People v. King

California Court of Appeal Feb 1, 1979 No. Crim. 32884Published

Before: Lillie

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Holding. The court held that a probation revocation hearing may proceed prior to the trial of related criminal charges without violating a defendant's due process rights, provided the exclusionary rule established in People v. Coleman is applied.

Issues

Whether holding a probation revocation hearing prior to the trial of related criminal charges violates a defendant's procedural due process rights.
Whether the use of preliminary hearing transcripts at a probation revocation hearing violates a defendant's right to confront and cross-examine witnesses.

Disposition. affirmed

Quotations verified verbatim against the opinion

“This exclusionary rule allows the state to continue to press for revocation of probation either before or after a probationer’s trial on related charges”

“Thus we decline to curtail state action preceding the criminal trial made permissible in Coleman”

Opinion

LILLIE, Acting P. J.

Defendant appeals from order revoking probation granted after imposition of sentence upon a plea of guilty to assault by means of force likely to produce great bodily injury and with a deadly weapon. Revocation proceedings were initiated on grounds which were

[508]

also the basis for new criminal charges (A-340503, A-340999) on which defendant had been held to answer but had not yet been tried.

Over objection of defendant, violation of probation was submitted by the People on the transcript of testimony taken at the preliminary hearing in each of the two cases. Without merit is appellant’s contention that the quantum of the evidence is insufficient as a matter of law to sustain the order of revocation. Among the terms and conditions of probation were that defendant shall not own, use or possess any dangerous or deadly weapon, and that he shall obey all laws; violations thereof were established by a clear and convincing showing

(People

Coleman,

13 Cal.3d 867, 876, 877, fn. 8 [120 Cal.Rptr. 384, 533 P.2d 1024], and cases cited therein) and the trial court so found.

Overwhelming evidence establishes that on three separate occasions defendant was in possession of a dangerous and deadly weapon—a firearm—and used the same, and that he did not obey all laws.

Case A -340503 (kidnaping, robbery, rape, assault with intent to commit murder and attempted murder).

Around 1:10 p.m. on December 28, defendant pointed a gun at Florcita M. who was walking down Manchester Avenue, informed her it was a robbery, threatened to shoot her if she screamed and told her he had killed someone in the past. He pushed her into a vacant building, robbed her and had an act of intercourse with her while holding a gun to her head.

About six hours later (7:30 p.m.) defendant was standing on the sidewalk at 91st and Western with some juveniles; Rickey Bobbitt was getting into his Pinto when defendant pulled a revolver from his waistband, pointed it at Bobbitt and shot him in the back as a result of which he was hospitalized for five days. As defendant and the others fled 91st and Western, Officers Connly and Brockman took up pursuit; looking back at the police vehicle defendant ran to the gate of a residence and attempted to enter but failed; as he continued running the officers

People v. King

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