People v. Jones

• Decision Date: 11 July 1968
• Docket Number: Cr. 6855
• Citation: 70 Cal.Rptr. 13,263 Cal.App.2d 818
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Frederick Richard JONES, Defendant and Appellant.

Page 13

70 Cal.Rptr. 13

263 Cal.App.2d 818

PEOPLE of the State of California, Plaintiff and Respondent, v. Frederick Richard JONES, Defendant and Appellant.

Cr. 6855.

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

July 11, 1968.

Rehearing Denied July 18, 1968.

Hearing Denied Sept. 5, 1968.

Steven Kipperman, San Francisco, for appellant (under appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen. of the State of California, Edward P. O'Brien, Gloria F. DeHart, Deputy Attys. Gen., San Francisco, for respondent.

ELKINGTON, Associate Justice.

Appellant, Frederick Richard Jones, appeals from orders revoking probation entered in two separate criminal proceedings (Marin County Superior Court Nos. 2297 and 2428) in which state prison sentences had been imposed, execution thereof suspended, and probation granted. In case No. 2297, Jones was convicted of automobile theft (Veh.Code, § 10851). In case No. 2428 he was convicted of assault (Pen.Code, §§ 240, 241) upon a peace officer (a jail guard) while serving six months in the Marin County jail as a condition of the probation granted in case No. 2297.

Following his assault conviction resulting from the above-mentioned conduct (case No. 2428), Jones was referred by the court under Penal Code section 1203.03 to the Department of Corrections for a diagnostic study and recommendation. The department recommended that Jones be imprisoned in state prison; however, the trial court suspended such a sentence and placed him on probation concurrently with the probation of the earlier case No. 2297.

It is contended that the evidence does not support the determination that Jones violated probation.

Jones' record which was before the court showed the following. Prior to the offenses which were the subjects of actions Nos. 2297 and 2428, Jones had been involved in at least seven car thefts. He had a recod of assaults on policemen, deputy sheriffs and a teacher. As to action No. 2428 the record shows Jones was in jail on the earlier offense when he directed obscene language at a deputy sheriff. He was ordered to move to another cell which he refused to do. He directed the jailer not to touch him. When an effort was made to forcibly move him, Jones and another inmate commenced an affray in which sheriff's deputies were hit and kicked in the face and elsewhere. During the struggle Jones directed foul language at the officers including the extremely inflammatory two-word expletive concerning one's conduct with a close relative, the instinctive response to which has often led to charges of police brutality. Two deputies received serious injuries in the battle.

At the probation revocation hearing the following was disclosed by direct testimony. On August 4, 1967, police officers in uniform saw Jones and one Burton in an automobile. Burton, who was the driver, failed to shop at a stop sign and a traffic citation was issued to him. Thirty minutes later Burton and Jones drove by another police car. Burton, 'at the top of his voice,' directed at the officers the two-word obscenity to which we have previously referred. The police followed, stopped, the car, and placed Burton under arrest for disturbing the peace. The police began to make out the 'CHP 180' inventory form in preparation to storing the car. Jones blocked access to the car. The officers asked him to move but he refused. When an officer pushed him aside, Jones struck him in the abdomen with his fist. After a violent scuffle, Jones was subdued and arrested. In taking the inventory the officers found in the glove compartment a fully loaded .25 caliber automatic pistol with a live shell in the barrel. Marijuana debris was also found. It was subsequently learned that the pistol was stolen.

Two weeks later, another officer saw Jones driving an automobile down the middle of a 12--15 foot central section which separated a divided highway. He was traveling about 55 miles per hour in a 35-mile zone. The policeman followed, sounding a siren and flashing a red light. Jones failed to stop but was finally cornered. He had no driver's license. He was told to wait while the policeman radioed for assistance. Instead, Jones started walking away. When the policeman pursued, Jones struck him in the jaw with his fist. In the ensuing struggle, Jones twice said, 'Don't touch me. I don't want to have to kill you.' He broke away, followed by the policeman, but was successful in escaping.

On August 27, 1967, the same policeman again saw Jones in an automobile. He informed Jones that he was under arrest on a warrant for battery on a police officer. Jones refused to submit. The officer called two others and with their help effected the arrest. When arrested, Jones directed the twice-before mentioned expletive at the officers. ¹

The foregoing furnishes abundant support for the court's orders revoking Jones' probation. Penal Code section 1203.2 provides that the court may revoke probation if the interests of justice so require and 'if the court in its judgment, shall have reason to believe from the report of the probation officer, or otherwise, that the person so placed upon probation is violating any of the conditions of his probation, or engaging in criminal practices, or has become abandoned to improper associates or a vicious life.' One of the express conditions of Jones' probation was that he 'shall conduct himself in a law-abiding manner.'

Jones contends constitutional error in the denial of a jury trial at his revocation hearing. The right of trial by jury does not apply to revocation of probation. The matter of revocation of probation lies solely in the discretion of the trial court. (See Burns v. United States, 287 U.S. 216, 220--221, 53 S.Ct. 154, 77 L.Ed. 266; People v. Wilson, 208 Cal.App.2d 256, 258, 25 Cal.Rptr. 97; People v. Di Blasi, 198 Cal.App.2d 215, 220, 18 Cal.Rptr. 223.) There is not even a constitutional or statutory right to a hearing preceding revocation of probation. (In re Levi, 39 Cal.2d 41, 44, 244 P.2d 403; People v. Wimberly, 215 Cal.App.2d 538, 550, 30 Cal.Rptr. 421.) If there is such a hearing the formal rules of evidence do not apply. (People v. Mason, 184 Cal.App.2d 182, 189, 7 Cal.Rptr. 525, cert. den. 366 U.S. 904, 81 S.Ct. 1046, 6 L.Ed.2d 203.)

Next, Jones insists that there was a failure to prove his probation violation beyond a reasonable doubt. The record does not show, of course, the degree of conviction attained by the trial judge on the evidence before him. But such proof is not necessary; it is well established that proof beyond a reasonable doubt is not prerequisite to an order revoking probation. (People v. Johns, 173 Cal.App.2d 38, 43, 343 P.2d 92; People v. Sweeden, 116 Cal.App.2d 891, 895, 254 P.2d 899.)

It is urged that Jones was denied the right to counsel at the revocation hearing. While it has been held that there is no constitutional right to counsel at a probation revocation hearing (People v. Wimberly, supra, 215 Cal.App.2d 538, 550, 30 Cal.Rptr. 421; People v. Mason, supra, 184 Cal.App.2d 182, 189, 7 Cal.Rptr. 525), here Jones was in fact represented by counsel. His contention that he was not so represented rests solely on the remarks of the trial judge toward the end of the proceedings: 'Well, I don't particularly want the matter argued. I feel very badly about this case. I am going to have to revoke his probation.' No request to be allowed to argue was made, nor was any objection made to the court's statement. And after the court's remarks both Jones and one of his attorneys did proceed to argue that probation should not be revoked. Jones was not denied his right to counsel and there is no error here.

It is then insisted that the hearing given Jones was not fair and impartial. The record shows the contrary. The hearing extended over two days. Its record consists of 231 pages of transcript. Jones produced 11 witnesses on his behalf and he and they were treated with courtesy and consideration. During the hearing the court remarked, 'I have gone a long distance with Mr. Jones and he knows it.' Jones' counsel replied, 'I know, your Honor * * * he (Jones) has expressed his own appreciation for that.'

Complaint is also made that the court committed prejudicial evidentiary errors.

The first of those claimed errors relates to evidence of the .25 caliber pistol taken from Burton's car on August 4, 1967. It is insisted that the search which disclosed the gun was violative of the Fourth Amendment. It appears that no Fourth Amendment objection was made to the testimony, the only objection being that since the gun was found in Burton's vehicle, it was not binding on Jones. The trial court declared that it would not consider the gun and marijuana residue against Jones unless some further connection was shown....