People v. Sharp, Cr. 14619

• Decision Date: 10 May 1976
• Docket Number: Cr. 14619
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Leslie D. SHARP, Defendant and Appellant.

Page 476

129 Cal.Rptr. 476

58 Cal.App.3d 126

PEOPLE of the State of California, Plaintiff and Respondent, v. Leslie D. SHARP, Defendant and Appellant.

Cr. 14619.

Court of Appeal, First District, Division 3, California.

May 10, 1976.

Hearing Denied July 8, 1976.

Richard A. Bancroft, Chief Counsel, Rick T. Barron, The Community Defender, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Timothy A. Reardon, April Kestell Cassou, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

EMERSON, ^* Associate Justice (Assigned).

On this appeal from an order revoking probation, appellant does not dispute that there was sufficient evidence to support the trial court's finding that he had committed a violation of the conditions of probation, to wit, that he possessed heroin. He assigns as error, however, the court's alleged failure to exercise its discretion in deciding two questions: (1) whether to revoke probation because of the violation and (2) whether to set the probation revocation hearing prior to trial on pending charges arising from the same acts. We hold that the trial court did not abuse its discretion as to the first issue, and as to the second, that it was not required to exercise discretion.

The Decision to Revoke

Having determined that appellant violated a condition of his probation, the trial court was required to decide whether the violation warranted revocation. (Morrissey v. Brewer (1972) 408 U.S. 471, 488, 92 S.Ct. 2593, 33 L.Ed.2d 484; People v. Coleman (1975) 13 Cal.3d 867, 873, 895, 120 Cal.Rptr. 384, 533 P.2d 1024, fn. 22.) 'It is presumed that official duty has been regularly performed.' (Evid.Code, § 664.) In this case the court had discretion to revoke or modify probation or to continue probation, depending upon its analysis of the circumstances before it. (People v. Coleman, supra; Pen.Code, § 1203.2.) Section 664 of the Evidence Code supports the presumption that the court went through the necessary intellectual steps to reach its decision to revoke.

In the cases upon which appellant relies, the records affirmatively showed that the trial courts were not exercising discretion which was theirs. (Burnett v. Superior Court (1974) 12 Cal.3d 865, 868--869, 117 Cal.Rptr. 556, 528 P.2d 372; People v. Massie (1967) 66 Cal.2d 899, 915--916, 59 Cal.Rptr. 733, 428, P.2d 869; Cahill v. Superior Court (1904) 145 Cal. 42, 44--46, 78 P. 467; People v. Butcher (1969) 275 Cal.App.2d 63, 67--68, 79 Cal.Rptr. 618.) Here, the record contain no such affirmative showing, appellant having failed to address himself to the issue under consideration at the revocation hearing. After hearing testimony and argument the court commented upon the credibility of the witnesses and upon the fact that appellant was found in possession of four balloons of heroin only one month and six days after having been released from county jail where he had served 90 days for possession of heroin. The record supports the conclusion that the court exercised its discretion and that it did not abuse it. (See People v. Baker (1974) 38 Cal.App.3d 625, 628--629, 113 Cal.Rptr. 244.)

The Decision to Hold the Revocation Hearing Before Trial

Relying on People v. Coleman, supra, 13 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, appellant contends that the trial court failed to exercise its discretion in deciding whether to set the probation revocation hearing prior to trial on the charge arising from the same facts. In Coleman, the defendant claimed that revocation of his probation in advance of trial denied him procedural due process, because he was forced to forego his opportunity to testify in his own behalf at the revocation hearing in order to avoid incriminating himself at his pending trial. (13 Cal.3d at p. 871, 120 Cal.Rptr. 384, 533 P.2d 1024.) The Supreme Court declined to decide the constitutional issue. Instead, recognizing that holding the revocation hearing prior to trial creates a tension between countervailing constitutional rights (Id., at pp. 872--898, 120 Cal.Rptr. 384, 533 P.2d 1024), the court fashioned a judicial rule of evidence that 'henceforth upon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges, save for purposes of impeachment or rebuttal . . .' (Id., at p. 889, 120 Cal.Rptr. at p. 402, 533 P.2d at p. 1042.)

The court noted that '(t)his exclusionary rule allows the state to continue to press for revocation of probation either Before or after a probationer's Trial on related charges, but insures that this scheduling discretion will not be influenced by the illegitimate desire to gain an unfair advantage at trial.' (Ibid. (emphasis added).)

The court also noted that 'the most desirable method of handling the problems of concurrent criminal and probation revocation proceedings may well be for revocation proceedings not even to be initiated until after disposition of the related criminal proceedings.' (Id., at p....