P. v. Tucker

Filed 3/5/07 P. v. Tucker CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County. Stephen A. Marcus, Judge. Affirmed.

Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer, Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Jerry Tucker appeals an order of the trial court revoking his probation. We affirm.

Factual & Procedural Background

This appeal involves three criminal proceedings against defendant.

The first case, Case No. BA263114, occurred in April of 2004. Defendant pleaded guilty to possession of a controlled substance in violation of Health & Safety Code section 11350, subdivision (a). Defendant was placed on three years probation under Proposition 36.

The second case, Case No. BA266786, occurred three months later, in July of 2004. Defendant again pleaded guilty to possession of a controlled substance. On that charge, the trial court sentenced defendant to four years in state prison, but suspended defendants prison term and placed him on three years formal probation. The trial court also found that defendant was in violation of and terminated his probation in Case No. BA263114. As a condition of his probation, the trial court ordered defendant to complete a one-year residential drug treatment program.

The third case, Case No. BA291760,[1]occurred in October of 2005. By that time, defendant was on formal, supervised probation in Case Nos. BA263114 and BA266786. On October 13, 2005, defendant was arrested and charged with sale of a controlled substance in violation of Health & Safety Code section 11352, subdivision (a). Based on this new charge, the trial court held a probation-revocation hearing on December 22 , 2005 with respect to Case Nos. BA263114 and BA266786.

The only witness at the revocation hearing was officer George Mejia of the Los Angeles Police Department. Officer Mejia testified that, on October 13, he observed defendant through binoculars as defendant approached a woman and gave her an off-white solid[] substance in exchange for money. Through his binoculars, Officer Mejia saw that defendant had numerous off-white solids resembling cocaine base in his hand. When officers approached defendant to arrest him, defendant tossed the off-white solids to the ground. One of the other officers recovered the solids. The solids were later determined to be cocaine base.

The trial court found that defendant was in violation of and revoked his probation. In Case No. BA266786, the court executed defendants previously suspended four-year prison term. Because the four-year prison term exceeded defendants remaining term of probation in Case No. BA263114, the court terminated defendants probation and ordered him released as to that case only.

Defendant timely appealed.[2]

Discussion

A. The Trial Court Did Not Err in Revoking Defendants Probation

Penal Code section 1203.2, subdivision (a), provides in relevant part that, [a]t any time during the probationary period of a person released on probation . . . the court may revoke and terminate such probation if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses. Defendant argues that, because the revocation of his probation was based on the conduct charged in Case No. BA291760, the trial court erred by holding defendants revocation hearing prior to defendants trial in Case No. BA291760.

1. Conducting A Revocation Hearing Prior To A Defendants Trial On A New Charge Is Not Error Per Se

Defendant contends that the California Supreme Court has expressed its displeasure with holding revocation hearings prior to the trial of a criminal charge that forms the basis for the revocation hearing. (See People v. Coleman (1975) 13 Cal.3d 867, 896 [we wish to note 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].) Defendant argues that conducting revocation hearings before the trial on a new charge forces a probationer into the undesirable choice of presenting a full defense at the revocation hearing, thus telegraphing [his or her] entire defense to the prosecution, or foregoing a defense at the revocation hearing and saving his or her defense for the trial on the new criminal charge. Defendant therefore invites us to adopt a blanket rule that the trial courts cannot hold probation violation hearings prior to the trials of substantive offenses that form the bases of these violations.

Defendants argument is foreclosed by the California Supreme Courts decision in People v. Jasper (1983) 33 Cal.3d 931 (Jasper). In Jasper, the defendants revocation hearing was held prior to his trial on a new charge. The defendant argued that he was thus improperly forced to choose between exercising his right to remain silent at the revocation hearing, thereby risking the revocation of his probation, and presenting a defense to revocation, thereby providing the People with pretrial discovery regarding the theory and details of his defense to the [new charge]. (Id. at p. 933.) Faced with this dilemma, the defendant in Jasper chose not to testify or offer a defense at his revocation hearing. (Ibid.)

The Supreme Court affirmed. First, the court noted that a defendants constitutional right against self-incrimination was adequately protected by the exclusionary rule created in People v. Coleman, supra, 13 Cal.3d at pp. 888-889, which precludes the prosecutor from using a probationers revocation-hearing testimony, or the fruits of that testimony, at the trial on a new charge. (Jasper, supra, 33 Cal.3d at pp. 933-934.) Second, the court pointed out that there was no authority for the proposition that conducting revocation hearings before trials is a per se violation of a probationers constitutional rights. (Id. at p. 934.) Finally, the court held that the testimony of a probationer and his witnesses at a revocation hearing was not the equivalent of a pretrial discovery procedure that compels disclosure of incriminating evidence. (Id. at pp. 934-35.) Accordingly, the Supreme Court held that, although holding the trial on the new charge before the revocation hearing might be preferable, [w]hether a revocation hearing should be held before trial rests in the reasonable discretion of the trial court. (Id. at p. 935.)

The Supreme Court refused to reexamine Jasper two years later, in People v. Weaver (1985) 39 Cal.3d 654 (Weaver). The court observed that [n]o new arguments or authorities have been presented which would induce us to reexamine our conclusion in Jasper[.] (Id. at p. 659.) Accordingly, [g]iven the Legislatures broad grant of authority to the trial courts to revoke probation at any time following the commission of a new criminal offense [citation], 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. (Ibid.) The Supreme Court has not reconsidered this issue in the more than two decades since Weaver was decided.

To hold as defendant urges would require this court to disregard Jasper, supra, 33 Cal.3d 931. That we cannot do. Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisions of th[e Supreme C]ourt are binding upon and must be followed by all the state courts of California. . . .  Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 473.) Accordingly, the trial court did not err by holding the revocation hearing on Case Nos. BA263114 and BA266786 before the trial in Case No. BA291760.

2. The Trial Court Did Not Abuse Its Discretion in Holding the Probation Revocation Hearing Over Defendants Objection

Defendant argues that the trial court abused its discretion in proceeding with the revocation hearing over defense counsels objection that she had recently received Pitchess[3]discovery and needed additional time to investigate. The trial court heard defendants Pitchess motion on Thursday, December 15, 2005, and ordered disclosure of certain materials no later than Monday, December 19.[4] Some of that material related to Officer Mejia. The revocation hearing was held on the morning of Thursday, December 22, 2005.

Continuances are granted only upon a showing of good cause. (Pen. Code, 1050, subd. (e); People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Although the trial court has broad discretion to determine whether good cause exists, such discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) To effectuate the constitutional rights to counsel and to due process of law, an accused must . . . have a reasonable opportunity to prepare a defense and respond to the charges. (People v. Bishop (1996) 44 Cal.App.4th 220, 231.) The burden to establish good cause, however, is on the defendant. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) The defendant and defense counsel must demonstrate that they have prepared diligently. (People v. Jenkins, supra, 22 Cal.4th at p. 1037.) Further, an important factor in deciding whether to grant a continuance is a showing that the continuance would be useful. (People v. Beeler, supra, 9 Cal.4th at pp. 1003-1004.) [T]o demonstrate the usefulness of a continuance a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time. (Ibid.)

Defendant did not meet his burden to show good cause. Defendant and his counsel were present in court on December 14 when the trial court set defendants revocation hearing for December 22. The record contains no indication that defendant objected to the hearing date or requested a continuance on December 14. Defendant and his counsel were again present in court on December 15 for the Pitchess hearing, when the trial court ordered disclosure of the Pitchess materials by December 19. Defendant thus knew on December 15 that his revocation hearing would take place only three days after the disclosure date; yet he did not object to the hearing date or request a continuance.

On the morning of defendants revocation hearing, December 22, defense counsel stated her appearance not by requesting a continuance of the hearing, but by announcing that defendant intended to accept a plea agreement and plead guilty in Case No. 291760. The trial court proceeded to take defendants plea, including his waiver of his constitutional rights, until defendant realized that his plea would result in a violation of his probation and execution of his suspended sentence. Only when defendant refused to plead guilty and the trial court commenced the revocation hearing did defense counsel finally object.

Defense counsels objection, however, was inadequate to show good cause for a continuance. Defense counsel stated simply that the Pitchess discovery might be pertinent to a probation-violation hearing. Defense counsel made no representations regarding her diligence in reviewing the Pitchess discovery prior to the revocation hearing, failed to identify with specificity which materials she believed were pertinent and why, and failed to inform the court what additional investigation she intended to conduct, how long that investigation might take, or what she hoped to learn that was material to the revocation proceeding. Further, defense counsel cross-examined Officer Mejia at length at the revocation hearing. She made no attempt to cross-examine Officer Mejia about any of the Pitchess materials. Under these circumstances, the trial court did not abuse its discretion in proceeding with the revocation hearing over defendants objection.

Defendant argues that, after the revocation hearing, the trial court continued the trial in Case No. 291760 because of the recently produced Pitchess materials, thus recognizing that those materials were sufficiently relevant and material to warrant a continuance . . . .   We do not have the record in Case No. 291760 before us. The record we do have does not support the inference that defendant attempts to draw. The only discussion of the trial date in Case No. 291760 is the following:

[COURT:]  . . . Anything else I need to do on this matter?  . . . I have to go to the trial now.

[DEFENSE COUNSEL:] Your Honor

[COURT:] Go ahead. 1/03 is 50 of 60. Do you want to change that because of Pitchess?

[DEFENSE COUNSEL:] Yes. I had not talked to Mr. Tucker about a time waiver. I need a second to do that. [] Hes okay with the time.

[COURT:] January 20th, 0 of 10?

[DEFENSE COUNSEL:] Yes.

Neither the transcript of the December 22 hearing nor the relevant minute orders contain an explicit finding of good cause or a statement of the facts the trial court found to constitute good cause. Both are required when a trial court grants a motion to continue the trial date in a criminal proceeding. (Pen. Code, 1050, subd. (f).) Accordingly, this brief exchange between the trial judge and defense counsel at the revocation hearing does not alter our conclusion.

Furthermore, even if the trial court had found good cause to continue the trial date, that does not mean it abused its discretion in refusing to find good cause to continue the revocation hearing. The procedural protections afforded probationers in revocation proceedings are substantially weaker than those afforded criminal defendants at trial. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 786; Morrissey v. Brewer (1972) 408 U.S. 471, 489; People v. Rodriguez (1990) 51 Cal.3d 437, 442-43 [the determination whether to grant or revoke probation is largely discretionary], quoting In re Coughlin (1976) 16 Cal.3d 52, 56.) Of particular relevance here, the revocation decision was made by the same trial judge who, only a week earlier, ruled on defendants Pitchess motion and reviewed the Pitchess materials. The trial court could thus reasonably conclude that continuing the revocation proceedings to permit counsel further to review the Pitchess materials would not have been useful, whereas continuing the trial at which defendant would have to present any impeachment evidence derived from the Pitchess material to a jury might have been.

B. The Trial Court Properly Resolved Defendants Pitchess Motions

Defendant asks us to conduct an independent review of the trial courts in camera proceedings in response to his Pitchess motion in Case No. 291760.[5]Because the Pitchess discovery was potentially relevant to defendants revocation hearing, and the People agree that we may do so, we have augmented the record and reviewed the Pitchess materials on this appeal.[6]

Pitchess motions are governed by the procedures set forth in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7 and 832.8. When a defendant seeks discovery from a peace officers personnel records, he or she must file a written motion with the appropriate court (Evid.Code, 1043, subd. (a)) and identify the proceeding, the party seeking disclosure, the peace officer, the governmental agency having custody of the records, and the time and place where the motion for disclosure will be heard (id., subd. (b)(1)) . . . .  [ ] If the trial court concludes the defendant has fulfilled [the] prerequisites and made a showing of good cause, the custodian of records should bring to court all documents potentially relevant to the defendants motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc); accord, Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-19.) The trial court examines these documents in camera, and discloses only that information falling within the statutorily defined standards of relevance. (Id. at p. 1019.) We review the trial courts decision to disclose or withhold Pitchess materials for abuse of discretion. (Mooc, supra, 26 Cal.4th at p. 1228.)

We have reviewed the sealed transcripts of the trial courts in camera hearings and the Pitchess materials, and conclude that there is nothing in the materials that would lead us to hold an abuse of discretion by the trial court.

Disposition

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1]This appeal concerns only the order revoking defendants probation in Case Nos. BA263114 and BA266786. The record does not reflect the ultimate disposition of Case No. BA291760.

[2]An order revoking probation after entry of judgment is appealable as an order made after judgment, affecting the substantial rights of the party. (Pen. Code, 1237, subd. (b); People v. Vickers (1972) 8 Cal.3d 451, 453 fn. 2.)

[3]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

[4]Defendant made his Pitchess motion in Case No. BA291760. The record does not reveal the actual date that the Pitchess materials were produced, but defendant has never contended that the productionwas untimely. At the revocation hearing on Thursday, December 22, defense counsel indicated that she had received the Pitchess materials at the end of last week, which necessarily would have been prior to the Monday, December 19 disclosure date.

[5]Defendants Pitchess motion was heard on December 15, 2005. Defendant requested supplemental information regarding two of the matters disclosed after the December 15 hearing; the trial court heard defendants supplemental motion on April 4, 2006.

[6]We express no opinion regarding whether a probationer is entitled to Pitchess discovery in connection with a revocation hearing. (Cf. Jones v. Superior Court (2004) 115 Cal.App.4th 48, 50-51 [Proposition 115 reciprocal discovery provisions do not apply to probation revocation hearing]; Pipes & Gagen, Cal. Criminal Discovery (2006 supp.) 1:115, pp. 123124 [open question whether probationer entitled to Brady disclosure in connection with revocation hearing; authors opine that rule does not apply].)