People v. Rodriguez

Decision Date06 September 1990
Docket NumberNo. S011326,S011326
Citation272 Cal.Rptr. 613,51 Cal.3d 437,795 P.2d 783
CourtCalifornia Supreme Court
Parties, 795 P.2d 783 The PEOPLE, Plaintiff and Respondent, v. Juan Carlos RODRIGUEZ, Defendant and Appellant.

Sarah Plotkin, Office of State Public Defender, San Francisco, for defendant and appellant.

Gary M. Mandinach, Los Angeles, amicus curiae, on behalf of defendant and appellant.

Joanne S. Abelson, Office of Atty. Gen., San Francisco, for plaintiff and respondent.

Arlos Smith, Dist. Atty., San Francisco, and Donald E. Sanchez, Asst. Dist. Atty., amici curiae, on behalf of plaintiff and respondent.

PANELLI, Justice.

Juan Carlos Rodriguez (Rodriguez) appeals from a judgment sentencing him to two years imprisonment following his conviction for burglary (Pen.Code, § 459) and subsequent revocation of probation for that offense. The trial court revoked Rodriguez's probation after finding, by a preponderance of the evidence, that Rodriguez had violated a condition of his probation by committing theft. The Court of Appeal reversed, holding that the facts in a probation revocation hearing must be proven by clear and convincing evidence. We are of the opinion that the facts supporting revocation of probation may be proven by a preponderance of the evidence. Accordingly, we reverse the judgment of the Court of Appeal.

I FACTS AND PROCEEDINGS BELOW

In 1985, Rodriguez was convicted of second degree burglary (Pen.Code, § 459) and placed on three years probation. The terms and conditions of his probation included a requirement that he obey all laws and not associate with known criminals.

On February 24, 1988, Rodriguez's probation officer filed a petition to revoke Rodriguez' probation, alleging violations of Penal Code sections 666 (petty theft with prior conviction) and 484 (theft). At a probation revocation hearing held March 22, 1988, an employee of a convenience store in King City, California, testified that Rodriguez had shoplifted several pairs of work gloves from the store on the evening of December 5, 1987. The court found true the allegation that Rodriguez had violated the terms and conditions of his probation, saying, "I think the case has been proved by a preponderance of the evidence." Subsequently, the court revoked Rodriguez's probation and sentenced him for the burglary to state prison for the middle term of two years, with credit for time served. (Pen.Code, §§ 18, 461, subd. (2).)

The Court of Appeal held that the grounds for revocation of probation must be established by clear and convincing evidence. Noting that "the case was properly and fairly tried up to the point of decision where the process faltered only on the applicable We granted review to determine the proper standard of proof in a probation revocation hearing.

[795 P.2d 785] standard of proof," the Court of Appeal reversed the judgment of the trial court and remanded for further proceedings consistent with its opinion.

II DISCUSSION

Pursuant to Penal Code section 1203.2, subdivision (a) (section 1203.2(a)), a court is authorized to revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe ... that the person has violated any of the conditions of his or her probation...." 1 Thus, the question presented in this case is whether "reason to believe" that a probationer has violated the conditions of his probation sufficient to permit a court to revoke probation pursuant to section 1203.2(a) must be proven by clear and convincing evidence or whether some other standard of proof applies.

Considerations of both law and policy dictate that the facts in a probation revocation hearing be provable by a preponderance of the evidence.

First, constitutional principles permit the revocation of probation when the facts supporting it are proven by a preponderance of the evidence. While no constitutional provision declares a standard of proof for probation revocation hearings, the United States Supreme Court has indicated that due process requires no stricter standard of proof in probation revocation hearings than a preponderance of the evidence.

In Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, the court pointed out that as revocation of parole is not part of a criminal prosecution, "the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations." (Morrissey v. Brewer, supra, 408 U.S. at p. 480, 92 S.Ct. at p. 2599.) The court then listed the "minimum requirements of due process" for parole revocation hearings. (408 U.S. at pp. 488-489, 92 S.Ct. at pp. 2603-2604.) These requirements are: (1) written notice of claimed violations, (2) disclosure of adverse evidence, (3) the right to confront and cross-examine witnesses, (4) a neutral and detached hearing board, and (5) a written statement by the fact finders as to the evidence relied on and the reasons for revocation. (Morrissey v. Brewer, supra, 408 U.S. at p. 489, 92 S.Ct. at p. 2604.)

Manifestly, "[a]mong the most significant respects in which Morrissey's 'minimum requirements of due process' [for parole revocation] [citations] differ from the 'full panoply of rights due a defendant [in a criminal prosecution]' [citations], are with regard to the burden of proof on the state...." (People v. Coleman (1975) 13 Cal.3d 867, 876-877, fn. 8, 120 Cal.Rptr. 384, 533 P.2d 1024, quoting Morrissey v. Brewer, supra, 408 U.S. at pp. 489, 480, 92 S.Ct. at pp. 2604, 2599.) Parole and probation revocation hearings are equivalent in terms of the requirements of due process. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656; People v. Coleman, supra, 13 Cal.3d at pp. 876-877, fn. 8, 120 Cal.Rptr. 384, 533 P.2d 1024.) It follows that the requirements of due process at a probation revocation hearing do not include a heightened standard of proof.

That a standard of "clear and convincing" is not constitutionally required is also shown by the decisions of the United States Courts of Appeals in probation revocation cases in the federal system. Their approach is summarized in United States v. Miller (6th Cir.1986) 797 F.2d 336, 339, footnote 4: "[The Federal Rules of Criminal Procedure] do[ ] not specify a [51 Cal.3d 442] standard to be applied by the district court in a revocation hearing, but merely outline[ ] procedures to be followed. [p] The case law, however, indicates that granting or revoking probation is reserved to the district court's sound discretion. See, e.g., United States v. Sackinger, 704 F.2d 29, 32 (2d Cir.1983); Tiitsman v. Black, 536 F.2d 678, 681 (6th Cir.1976); United States v. Shapiro, 491 F.2d 335, 336 (6th Cir.1974); United States v. Taylor, 449 F.2d 117, 118 (9th Cir.1971). ' "All that is required for the revocation of probation is enough evidence to satisfy the district judge that the conduct of the petitioner has not met the conditions of probation." ' United States v. Turner, 741 F.2d 696, 698 (5th Cir.1984) (quoting United States v. Dozier, 707 F.2d 862, 865 (5th Cir.1983). See also United States v. Guadarrama, 742 F.2d 487, 489 (9th Cir.1984); United States v. Francischine, 512 F.2d 827, 829 (5th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 284, 46 L.Ed.2d 261 (1975). To reverse a [probation] revocation order, the probationer must establish that the district court abused its discretion. United States v. Ramirez, 675 F.2d 707 (5th Cir.1982) (per curiam); Francischine, 512 F.2d at 829."

The constitutionality of proof by a preponderance of the evidence of the facts supporting probation revocation derives from the fact that "[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special [ ] restrictions." (People v. Coleman, supra, 13 Cal.3d at p. 877, fn. 8, 120 Cal.Rptr. 384, 533 P.2d 1024, quoting Morrissey v. Brewer, supra, 480 U.S. at p. 480, 92 S.Ct. at p. 2599.) Even though deprivation of this conditional liberty is "a serious deprivation requiring that the [probationer] be accorded due process," ( Gagnon v. Scarpelli, supra, 411 U.S. at p. 781, 93 S.Ct. at p. 1759), "... revocation ... is not part of a criminal prosecution[,]" ( Morrissey v. Brewer, supra, 408 U.S. at p. 480, 92 S.Ct. at p. 2599) and "[a]ccordingly, probation may be revoked despite the fact that the evidence of the probationer's guilt may be insufficient to convict him of the new offense." (In re Coughlin (1976) 16 Cal.3d 52, 56, 127 Cal.Rptr. 337, 545 P.2d 249.)

Thus, due process has not required a heightened standard of proof in the parole or probation revocation contexts. Instead, legislatures have been constitutionally free to fashion these procedures as pliant tools for use by judges. Our decision today ensures that probation revocation retains such flexibility.

Second, although no statutory provision expressly declares a standard of proof for probation revocation hearings, section 1203.2(a) is properly read as permitting proof by preponderance of the evidence.

Section 1203.2(a) states that a "court may revoke ... probation if the court, in its judgment, has reason to believe that the [probationer] has violated any of the conditions of ... probation ... or has subsequently committed other offenses...." (Emphasis added.) It has been long recognized that the Legislature, through this language, intended to give trial courts very broad discretion in determining whether a probationer had violated probation. (See, e.g., People v. Lippner (1933) 219 Cal. 395, 400, 26 P.2d 457 ["... only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation...."]; People v. Martin (1943) 58 Cal.App.2d 677, 683-684, 137 P.2d 468 ["[N]o particular source, manner or degree of proof is required by statute."].)

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