People v. Zimmerman, Cr. 18717

• Decision Date: 14 December 1979
• Docket Number: Cr. 18717
• Citation: 161 Cal.Rptr. 188,100 Cal.App.3d 673
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James William ZIMMERMAN, Defendant and Appellant.

Page 188

161 Cal.Rptr. 188

100 Cal.App.3d 673

PEOPLE of the State of California, Plaintiff and Respondent, v. James William ZIMMERMAN, Defendant and Appellant.

Cr. 18717.

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

Dec. 14, 1979.

Patrick R. Murphy, Public Defender, Contra Costa County, David C. Coleman, III, Deputy Public Defender, Martinez, for defendant and appellant.

George Deukmejian, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen. Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

WHITE, Presiding Justice.

Defendant and appellant James William Zimmerman appeals from the order modifying his probation. ^* Appellant contends on appeal that evidence which has been illegally seized may not be used to modify probation.

As a result of a conviction in the Superior Court of Contra Costa County on July 14, 1976, for robbery and assault with a deadly weapon, appellant was placed on three years probation. One condition of probation was that appellant obey all laws. On March 25, 1978, appellant was stopped and detained by Santa Clara County sheriff officers. In the course of a search of appellant a pistol and three cubes of LSD were found on his person. Appellant was arrested and a felony complaint was filed in the Palo Alto/Mountain View Judicial District of Santa Clara County charging appellant with violations of Penal Code section 12025 (carrying a concealed firearm), Health and Safety Code section 11377 (possession of LSD) and Penal Code section 12031 (carrying a loaded firearm in a public place, misdemeanor). At the preliminary hearing on the charges, appellant's suppression motion pursuant to Penal Code Section 1538.5 was granted and the charges were thereafter dismissed.

On March 29, 1978, a petition for the modification or revocation of appellant's probation was filed in the Superior Court of Contra Costa County. The violation alleged was the possession of the gun and LSD cubes, evidence which had been suppressed in the Santa Clara County action. At the June 1, 1978 hearing on the petition to revoke, appellant argued that evidence was inadmissible. On August 24, 1978, the court denied appellant's motion to exclude the evidence and found appellant in violation of his probation. The trial court in an order modified appellant's probation and fined him $400 plus a penalty assessment of $100. Appellant filed a timely notice of appeal.

Appellant contends that pursuant to Penal Code section 1538.5, subdivision (d), evidence previously suppressed on grounds of illegal search or seizure may not be used to modify probation. Appellant's contention is well taken.

Recently in People v. Belleci (1979) 24 Cal.3d 879, 157 Cal.Rptr. 503, 598 P.2d 473, the California Supreme Court held that evidence which had previously been ordered suppressed could not be considered in sentencing a defendant. In Belleci, the court relied upon Penal Code section 1538.5, subdivision (d), which provides: "If a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movant At any trial or other hearing unless further proceedings authorized by this section or Section 1238 or Section 1466 are utilized by the people." (Emphasis added.) The court in Belleci concluded that the sentencing phase of a prosecution is a hearing. (Id., at p. 883, 157 Cal.Rptr. 503, 598 P.2d 473.) The court in Belleci held that subdivision (d) of Penal Code section 1538.5 "does not make All illegally obtained evidence inadmissible 'at any trial or other hearing,' but only such evidence as has been the subject of a motion to suppress 'granted pursuant to the proceedings authorized by this section,' i. e., section 1538.5. To that extent alone, the Legislature has 'preempted' the above-stated judicial function and enacted a 'statutory exclusionary rule.' " (Id., at p. 887, 157 Cal.Rptr. at p. 509, 598 P.2d at p. 479.)

There is no question that a probation revocation hearing is a hearing within the meaning of subdivision (d) of Penal Code section 1538.5. (See People v. Belleci supra, at p. 883...