PEOPLE v. RODRIGUEZ (1989)

Defendant, Juan C. Rodriguez, appeals from the judgment of the trial court sentencing him to imprisonment for two years following his conviction for burglary (Pen.Code, § 459) and subsequent revocation of probation for that offense.  The trial court revoked defendant's probation after a hearing in which the trial court found by a preponderance of the evidence that defendant had violated a condition of probation by committing theft.

The trial court's use of the preponderance of evidence standard of proof generates this appeal.   Defendant contends the court was not authorized to find him in violation of probation unless it was persuaded of the truth of the charge by the greater standard of clear and convincing evidence.

 While the People appear to correctly state that our Supreme Court has never “held improper the application of the standard of preponderance of the evidence to cases involving probation revocation,” the Supreme Court, as well as Courts of Appeal have long observed use of the higher standard.  “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․”  (People v. Coleman (1975) 13 Cal.3d 867, 877, fn. 8, 120 Cal.Rptr. 384, 533 P.2d 1024.)  “A ‘clear and convincing’ showing is the burden of persuasion for establishing a violation of probation in California criminal proceedings.  [Citations.]”  (People v. Jackson (1987) 196 Cal.App.3d 380, 386, fn. 4, 242 Cal.Rptr. 1.)  “All that is required is that the grounds for revocation be clearly and satisfactorily shown;  ․” (People v. Hayko (1970) 7 Cal.App.3d 604, 609, 86 Cal.Rptr. 726.)  (See also In Re Coughlin (1976) 16 Cal.3d 52, 56, 127 Cal.Rptr. 337, 545 P.2d 249;  People v. Vanella (1968) 265 Cal.App.2d 463, 470, 71 Cal.Rptr. 152;  People v. Matranga (1969) 275 Cal.App.2d 328, 333, 80 Cal.Rptr. 313.)   These consistent judicial statements particularly that of our Supreme Court in Coleman compel us to conclude that the grounds for revocation of probation must be established by clear and convincing evidence.

The difference between the preponderance standard applied here and the clear and convincing standard required is significant.   Witkin observes:  “In a few situations, for reasons of policy of the substantive law, the ordinary ‘preponderance of the evidence’ is not considered sufficient to establish the fact in issue, and instead the party must prove it by ‘clear and convincing evidence.’   In such cases, of course, the jury or trial judge should not be satisfied with a slight preponderance in favor of the plaintiff.   [Citations.]  [¶] The phrase has been defined as ‘clear, explicit and unequivocal,’ ‘so clear as to leave no substantial doubt,’ and ‘sufficiently strong to command the unhesitating assent of every reasonable mind.’   [Citation.]  Otherwise stated, a preponderance calls for probability, while clear and convincing proof demands a high probability.  [Citations.]”  (1 Witkin, Cal.Evidence, (3d ed. 1986) § 160, p. 137;  emphasis in original.)

Having found error in the trial court's utilization of the preponderance of evidence standard, we consider the appropriate disposition of defendant's appeal.   We cannot find the error harmless because, on the state of the record, it is impossible to determine whether the trial court would have concluded that the proof was clear and convincing.   The People's case rested primarily upon the credibility of eyewitness identification of defendant as the person who shoplifted workgloves from a market.   The witness selected defendant's photograph from a mug book, believed she had seen him on prior occasions and thought he lived in “condominiums behind ․ the cemetery.”   On the other hand defendant denied being in the market at the relevant time and testified it was his brother, not he, who lived in the condominium behind the cemetery.   The trial court is in the favored position to evaluate this evidence and decide whether it establishes the charge clearly and convincingly.

 Defendant urges outright reversal of the judgment.   The People, on the other hand, suggest the matter be remanded for application of the correct standard of proof.   We accept the latter alternative as just and reasonable under the circumstances.   An appellate court is not restricted to the remedy of reversal when prejudicial error is found.  (People v. Minor (1980) 104 Cal.App.3d 194, 199–200, 163 Cal.Rptr. 501.)  Penal Code section 1260 authorizes the appellate court when proper to “remand the cause to the trial court for such further proceedings as may be just under the circumstances.”   Here, the case was properly and fairly tried up to the point of decision where the process faltered only on the applicable standard of proof.   We see no reason why the error cannot be corrected by the trial court's application of the proper standard to the evidence it has already heard.

To facilitate this reevaluation of the evidence the trial court may, in its discretion, cause or allow any witness to be recalled or receive any further evidence which may appear necessary to a just and proper disposition of the case.

The judgment is reversed and the matter remanded for further proceedings consistent with this opinion.

AGLIANO, Presiding Justice.

COTTLE and ELIA, JJ., concur.