People v. Zimmerman

Opinion

WHITE, P. J.

Defendant and appellant James William Zimmerman appeals from the order modifying his probation.

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Appellant contends on appeal that evidence which has been illegally seized may not be used to modify probation.

As a result of a conviction in the Superior Court of Contra Costa County on July 14, 1976, for robbery and assault with a deadly weapon,

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appellant was placed on three years probation. One condition of probation was that appellant obey all laws. On March 25, 1978, appellant was stopped and detained by Santa Clara County sheriff’s officers. In the course of a search of appellant a pistol and three cubes of LSD were found on his person. Appellant was arrested and a felony complaint was filed in the Palo Alto/Mountain View Judicial District of Santa Clara County charging appellant with violations of Penal Code section 12025 (carrying a concealed firearm), Health and Safety Code section 11377 (possession of LSD) and Penal Code section 12031 (carrying a loaded firearm in a public place, misdemeanor). At the preliminary hearing on the charges, appellant’s suppression motion pursuant to Penal Code section 1538.5 was granted and the charges were thereafter dismissed.

On March 29, 1978, a petition for the modification or revocation of appellant’s probation was filed in the Superior Court of Contra Costa County. The violation alleged was the possession of the gun and LSD cubes, evidence which had been suppressed in the Santa Clara County action. At the June 1, 1978, hearing on the petition to revoke, appellant argued that evidence was inadmissible. On August 24, 1978, the court denied appellant’s motion to exclude the evidence and found appellant in violation of his probation. The trial court in an order modified appellant’s probation and fined him $400 plus a penalty assessment of $100. Appellant filed a timely notice of appeal.

Appellant contends that pursuant to Penal Code section 1538.5, subdivision (d), evidence previously suppressed on grounds of illegal search or seizure may not be used to modify probation. Appellant’s contention is well taken.