Reset A A Font size: Print

Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Antonio PILOTO, Defendant and Appellant.

No. B037011.

Decided: January 26, 1989

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Benjamin Schiff and Albert J. Menaster, Deputy Public Defenders, for defendant and appellant. James K. Hahn, City Atty., William N. Sterling and Cindy B. Clemens, Deputy City Attys., for plaintiff and respondent. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Donald D. DeNicola and William R. Weisman, Deputy Attys. Gen., as amicus curiae on behalf of plaintiff and respondent. Ira Reiner, Dist. Atty., Harry B. Sondheim and Dennis Kucera, Deputy Dist. Attys., as amicus curiae on behalf of plaintiff and respondent.

In this case we hold that evidence ordered suppressed under Penal Code section 1538.5 may be admitted into evidence at a subsequent probation revocation hearing.


On November 12, 1986, police officers arrested appellant for carrying a concealed weapon in a vehicle, carrying a loaded firearm in a vehicle, and appropriation of lost property.   At the time of his arrest, appellant was on probation for two prior misdemeanor convictions.1

Appellant pleaded not guilty to the charges, and moved for suppression of the evidence on the ground that he had not consented to a search of his vehicle.   Municipal Court Judge Marion Obera granted the motion.   When the People announced they were unable to proceed to trial without the suppressed evidence, the magistrate ordered the case dismissed under Penal Code section 1385.

Thereafter, Municipal Court Judge Sandy Kriegler heard appellant's two probation violation matters (cases No. 31336759 and No. 31295573).   Judge Kriegler ruled that under Proposition 8 he could properly consider the previously suppressed handgun evidence.   He found appellant's possession of a concealed weapon a violation of the terms of probation, and revoked appellant's probation in both cases.   He sentenced appellant to 60 days in County Jail in case No. 31336759, which was to run consecutive to the 170 days imposed in case No. 31295573.   Appellant appealed.

The Appellate Department of the Superior Court reversed the order revoking probation, holding that subdivision (d) of Penal Code section 1538.5 expressly prohibits the use of suppressed evidence “at any trial or other hearing․,” and that this provision was not affected by California Constitution, article I, section 28, subdivision (d), commonly known as Proposition 8.   We ordered the case transferred to this court pursuant to rule 62(a) of the California Rules of Court.


 Subdivision (d) of Penal Code section 1538.5 bars the introduction of previously suppressed evidence “at any trial or other hearing.”   The People contend this provision has been abrogated by Proposition 8's “Truth in Evidence” clause, which provides in pertinent part that, subject to certain statutory exceptions, “relevant evidence shall not be excluded in any criminal proceeding.” 2  In In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744 the state Supreme Court held that Proposition 8 required the exclusion of relevant evidence only if compelled under the United States Constitution.   Under federal law, evidence obtained in violation of the Fourth Amendment may be used at a probation revocation hearing.  (United States v. Winsett (9th Cir.1975) 518 F.2d 51, 55.)

 Recently, in In re Michael G. Douglas (1988) 206 Cal.App.3d 866, 254 Cal.Rptr. 546, Division Six of this court held that Proposition 8 and the state Supreme Court's holding in In re Lance W., supra, 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, allow—based on the application of federal constitutional standards—the use of illegally obtained evidence at a parole revocation hearing.   In arriving at that conclusion, the Douglas court considered arguments identical to those presented in the case before us.   We apply the holding of Douglas to this case.   It is immaterial that Douglas involved a parole revocation proceeding, whereas this case involves a probation revocation hearing.  (See People v. Harrison (1988) 199 Cal.App.3d 803, 808, 245 Cal.Rptr. 204;  People v. Hayko (1970) 7 Cal.App.3d 604, 609–610, 86 Cal.Rptr. 726.)   In either proceeding, the purpose is the same, namely, to determine whether “a convicted offender can be safely allowed to return to and remain in society.”  (In re Martinez (1970) 1 Cal.3d 641, 650, 83 Cal.Rptr. 382, 463 P.2d 734;  In re Coughlin (1976) 16 Cal.3d 52, 57, 127 Cal.Rptr. 337, 545 P.2d 249.)

We affirm the orders revoking probation.


1.   On February 15, 1985, in case No. 31295573, appellant entered a plea of nolo contendere to a charge of receiving stolen property.   He was placed on probation for two years.   Among the conditions of probation were that he serve 10 days in jail, that he perform 100 hours of community service, and that he obey all laws.   On July 10, 1986, in case No. 31336759, appellant was convicted of brandishing a firearm and unlawful discharging of an air gun.   He was placed on probation for three years on the conditions, among others, that he serve 120 days in County Jail;  that he not own, use or possess any deadly weapons or firearms;  and that he obey all laws.

2.   Article 1, section 28, subdivision (d) of the California Constitution reads:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”

KENNARD, Associate Justice.

LUCAS, P.J., and BOREN, J., concur.