People v. Calloway

• Decision Date: 13 March 1974
• Docket Number: Cr. 5491
• Citation: 112 Cal.Rptr. 745,37 Cal.App.3d 905
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Danny CALLOWAY, Defendant and Appellant.

Page 745

112 Cal.Rptr. 745

37 Cal.App.3d 905

The PEOPLE of the State of California, Plaintiff and Respondent, v. Danny CALLOWAY, Defendant and Appellant.

Cr. 5491.

Court of Appeal, Fourth District, Division 1, California.

March 13, 1974.

[37 Cal.App.3d 907] Appellate Defenders, Inc. by Harold F. Tyvoll, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Alan S. Meth and Harley D. Mayfield, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

AULT, Associate Justice.

Defendant Danny Calloway was found guilty of burglary (second degree) by a jury and applied for probation. After referral to the Department of Corrections for a diagnostic study pursuant to Penal Code section 1203.03, his application for probation was denied and he was committed to the California Youth Authority. On appeal he raises no issues related to this trial and conviction, but asserts his commitment to the Youth Authority should be set aside because of frequent reference in the probation report to 'suspicion arrests' which did not result in convictions. He also claims it was a denial of due process for the trial court to consider such 'arrests' in denying his application for probation.

In that portion of the probation report denominated 'Prior Record,' page 3 of the report contains a listing of Calloway's prior contacts with law enforcement agencies and counts. ¹ The dispositions shown for eight of these matters (some of them traffic violations) indicate convictions or the equivalent. In four matters (all relating to traffic violations) the disposition is 'unknown.' Seven police contacts, under the headings of grand theft, burglary and assault with a deadly weapon, all bear the notation: 'Not arrested, 849b(1) (849(b)(1)) P.C.'

Section 849, subdivision (b)(1) of the Penal Code reads:

'Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever: . . . (h)e is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested.'

Subdivision (c) of the same section states:

'Any record of arrest of a person released pursuant to paragraphs (1) and (3) of subdivision (b) shall include a record of release. Thereafter, such arrest shall not be deemed an arrest, but a detention only.'

Calloway contends the inclusion in the probation report of the seven 'police contacts' in connection with which he was neither convicted nor charged prejudicially associates him with seven serious crimes and so infected his probation hearing as to deny him due process of law. We agree in part. Such records, without supporting factual information, should not be included in a probation report. They are unreliable, highly prejudicial, and under many circumstances could result in a fundamentally unfair hearing.

While an applicant for probation is not entitled to the same procedural safeguards as in the case of a trial on the issues of guilt, he must be afforded hearing procedures which are fundamentally fair (People v. Peterson, 9 Cal.3d 717, 726, 108 Cal.Rptr. 835, 511 P.2d 1187). There must be some substantial basis for believing the information contained in the probation report is accurate and reliable (Ibid. p. 727, 108 Cal.Rptr. 835, 511 P.2d 1187).

The practice of including raw arrest data in a probation report is condemned by the American Bar Association's Standards for Criminal Justice.

'. . . the Advisory Committee means to include only those charges which have resulted in a conviction. Arrests, juvenile dispositions short of an adjudication, and the like, can be extremely misleading and damaging if presented to the court as part of a section of the report which deals with past convictions. If such items should be included at all--and the Advisory Committee would not provide for their inclusion--at the very least a detailed effort should be undertaken to assure that the reader of the report cannot possibly mistake an arrest for a conviction.' (Standards Relating to Probation, Approved Draft, p. 37.)

Reference to Calloway's 'police contacts' in the probation report under consideration here has even less reliability than the matters specifically condemned in the American Bar Commentary quoted above. The Legislature has declared such incidents 'shall not be deemed an arrest' (Pen.Code § 849, subd. (c)), and the bare fact that the police detained and questioned Calloway on several occasions concerning possible crimes gives rise to no reasonable inference he was a perpetrator of any one of them. Since the officer in each instance was authorized to release Calloway only if he was satisfied there were insufficient grounds for making a criminal complaint against him, the reasonable inference is that Calloway was not involved in any of the crimes under investigation. Inquiry into the facts surrounding the incidents might well reveal no crime had been committed by anyone or that the crime under investigation had in...