PEOPLE v. VICKERS

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Anderson VICKERS, Defendant and Appellant.

Cr. 9614.

Decided: June 07, 1972

George T. Davis, San Francisco, for defendant and appellant. Evelle J. Younger, Atty. Gen., Timothy A. Reardon, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant appeals from an order revoking probation.

Defendant entered a plea of guilty to a charge of possession of heroin, in violation of section 11500 of the Health and Safety Code. On October 13, 1970, judgment was pronounced and defendant was sentenced to prison. Execution of sentence was suspended and he was placed on probation for three years, conditioned upon his serving one year in the county jail.

On November 18, 1970, the case appeared on calendar pursuant to a motion to revoke probation filed by the probation officer. Defendant was not present and a bench warrant issued. The transcript of the oral proceedings indicates that probation was not revoked on that date. On December 14, 1970, hearing was held with the defendant and his attorney present, at the conclusion of which defendant was committed to the Department of Corrections pursuant to section 1202b1 of the Penal Code. On December 18, 1970, defendant filed notice of appeal from the order revoking probation. He erroneously specified November 18 as the date on which probation was revoked. As we previously noted, probation had not been revoked on that date. On December 14, however, the court recited that probation had been ‘Heretofore revoked,’ apparently believing that revocation had occurred on November 18. We treat the order of commitment and the statement that probation had been revoked as the order revoking probation and conclude that notice of appeal was timely filed.

We note that where, as here, judgment is pronounced, sentence is imposed, and execution of sentence is suspended, if probation is later revoked, that decision is appealable as an order made after judgment affecting the substantial rights of the defendant. (Pen.Code, § 1237, subd. (2); People v. Robinson, 43 Cal.2d 143, 145, 271 P.2d 872; dictum in accord People v. Delles, 69 Cal.2d 906, 908, 73 Cal.Rptr. 389, 447 P.2d 629; criticized in People v. Buccheri, 2 Cal.App.3d 842, 845, 83 Cal.Rptr. 221 (hearing denied).) In People v. Youngs, 23 Cal.App.3d 180, 99 Cal.Rptr. 901, the court said that the only review in such cases is by writ of habeas corpus (at p. 183, fn. 1, 99 Cal.Rptr. 901, citing In re Davis, 37 Cal.2d 872, 875, 236 P.2d 579). Davis held that review may be by timely petition for writ of habeas corpus, and under the facts of that case it was the only available remedy. (Defendant had been taken directly to prison without a hearing. He later learned that his probation had been revoked and that he had been returned to prison under the previous judgment. The time for appeal must have passed. 37 Cal.2d at p. 873, 236 P.2d 579.) While the view persists that habeas corpus is ‘the appropriate remedy’ (2 Witkin, California Crimes, § 1085, p. 1021), appeal is also proper.

At the hearing held herein on December 14, 1970, the court had before it various probation reports which contained the following factual representations. The day after probation had been granted, defendant was enrolled in a work furlough program. A month later he complained of being ill and was transported by ambulance from the Work Furlough Center to the Mission Emergency Hospital. Early the next morning, upon checking with the hospital, a deputy was informed that defendant had been treated and discharged. The following day the work furlough personnel went to defendant's home, but there was no response. The probation officer concluded that defendant had ‘absconded.’ A bench warrant was issued pursuant to this report.

Another report said that defendant stated he was the manager of a three-story structure which was owned by his grandparents and which consisted of a storefront church and two flats. He said that he rented the rooms and collected the rent on a weekly basis. He explained the presence of a large quantity of money on his person at the time of his apprehension by stating that he was holding rent receipts for the purpose of paying taxes. He estimated income from the property at about $1,000 per month. This probation officer claimed that when he went to the property on December 10, 1970, he received no answer at either flat, and the church was padlocked from the outside.

The probation report which had been prepared prior to the granting of probation stated that defendant was married and had been employed as a tailor for two years at $800 per month. It indicated that he used drugs and recommended that probation be denied. It also summarized his criminal record, the facts surrounding the pending offense, and social factors.

At the December 14 hearing, defendant's counsel criticized the last-mentioned report, saying that the probation officer had failed to talk to defendant's wife, family or tenants. As to the money which defendant carried when he was apprehended, the attorney stated that defendant's grandfather could verify that defendant was authorized to take the rents and keep them to use for taxes. He explained how defendant had come to possess approximately $1,000. Counsel also stated that he had witnesses to the fact that defendant had been bedridden with illness during the period of work furlough in question. Defendant had told him that the hospital personnel had told him to go home and rest. He was in bed for a week, after which he voluntarily returned to the program.

In answer to the allegation regarding the lack of response at the property which defendant managed, counsel explained that defendant did not live at the church, and suggested that if the probation officer wished to speak to the tenants he should have made arrangements to meet them.

Counsel offered to call defendant's grandfather and wife to verify his story.

The court then initiated discussion regarding defendant's employment. He said that it had been ‘checked out,’ and that defendant's purported employer said that defendant had ‘been around’ but was not working. Counsel stated that there was a mistake and that defendant had been working. He asked who was the source of the information quoted by the court, but the report contained no names and merely referred to ‘his employer.’ Defendant offered that his employment could be verified, giving the name and address of his employer.

Without having heard defendant's witnesses, the court said that he could not accept defendant's story (told through counsel) that he was told to go home from the hospital and ‘just went home.’ He declared that defendant had been in trouble with the law for years and was too ‘sophisticated for that.’ He concluded that defendant had ‘just walked off from [his] probationary status.’ Defendant countered that a nurse had told him to go home, and in fact had put him in a car and taken him home. After further discussion regarding employment the court said, ‘I have had enough of this matter,’ revoked probation, and committed defendant to prison. The court suggested that defendant tell a ‘straight story’ to his probation officer; defendant answered that he had been doing just that all along. But the court concluded that there was ‘overwhelming evidence to the contrary.’

Defendant contends that the trial court abused its discretion when it refused to hear the testimony of his witnesses who were present in court. Respondent asserts that defendant was not entitled to a hearing on the merits of probation revocation and that revocation properly could be based on the probation reports alone. This is a correct statement of the law prior to the holding in People v. Youngs, supra, 23 Cal.App.3d 180, 99 Cal.Rptr. 901. (In re Davis, supra, 37 Cal.2d 872, 236 P.2d 579; see, generally, 2 Witkin, California Crimes, § 1082 et seq., p. 1018.) Defendant had no right to a hearing on the merits of revocation unless he moved for a hearing to set aside revocation for good cause under section 1203.2 of the Penal Code, which he did not do.

As we noted in People v. Nelson, Cal.App., 102 Cal.Rptr. 416, People v. Youngs 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 180, 188, 99 Cal.Rptr. 901). Youngs dealt with a situation in which probation had been granted before judgment. In the case at bar judgment was pronounced, after which defendant was granted probation. Like the Youngs court, we see ‘no meaningful distinction between the two procedures. They present artificial distinctions with nearly identical consequences for the defendant’ (23 Cal.App.3d 180, 188, 99 Cal.Rptr. 901, 907).

However, in light of our holding in People v. Nelson, supra, that Youngs is to be applied wholly prospectively, the decision in that case is of no benefit to defendant herein. The trial court proceeded in what was then an acceptable manner.

The order revoking probation is affirmed.

FOOTNOTES

FN1. The form which appears in the Clerk's Transcript is erroneous. It indicates that on December 14, probation was denied, judgment was pronounced, and appellant was sentenced to prison. On the other hand, the Reporter's Transcript shows that judgment was not pronounced on that date. As we read the record, judgment had been pronounced on October 13, 1970. The Clerk's Transcript contains another discrepancy. It contains an abstract of judgment indicating that judgment was pronounced on September 3, 1970, but the minutes of that date show that after defendant was arraigned for judgment he interposed a motion for probation and the cause was continued. Again, we deem judgment as having been pronounced on October 13, 1970..  FN1. The form which appears in the Clerk's Transcript is erroneous. It indicates that on December 14, probation was denied, judgment was pronounced, and appellant was sentenced to prison. On the other hand, the Reporter's Transcript shows that judgment was not pronounced on that date. As we read the record, judgment had been pronounced on October 13, 1970. The Clerk's Transcript contains another discrepancy. It contains an abstract of judgment indicating that judgment was pronounced on September 3, 1970, but the minutes of that date show that after defendant was arraigned for judgment he interposed a motion for probation and the cause was continued. Again, we deem judgment as having been pronounced on October 13, 1970.

THE COURT: