent.

James J. Arditto, Sacramento, for defendant-appellant.

REGAN, Associate Justice.

On February 25, 1972, defendant, pursuant to a plea bargain, plead guilty to a violation of section 11531 of the Health and Safety Code (sale of marijuana). Judgment was suspended and defendant was placed on probation for two years on the condition he serve six months in the county jail. Another condition was that defendant 'submit his person and property to search (and) seizure at any time of the day or night by any law enforcement officer, with or without a search warrant.'

On March 7, 1973, a violation of probation report was filed in the Amador Superior Court. A complaint (also dated March 7, 1973) charging defendant with burglary (Pen.Code, § 459) and two counts of receiving stolen property (Pen.Code, § 496) was attached to and incorporated by reference in the violation report.

On March 14, 1973, defendant appeared with counsel and a hearing on revocation of probation was held. Defense counsel requested the matter be continued until March 23. At the conclusion of this hearing the court found defendant had violated the terms of his probation, denied the motion for a continuance and referred the matter to the probation officer.

On March 30, 1973, a hearing was held on the probation report. Thereafter, the court ordered that defendant be confined to state prison. On April 2, 1973, the criminal charges were dismissed on the People's motion.

The testimony at the hearings established to the court's satisfaction, and the court found, that defendant had unlawfully forced entry into the cabin of another person, removed four guns therefrom and took them to his own home.

He now appeals from the judgment, contending the revocation of his probation did not accord with the due process requirements set forth in Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.

Morrissey held that a parolee is entitled to two separate hearings. The function of the first or preliminary hearing is to determine whether there is probable cause to believe that the arrested parolee has committed acts which would constitute a violation of parole conditions. The second hearing--the revocation hearing itself--must meet the following requirements of due process: '(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.' (408 U.S. at p. 489, 92 S.Ct. at p. 2604, 33 L.Ed.2d at p. 499.)

Even though Morrissey was concerned with parole revocation, the due process requirements delineated therein are equally applicable to the revocation of probation. 'Although we are not confronted with a revocation of parole but rather with proceedings for the revocation of probation granted after conviction and imposition of sentence, we cannot distinguish such proceedings in principle insofar as the demands of due process are concerned. The recognition that aside from an act of clemency a grant of parole is an integral part of the penological system intended to help those convicted of crime to integrate into society as constructive individuals as soon as possible and alleviate the cost of maintaining them in custodial facilities, is equally applicable in the case of a grant of probation. The characterization of a grant of probation as a privilege rather than a right is also, as in the case of a grant of parole, no longer of significance. Certainly the nature of a probationer's interest in his liberty, not necessarily ever having been an inmate of a prison or a jail, is at least as great as that of a parolee and is entitled to at least the same due process safeguards before it is terminated. Morrissey is thus equally applicable in the case of a revocation of probation insofar as it assures that revocation can be had only with due process protections.' (People v. Vickers (1972) 8 Cal.3d 451, 458, 105 Cal.Rptr. 305, 310, 503 P.2d 1313, 1318.)

Defendant contends the hearing on his probation did not satisfy or meet due process requirements as set forth in Morrissey in the following particulars: (1) No preliminary (or probable cause) hearing was ever conducted; (2) the trial court, when it revoked defendant's probation on March 23, 1973, gave no statement of reasons; (3) defendant was not, prior to final hearing, informed that there was probable cause to revoke his probation; (4) defendant was not informed, prior to final hearing, of the reasons which the court relied upon to believe there was probable cause; and (5) defendant was not allowed to interrogate the probation officer (Mounter) with regard to his probation report.

The issues presented appear to be without any reported California precedent to date. ¹ Further, Morrissey dealt with parole revocation and not revocation of probation. Even though the due process requirements of Morrissey do apply to the latter (see People v. Vickers, supra), there are inherent differences in the two procedures. Vickers provides us with the only two rather general guides:

'(T)he precise nature of the proceedings for such revocation (of probation) need not be identical if they assure equivalent due process safeguards.' (8 Cal.3d at p. 458, 105 Cal.Rptr. at p. 311, 503 P.2d at p. 1319.)

'We do not read Morrissey as precluding the holding of the two proceedings in close or immediate sequence to each other providing that the due process protections declared in that decision are not infringed.' (Id. at p. 459, fn. 8, 105 Cal.Rptr. at p. 311, 503 P.2d at p. 1319.)

With these two guides in mind, we conclude that the procedures utilized herein, with one exception, were in substantial compliance with Morrissey. Although no preliminary hearing was held, it must be remembered that we are here concerned with a revocation of probation and not a parole situation. The proper jurisdiction for the revocation of probation is in the superior court. On March 14, defendant appeared at the formal revocation hearing with counsel after proper notice of the alleged violations. Our review of the record reveals that the due process safeguards guaranteed by Morrissey and Vickers were afforded defendant at the two hearings. The evidence adduced shows there was reasonable and probable cause to believe that defendant had violated the terms of his probation. Although no formal statement of reasons was given for the revocation, none was required under the circumstances since defendant was present with counsel and had been apprised of the charges. In effect, the hearings on March 14 and March 23 amounted to a simultaneous preliminary and formal hearing. Under the broad guidelines set forth in Vickers, supra, such a procedure would appear to conform with the requirements enunciated in that case.

However, there is one matter that troubles us. Despite repeated requests, the trial court refused defense counsel the right to examine the probation officer who prepared the report recommending that...