PEOPLE v. HIDALGO

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Peter Rodriguez HIDALGO, Defendant and Appellant.

Cr. 29823, 30082.

Decided: March 15, 1978

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Aurelio Munoz and Allison Stein, Deputy State Public Defenders, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda, Paul C. Ament, Roger W. Boren, and Ronald N. Ito, Deputy Attys. Gen., for plaintiff and respondent.

In case numbered 30082, the information charging defendant with burglary was filed on June 1, 1976. The public defender was appointed to defend defendant. Defendant entered a plea of not guilty. He made a motion to have his current counsel relieved and new counsel appointed. The trial judge conducted several hearings on this motion and, at the conclusion of the hearings, the motion was denied. Defendant's trial was before a jury. The jury returned a verdict finding defendant guilty of burglary in the first degree. Probation was denied and defendant was sentenced to state prison for the term prescribed by law. The sentence was ordered to run concurrently with Superior Court Case No. A015895, which is our appeal case numbered 29823.

In case 29823, defendant was charged with burglary by an information filed on August 8, 1975. Defendant entered a plea of guilty and, on September 8, 1975, proceedings were suspended and defendant was granted probation for three years on various terms and conditions. One condition was that he was not to use or possess any narcotics or dangerous or restricted drugs. A second condition stated that he must submit to periodic anti-narcotic tests as directed by the probation officer. A third condition was that he obey all laws. On July 13, 1976, a probation violation hearing was scheduled, but defendant failed to appear. After a series of continuances, the probation violation came on for hearing on October 8, 1976. At that hearing the court received into evidence various probation reports and a copy of a five-page police report which pertained to the burglary for which defendant was sentenced on December 8, 1976, in case 30082. At the conclusion of the hearing of October 8, 1976, defendant's probation was revoked and he was sentenced to prison for the term prescribed by law.

THE APPEAL IN CASE 30082

1. The factual background.

At approximately 8:30 p. m. on May 1, 1976, Linda Funkhouser and Robert Moore were in Linda's living room when they heard a noise from the back of the house. Shortly thereafter, they were looking out the living room window and observed a male carrying a television. Linda then went to her bedroom, observed that her window had been broken, her television had been taken, and contents of her purse strewn over the bed, with money missing. Linda and Robert then proceeded to give chase to this male. They got close to the suspect, but he was able to disappear from view. They then observed the suspect running out from behind a building, but no longer carrying the television.

The Sheriff's Department was called and Deputies Cabe and Turner searched for the suspect. About 50 feet away from the place where Robert indicated he had last seen the suspect, the deputies saw defendant, who met the description given by Linda and Robert. When the deputies first noticed defendant, he was walking along, brushing debris and grass from his clothing. The deputies drew their pistols, handcuffed defendant, placed him in their vehicle, and transported him back to the scene of the crime the home of Linda. Deputy Cabe testified to the detention of defendant and his transportation back to Linda's home. A Deputy Sheriff David Moore (no relation to Robert) testified that at Linda's home, approximately 15 or 20 minutes after the report to the Sheriff's Department, he observed Deputy Cabe remove defendant from the police vehicle and Linda and Robert identified defendant as the suspect they had seen carrying the television.

2. The validity of defendant's contention that he was deprived of his constitutional right to the effective assistance of counsel because the trial court denied his motion for substitution of counsel under the erroneous assumption that the law does not provide for such substitution when the defendant is indigent.

Defendant contends that the trial court committed constitutional and reversible error in denying defendant's motion to substitute a new court-appointed counsel for the public defender previously appointed and then representing defendant.

We start our discussion with a statement of the principle set forth in Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, that a defendant has a constitutional right to the assistance of court-appointed counsel if he is unable to employ private counsel. The question before us, however, is whether an indigent defendant has a right to discharge his court-appointed counsel and obtain a different court-appointed counsel. The guiding rule of law on this point is set forth in People v. Marsden (1970) 2 Cal.3d 118, 123, 84 Cal.Rptr. 156, 159, 465 P.2d 44, 47, in which the court stated that “the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney.”

In describing this discretion, Marsden also points out that: “ ‘. . . ” The right of a defendant in a criminal case to have the assistance of counsel for his defense . . . may include the right to have counsel appointed by the court . . . discharged or other counsel substituted, if it is shown . . . that failure to do so would substantially impair or deny the right . . ., but the right to such discharge or substitution is not absolute, in the sense that the court is bound to accede to its assertion without a sufficient showing . . . that the right to the assistance of counsel would be substantially impaired . . . in case the request is not granted, and within these limits there is a field of discretion for the court.“ ‘ (Citations.)” (Id.)

Marsden was followed by People v. Williams (1970) 2 Cal.3d 894, 88 Cal.Rptr. 208, 471 P.2d 1008, which held that a disagreement between defendant and his counsel over trial tactics such as what witnesses to call in defendant's defense does not “necessarily compel the appointment of another attorney.” (Id., at p. 905, 88 Cal.Rptr., at p. 215, 471 P.2d, at p. 1015.) (Emphasis added.) The question of whether to call certain witnesses is generally a matter of trial tactics. (See People v. Monk (1961) 56 Cal.2d 288, 14 Cal.Rptr. 633, 363 P.2d 865; People v. Garn (1966) 246 Cal.App.2d 482, 54 Cal.Rptr. 867.) “A disagreement between a defendant and appointed counsel regarding the defendant's fundamental right to testify in his own behalf does not necessarily require the appointment of another attorney.” (Williams, supra, 2 Cal.3d 894, 905, 88 Cal.Rptr. 208, 215, 491 P.2d 1008, 1015.) (Emphasis added.)

But Williams does seem to recognize that there can be a breakdown of the attorney-client relationship of such magnitude as to substantially impair defendant's right to the assistance of counsel. Thus, the Williams court remarked that in the situation there presented, where the attorney-client dispute concerned the question of witnesses to be called, it did not appear “that the trial court erred in impliedly concluding that there was not a breakdown of the attorney-client relationship of such magnitude as to substantially impair defendant's right to the assistance of counsel.” (Williams, supra, 2 Cal.3d 884, 905, 88 Cal.Rptr. 208, 215, 471 P.2d 1008, 2015.) (Emphasis added.)

The case at bench is not unlike that of People v. Munoz (1974) 41 Cal.App.3d 62, 115 Cal.Rptr. 726. In Munoz, in a session in chambers while defendant's counsel was present, defendant requested a change of attorneys, stating with reference to his counsel: “You don't want to fight the case. I tell him the way it happened, and he he tells me, ‘You are guilty; you ain't got a chance.’ What kind of defense do I have, if I listen to him?” (Id. at 64, 115 Cal.Rptr. at 727.) The trial judge refused defendant's request to substitute counsel although the accused counsel did not deny the truth of defendant's allegations, and the trial judge made no effort to ascertain the truth or falsity of defendant's allegations.

The Munoz court held that the record before it established reversible error because “the (trial) court's ruling denying appellant's request for a substitution of attorneys, without an inquiry into the state of mind of the court-appointed attorney and without attempting to ascertain in what particulars the attorney was not providing appellant with a competent defense was tantamount to a refusal on the part of the court to adjudicate a fundamental issue; the court's failure to make the inquiry also resulted in a silent record, making intelligent appellate review impossible.” (Munoz, supra, 41 Cal.App.3d 62, 66, 115 Cal.Rptr. 726, 728.)

The Munoz court based its view of the trial court's abuse of discretion on the rationale enunciated in Marsden. Munoz gleans from Marsden the principle “that under some circumstances a court's ruling denying the request for a substitution of attorneys without a careful inquiry into the defendant's reasons for requesting the substitution ‘is lacking in all the attributes of a judicial determination.’ ” (Munoz, supra, 41 Cal.App.3d 62, 66, 115 Cal.Rptr. 726, 728.) And in In re Miller (1973) 33 Cal.App.3d 1005, 109 Cal.Rptr. 648, the court applied the Marsden rationale to a factual situation basically similar to Munoz. In Miller, a defendant, charged with murder and other offenses, with his only real defense that of diminished capacity, requested a substitution of his public defender because he and the public defender were in basic disagreement as to the importance of defendant's prior medical records and that his attorney had refused to subpoena these records and advised defendant that he would be embarrassed to argue certain points in his behalf. The trial judge did not inquire into the public defender's reasons for ignoring defendant's past medical history and made no attempt to understand the exact nature of the disagreement between the attorney and client. The Miller trial judge denied defendant's motion for substitution of attorneys, stating that the public defender was a competent attorney.

The Miller court held it to be a crucial error for the “judge's failure to make sufficient inquiry into the merits of defendant's request for a substitution of attorneys.” (Miller, supra, 33 Cal.App.3d 1005, 1021, 109 Cal.Rptr. 648, 659.) “What the record shows also is that through the omissions of court and counsel defendant was denied the right to explore fully the only defense he had. If ‘effective’ counsel required by due process is to have meaning at all, the type of representation contemplated by the Constitution was lacking in this case.” (Miller, supra, 33 Cal.App.3d 1005, 1023, 109 Cal.Rptr. 648, 660.)

Similar to In re Miller is People v. Groce (1971) 18 Cal.App.3d 292, 95 Cal.Rptr. 688, where a defendant complained to the trial judge that his counsel did not want to produce a physician and hospital records. “The court ordered the trial to proceed without inquiry into counsel's reason for not producing the physician or his hospital records. We are left the alternative of speculating as to the contents or to reverse for the error. (P) Rather than guess, we order that the judgment be reversed.” (Id., at p. 297, 95 Cal.Rptr., at p. 690.) (Emphasis added.)

The record before us indicates that the defendant filed a handwritten motion seeking to have a new attorney appointed for the public defender that had been representing him. At the first hearing session on his motion, the trial judge was first under the impression that defendant was seeking to represent himself in place of the deputy public defender. Although the handwritten motion was in three pages, the last two sentences thereof stated: “Defendant is not asking the court to move in pro-se. (P) Defendant is asking the court to dismiss the Public Defender, and to appoint new counsel.”

At a subsequent hearing session on defendant's motion, the trial judge indicated that he then understood that defendant was seeking to have a new attorney appointed rather than seeking self-representation. The trial court at first advised the defendant that indigent defendants were not entitled to remove the public defender whenever such defendants desired to do so, and then stated that defendant's request for appointment of private counsel in place of the public defender was being denied. There then followed a colloquy between the trial judge and defendant as to the possibility of permitting defendant to represent himself with stand-by counsel appointed. The trial judge then asked defendant to think about the situation until the next hearing.

At a third hearing session, defendant again indicated that he was not desirous of representing himself and that the reason he desired new counsel was that the public defender who represented him had already reached a conclusion that he was guilty and that the public defender had repeatedly tried to get him to plea bargain and had threatened him with the consequences of state prison if he did not plead guilty. At the time defendant made these allegations against the deputy public defender who was representing him, the deputy was not present at the hearing, the indication being that he was ill. The trial judge responded to the allegations by simply asking the defendant had the deputy public defender ever told defendant that he would not try his case before a jury and put forth whatever defense defendant had, and then denied the motion without further inquiry or scheduling another hearing.

At no time did the trial judge seek to have the deputy public defender present to be questioned about the allegations made by defendant with respect to his disagreement with the deputy public defender as his attorney.

There can be little doubt that the allegations made by defendant as to the conduct of his counsel were such that some inquiry should have been made by the court to make a determination of the truth or falsity of the allegations. If such allegations were true, it follows that defendant's counsel, having the state of mind indicated, could not provide defendant with the effective representation to which defendant was constitutionally entitled. The record of the several hearings conducted by the trial judge leads inexorably to only one conclusion, to wit, that the trial judge did not exercise a judicial discretion but denied defendant's motion for substitution of counsel without a proper consideration of the truth or falsity of the reasons set forth by defendant for desiring a substitution of counsel. We conclude that the failure to exercise judicial discretion constituted an abuse of discretion and a failure to adjudicate an important constitutional issue so that, applying the principles of Marsden, Munoz, Miller and Groce, reversible error was committed, necessitating a reversal of defendant's conviction.

3. The validity of defendant's contention that he was denied effective assistance of counsel because of his counsel's failure to attack defendant's transportation to the crime scene and the ensuing on-the-scene identification and the at-trial identification.

Defendant's appellate counsel seeks to upset the judgment of conviction on the ground that defendant was denied effective assistance of counsel at trial because defendant's trial attorney failed to challenge defendant's transportation from the place of his initial detention to the scene of the offense and his resultant identification by Linda and Robert. Appellate counsel argues that trial counsel should have sought to suppress the on-the-scene identification of defendant as being illegal and should have sought to suppress the in-court identification of defendant by Linda and Robert as being inextricably bound up with the illegal on-the-scene identification.

Defendant's chief reliance is on the case of People v. Harris (1975) 15 Cal.3d 384, 124 Cal.Rptr. 536, 540 P.2d 632. It is well recognized that there is a distinction between probable cause for a temporary detention of a suspect and probable cause to arrest a suspect. (See People v. Mickelson (1963) 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658.) A police officer may make a warrantless arrest when the facts known to such officer “ ‘would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.’ ” (People v. Terry (1970) 2 Cal.3d 362, 393, 85 Cal.Rptr. 409, 428, 466 P.2d 961, 980.) The standard for temporary detention, which is of a lesser quality, has been stated as follows: “Where there is a rational belief of criminal activity with which the suspect is connected, a detention for reasonable investigative procedures infringes no constitutional restraint. (Citation.)” (People v. Flores (1974) 12 Cal.3d 85, 91, 115 Cal.Rptr. 225, 228, 524 P.2d 353, 356.)

The issue involved in Harris relates to circumstances that justify transporting a suspect, who has been temporarily detained, to the scene of the crime for purposes of identification by witnesses. “A detention of an individual which is reasonable at its inception may exceed constitutional bounds when extended beyond what is reasonably necessary under the circumstances.” (Harris, supra, 15 Cal.3d 384, 390, 124 Cal.Rptr. 536, 539, 540 P.2d 632, 635.) In Harris, the defendants as suspects were seized, handcuffed and conveyed to the scene of an alleged burglary for identification to be made by the citizens complaining that their home had been burglarized. The defendants were not identified by the complainants but, as a result of the transportation, the officers obtained demonstrative evidence which was received in evidence against the defendants in spite of a suppression-of-evidence motion. The Harris court held that although the detention of the defendants was constitutionally permissible, their transportation to the scene of the crime violated their constitutional rights, requiring a reversal of the trial court's ruling denying the suppression-of-evidence motion and requiring a reversal of defendants' conviction predicated on such illegally obtained evidence.

Defendant's contention before us is that the circumstances of the case at bench parallel those found in Harris and, therefore, mandate a reversal of the defendant's conviction. The Harris court pointed out that it could conceive of factual situations in which it would be appropriate for the police to transport a temporarily detained suspect to the crime scene for possible identification. One factual situation cited as an example was that of a victim of an assault or other offense who had been injured or otherwise was physically unable to be taken promptly to the place of detention to view the suspect and the circumstances warranted a reasonable suspicion that the suspect was indeed the offender.

Harris points out that normally there would exist procedures less restrictive upon a suspect's right of liberty and personal freedom which would still constitute a reasonable alternative to pre-arrest transportation. One reasonable alternative set forth would be for the police to escort the crime witness to the detention scene, or make arrangements for the subsequent confrontation, or seek the consent of the suspect to be transported to the crime scene. (See Mickelson, supra, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380, P.2d 658.)

A careful reading of Harris leads to the conclusion that for a transportation of a temporarily detained suspect to the scene of a crime, even where the victim or other witness has been injured, to be a constitutionally valid transportation, the circumstances involving the seizure of the suspect must warrant a “reasonable” suspicion by the seizing officer that the alleged suspect is unmistakably the perpetrator of the crime.

In the case at bench, however, the People assert that this is not a case of temporary detention of defendant and subsequent transportation to the crime scene as occurred in Harris, but that defendant was arrested initially and not temporarily detained. The People support their position by pointing out that the two witnesses to the crime, Linda and Robert, had given the officers a physical description of the suspect; that defendant matched that description and was found within 50 feet of the place where the witnesses indicated that they had last seen the suspect. The People thus urge that there was reasonable cause for the deputy sheriffs to place defendant under arrest and that they did in fact place him under arrest at the initial encounter.

There is little discussion in the case law with respect to what constitutes a temporary detention as distinct from an actual arrest. Penal Code section 834 defines an arrest as “taking a person into custody, in a case and in the manner authorized by law.” In the instant case Deputy Cabe testified that when she and her partner first saw defendant, they approached him with drawn guns, took him into custody and handcuffed him. But in Harris, the police conduct of handcuffing the suspects and placing them in the police vehicle was considered to constitute a temporary detention and not an arrest.

Must the magic words be used by the police “You're under arrest” in order for the handcuffing of a suspect to be determined an arrest? It is reasonable to hold that the officer's state of mind his intention in handcuffing a suspect is the paramount consideration. But even so, the intention to arrest a suspect may certainly be indicated by conduct other than the magic words “You're under arrest.”

In the case at bench, whether the deputy sheriffs considered their actions of handcuffing the defendant and placing him in the police vehicle as constituting an actual arrest of defendant is not made clear by the testimony at trial. A deputy sheriff who was not one of the arresting officers testified that he sought an in-the-field identification of defendant after the defendant had been transported to the scene of the crime by Cabe and Turner, the transporting deputy sheriffs. Deputy Sheriff David Moore testified that he advised the two crime witnesses, Linda and Robert, that the officers had a man in the back seat of the radio car who was handcuffed, but that didn't necessarily mean that he was the suspect and that they were under no obligation to identify him. Deputy David Moore also testified that Deputy Cabe took defendant out of the vehicle and that both Linda and Robert simultaneously said, “(t)hat's him.” This testimony of Deputy David Moore would tend to indicate that Officers Cabe and Turner, who handcuffed defendant and transported him to the crime scene, had not, before the on-the-scene identification of defendant, made a determination that defendant “was indeed the offender” to constitute his initial seizure and handcuffing an arrest.

That Officers Cabe's and Turner's initial seizing and handcuffing of defendant constituted a temporary detention and not an arrest is made clear by the record in the probation revocation proceeding in our appeal case 29823. We take judicial notice of this record in our consideration of case 30082. The five-page police report, received as an exhibit in the probation revocation proceeding, concerned the burglary which is the subject of our appeal case 30082. This police report states that Deputies Cabe and Turner “detained” defendant and brought him to the crime location. The report further states that, upon the field identification of defendant as the suspect, made by Linda and Robert, Deputy David Moore then advised defendant that he was under arrest for the burglary.

It follows that the transportation of the defendant from the location of his initial detention to the scene of the crime constituted an illegal transportation under Harris, and the ensuing in-the-field identification of defendant by Linda and Robert constituted illegally obtained evidence subject to a valid suppression-of-evidence motion. The in-court identification of defendant by these same two witnesses would also be subject to suppression as being tainted by the illegal pretrial identification unless the prosecutor carried the burden of proof that the in-court identification had an independent source.

It is defendant's position that the failure of his trial counsel, whom he sought to have substituted by a different court-appointed counsel, to make a motion to suppress the pretrial identification of defendant and the subsequent in-court identification of defendant constituted a clear case of ineffective representation by counsel. We agree. A cursory examination by defense counsel of the police report executed by Deputy Sheriff David Moore would have revealed the basis under Harris for a motion to suppress the pretrial identification of defendant and the in-trial identification by the same two witnesses. Defense counsel's failure shows either a lack of adequate investigation or a lack of knowledge of the law of preliminary detention and transportation of a defendant to the crime scene for witness identification as set forth in Harris, supra, 15 Cal.3d 384, 124 Cal.Rptr. 536, 540 P.2d 632.

Defendant was thus denied an adjudication of a crucial issue of his defense the credibility of his alibi defense. Such adjudication may well have resulted in the exclusion of the in-court identification testimony of Linda and Robert as well as the exclusion of evidence of their pretrial identification of defendant.

The guiding principle governing the question of what constitutes inadequacy of counsel to constitute a denial of defendant's constitutional right is set forth in People v. Ibarra (1963) 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 866, 386 P.2d 487, 490: “It must appear that counsel's lack of diligence or competence reduced the trial to a ‘farce or a sham.’ (Citations.) It is counsel's duty to investigate carefully all defenses of fact and of law that may be available to the defendant, and if his failure to do so results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled.” (Emphasis added.) In Ibarra, the “crucial” defense that was withdrawn was the failure of defendant's attorney to assert a defense of an illegal search and seizure because of the mistaken notion that a defendant may not challenge the legality of a search and seizure unless he claims a proprietary interest in the premises searched.

The Ibarra court stresses that it is the deprivation of an adjudication of a crucial defense that constitutes the denial to a defendant of his constitutional right to “effective aid in the preparation and trial of the case.” (See Powell v. Alabama (1932) 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158.) Thus, the Ibarra court reasoned that defense counsel's failure “deprived defendant of an adjudication of what was clearly the stronger of the two defenses available to him.” (Ibarra, supra, 60 Cal.2d 460, 465-466, 34 Cal.Rptr. 863, 867, 386 P.2d 487, 491.) (Emphasis added.) Equally significant is the Ibarra teaching that the “adjudication” of which a defendant has been deprived by his counsel's failure need not lead inexorably to a defendant's acquittal. The critical element is the failure to have an appropriate adjudication of a defense. It is this failure which reduces a trial to a “farce or a sham,” and which renders a defendant's trial fundamentally unfair in violation of the constitutional due process rights guaranteed to every defendant.

The constitutional principles set forth in Ibarra have been persuasively reiterated in People v. Shells (1971) 4 Cal.3d 626, 94 Cal.Rptr. 275, 483 P.2d 1227, and In re Saunders (1970) 2 Cal.3d 1033, 88 Cal.Rptr. 633, 472 P.2d 921. We conclude that defense counsel's failure in the case at bench falls within the principles enunciated in Ibarra, Shells and Saunders and deprived defendant of his constitutional right to effective assistance of counsel. Because of this error and the error of the trial judge in denying defendant's motion for substitution of attorneys, we are required to reverse defendant's conviction. (See Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.)

THE APPEAL IN CASE 29823

Defendant's attack upon the judgment revoking probation and sentencing him to state prison is predicated upon constitutional grounds. Defendant claims a violation of his due process rights and of his right to the effective assistance of counsel.

1. The absence of a prerevocation hearing.

In People v. Vickers (1972) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313, the California Supreme Court points out that it was adopting, for probation revocation, the due process requirement of a two-step hearing procedure set forth for parole revocation by Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. The first hearing is for “an initial determination that there exists or does not exist grounds which may support revocation thus justifying a temporary detention pending formal revocation proceedings, and the more formal proceedings requiring factual determinations and disposition based thereon.” (Vickers, supra, 8 Cal.3d 451, 456, 105 Cal.Rptr. 305, 309, 503 P.2d 1313, 1317.)

In the case at bench, it is conceded that defendant's probation was revoked initially without a prerevocation hearing having been conducted. But the People assert that defendant waived his due process right to a prerevocation hearing. It is settled law that there can be a waiver of a probationer's constitutional right to a prerevocation probation hearing. It can be waived expressly, or impliedly when a probationer, with knowledge of the right, fails to assert it in a timely fashion. (In re La Croix (1974) 12 Cal.3d 146, 153, 115 Cal.Rptr. 344, 524 P.2d 816.)

The People contend that there was an express waiver by defendant. The court's minute order of October 8, 1976, covering the final revocation-of-probation proceedings contains the entry: “Defendant advised of rights re hearing on violation. Defendant preliminarily concedes violation and waives rights to preliminary revocation hearing.” However, the reporter's transcript of the oral proceedings of October 8, 1976, contains no words by defendant of any express waiver nor any words or other conduct that are capable of being construed as an implied waiver. It is urged by the People that the conflict between the court's minute order and the reporter's transcript should be resolved in favor of the minute order. The rule has been expressed that in the event of a conflict between the two records, the controlling record “is to be determined from a consideration of the circumstances under which the proceedings were had.” (People v. Washington (1949) 95 Cal.App.2d 454, 456, 213 P.2d 70, 71; see People v. McKissack (1968) 259 Cal.App.2d 283, 66 Cal.Rptr. 199.)

We have no hesitancy in holding that, under the circumstances presented in the instant case, the reporter's transcript must prevail over the court's minute order. A court's minute order is in the nature of an interpretation or conclusion by the clerk as to the meaning and legal effect of what has transpired in court. But the reporter's transcript purports to be a report of all oral proceedings in the case everything that was said by all court participants. In addition, the official court reporter in the instant matter certified that her transcript comprised “a full, true, and correct transcript of the proceedings and testimony taken in the matter of the above-entitled cause on Friday, October 8, 1976.”

We next consider whether defendant was prejudiced by the failure of the trial court to conduct a prerevocation hearing. It is settled that due process of law does not require that a probationer benefit from a denial of the prerevocation hearing. A probationer is not entitled to have the revocation set aside on this ground “unless it appears that the failure to accord him a prerevocation hearing resulted in prejudice to him at the revocation hearing.” (In re La Croix, supra, 12 Cal.3d 146, 154, 115 Cal.Rptr. 344, 350, 524 P.2d 816, 822.)

In measuring whether the failure to accord a probationer a prerevocation hearing has resulted in prejudice to him at the revocation hearing, we are guided by the rule that “(p)rejudice is not presumed merely because of a failure to comply and in particular instances denials of constitutional proportions may be deemed harmless. However, ‘before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ ” (In re La Croix, supra, 12 Cal.3d 146, 154, 115 Cal.Rptr. 344, 350, 524 P.2d 816, 822).

At the revocation hearing of October 8, 1976, defendant's counsel stated that defendant was conceding that he was using phenobarbital, one of the matters charged as a probation violation, and that he was conceding that he had failed on several occasions to appear and submit to anti-narcotic tests as directed by the probation officer another matter charged as a probation violation. In light of these concessions, made at the revocation hearing, defendant simply fails to suggest how and in what manner he was precluded at the revocation hearing from successfully challenging the two matters that would have been presented against him at a prerevocation hearing. The defendant, therefore, fails to demonstrate prejudice from the denial of a timely prerevocation hearing. Hence, we hold that such a denial was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.)

2. Due process requirements when a probationer admits a probation violation at a revocation hearing.

Defendant contends that he was denied due process of law when he admitted a charged probation violation without first having been advised of his constitutional rights that were being waived and of the penalty consequences involved in a finding of the truth of the charge. After defendant's counsel informed the court that defendant was prepared to concede the probation violation of a failure to appear on several occasions for anti-narcotics testing, the court asked: “Well, Mr. Hidalgo, do you admit that you failed to show for testing as set out by the probation officer without sufficient excuse?” Defendant replied: “Yes, sir, I do.” The court then stated: “All right, the defendant's found in violation of probation by reason of his failure to show for testing.”

Defendant asserts that the trial judge's failure to advise defendant beforehand of his probation-revocation constitutional rights constituted a violation of the Morrissey-Vickers and Boykin-Tahl doctrines. (Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; People v. Vickers (1972) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313; Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.)

The application of Morrissey-Vickers and Boykin-Tahl principles to the precise issue presented here was rejected in People v. Dale (1973) 36 Cal.App.3d 191, 112 Cal.Rptr. 93 and People v. Garcia (1977) 67 Cal.App.3d 134, 136 Cal.Rptr. 398. In rejecting the contention that due process requires a formal admonition about “consequences” before a defendant may be called upon to admit a charged probation violation, the Garcia court remarked: “At a probation revocation hearing the issue is different from that presented on the original charge, the procedure is different, and the method of proof is different, to such an extent that the forms of procedure prescribed in Boykin and Tahl have little relevance.” (Garcia, supra, 67 Cal.App.3d 134, 137, 136 Cal.Rptr. 398, 399.) We thus reject defendant's contention that his revocation hearing resulted in any violation of the Morrissey-Vickers or Boykin-Tahl constitutional principles.

3. The question of whether defendant was denied his constitutional right to the effective assistance of counsel at the probation revocation hearing.

Defendant asserts that he was denied his constitutional right of effective assistance of counsel at the probation revocation hearing. The record reflects that defendant's counsel below called defendant to testify that he did not commit the burglary alleged as one matter constituting a violation of the terms of his probation the burglary that was subsequently adjudicated in our appeal case 30082. Defense counsel did not call the probation officer as a witness although the officer in his several reports stated that it was his opinion that defendant was in need of a drug treatment program and that he should be given the opportunity of an interview with representatives of the Castle Drug Program and that this matter should be considered even if defendant were to be convicted of the pending burglary. Defendant's attack upon his attorney's representation also includes the failure of his attorney to call Linda and Robert, the two adverse witnesses to the burglary, and use the preliminary examination transcript in an effort to attack their credibility. The revocation-hearing court had before it, as evidence that defendant had committed the burglary, the police report referred to in our discussion of appeal case 30082. We do not find, however, a failure by defense counsel in the revocation hearing proceedings of such a character as to amount to the withdrawal of a crucial defense (see Ibarra, supra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487) such as we find in the burglary guilt trial, discussed previously. Several differences in the two proceedings lead us to arrive at the different results.

We start with the principle that, although probation and parole revocation proceedings are equivalent in terms of the requirements of due process, “ ‘the revocation of parole (probation) is not a part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole (probation) revocations . . . .’ Among the most significant respects in which Morrissey's ‘minimum requirements of due process' (citation) differ from the ‘full panoply of rights due a defendant (in a criminal prosecution)’ (citation), are with regard to the burden of proof on the state and the admissibility of illegally obtained evidence. A violation of a condition of probation may be established by a ‘clear and convincing’ showing rather than the more demanding standard of proof beyond a reasonable doubt applicable at criminal trials (citations), and the Fourth Amendment and ‘Dorado-Miranda ’ exclusionary rules do not apply at a revocation hearing. (Citations.)'' (People v. Coleman (1975) 13 Cal.3d 867, 876-877, fn. 8, 120 Cal.Rptr. 384, 393, 533 P.2d 1024, 1033.)

Thus, even though defendant's trial counsel in the burglary trial should have litigated the issue of illegally obtained evidence in an effort to gain an acquittal for defendant in the criminal prosecution, the evidence of the pretrial identification of defendant by Linda and Robert would have been admissible at the probation revocation hearing. The admissibility of illegally obtained evidence at a parole revocation proceeding before the Adult Authority was established in In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734. The principle of the admissibility of illegally obtained evidence in a probation revocation hearing is set forth in People v. Hayko (1970) 7 Cal.App.3d 604, 86 Cal.Rptr. 726. “(E)vidence obtained as a result of an illegal search and seizure can be used by the court for the limited purpose of determining whether a convicted defendant's probation should be revoked.” (Id. at 610, 86 Cal.Rptr. at 730; accord, People v. Calais (1974) 37 Cal.App.3d 898, 112 Cal.Rptr. 685.)

It is clear that the burden of proof on the prosecution to establish a probation violation is less than proof beyond a reasonable doubt. It is not clear, however, whether the burden-of-proof standard is that of proof by “clear and convincing proof” or by a “preponderance of the evidence.” In In re Coughlin (1976) 16 Cal.3d 52, 127 Cal.Rptr. 337, 545 P.2d 249, the California Supreme Court dealt with the question of the standard of the burden of proof but held only that “the authorities are unanimous in concluding that the standard of proof used in a criminal trial, namely, the ‘beyond a reasonable doubt’ standard (Pen.Code, s 1096) is inapplicable to the probation revocation hearing.” (Id. at 56, 127 Cal.Rptr. at 340, 545 P.2d at 252.) But, unfortunately, the Coughlin court did not see fit to adopt either the clear-and-convincing-proof standard or the preponderance-of-the-evidence standard, being content to point out that courts had applied both standards. We are thus left without definitive guidance as to the appropriate burden-of-proof standard for the issue in a probation revocation hearing of whether there exists “reason to believe” a probationer has violated a condition of probation.

Since the beyond-a-reasonable-doubt standard is not applicable, a probationer's probation may be revoked for the commission of a new offense as a violation of law “despite the fact that the evidence of the probationer's guilt may be insufficient to convict him of the new offense.” (In re Coughlin, supra, 16 Cal.3d 52, 56, 127 Cal.Rptr. 337, 340, 545 P.2d 249, 252.) Thus, an acquittal of the new offense or a reversal of a conviction on appeal does not preclude the use of the underlying evidence to determine that the probationer committed the new offense for purposes of a finding that there has been a violation of probation to justify an order revoking probation. (In re Coughlin, supra, 16 Cal.3d 52, 127 Cal.Rptr. 337, 545 P.2d 249.)

In the case at bench, therefore, the trial court would have been justified in finding that defendant had violated his probation by committing the burglary charged in our appeal case 30082 even if defense counsel had established that the pretrial identification evidence was illegally obtained evidence and that any in-court identification testimony was tainted to preclude defendant's conviction of the burglary charge. The failure of defense counsel to call Linda and Robert, the prosecution's witnesses to the burglary, to the stand and seek to impeach their testimony through use of the preliminary hearing transcript appears to be clearly a case of a choice of trial tactics and not one of a failure to adequately investigate and prepare defendant's defense to the revocation probation hearing or a failure to know the law. Defense counsel's failure to call the probation officer as a witness to testify and repeat the recommendation contained in his report falls into the same category. No failure by defense counsel at the probation revocation hearing can be deemed to have resulted in a withdrawal of a crucial defense possessed by defendant. There was thus no violation of defendant's constitutional right to the effective assistance of counsel within the meaning of Ibarra.

The judgment in appeal case 30082, which is superior court case A610763, is reversed. The judgment in appeal case 29823, which is superior court case A015895, is affirmed.

JEFFERSON, Associate Justice.

KINGSLEY, Acting P. J., and BIGELOW, J. (Assigned by the Chief Justice of California), concur.

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