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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas BOLDEN, Defendant and Appellant.

Cr. 22626.

Decided: September 21, 1982

Quin Denvir, State Public Defender, Richard S. Kessler, Deputy State Public Defender, San Francisco, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Ann K. Jensen, Morris Lenk, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

In 1980 defendant was placed on three years' probation following his conviction for auto burglary.   In January 1981 defendant was held to answer on new criminal charges of assault with a deadly weapon and discharging a firearm at an occupied vehicle.   The district attorney thereafter initiated proceedings to revoke probation as a result of these new charges.

Prior to the probation revocation hearing defendant requested a continuance until after trial on the new charges on the grounds that the hearing would violate his constitutional rights to due process, self-incrimination and equal protection of the law;  that request was denied.   At the revocation hearing the trial court considered the preliminary hearing transcript, the probation officer's report and the testimony of two defense witnesses.   At the conclusion of the hearing, probation was revoked (see Pen. Code, § 1203.2, subd. (a)) and defendant was sentenced to prison for the middle term of two years less appropriate credits.

 In this appeal from the final judgment, defendant renews his constitutional challenges to the revocation proceedings conducted before trial based on the new charges.   For the reasons hereafter discussed, we conclude the procedure employed here comports with the decision of the Supreme Court in People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024, which we are bound to follow (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937).1

The essence of defendant's argument focuses on the timing of the revocation proceedings.   Should he elect to put on a full defense at the pretrial revocation hearing, including his own testimony,2 it would “conceivably ․ lighten the prosecution's burden of proving its case in chief” at the criminal trial in violation of the privilege against self-incrimination under article I, section 15, of the California Constitution (Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326–327, 466 P.2d 673;  cf. Allen v. Superior Court (1976) 18 Cal.3d 520, 524, 526–527, 134 Cal.Rptr. 774, 557 P.2d 65).   On the other hand, if such considerations persuaded him to limit or abandon his defense at the revocation hearing, he would be denied his right to a full hearing contrary to “fundamental principles of due process and fair play ․ [including] ․ an opportunity to deny or explain it, and, if necessary, present witnesses on his own behalf.”  (People v. Youngs (1972) 23 Cal.App.3d 180, 188, 99 Cal.Rptr. 901;  In re Thomas (1972) 27 Cal.App.3d 31, 36, 103 Cal.Rptr. 567;  cf. People v. Coleman, supra, 13 Cal.3d 867, 873–874, 120 Cal.Rptr. 384, 533 P.2d 1024;  People v. Vickers (1972) 8 Cal.3d 451, 459–460, 105 Cal.Rptr. 305, 503 P.2d 1313.)

While defendant's argument possesses facial merit, we are unable to accept the conclusion that he was unfairly compelled to choose one constitutional right over another.   Defendant's complaint is—for the most part—factually indistinguishable from that of the defendant in Coleman, which announced a judicial rule of evidence applicable herein and which operates to relieve defendant of the compulsion of which he now complains.   As in Coleman, revocation proceedings were initiated against defendant upon grounds serving as the basis of independent charges.   Similarly, the revocation proceedings preceded trial on the new charges.   On appeal, Coleman likewise pressed a claim of denial of procedural due process in being compelled to choose between two fundamental constitutional rights.   Although the court recognized that “the choice forced upon him [defendant] at his revocation hearing was unnecessarily inconsistent with constitutional values” (People v. Coleman, supra, 13 Cal.3d at p. 872, 120 Cal.Rptr. 384, 533 P.2d 1024), it declined to reach defendant's constitutional claim and instead fashioned a protective exclusionary rule in the event the state elects (as here) to prosecute the revocation proceedings before trial of the underlying charges.  “We accordingly declare as a judicial rule of evidence that henceforth upon timely objection the testimony of a probationer at a probation revocation 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 charges, save for purposes of impeachment or rebuttal where the probationer's revocation hearing testimony or evidence derived therefrom and his testimony on direct examination at the criminal proceeding are so clearly inconsistent as to warrant the trial court's admission of the revocation hearing testimony or its fruits in order to reveal to the trier of fact the probability that the probationer has committed perjury at either the trial or the revocation hearing.  [¶] This exclusionary rule allows the state to continue to press for revocation of probation either before or after a probationer's trial on related charges, but insures that this scheduling discretion will not be influenced by the illegitimate desire to gain an unfair advantage at trial.”  (people v. coleman, supra, at p. 889, 120 cal.rptr. 384, 533 P.2d 1024.)

However, while the court noted it might be desirable to defer initiation of revocation proceedings “until after disposition of the related criminal proceedings” (id., at p. 896, 120 Cal.Rptr. 384, 533 P.2d 1024), it seems reasonably clear that the statement of preference was intended merely as an “admonition” (see People v. Belleci (1979) 24 Cal.3d 879, 888, fn. 7, 157 Cal.Rptr. 503, 598 P.2d 473) rather than an implied restriction upon the state's authority to schedule a pretrial revocation hearing subject to the prophylactic Coleman rule.  (Cf. People v. King (1979) 89 Cal.App.3d 506, 509–511, 152 Cal.Rptr. 566;  People v. Sharp (1976) 58 Cal.App.3d 126, 128–130, 129 Cal.Rptr. 476).   Such an interpretation accommodates both “the interest of the sound administration of justice” (People v. Coleman, supra, 13 Cal.3d at p. 897, 120 Cal.Rptr. 384, 533 P.2d 1024) and the public policy requiring trial courts to timely monitor errant probationers to assure “the safety of other citizens.” 3  (People v. Pinon (1973) 35 Cal.App.3d 120, 124, 110 Cal.Rptr. 406;  and cf. People v. Rucker (1980) 26 Cal.3d 368, 389, 162 Cal.Rptr. 13, 605 P.2d 843 [neutral “booking” information inadmissible at trial].)   Since we perceive no meaningful distinction between evidence “derived” from defendant's testimony and that disclosed by witnesses summoned to testify in his behalf, we believe that the Coleman exclusionary rule would likewise apply to such derivative evidence thereafter sought to be used by the prosecutor at trial.

 In light of the Coleman, Prudhomme, and Allen rationale, a defendant probationer who elects to present a full defense at the revocation hearing (see People v. Winson (1981) 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55, cert. den., 455 U.S. 975, 102 S.Ct. 1485, 71 L.Ed.2d 688) could thereafter interpose appropriate objections at the time of the later trial thus preserving any claim of error for review on appeal in the event of conviction.  (Cf. People v. King, supra, 89 Cal.App.3d 506, 152 Cal.Rptr. 566.)

Defendant further argues that the constitutional standard articulated in Allen significantly limits the application of the Coleman exclusionary rule herein.   We do not so construe Allen, which merely reaffirmed the definition of self-incrimination announced in Prudhomme and the continuing protection extended upon independent state grounds.  (See People v. Collie (1981) 30 Cal.3d 43, 51–52, fn. 2, 177 Cal.Rptr. 458, 634 P.2d 534.)   Moreover, since both Prudhomme and Allen involved criminal discovery orders, special definitions of compulsory incrimination were neither required nor discussed.   Nor are we persuaded by other analogies offered by defendant involving constitutionally impermissible coercive conduct (e.g., In re Wayne H. (1979) 24 Cal.3d 595, 156 Cal.Rptr. 344, 596 P.2d 1;  People v. Hicks (1971) 4 Cal.3d 757, 94 Cal.Rptr. 393, 484 P.2d 65;  People v. Harrington (1970) 2 Cal.3d 991, 88 Cal.Rptr. 161, 471 P.2d 961, cert. den., 402 U.S. 923, 91 S.Ct. 1384, 28 L.Ed.2d 662;  People v. Quinn (1964) 61 Cal.2d 551, 39 Cal.Rptr. 393, 393 P.2d 705.)

 Finally, we reject defendant's equal protection argument based on a theory that the challenged procedure impermissibly discriminates against probationers alone.   Plainly, the state regulated procedure does in fact discriminate between probationers and nonprobationers, a distinctly dissimilar class of offenders (see generally People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375).   However, a claim of denial of equal protection requires something more than a showing of discrimination.   Even under the suggested test of strict scrutiny applicable to discriminatory classifications affecting fundamental interests, it must appear that the discrimination is not necessary for the furtherance of a compelling state interest.  (See 5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, § 343, pp. 3639–3640.)   We are satisfied that the discriminatory classification of which defendant complains is amply justified in furtherance of the significant state interest in reaching prompt determinations of claimed probationer misconduct implicating public safety considerations.  (People v. Pinon, supra, 35 Cal.App.3d at p. 124, 110 Cal.Rptr. 406).

The judgment is affirmed.


1.   We are aware that the identical issue is now pending before the Supreme Court.   People v. Jasper, Crim. 22663 (hg. granted July 8, 1982).

2.   In fact, defendant did not testify at the hearing.

3.   Presumably similar considerations influenced rejection of a legislative proposal (Assem. Bill No. 514 (1977–78 Reg. Sess.)) to amend Penal Code section 1203.2 to require the stay of revocation proceedings until final disposition of the related criminal charges.

RACANELLI, Presiding Judge.

ELKINGTON and NEWSOM, JJ., concur.