People v. Harrison, A036918

• Decision Date: 18 February 1988
• Docket Number: No. A036918,A036918
• Citation: 245 Cal.Rptr. 204,199 Cal.App.3d 803
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carlos HARRISON, Defendant and Appellant.

Page 204

245 Cal.Rptr. 204

199 Cal.App.3d 803

The PEOPLE, Plaintiff and Respondent, v. Carlos HARRISON, Defendant and Appellant.

No. A036918.

Court of Appeal, First District, Division 2, California.

Feb. 18, 1988.

As Modified March 17, 1988.

Review Denied June 2, 1988.

[199 Cal.App.3d 806] Richard Rubin, Oakland, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Peter Crook, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

KLINE, Presiding Justice.

Carlos Harrison, the appellant, claims the trial court improperly revoked his probation on the basis of evidence that should have been excluded. On appeal, he asks this court to disapprove of People v. Hayko (1970) 7 Cal.App.3d 604, 86 Cal.Rptr. 726, which held that the exclusionary rule does not usually apply in probation revocation hearings. He asserts that the Harvey-Madden rule should have applied to his hearing even if the exclusionary rule should not. (People v. Harvey (1958) 156 Cal.App.2d 516, 319 P.2d 689; People v. Madden (1970) 2 Cal.3d 1017, 88 Cal.Rptr. 171, 471 P.2d 971.) Finally, appellant argues that the holding of Division Five of this district in People v. Washington (1987) 192 Cal.App.3d 1120, 236 Cal.Rptr. 840 (hg. den. Oct. 20, 1987), controls and requires reversal.

STATEMENT OF THE CASE

On June 4, 1985, the San Francisco Superior Court suspended a three-year sentence and placed appellant on probation for his conviction for violation of Health and Safety Code section 11359 (possession of marijuana for sale.) On October 15, 1985, the district attorney moved to revoke appellant's probation because of another arrest for a section 11359 violation. The charge was dismissed, but probation was revoked. The court imposed a two-year prison term, but suspended execution on the condition that appellant spend 90 days in county jail.

When appellant was arrested on September 12, 1986 for possession of cocaine (Health and Saf. Code, § 11350), the district attorney again moved to revoke probation and dismiss the charge. After a hearing, the court revoked probation and ordered appellant to serve the suspended two-year prison sentence, with credit for time served. Appellant filed a timely notice of appeal on November 20, 1986.

STATEMENT OF FACTS

At the hearing on revocation of probation, San Francisco Police Officers Drago and Dalton testified about the circumstances surrounding appellant's arrest. The court allowed Drago and Dalton to testify about statements made by Officers Dorsey and Bruenman, who were not at the hearing. This hearsay evidence was admitted solely for the purpose of establishing probable cause. Over objection, samples of rock cocaine seized from appellant were admitted into evidence.

Officers Drago and Dalton testified they and other officers were on duty at a housing project at Eddy and Laguna Streets in San Francisco on September 12, 1986, shortly after midnight. They were part of a special narcotics unit. Drago and Dalton were positioned outside one of the buildings, where they received radio information from Dorsey and Bruenman, who were inside one of the buildings observing various activities.

Dorsey and Bruenman reported that they saw what they believed to be narcotics transactions. They observed a group of men engaged in a pattern of activity familiar to them from other narcotics arrests. One of the men kept going back and forth between two buildings, which led the police to believe he was running drugs from one spot to another to effect drug deals. Dorsey and Bruenman radioed a description of this man, reporting that he wore a red athletic jacket, white pants and shoes and a blue baseball cap. This individual was appellant.

Later on, Bruenman and Dorsey reported that they had taken one suspect into custody and that his four companions, black males, were running down the stairs of the building. The suspect had a loaded gun and a "whole handful" of suspected rock cocaine. In the group of fleeing men was the man in the red jacket, blue hat and white pants and shoes. Drago and Dalton and three other officers stopped the four men. Dorsey and Bruenman were one floor above with the suspect in custody.

Drago searched appellant and found two small rocks of cocaine in the lining of his jacket. Another officer found cocaine in the pocket of appellant's pants. Dalton searched appellant at the jail, after his arrest, and found two more rocks of cocaine in his jacket. Appellant had no money.

Both Drago and Dalton testified about why they stopped and searched appellant. Although Drago did not observe appellant prior to stopping him, he learned that a man fitting appellant's description was one of a group that appeared to be dealing drugs. Dalton testified that appellant was stopped because he had been reported as being involved in suspected narcotics sales and because he was fleeing from the spot where a companion with a loaded gun and large quantity of cocaine had been taken into custody.

DISCUSSION

The parties agree about the facts relating to the propriety of searching appellant. Whether the exclusionary rule or Harvey-Madden rule apply to probation revocation hearings is a question of law. Whether a particular opinion of this district controls is also a legal issue. We must, therefore, "measure the facts as found by the trier against constitutional standards" governing search and seizure. (People v. Aldridge (1984) 35 Cal.3d 473, 477, 198 Cal.Rptr. 538, 674 P.2d 240.)

I. The Exclusionary Rule Does Not Apply To Probation Revocation Hearings

Appellant requests us to disapprove of People v. Hayko, supra, 7 Cal.App.3d 604 86 Cal.Rptr. 726. We decline to do so because we think Hayko 's reasoning is correct and because we believe Proposition 8 demands the same result. Hayko held that illegally obtained evidence may be considered in determining whether to revoke probation, as long as the illegality was not egregious. ( Id., at p. 610, 86 Cal.Rptr. 726.) The court extended to probation revocation hearings an exception to the exclusionary rule that the Supreme Court enunciated for parole revocation hearings. ( Id., at p. 610, 86 Cal.Rptr. 726, citing In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734.) Divisions of this district, including our own, as well as other Courts of Appeal, continue to follow Hayko. (See, e.g., People v. McNeal (1979) 90 Cal.App.3d 830, 153 Cal.Rptr. 706; In re Carroll (1978) 80 Cal.App.3d 22, 145 Cal.Rptr. 334; People v. Rafter (1974) 41 Cal.App.3d 557, 116 Cal.Rptr. 281; People v. Petersen (1972) 23 Cal.App.3d 883, 100 Cal.Rptr. 590; People v. Nixon (1982) 131 Cal.App.3d 687, 183 Cal.Rptr. 878.)

Hayko reasoned that the trial court and Adult Authority have "analogous" roles as to determinations about revoking probation and parole. ( People v. Hayko, supra, 7 Cal.App.3d at p. 610, 86 Cal.Rptr. 726.) We do not agree with appellant's suggestion that People v. Vickers (1972) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313 makes this logic unsound. Vickers examined the due process requirement that Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 imposed in parole revocation situations. ( People v. Vickers, supra, 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313.) The court found no difference between parole and probation revocation proceedings "insofar as the demands of due process are concerned," ( Id., at p. 458, 105 Cal.Rptr. 305, 503 P.2d 1313) and the United States Supreme Court agreed. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656.)

Morrissey, however, did not "equate ... parole revocation [hearings] to a criminal prosecution in any sense;" the court defined the minimum due process requirements and left it to the states to determine "flexible" procedural rules for implementing these demands. ( Morrissey v. Brewer, supra, 408 U.S. at p. 489, 92 S.Ct. at p. 2604.) The United States Supreme Court recognized that the function of parole necessitated versatility in its administration: "Its purpose is to help individuals reintegrate into society as constructive individuals...." ( Id., at p. 477, 92 S.Ct. at p. 2598.) Violation of conditions of parole bring into play competing factors--rehabilitation and protection of society. (Id., at pp. 479-480, 92 S.Ct. at pp. 2599.) Probation also has the dual goals of rehabilitation and protection of society. (People v. Nixon, supra, 131 Cal.App.3d at pp. 691-692, 183 Cal.Rptr. 878.) As with parole, probation revocation procedures must not be too rigid. The trial court " 'is not determining whether the defendant is guilty or innocent of a crime. Rather [it] must determine whether the convicted offender "can be safely returned to and remain in society." ' " (In re Coughlin (1976) 16 Cal.3d 52, 57, 127 Cal.Rptr. 337, 545 P.2d 249, quoting People v. Hayko, supra, 7 Cal.App.3d at p. 610, 86 Cal.Rptr. 726.)

For these reasons, although a probationer must be afforded due process of law before his "conditional liberty" is taken away ( Morrissey v. Brewer, supra, 408 U.S. at p. 480, 92 S.Ct. at p. 2599), revocation hearings differ from criminal trials in a number of ways. Penal Code section 1203.2, subdivision (a), provides for revocation of probation "if the interests of justice so require and the court, in its judgment, has reason to believe" the probationer's conduct so warrants. The statute gives broad discretion to the trial court. (In re Larsen (1955) 44 Cal.2d 642, 645, 283 P.2d 1043; In re Coughlin, supra, 16 Cal.3d at p. 56, 127 Cal.Rptr. 337, 545 P.2d 249; People v. Walker (1963) 215 Cal.App.2d 609, 612, 30 Cal.Rptr. 440.) The standard of proof for misconduct that would justify revocation of probation is lower than the " 'beyond a reasonable doubt' " test used in criminal trials. ( In re Coughlin, supra, 16 Cal.3d at p. 56, 127 Cal.Rptr. 337, 545 P.2d 249.) A " 'clear and convincing' showing" will suffice. (People v. Coleman (1975) 13 Cal.3d 867, 876, fn. 8, 120...