PEOPLE v. NELSON

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert NELSON, Defendant and Appellant.

Cr. 9861.

Decided: June 07, 1972

Richard D. Totter, San Francisco (Under appointment of the Court of Appeal), for defendant and appellant. Evelle J. Younger, Atty. Gen., Karl W. Grossenbacher, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant appeals from a judgment entered following revocation of probation.

Defendant entered a plea of guilty to a charge of carrying a concealed dagger. (Pen.Code, § 12020.)1 Imposition of sentence was suspended and he was placed on probation for three years on condition that he serve 60 days in jail with credit for 53 days already served.2 Less than a month later, defendant was held to answer for violations of sections 211 and 245 of the Penal Code. The evidence adduced at the preliminary examination indicated that defendant and two others had robbed and assaulted a tenant in the hotel where defendant resided.

On December 10, 1970, hearing was had on motion to revoke defendant's probation. He was present with counsel. The court recited that he had read the probation reports and had reviewed the transcript of the preliminary examination on the pending charge. He said that he was ready to follow the recommendation of the probation officer that probation be revoked and asked if defendant's attorney desired to make a statement. He declined, but defendant stated that he was not guilty of the charge and that he had done nothing to violate probation. The court then revoked probation.

Defendant's first contention is that the trial court erred in failing to recite a formal allocution before pronouncing judgment, in accordance with section 12003 of the Penal Code. The trial court asked defense counsel, ‘Is there any statement you desire to make at this time.’ When counsel declined to make a statement, defendant was given an opportunity to speak—he denied the pending charge and said that the prior charge was to have been reduced to a misdemeanor.

Our review of the record convinces us that there was substantial compliance with section 1200, and consequently that the error was harmless. (People v. Hamilton, 251 Cal.App.2d 506, 511, 59 Cal.Rptr. 459.) In any event, absent substantial compliance, omission of the allocution does not require reversal where, as here, defendant has shown no prejudice. (People v. Nelson, 257 Cal.App.2d 282, 285, 64 Cal.Rptr. 801.)

Defendant contends that the trial court erred in refusing to give him an opportunity to present evidence which would have established his innocence of the pending charge upon which revocation of probation was predicated.

At the time of the probation revocation hearing herein (December 10, 1970), defendant had no right to a hearing on the merits of revocation unless he moved to set aside the revocation for good cause under section 1203.2 of the Penal Code. On January 28, 1972, the Court of Appeal for the Fourth Appellate District decided the case of People v. Youngs, 23 Cal.App.3d 180, 99 Cal.Rptr. 901. That court held that after revocation of probation and before judgment is pronounced, a hearing is required at which the defendant is entitled to be represented by counsel, to be advised of the alleged violation and given an opportunity to deny or explain it, and, if necessary, present witnesses on his own behalf. (23 Cal.App.3d at p. 188, 99 Cal.Rptr. 901.) We apprehend that if Youngs were to be applied to the case at bar it would compel reversal. Defendant herein obviously knew what the alleged violation was, and he was given an opportunity to deny it. But he was denied the opportunity to present witnesses in his own behalf. However, we have determined that People v. Youngs should be given prospective application only.

‘The Constitution neither requires nor prohibits rigid retroactive application of all new developments in constitutional law. [Citation.]’ (In re Dabney, 71 Cal.2d 1, 9, 76 Cal.Rptr. 636, 640, 452 P.2d 924, 928.) Three criteria for determining retroactivity of constitutional rulings are ‘(1) the purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effect retroactive application would have upon the administration of justice. [Citation.]’ (In re Tahl, 1 Cal.3d 122, 134, 81 Cal.Rptr. 577, 460 P.2d 449, 457.)

The purpose and effect of the ruling in Youngs is to protect substantial rights of a criminal accused by interjecting between revocation and judgment the right to a full hearing on the merits of revocation. The Youngs court shifted the burden of initiating the hearing from the probationer to the court. Reliance on the old rule has been extensive. Trial courts were not compelled to admonish defendant of the rights established in Youngs prior to the date of that decision. Some counties apparently adopted procedures which in some cases resulted in substantial compliance with Youngs requirements (see People v. Youngs, supra, 23 Cal.App.3d at p. 186, 99 Cal.Rptr. 901), but this does not appear to have been standard practice. For this reason, retroactivity would place an undue burden on the administration of justice. (See In re Tahl, supra, 1 Cal.3d at p. 135, 81 Cal.Rptr. 577, 460 P.2d 449.) We hold that People v. Youngs applies wholly prospectively, that is, to those cases in which probation was revoked after January 28, 1972, the date of that decision.

The judgment is affirmed.

FOOTNOTES

1.  At the time he entered his plea, appellant was represented by counsel who fully advised him of his rights and of the possible consequences of his plea. Validity of the plea is not in issue.

2.  The trial court granted probation despite the recommendation of the probation department that it be denied and the fact that appellant had 15 prior convictions.

FN3. Section 1200 of the Penal Code: ‘When the defendant appears for judgment he must be informed by the Court, or by the Clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.’.  FN3. Section 1200 of the Penal Code: ‘When the defendant appears for judgment he must be informed by the Court, or by the Clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.’

THE COURT:

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