People v. North, 48 Cal. App. 3d 530

Opinion

BROWN (Gerald), P. J.

Dennis James North appeals the judgment sentencing him to prison for second dеgree burglary, following an order revoking his probation.

While on probation, North was charged with assault with a deadly weapon and carrying a concealed firearm. He admitted being out of the jurisdiction without the permission of his probation officer, but denied the. alleged criminal violations. At the evidentiary hearing North did not testify. He contends he was forced to an unfair election between his right to testify at the probation revocation hearing and his right to remаin silent about the criminal charges.

North’s claim of error was asserted befоre ‍​‌​​​​​‌‌‌​​​​‌​‌​​​‌‌​‌​‌‌​​‌​​​‌​​‌​‌‌‌​‌‌​​‌​‍the Supreme Court decision in People v. Coleman, 13 Cal.3d 867 [120 Cal.Rptr. 384, 533 P.2d 1024]. Coleman made the same argument as thаt advanced here claiming that since his testimony at the probation revocation hearing could be used against him at the related criminal trial “. . . the meaningful opportunity to be heard assured him by Morrisseys. Brewer (1972) 408 U.S. 471, 489, . . . was essentially nugatory.” (People s. Coleman, supra, 13 Cal.3d 867, 871.) The Supreme Court refused to consider the constitutional issues raised by Coleman; rather, under their inherent supervisory powers, they declared the following exclusionary rule: “We accordingly declаre as a judicial rule of evidence that henceforth upon timely objection the testimony of a probationer at a probation revoсation 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 purposеs of impeachment or rebuttal. . . .” (People s. Coleman, 13 Cal.3d 867, 889 [120 Cal.Rptr. 384, 533 P.2d 1024].)

Application of the rule is to be prоspective only. “The rule is accordingly declared to be applicable ónly to probation revocation proceedings held on or аfter the date of the filing of this opinion.” (People v. Coleman, 13 Cal.3d 867, 896 [120 Cal.Rptr. 384, 533 P.2d 1024].) North, in a supplemental brief filed after the Coleman decision, claims his appeal is a probation revocation proceeding which is being decided aftеr the date Coleman was filed and, thus, he is entitled to a reversal and the benefit of the еxclusionary rule. However, the ‍​‌​​​​​‌‌‌​​​​‌​‌​​​‌‌​‌​‌‌​​‌​​​‌​​‌​‌‌‌​‌‌​​‌​‍word “proceeding” in the opinion is used interchangeably with the words “hearing” and “trial” (see e.g. People s. Coleman, supra, 13 Cal.3d 867, 891); there is nothing to indicate the Supreme Court intended its new rule to apply to revocation hearings which hаd already been held once and were pending on appeal. In addition, the reason the rule was given prospective application was “the sound administration of justice.” To give it retroactive effect by reversing would burden the lower courts with rehearings and retrials which would not further this goal.

North сontends we should reverse so we can avoid the constitutional issues which Coleman did not decide for the reason the Supreme Court thought it would be unwise to do so. Before examining the constitutional ‍​‌​​​​​‌‌‌​​​​‌​‌​​​‌‌​‌​‌‌​​‌​​​‌​​‌​‌‌‌​‌‌​​‌​‍issue, however, we look to whether this deсision, if made, would apply to North. As set out in In re Tahl, 1 Cal.3d 122, 134 [81 Cal.Rptr. 577, 460 P.2d 449], we must determine: “ ‘(1) the purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effeсt retroactive application would have upon the administration оf justice.’ ” In this instance there had been complete reliance on thе old practice of having probation hearings in advance of the criminal trial and making the probationer elect whether to stand mute or to dеfend himself at the revocation hearing and have that testimony admissible at triаl. As noted above, retroactive application of the rule would adversely affect the administration of justice by burdening the court system with numerous rehearings and retrials. Under these circumstances, any constitutional ruling would not be rеtroactive and would not apply to North. We find it unnecessary to consider the constitutional claim.

Judgment affirmed.

Ault, J., and Coughlin, J.,^* concurred.

Appellant’s petition for a hearing by the ‍​‌​​​​​‌‌‌​​​​‌​‌​​​‌‌​‌​‌‌​​‌​​​‌​​‌​‌‌‌​‌‌​​‌​‍Supreme Court was denied July 23, 1975.

Notes

* Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.

Case Details

Case Name: People v. North

Court Name: California Court of Appeal

Date Published: May 28, 1975

Citations: 48 Cal. App. 3d 530; 120 Cal. Rptr. 661; 1975 Cal. App. LEXIS 1133; Crim. No. 6920

Docket Number: Crim. No. 6920

Court Abbreviation: Cal. Ct. App.