People v. Preyer

• Decision Date: 07 February 1985
• Citation: 210 Cal.Rptr. 807,164 Cal.App.3d 568
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles Weldon PREYER, Defendant and Appellant. B001156.

Page 807

210 Cal.Rptr. 807

164 Cal.App.3d 568

The PEOPLE, Plaintiff and Respondent, v. Charles Weldon PREYER, Defendant and Appellant.

B001156.

Court of Appeal, Second District, Division 5, California.

Feb. 7, 1985.

Hearing Denied April 4, 1985.

[164 Cal.App.3d 571] Arthur Lewis, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert F. Katz and Carol Slater Frederick, Deputy Attys. Gen., for plaintiff and respondent.

OSBORNE, Associate Justice ^*.

In case A-373174, appellant was charged with robbery (Pen.Code, § 211) and personal use of a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). In case A-373489, appellant was charged with assault with a deadly weapon (Pen.Code, § 245, subd. (a)) and personal use of a firearm within section 12022.5. Appellant pleaded guilty to both charges and admitted the enhancement allegations.

On December 22, 1982, the court sentenced appellant to upper terms of five years for A-373174 and four years for A-373489. For reasons extraneous to those two cases, the trial court suspended the execution of the sentences and placed appellant on probation for a period of five years, notwithstanding the prohibition of probation for the robbery case under Penal Code section 1203.06. One term of probation was that defendant not own, use or possess any dangerous or deadly weapons. Appellant was given credit for time served and released from custody. There was no appeal.

Within a month, on January 18, 1983, appellant was again arrested for robbery. On August 3, 1983, after a probation revocation hearing, the court found defendant in violation of probation for having possessed a deadly weapon, a knife. The suspended prison terms were imposed, to run consecutively. The court continued the stay of the additional two years sentence for use of a firearm. The January 1983 robbery charge, which had not yet been tried, was then dismissed.

Appellant appealed. Additional facts will be discussed with appellant's contentions.

PRETRIAL PROBATION REVOCATION HEARING

Appellant claims that holding a probation revocation hearing before trial is a violation of his constitutional rights. In People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024 and People v. Jasper (1983) 33 Cal.3d 931, 191 Cal.Rptr. 648, 663 P.2d 206, the Supreme Court rejected a similar claim. Appellant recognizes those holdings and candidly urges this court to hold that there is no discretion to hold a probation revocation hearing before disposition of related criminal proceedings. We decline, based on stare decisis, principle, and the facts of this case.

In Coleman and Jasper, the California Supreme Court stated that whether a probation revocation hearing should be held before or after trial is a matter for the reasonable discretion of the trial court. Those holdings have been followed by other Courts of Appeal. ¹ We are required to do the same. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

Even as an open question, appellant has not presented a constitutional basis for prohibiting probation revocation hearings before trial or other disposition of related criminal proceedings. "As stated in Coleman, supra, not all court procedures are invalid which cause defendants to make hard choices." (People v. Douglas (1977) 66 Cal.App.3d 998, 1005, 136 Cal.Rptr. 358.) In Douglas, a defendant testified at a motion to suppress evidence, at the cost of being impeached when he later testified inconsistently at trial. In A & M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 142 Cal.Rptr. 390, a defendant in a civil case had to choose between waiving his privilege against self-incrimination or being precluded from testifying at trial about matters regarding which he claimed the privilege to avoid testifying at a deposition. (See also the pretrial revocation cases reviewed in State v. Boyd (1981 App.) 128 Ariz. 381, 625 P.2d 970.)

In different cases, there may be different reasons to hold the probation revocation hearing before a related trial. The notice may allege violation of a probation term prohibiting possession or consumption of alcohol, driving with alcohol in the body, or, as in this case, possession of a deadly weapon. A violation of probation may thus be found other than the crime charged in a related proceeding. A court may try to avoid unnecessary appearances of witnesses. (People v. Sandoval (1977) 70 Cal.App.3d 73, 84, 138 Cal.Rptr. 609.) It may be desirable to avoid recycling a probation revocation in one court waiting for completion of matters not even filed yet in another court. These are matters appropriately left to the discretion of the trial court. The statute does not prohibit hearing probation revocation matters before disposition of a related criminal case. (Pen.Code, § 1203.2.) The Supreme Court has left the timing of probation revocation hearings to the discretion of the trial court. It would not be appropriate, nor is there good reason, for us to eliminate that discretion.

We therefore consider whether, in this case, it was an abuse of discretion for the trial court to hear the probation revocation matter before final disposition of other related cases.

"Judicial discretion is that power of decision exercised to the necessary end of awarding justice based upon reason and law but for which decision there is no special governing statute or rule. Discretion implies that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or of the demand of equity and justice. (Bowers, Judicial Discretion of Trial Courts, 1931, § 10, pp. 14, 15.) The term implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason." (People v. Surplice (1962) 203 Cal.App.2d 784, 791, 21 Cal.Rptr. 826; Harris v. Superior Court (1977) 19 Cal.3d 786, 796, 140 Cal.Rptr. 318, 567 P.2d 750.) A decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." (Brown v. Newby (1940) 39 Cal.App.2d 615, 618, 103 P.2d 1018; People v. Angus (1980) 114 Cal.App.3d 973, 988, 171 Cal.Rptr. 5; People v. Bailes (1982) 129 Cal.App.3d 265, 281, 180 Cal.Rptr. 792; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 242.) In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review. (People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65; Ross v. Superior Court (1977) 19 Cal.3d 899, 915, 141 Cal.Rptr. 133, 569 P.2d 727; People v. Angus, supra, 114 Cal.App.3d 973, 987, 171 Cal.Rptr. 5.) "Further, to be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice. (Brown v. Newby (1940) 39 Cal.App.2d 615, 618 .)" (In re Richard E. (1978) 21 Cal.3d 349, 354, 146 Cal.Rptr. 604, 579 P.2d 495; People v. Angus, supra, 114 Cal.App.3d 973, 988, 171 Cal.Rptr. 5.)

In any case involving the exercise of judicial discretion, it can assist the reviewing court if the trial court states for the record the reasons for its decision. (People v. Edwards (1976) 18 Cal.3d 796, 804, 135 Cal.Rptr. 411, 557 P.2d 995.) However, in busy trial courts with many occasions daily to exercise discretion, circumstances obvious to the trial judge and time pressures on the court may result in no statement being made on the record. "[F]ailure to state reasons for a discretionary decision does not constitute, by itself, abuse of discretion." (In re Richard E., supra, 21 Cal.3d 349, 354, 146 Cal.Rptr. 604, 579 P.2d 495.) The statute does not require the court to state the basis for its actions orally or in writing. (Pen.Code, § 1203.2; People v. Angus, supra, 114 Cal.App.3d 973, 986, 171 Cal.Rptr. 5; and see Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 562-563, 194 Cal.Rptr. 773, 669 P.2d 9.) In short, although a statement of reasons may make appellate review easier, abuse of discretion is not presumed from a silent record, but must be clearly shown by appellant.

Nor is abuse of discretion demonstrated merely by characterizing the exercise of discretion as routine. For example, if 97 percent of all defendants convicted of driving while under the influence of alcohol or drugs are not (or are) sentenced to jail, that does not establish an abuse of discretion regarding a particular appellant, regardless of whether he is part of the 97 percent or the 3 percent. Abuse of discretion must be demonstrated based on the facts of the particular case being reviewed, and not on a statistical label. (See People v. Jasper, supra, 33 Cal.3d 931, 935, 191 Cal.Rptr. 648, 663 P.2d 206.)

Appellant argues that if the trial had been assigned to the judge who handled the probation revocation hearing, appellant could have exercised a peremptory challenge. As a general rule, a defendant can exercise a peremptory challenge against a judge about to preside over a probation revocation hearing, regardless of whether it is heard before or after the trial of a related case. However, a peremptory challenge would not have prevented the judge from hearing the probation revocation in this case, because he was the judge who gave appellant the "chance of a lifetime" by putting him on probation despite the prohibition of Penal Code section 1203.06. (People v. Smith (1961) 196 Cal.App.2d 854, 859, 17 Cal.Rptr. 330.)

Finally, even if the exercise of discretion were questionable, appellant would not be entitled to a reversal unless he showed that he...