The PEOPLE, Plaintiff and Respondent, v. Penny Lee GALLEGOS, Defendant and Appellant.
Defendant and appellant Penny Lee Gallegos (“appellant”) appeals from a judgment of conviction for driving under the influence of alcohol in Case No. M22017, and from a finding that by driving under the influence of alcohol she had also violated her probation in Case No. M19325. The determinations in both cases were made by the Los Cerritos Judicial District of the Los Angeles Municipal Court. We transferred the appeals to this court for hearing and decision pursuant to rule 62, subdivision (a), of the California Rules of Court. We affirmed the judgment and order. The Supreme Court granted a hearing and on September 17, 1987, retransferred the case to this court with directions “to refile its opinion as modified and to make appropriate reference to People v. Weaver (1985) 39 Cal.3d 654, 217 Cal.Rptr. 245, 703 P.2d 1139.”
STATEMENT OF FACTS
In November of 1982, appellant was placed on three years probation in Case No. M19325, after pleading guilty to a charge of driving under the influence of alcohol. (Veh.Code, § 23152, subd. (a).) On February 27, 1983, during appellant's probationary period, she was again arrested and, in Case No. M22017, she was charged with driving under the influence of alcohol and driving with .10 percent blood alcohol content. (Veh.Code, § 23152, subds. (a) & (b)).
As a result of appellant's drunk driving arrest on February 27, 1983, a probation violation hearing in Case No. M19325 was held in the Municipal Court.1 According to the settled statement on appeal, at the probation violation hearing the court found that “the defendant was not in violation of probation in that she had not violated any laws, and in particular had not violated V.C. 23152(a) or V.C. 23152(b).”
A jury trial on the drunk driving charges was held in the Municipal Court immediately following the probation violation hearing.2 Substantially the same testimony and evidence were introduced at the trial in Case No. M22017. The jury found appellant guilty of the charges, and, thereafter, based on the guilty verdict, the court summarily ruled that appellant was also in violation of a condition of probation in Case No. M19325, notwithstanding its previous finding to the contrary. Appellant was sentenced to three years probation and forty-eight hours in jail in Case No. M22017, and to ten days in jail as an “additional term of probation” for violating her probation in Case No. M19325.
Appellant filed a timely appeal from the order and judgment of the municipal court.3 The Appellate Department of the Superior Court reversed the judgment and order of the trial court, holding that although the trial court did not err in conducting the probation violation hearing before the jury trial, the doctrine of collateral estoppel precluded both the trial in Case No. M22017 and the redetermination of whether appellant violated probation in Case No. M19325. As a result, the court reversed appellant's conviction in Case No. M22017, the finding of a probation violation in Case No. M19325, and certified its opinion for publication. We have ordered this case transferred to us for hearing and decision pursuant to Rule 62, subdivision (a), of the California Rules of Court in order to “settle important questions of law.” (Ibid.)
Appellant contends on appeal:
(1) The trial court abused its discretion in conducting appellant's probation violation hearing in Case No. M19325 before appellant's jury trial in Case No. M22017 on the same charges.
(2) Once the question whether appellant's conduct had violated any laws was decided in her favor at the probation violation hearing in Case No. M19325, the trial court was collaterally estopped from subjecting appellant to a trial by jury on the same criminal charges in Case No. M22017.
(3) The trial court abused its discretion in holding that appellant had violated probation in Case No. M19325 after appellant was convicted for drunk driving in Case No. M22017, because the trial court was bound by its earlier decision in Case No. M19325 that appellant's conduct had not been a violation of law.
A. The trial court did not abuse its discretion by conducting the probation violation hearing before the trial.
Appellant contends that the trial court abused its discretion in conducting appellant's probation violation hearing in Case No. M19325 prior to her jury trial in Case No. M22017. Appellant's contention lacks merit. “[A] probationer's rights are not impaired by reason of the timing of his revocation hearing․ [Citations.] Whether a revocation hearing should be held before the trial rests in the reasonable discretion of the trial court.” (People v. Jasper (1983) 33 Cal.3d 931, 935, 191 Cal.Rptr. 648, 663 P.2d 206; People v. Coleman (1975) 13 Cal.3d 867, 897, 120 Cal.Rptr. 384, 533 P.2d 1024.) 4
B. The doctrine of collateral estoppel did not preclude a jury trial on the drunk driving charge against appellant following the trial court's determination at the probation violation hearing that appellant's conduct was not a violation of law.
Appellant contends the trial court's finding at the probation violation hearing that her conduct on February 27, 1983, was not a violation of law bars relitigation of the question at a jury trial. The doctrine of collateral estoppel acts to bar relitigation of an issue already decided at a previous hearing if “(1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial.” (People v. Taylor (1974) 12 Cal.3d 686, 691, 117 Cal.Rptr. 70, 527 P.2d 622, emphasis added.)
The sine qua non for the application of the doctrine of collateral estoppel is a final judgment. A trial court's finding that there is no probationary violation is not a final judgment for purposes of the doctrine. Once a defendant is placed on probation, the court retains its authority, through the probation officer, for the length of the specified period; the court may therefore modify or change any of the terms and conditions of probation during that time. (Pen.Code, § 1203.1.) Such modification or revocation of probation orders is governed by Penal Code section 1203.2. Subdivision (a) of that section provides that “[a]t any time during the probationary period ․ any probation or peace officer may, without warrant or other process and at any time until the final disposition of the case rearrest the person and bring him before the court or the court may, in its discretion, issue a warrant for his rearrest.” (Emphasis added.) Subdivision (b) of section 1203.2 provides that the court may then “modify, revoke, or terminate the probation of the probationer pursuant to this subdivision.” Thus, only when the probationary period is completed or revoked can it be said that there is a “final disposition” of a probationer's case. Therefore, any determination regarding a probationary violation which is made by the trial court during the probationary period is not a “final judgment” for purposes of res judicata or collateral estoppel. It follows that any such determination at a probation violation hearing does not bar a subsequent prosecution on the criminal charges in a separate and subsequent case.5
Furthermore, the substantive and procedural functions of a probation violation hearing are fundamentally different from those of a criminal trial.6 While the hearing takes the form of a trial in some ways for the protection of the probationer's own due process rights, (In re Coughlin (1976) 16 Cal.3d 52, 61, 127 Cal.Rptr. 337, 545 P.2d 249), it does not rise to the level of a criminal proceeding. (Chamblin v. Municipal Court, supra, 130 Cal.App.3d at 120, 181 Cal.Rptr. 636.) Further, “the role of a judge in considering the question of whether a convicted offender's probation should be revoked ․ is not determining whether the defendant is guilty or innocent of a crime. Rather, he must determine whether the convicted offender ‘can be safely allowed to return to and remain in society.’ ” (People v. Hayko (1970) 7 Cal.App.3d 604, 610, 86 Cal.Rptr. 726.) In Chamblin v. Municipal Court, supra, 130 Cal.App.3d 115, 181 Cal.Rptr. 636, the court specifically held that a trial court's finding at a probation revocation hearing that defendant had not violated a law would not collaterally estop a subsequent criminal prosecution, because the former involved entirely different purposes, policies and procedures.
Moreover, if the decision in a probation violation hearing were given collateral estoppel effect to bar a later criminal prosecution, the People's right to the procedures and protections of a formal criminal trial, including the right to a jury trial, would be denied. (Chamblin v. Municipal Court, supra, 130 Cal.App.3d at p. 121, 181 Cal.Rptr. 636; Gurrola v. County of Los Angeles (1984) 153 Cal.App.3d 145, 152, 200 Cal.Rptr. 157.) Although the People's right to a jury trial is not absolute (see People v. Sims, supra, 32 Cal.3d at pp. 483–484, fn. 13, 186 Cal.Rptr. 77, 651 P.2d 321), the courts generally recognize such right pursuant to Article I, Section 16, of the California Constitution. (People v. Luna (1983) 140 Cal.App.3d 788, 793, 189 Cal.Rptr. 792; People v. Mapp (1983) 150 Cal.App.3d 346, 350, 198 Cal.Rptr. 177.)
Therefore, the trial court's finding in appellant's original probation violation hearing that her conduct on February 27, 1983, did not violate her probation in Case No. 19325, did not bar her subsequent jury trial for that conduct in Case No. M22017.
C. The trial court did not abuse its discretion in finding that appellant had violated her probation after determining at the original probation violation hearing to the contrary.
Appellant contends the trial court abused its discretion by modifying her probation after initially determining her conduct on February 27, 1983, had not violated any law. This contention is without merit. As noted earlier, the court has broad discretion to modify or revoke probation at any time during the probationary period. (Pen.Code, § 1203.2) The court must have only “reason to believe” that a condition of probation has been violated, or that the probationer has subsequently committed other offenses. (Pen.Code, § 1203.2, subd. (a); People v. Ortiviz, supra, 74 Cal.App.3d at p. 542, 141 Cal.Rptr. 483.) Cases have interpreted this language to require “clear and convincing” proof. (People v. Coleman, supra, 13 Cal.3d at p. 877, fn. 8, 120 Cal.Rptr. 384, 533 P.2d 1024.)
The standard of review on appeal for probation decisions allows broad discretion to the trial court; the only restriction on the court's exercise of that discretion is that it may not act arbitrarily or capriciously. (People v. Robart (1973) 29 Cal.App.3d 891, 893, 106 Cal.Rptr. 51.) In this case, since the jury convicted appellant of the drunk driving charges in Case No. M22017, the trial court had sufficient cause to find a probation violation had occurred. Accordingly, the court did not abuse its discretion by redetermining the question whether that conduct also violated appellant's probation, and then modifying the terms of her probation.
The order and judgment in Case Nos. M19325 and M22017, respectively, are affirmed.
1. Appellant's motions to have the jury trial proceed before or concurrently with the probation violation hearing were denied.
2. Appellant's motion to have the criminal charges dismissed on res judicata grounds was denied.
3. On appeal, the People note that the settled statement established the issues at the probation violation hearing and the jury trial were identical. Therefore, they erroneously conclude that, in this case, the trial court was estopped from relitigating these issues in Case No. M22017. The People concede that the judgment in that case and the trial court's finding that appellant violated probation in Case No. M19325 should be reversed. Nevertheless, the Court of Appeal may determine these cases on their merits. (People v. Carlucci (1979) 23 Cal.3d 249, 152 Cal.Rptr. 439, 590 P.2d 15; Cal.Rules of Court, rule 62, subd. (a).)
4. The Jasper rule has survived the adoption of Proposition 8 in June, 1982. (People v. Weaver (1985) 39 Cal.3d 654, 659–600, 217 Cal.Rptr. 245, 703 P.2d 1139.)
5. The Appellate Department's reliance on People v. Sims (1982) 32 Cal.3d 468, 186 Cal.Rptr. 77, 651 P.2d 321, is inapposite. Sims involved the collateral estoppel effect of an administrative fair hearing before a hearing officer of the California Department of Social Services on a subsequent criminal trial.
6. The court in People v. Ortiviz (1977) 74 Cal.App.3d 537, 541–542, 141 Cal.Rptr. 483, refused to apply the doctrine of collateral estoppel at a probation revocation hearing merely because the charges had already been dismissed at a preliminary hearing, even though the standard of proof at the preliminary hearing was lighter than that at the probation revocation hearing. (See also Chamblin v. Municipal Court (1982) 130 Cal.App.3d 115, 120, fn. 1, 181 Cal.Rptr. 636.)
ARABIAN, Associate Justice.
KLEIN, P.J., and DANIELSON, J., concur.