People v. Weaver

• Citation: 703 P.2d 1139,217 Cal.Rptr. 245,39 Cal.3d 654
• Court: United States State Supreme Court (California)
• Decision Date: 22 August 1985
• Parties: , 703 P.2d 1139 The PEOPLE, Plaintiff and Respondent, v. Richard N. WEAVER, Defendant and Appellant. Crim. 23932.

Page 245

217 Cal.Rptr. 245

39 Cal.3d 654, 703 P.2d 1139

The PEOPLE, Plaintiff and Respondent, v. Richard N. WEAVER, Defendant and Appellant.

Crim. 23932.

Supreme Court of California In Bank.

Aug. 22, 1985.

Mark P. Schnurle, Conflicts Administrator, San Jose, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Eugene Kaster and Robert R. Granucci, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

LUCAS, Justice.

In this probation revocation case, we must determine whether the limited exclusionary remedy adopted by us in People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, has been impliedly abrogated by the passage of Proposition 8 at the June 1982 Primary Election. Proposition 8 contains a "truth-in-evidence" provision (Cal. Const., art. I, § 28, subd. (d)) which we have recently construed as limiting the courts' power to exclude relevant evidence. (In re Lance W. (1985) 37 Cal.3d 873, 888-890, 210 Cal.Rptr. 631, 694 P.2d 744.) We have concluded, however, that Coleman 's exclusionary remedy survived Proposition 8 because that remedy falls within the exception to section 28, subdivision (d), which preserves preexisting statutory privileges. (See Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 808-811, 210 Cal.Rptr. 204, 693 P.2d 789.) Accordingly, defendant probationer herein will not be deprived of the protection afforded by Coleman 's exclusionary remedy at any future criminal trial, and he cannot attack the revocation of his probation on that basis. As will appear, therefore, we affirm the order revoking his probation.

In 1981, defendant pled guilty to a charge of possessing a sawed-off shotgun. (Pen.Code, § 12020.) Execution of his sentence was suspended and defendant was placed on three years' probation on conditions that he serve nine months in the county jail and that he not possess any dangerous weapons during the period of probation.

On February 3, 1983, the district attorney initiated revocation proceedings against defendant for conduct which also served as the basis for independent criminal charges. At the time of the revocation hearing, defendant had been held to answer on the related criminal charges but had not yet been tried. The trial court denied defendant's motion to continue the revocation hearing until after the trial on the underlying charges.

The prosecution called William Ashley as its first witness at the revocation hearing. Ashley testified that on August 19, 1982, he and a friend were about to leave their parked car when they noticed two women walking down the sidewalk. They commented to each other that the women were "pretty good-looking." Within a couple of minutes defendant appeared beside the car and accused Ashley of looking at his girlfriend. When Ashley did not respond to defendant's challenge to a fight, defendant pulled out a knife from his waist area and dented the roof of the car with the knife's butt end. Ashley then started the car, but defendant used the knife to puncture a rear tire. Ashley drove off anyway and called the police a few minutes later.

Police Officer Michael Norman testified that he responded to Ashley's call and arrested defendant in a nearby bar. A search of his person revealed a buck knife inside a sheath.

Defendant offered no evidence at the hearing. His counsel stated that in his view the provisions of Proposition 8 would make any evidence presented at the hearing admissible in the subsequent trial on the related charges and would thus "grant discovery to the District Attorney and would impinge upon [defendant's] rights against self-incrimination until the trial in those matters, and it would violate his constitutional rights under the Fifth and Sixth Amendments, and for that reason the defendant, and solely that reason, the defendant would not take the stand at this time and will call no witnesses on his behalf."

The trial court found that defendant violated the conditions of his probation by his possession of a knife during the August 19 incident and it entered a judgment revoking probation. ¹ The trial court sentenced defendant to two years in state prison. On appeal defendant contends that the trial court's refusal to continue the revocation hearing until after trial forced him to choose between testifying at the hearing and jeopardizing his privilege against self-incrimination, or remaining silent and surrendering his due process right to present evidence in his own behalf.

Almost 10 years ago, this court sought to remove probationers from the horns of this dilemma by declaring that any testimony of a probationer given at a probation revocation hearing could not be used against him in a subsequent trial on the related criminal charges, except under limited circumstances for purposes of impeachment or rebuttal. (People v. Coleman, supra, 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024.) Without arguing the point, defendant simply asserts that the Coleman use-immunity rule has been nullified by enactment of Proposition 8, which included the provision that "relevant evidence shall not be excluded in any criminal proceeding" (Cal. Const., art. I, § 28, subd. (d)). He claims that in order to prevent the reemergence of an impermissible conflict in constitutional values, this court must exercise its supervisory powers to grant probationers the right to continue the revocation hearing until after trial on the underlying charges.

Before considering the merits of defendant's argument, we must address the Attorney General's contention that Proposition 8 does not apply to this case. The Attorney General relies primarily on People v. Huff (1983) 148 Cal.App.3d 801, 196 Cal.Rptr. 290. The facts of the Huff case are virtually identical to the present case. Huff was on probation for a crime committed before the effective date of Proposition 8, while the offense which resulted in revocation of his probation occurred after the effective date. Huff refused to testify at his pretrial revocation hearing, claiming that his testimony was no longer protected by Coleman 's use immunity. The Court of Appeal held that Huff's rights were adequately protected by the Coleman rule, and that Proposition 8 was not applicable to the case since Huff was on probation for a crime committed before enactment of the initiative.

In People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149, we held that Proposition 8 applied only to prosecutions for crimes committed after June 9, 1982. Although the Huff court properly applied the Smith rule, it used the wrong crime as the basis for its determination. The court overlooked the fact that the Coleman rule operates to exclude probation revocation hearing testimony at the subsequent trial on the underlying criminal charge; it has no effect on the admissibility of evidence presented at the revocation hearing itself.

The problem with the Huff court's reasoning is clearly illustrated by the instant case. According to the court's analysis, Coleman immunity would have attached to defendant's testimony at the revocation hearing and would not have been affected by Proposition 8, because defendant was on probation for a crime committed before enactment of the initiative. The court, however, failed to consider the applicability of Proposition 8 to the subsequent trial where the Coleman rule would have operated to prevent use of the prior testimony. Since the offense at issue in the subsequent trial occurred after the effective date of Proposition 8, Smith would require that the initiative's provisions be applied in that trial. If we assume for the sake of this discussion that defendant is correct in his assertion that Proposition 8 abrogated Coleman, then the immunity recognized by the Court of Appeal at the time of the revocation hearing would have been nullified by the passage of Proposition 8 before it could have operated at the subsequent trial.

We conclude that Proposition 8 is applicable to this case because the crime which led to the revocation of probation and served as the basis for the related criminal charges occurred on August 19, 1982, over a month after the effective date of Proposition 8. We disapprove the holding in Huff that in such situations the applicability of Proposition 8 is determined by the date of the crime which led to the original grant of probation.

We turn now to the merits of defendant's argument. First, we observe that we recently reaffirmed the validity of the Coleman rule in a pre-Proposition 8 case, People v. Jasper (1983) 33 Cal.3d 931, 191 Cal.Rptr. 648, 663 P.2d 206. No new arguments or authorities have been presented which would induce us to reexamine our conclusion in Jasper that Coleman 's limited exclusionary remedy affords adequate relief from any dilemma posed by the "constitutional tension" between defendant's right to defend and his right to remain silent. Given the Legislature's broad grant of authority to the trial courts to revoke probation "at any time" following the commission of a new criminal offense (Pen.Code, § 1203.2, subd. (a)), it would be improper for us to adopt a "supervisory" rule which mandates staying such revocation proceedings as a matter of course until trial of the pending criminal charges has occurred.

Does Coleman and its limited exclusionary remedy survive Proposition 8? Although article I, section 28, subdivision (d), of the state Constitution, by its terms forbids the exclusion of relevant evidence in any criminal proceeding, the provision further states that "Nothing in this section shall affect any existing statutory rule of evidence relating to privilege...." We have recently held in a juvenile court case that the use immunities derived from Coleman fall within the foregoing exception, those immunities being "essential to California's privilege against self-incrimination." (Ramona R. v. Superior Court, supra, 37 Cal.3d at p. 809, 210 Cal.Rptr. 204, 693 P.2d 789.) In other words,...