People v. Youngs, Cr. 4582

• Decision Date: 28 January 1972
• Docket Number: Cr. 4582
• Citation: 23 Cal.App.3d 180,99 Cal.Rptr. 901
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Elwood Lewis YOUNGS, Defendant and Appellant.

Page 901

99 Cal.Rptr. 901

23 Cal.App.3d 180

PEOPLE of the State of California, Plaintiff and Respondent, v. Elwood Lewis YOUNGS, Defendant and Appellant.

Cr. 4582.

Court of Appeal, Fourth District, Division 2, California.

Jan. 28, 1972.

Hearing Denied April 12, 1972.

[23 Cal.App.3d 182] Dougherty & Law, and Robert E. Law, Tustin, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Bernardine M. Baldwin, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

GARDNER, Presiding Justice.

In 1967, defendant pleaded guilty to selling marijuana. The imposition of sentence was suspended and he was placed on probation.

On July 30, 1970, probation was revoked upon the filing of a declaration by the probation officer which contained several allegations of failure to comply with the terms of probation, but the one material to our discussion was a statement that the defendant said he had been using marijuana.

On October 16, 1970, defendant appeared in court with counsel. The court said, 'This is the time set for pronouncement of judgment in this matter,' and asked counsel if he would waive formal arraignment for judgment. Counsel responded that he would and when asked if there was any legal cause why judgment should not be pronounced, said, 'Well, I'm not sure, there may be legal cause. I am not aware of whether or not the defendant has been actually found in violation following the filing of the probation report.' There was further discussion of an arrest of defendant where the resulting charge had been dismissed. The court then said, 'Yes, but according to the probation report the defendant stated he had been using marijuana which, of course, would be in violation of probation.' Counsel responded that the defendant had indicated that such was not the case and that he had not made the alleged statement. Nevertheless, the court, after further discussion, said, '. . . it would appear that there is sufficient information here (in the probation report) to show a violation of the terms and conditions of probation;' and pronounced judgment, sentencing the defendant to state prison, then suspended execution of the sentence, and reinstated and extended his probationary period with the added condition that he serve 90 days in the county jail.

At the outset, it is to be noted that this case involves revocation of probation granted following a suspension of the sentence, not probation granted following the pronouncement of judgment and suspension of the execution of the sentence. As will be discussed below, these two procedures represent vitally different concepts under current authorities. ¹

Within the context of the proceeding before this court, i.e., revocation of probation granted following suspension of the imposition of sentence, counsel for the defendant contends the procedure followed in this case denied his client due process of law and urges this court to set down some guide lines for proceedings having to do with the revocation and modification of probation. He suggests that the following are not too cumbersome and time consuming considering the consequences of sentencing: (1) Advise the probationer of the allegations of violation of probation; (2) allow the probationer an opportunity to deny or explain the alleged violation and, if necessary, to show that no violation occurred; and (3) allow the probationer to have counsel at such a hearing.

The lack of such a required procedure has previously been the subject of adverse comment by legal writers. (See Note, Criminal Law--Probation--Right to Hearing on Revocation, 24 S.Cal.L.Rev. 118 (1950); Comment, Revocation of Conditional Liberty--California and the Federal System, 28 S.Cal.L.Rev. 158 (1955); Van Dyke, Parole Revocation Hearings in California: The Right to Counsel, 59 Cal.L.Rev. 1215 (1971); Tobriner, Procedural Due Process in the Post-Conviction Period, Preface to Vol. 4a, California Forms of Pleading and Practice, Annotated.)

In approaching the problem of due process, we start with some basic concepts.

While due process may be an 'elusive concept' and its content may vary with circumstances and the necessities of the situation (Moyer v. Peabody, 212 U.S. 78, 29 S.Ct. 235, 53 L.Ed. 410), the essence of due process is 'the protection of the individual against arbitrary action.' (Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 302, 57 S.Ct. 724, 729, 81 L.Ed. 1093, 1100.) 'Therefore, as a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings.' (Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307, 1321.) "The fundamental requisite of due process of law is the opportunity to be heard.' (Citation.) The hearing must be 'at a meaningful time and in a meaningful manner.' (Citation.)' (Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287, 299.)

As applied to criminal matters, due process generally includes notice (In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682), presence and a hearing (In re Green's Petition, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198), and representation by counsel (Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336).

While the above concepts are rather firmly etched into our judicial process, it is perhaps not too cynical to observe that the outer limits of the application of these concepts depend in some part, at least, upon the current personnel of the highest courts of the nation and the states. Thus in recent times, notions of due process have guaranteed a hearing to welfare recipients before their aid may be terminated (Goldberg v. Kelly, Supra, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287), and have made major changes in laws pertaining to the garnishment of wages (Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349), the juvenile court (In re Gault, 387 U.S. 1, 87 S.Ct 1428, 18 L.Ed.2d 527), the repossession of leased premises by a landlord (Mendoza v. Small Claims Court, 49 Cal.2d 668, 321 P.2d 9), and attachment proceedings (Randone v. Appellate Department, 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13). It is obvious that while the basic notion of due process remains the same, the area encompassed by the concept has expanded considerably in the last few years.

With these basic concepts in mind, we turn to the procedures involving revocation of probation.

Revocation proceedings are based upon Penal Code, § 1203.2, which provides in substance that at any time during the probationary period that court may revoke probation if the interest of justice so requires, 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 has violated any of the conditions of his probation.

In practice, the probation officer presents a declaration to the court which states that a defendant is on probation on certain conditions and that one or more of these conditions have been violated. Based upon this declaration, probation is revoked, a bench warrant is issued for the arrest of the defendant and the usual order is that the defendant be brought before the court to show cause, if he has any, why the judgment therefore suspended should not be pronounced. In the majority of cases, the defendant is missing at the time of revocation. He has, in the language of the probation officer, absconded. But even in those cases in which he is available, the above procedure is used since many probationers might not respond to a less formal notice, and perhaps would abscond upon receiving it. Probationers as a class are not necessarily representative of the most responsible strata of our society and a friendly letter from a probation officer requesting the probationer's appearance in court to show cause why he should not be punished for some current misbehavior would probably produce negative results. When the defendant is in custody, this revocation form is also used as a vehicle to bring the defendant into the jurisdiction of the particular court involved.

Any attempt to clothe the defendant at this stage of the proceeding with the full panoply of rights of an accused who had not been convicted would be absurd. It is necessary for the court to have the authority to summarily revoke probation. As indicated, the defendant usually has absconded. In addition, the revocation has the effect of terminating or tolling the running of the probationary period. If the court did not have the authority to summarily revoke probation, a defendant, by keeping one jump ahead of the constabulary, could conceivably complete his full probationary period while actively engaged in a life of crime.

Thus it has been held there is neither a constitutional nor a statutory right to a hearing Preceding a revocation of probation. (In re Levi, 37 Cal.2d 41, 244 P.2d 403; In re Davis, 37 Cal.2d 872, 236 P.2d 579.) 'We are satisfied that neither the Constitution of the United States nor that of California precludes ex parte revocation of probation.' (In re Davis, Supra, 37 Cal.2d 872, 874, 236 P.2d 579.) ² It is from this concept of summary revocation to obtain jurisdiction and physical custody of the defendant and to toll the running of the probationary period that the rule the probationer has no right to notice, hearing or counsel upon revocation of probation has developed. However, hopefully, it was never the intent of the law to deny a probationer an opportunity to defend against an erroneous or false allegation of violation. We do not construe the above rule to mean that the probationer is not entitled to a hearing between the act of revocation and the act of sentencing. Under present procedures, after revocation of probation, when the defendant appears before the court for pronouncement of judgment, he...