BROUSSARD, J., Concurring and Dissenting. I concur in the majority’s finding that Proposition 8 is applicable to this case and that the exclusionary [661]rule adopted in People v. Coleman (1975) 13 Cal.3d 867 [120 Cal.Rptr. 384, 533 P.2d 1024] remains viable. I respectfully dissent, however, from the majority’s conclusion that the Coleman rule is adequate to protect the rights of probationers facing pretrial revocation proceedings. This court continues to reaffirm the Coleman use immunity rule without examining developments since the Coleman decision which have eroded the effectiveness, of the rule in achieving its objectives.
Although the Coleman court believed its limited exclusionary rule would alleviate the tension in constitutional values created by pretrial revocation hearings, “developments unforeseeable at the time have demonstrated that the Coleman rule needs strengthening in order adequately to cope with abuses associated with the scheduling of revocation hearings and fully to protect the probationer’s constitutional rights.” (People v. Jasper (1983) 33 Cal.3d 931, 939, fn. omitted [191 Cal.Rptr. 648, 663 P.2d 206] (dis. opn. of Bird, C. J.).) Foremost among these developments is a line of post -Coleman decisions by this court which affords a criminal defendant a level of protection from compelled pretrial disclosures and prosecutorial discovery which cannot be maintained by Coleman use immunity alone. The Chief Justice succinctly described these cases and discussed their impact on the Coleman rule in her Jasper dissenting opinion at pages 940 and 941.
“A little more than a year and one-half after Coleman, this court considered the practice of compelling an accused in a criminal prosecution to reveal the names of prospective defense witnesses so that potential jurors could be queried about them. In Allen v. Superior Court (1976) 18 Cal.3d 520 [134 Cal.Rptr. 774, 557 P.2d 65], such a practice was found to violate article I, section 15 of the California Constitution.
“The Allen court declared that the California Constitution ‘plainly proscribes compelled defense disclosures which “conceivably might lighten the prosecution’s burden of proving its case in chief.’” (Allen v. Superior Court, supra, 18 Cal.3d at p. 525, citation and italics omitted.) The court held that the privilege against self-incrimination prohibits compulsory disclosure from the defense ‘regardless of the form which the compulsion takes.’ (Id., at p. 526.)
“In People v. Belton (1979) 23 Cal.3d 516 [153 Cal.Rptr. 195, 591 P.2d 485], the defense was not required to specify the defects in the prosecution’s case when making a motion for acquittal at the conclusion of the prosecution’s presentation of evidence. ‘[T]o require a defendant to state specific grounds in support of the motion for acquittal would . . . come perilously [662]close to compelling a defendant to aid in his own prosecution and would lessen the prosecutor’s burden to prove each and every element of the case beyond a reasonable doubt.’ (Id., at p. 522, fn. omitted.)
“Two years ago, this court disapproved all trial court attempts to frame prosecutorial discovery orders in criminal proceedings in the absence of legislative authorization. (People v. Collie (1981) 30 Cal.3d 43 [177 Cal.Rptr. 458, 634 P.2d 534].) In coming to this conclusion, the court was ‘not unmindful of the almost insurmountable hurdles likely to thwart any attempts to devise constitutionally permissible discovery rules applicable to defendant or defense material.’ (Id., at p. 54.)
“The combined effect of the Allen, Belton and Collie holdings is to limit severely the ability of the state to obtain an individual’s unwilling assistance in convicting him of a crime. The limiting effect of these cases operates whether the prosecution seeks discovery directly from the accused or whether the prosecution seeks to require the accused to specify defects in the prosecution’s case. [Fn. omitted.]
“It is clear that the extent of discovery provided to the state in a pretrial revocation hearing vastly exceeds the scope of discovery at issue in Allen, Belton and Collie. Not only is the prosecution able to obtain the names of defense witnesses, but the state is given pretrial access to the substance of their testimony as well as the opportunity to cross-examine them. In fact, the pretrial revocation procedure presents the prosecution with an opportunity effectively to depose the accused and his witnesses prior to trial on the underlying charges. If the privilege protects an accused against being compelled to reveal even the names of his witnesses prior to calling them to testify at his trial (Allen) and if it shields him against having to specify defects in the prosecution’s case at that trial (Belton), then surely it must protect an individual from having to present his entire defense at a pretrial inquiry.”
In my dissenting opinion in People v. Shaw (1984) 35 Cal.3d 535, 544-545 [198 Cal.Rptr. 788, 674 P.2d 759], I also commented on the ineffectiveness of the Coleman rule in protecting a defendant from unwarranted pretrial disclosures: “Regardless of whether a probationer succeeds or fails in his efforts to oppose revocation, he is effectively required to reveal much of the theory and substance of his defense at such a hearing—either through his own testimony, the testimony of witnesses who appear on his behalf, or [663]through his attorney’s cross-examination of the People’s witnesses. [Fn. omitted.] In essence, a procedure in which a revocation hearing invariably precedes trial denies a probationer awaiting trial the same protections under the laws of criminal discovery that are afforded to a defendant who is not a probationer, and hence does not face such a hearing.”
The Jasper majority dismissed the significance of the post-Coleman cases by observing that “a probationer’s voluntary testimony or defense presented at a probation revocation hearing cannot fairly be characterized as a “compelled disclosure” within the scope of the [Allen, Belton and Collie decisions].” (Jasper, supra, 33 Cal.3d at p. 934, original italics.) The Chief Justice addressed this point as well: “Respondent argues that the probationer is not required to testify or to present evidence at the revocation hearing. Thus, he may choose to remain silent. And if he is concerned about revealing defense theory or strategy in regard to the underlying criminal proceedings that is the ‘choice’ he must make. But such a ‘choice’ is in reality no choice at all. (See Simmons v. United States (1968) 390 U.S. 377, 393-394 [19 L.Ed.2d 1247, 1258-1259, 88 S.Ct. 967].) It virtually guarantees that the allegations against the probationer will be found to be true—even when in fact they are not. Neither the state nor the individual has an interest in such inaccurate factfinding.” (Jasper, supra, 33 Cal.3d at p. 941, dis. opn. by Bird, C. J.)
The Coleman court itself recognized the enormous pressure on a probationer to testify at the revocation hearing. The court observed that a probationer facing the “cruel trilemma of self-incrimination, perjury or contempt” may feel compelled to testify falsely in order to defend against the revocation and at the same time avoid damaging pretrial disclosures: “Although a probationer is not faced with contempt if he remains silent at his revocation hearing, he may well find himself in an analogous predicament. He might, as we have stated, seriously incriminate himself if he exercises his right to be heard, particularly where his testimony would consist of a truthful explanation of mitigating circumstances surrounding the charged probation violation. If he remains silent he not only loses his opportunity to present a conceivably convincing case against revocation but also incurs the risk that notwithstanding the ideals of the Fifth Amendment his silence will be taken as an indication that there are no valid reasons why probation should not be revoked. To avoid the adverse effects of the foregoing alternatives, the probationer may be tempted to testify falsely in a manner which will not damage his defense at a subsequent criminal trial.” (Coleman, supra, 13 Cal.3d at p. 878.)
Although it is apparent that a probationer’s decision to testify at a revocation hearing is not truly voluntary, a majority of this court has remained [664]unconcerned. The majority opinion in Jasper observed that the Coleman exclusionary rule “affords ample protection to a probationer who is fearful that the People will make improper use of the evidence elicited at the revocation hearing.” (Jasper, supra, 33 Cal.3d at pp. 934-935.) In other words, a probationer need not worry about his decision to testify, whether voluntary or otherwise, since the Coleman rule will protect him from any adverse use of his disclosures. But this response begs the question. The majority never addressed the key argument that Coleman use immunity was no longer adequate to maintain the increased protection from pretrial prosecutorial discovery established in the post -Coleman cases. It should now be apparent that an exclusionary rule alone is insufficient to protect the rights of a probationer defending against revocation in a pretrial proceeding.
A second development undermining the effectiveness of the Coleman rule is the continued practice, at least in the City and County of San Francisco, of routinely scheduling probation revocation proceedings in advance of the trial on the related criminal charges. In formulating its exclusionary rule, the Coleman court appeared to presume that revocation proceedings would normally be held after trial. Chief Justice Bird elaborated on this point in her Jasper dissent: “The court noted that its rule left the prosecutor free to continue to press for revocation either before or after trial. (Id., at p. 889.) However, it also pointed out that it would not ‘set standards for the exercise of a [trial] court’s sound discretion in deciding whether to permit probation revocation proceedings to commence in advance of the disposition of related criminal proceedings . . . .’ (Id., at p. 897, italics added.) In this context, the court noted that ‘the most desirable method of handling the problem of concurrent criminal and probation revocation proceedings may well be for revocation proceedings not even to be initiated until after disposition of the related criminal proceedings.’ (Id., at p. 896.)
“Assuming this preference would be followed by trial courts, the Coleman court felt it necessary to ‘point out . . . that we view it as entirely consistent with the exclusionary rule announced herein and its underlying purposes for a probationer, if desirous of obtaining a speedy resolution of his probation status notwithstanding related criminal liability, to offer to waive the benefit of this exclusionary rule if the court will allow the probation revocation hearing to proceed in advance of disposition of the related criminal liability.’ (Id., at p. 897.)” (Jasper, supra, at p. 939, fn. 2 (dis. opn. by Bird, C. J.).)
In the years since Coleman we have reaffirmed the preference for posttrial revocation proceedings. (People v. Belleci (1979) 24 Cal.3d 879, 888, fn. 7 [157 Cal.Rptr. 503, 598 P.2d 473].) Just two years ago in Jasper we [665]expressly noted that this court had “disapproved any routine disregard of Coleman’s admonition that ‘the most desirable method’ of handling revocation hearings may be to await trial of criminal proceedings.” (Jasper, supra, at p. 935.)
Despite the substantial burden on constitutional values imposed by pretrial revocation proceedings, and despite our repeated admonitions, the San Francisco courts apparently continue to routinely schedule virtually all probation revocation hearings prior to trial.1 “Such a policy directly contravenes the spirit of our Coleman ruling as well as this court’s explicit reaffirmation of its preference for posttrial revocation proceedings . . . .” (Shaw, supra, 35 Cal.3d at p. 545 (dis. opn. by Broussard, J.).)
With the passage of Proposition 8, we are now confronted with the claim that Coleman’s already seriously undermined protections have been abolished completely. The majority simply relies on our decision in Ramona R. to hold that Coleman use immunity survives Proposition 8. Although I agree with this conclusion, I point out that because a fitness hearing must necessarily occur before trial, we could not in Ramona R. avoid the constitutional conflict by reordering the proceedings. Use immunity is the only mechanism available to protect the rights of a minor testifying at a fitness hearing. As we have seen, however, not only is it possible to hold the revocation hearing after trial, we have repeatedly declared that this is “the most desirable method of handling problems of concurrent criminal and probation revocation proceedings.” (Coleman, supra, 13 Cal.3d at p. 896.)
For the reasons discussed, I believe this court should exercise its supervisory powers to require that, absent good cause or waiver by the defendant, the probation revocation hearing must be held after trial as a matter of course. This action would afford probationers greater protection by pre[666]venting routine pretrial hearings, and by avoiding unwarranted pretrial prosecutorial discovery.
Reynoso, J., concurred.
As I noted in my Shaw dissent, “Only a year after our Coleman decision, the Court of Appeal felt compelled to note this ‘routine’ practice in People v. Sharp (1976) 58 Cal.App.3d 126, 130 [129 Cal.Rptr. 476], where appellant probationer presented significant statistical evidence to that effect. Moreover, during the referee’s hearing in the [Shaw] case, several of the most respected criminal defense attorneys in the Bay Area were called to testify. All of them stated that the routine practice of holding revocation proceedings prior to trial continues to this day in San Francisco Superior Court and that motions for continuances are virtually futile. As one might expect, they also expounded on the dilemma which this creates for defense attorneys and their clients. (See e.g., hearing testimony of Ephraim Margolin.) In addition, judges from San Francisco County who testified at the hearing, including the judge who presided in [Shaw], acknowledged that motions to continue revocation proceedings until after trial are only ‘infrequently granted.’ Further, the district attorney who prosecuted Shaw, Alfred Chiantelli, stated unequivocally that, ‘The policy is that motions to revoke are held prior to time of trial ... it’s practiced regularly in the Municipal Court and Superior Court. ’ (Italics added.)” (Shaw, supra, 35 Cal.3d at pp. 545-546, fn. 3 (dis. opn. by Broussard, J.).)