People v. Preyer

164 Cal. App. 3d 568, 210 Cal. Rptr. 807
California Court of Appeal·Decided February 7, 1985·No. B001156·Published·Cited by 61 cases

Opinion

164 Cal.App.3d 568 (1985)
210 Cal. Rptr. 807

THE PEOPLE, Plaintiff and Respondent,
v.
CHARLES WELDON PREYER, Defendant and Appellant.

Docket No. B001156.

Court of Appeals of California, Second District, Division Five.

February 7, 1985.

*571 COUNSEL

Arthur Lewis, under appointment by the Court of Appeal, for Defendant and Appellant.

John K. Van de Kamp, Attorney General, Robert F. Katz and Carol Slater Frederick, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

OSBORNE, J.[*]

In case A-373174, appellant was charged with robbery (Pen. Code, § 211) and personal use of a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). In case A-373489, appellant was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and personal use of a firearm within section 12022.5. Appellant pleaded guilty to both charges and admitted the enhancement allegations.

On December 22, 1982, the court sentenced appellant to upper terms of five years for A-373174 and four years for A-373489. For reasons extraneous to those two cases, the trial court suspended the execution of the sentences and placed appellant on probation for a period of five years, notwithstanding the prohibition of probation for the robbery case under Penal Code section 1203.06. One term of probation was that defendant not own, use or possess any dangerous or deadly weapons. Appellant was given credit for time served and released from custody. There was no appeal.

Within a month, on January 18, 1983, appellant was again arrested for robbery. On August 3, 1983, after a probation revocation hearing, the court found defendant in violation of probation for having possessed a deadly weapon, a knife. The suspended prison terms were imposed, to run consecutively. The court continued the stay of the additional two years sentence *572 for use of a firearm. The January 1983 robbery charge, which had not yet been tried, was then dismissed.

Appellant appealed. Additional facts will be discussed with appellant's contentions.

PRETRIAL PROBATION REVOCATION HEARING

(1) Appellant claims that holding a probation revocation hearing before trial is a violation of his constitutional rights. In People v. Coleman (1975) 13 Cal.3d 867 [120 Cal. Rptr. 384, 533 P.2d 1024] and People v. Jasper (1983) 33 Cal.3d 931 [191 Cal. Rptr. 648, 663 P.2d 206], the Supreme Court rejected a similar claim. Appellant recognizes those holdings and candidly urges this court to hold that there is no discretion to hold a probation revocation hearing before disposition of related criminal proceedings. We decline, based on stare decisis, principle, and the facts of this case.

In Coleman and Jasper, the California Supreme Court stated that whether a probation revocation hearing should be held before or after trial is a matter for the reasonable discretion of the trial court. Those holdings have been followed by other Courts of Appeal.[1] We are required to do the same. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [20 Cal. Rptr. 321, 369 P.2d 937].)

Even as an open question, appellant has not presented a constitutional basis for prohibiting probation revocation hearings before trial or other disposition of related criminal proceedings. "As stated in Coleman, supra, not all court procedures are invalid which cause defendants to make hard choices." (People v. Douglas (1977) 66 Cal. App.3d 998, 1005 [136 Cal. Rptr. 358].) In Douglas, a defendant testified at a motion to suppress evidence, at the cost of being impeached when he later testified inconsistently at trial. In A & M Records, Inc. v. Heilman (1977) 75 Cal. App.3d 554 [142 Cal. Rptr. 390], a defendant in a civil case had to choose between waiving his privilege against self-incrimination or being precluded from *573 testifying at trial about matters regarding which he claimed the privilege to avoid testifying at a deposition. (See also the pretrial revocation cases reviewed in State v. Boyd (1981) 128 Ariz. App. 381 [625 P.2d 970].)

In different cases, there may be different reasons to hold the probation revocation hearing before a related trial. The notice may allege violation of a probation term prohibiting possession or consumption of alcohol, driving with alcohol in the body, or, as in this case, possession of a deadly weapon. A violation of probation may thus be found other than the crime charged in a related proceeding. A court may try to avoid unnecessary appearances of witnesses. (People v. Sandoval (1977) 70 Cal. App.3d 73, 84 [138 Cal. Rptr. 609, 99 A.L.R.3d 765].) It may be desirable to avoid recycling a probation revocation in one court waiting for completion of matters not even filed yet in another court. These are matters appropriately left to the discretion of the trial court. The statute does not prohibit hearing probation revocation matters before disposition of a related criminal case. (Pen. Code, § 1203.2.) The Supreme Court has left the timing of probation revocation hearings to the discretion of the trial court. It would not be appropriate, nor is there good reason, for us to eliminate that discretion.

(2a) We therefore consider whether, in this case, it was an abuse of discretion for the trial court to hear the probation revocation matter before final disposition of other related cases.

(3) "Judicial discretion is that power of decision exercised to the necessary end of awarding justice based upon reason and law but for which decision there is no special governing statute or rule. Discretion implies that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or of the demand of equity and justice. (Bowers, Judicial Discretion of Trial Courts (1931) § 10, pp. 14, 15.) The term implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason." (People v. Surplice (1962) 203 Cal. App.2d 784, 791 [21 Cal. Rptr. 826]; Harris v. Superior Court (1977) 19 Cal.3d 786, 796 [140 Cal. Rptr. 318, 567 P.2d 750].) (4) A decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." (Brown v. Newby (1940) 39 Cal. App.2d 615, 618 [103 P.2d 1018]; People v. Angus (1980) 114 Cal. App.3d 973, 988 [171 Cal. Rptr. 5]; People v. Bailes (1982) 129 Cal. App.3d 265, 281 [180 Cal. Rptr. 792]; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 242.) In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set *574 aside on review. (People v. Giminez (1975) 14 Cal.3d 68, 72 [120 Cal. Rptr. 577, 534 P.2d 65]; Ross v. Superior Court

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People v. Preyer, 164 Cal. App. 3d 568, 210 Cal. Rptr. 807 (Cal. Ct. App. 1985).

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