People v. Sharp

Opinion

EMERSON, J.

*

On this appeal from an order revoking probation, appellant does not dispute that there was sufficient evidence to support the trial court’s finding that he had committed a violation of the conditions of probation, to wit, that he possessed heroin. He assigns as error, however, the court’s alleged failure to exercise its discretion in deciding two questions: (1) whether to revoke probation because of the violation, and (2) whether to set the probation revocation hearing prior to trial on pending charges arising from the same acts. We hold that the trial court did not abuse its discretion as to the first issue, and as to the second, that it was not required to exercise discretion.

[128]

The Decision to Revoke

Having determined that appellant violated a condition of his probation, the trial court was required to decide whether the violation warranted revocation.

(Morrissey

v.

Brewer

(1972) 408 U.S. 471, 488 [33 L.Ed.2d 484, 498, 92 S.Ct. 2593];

People

v.

Coleman

(1975) 13 Cal.3d 867, 873, 895, fn. 22 [120 Cal.Rptr. 384, 533 P.2d 1024].) “It is presumed that official duty has been regularly performed.” (Evid. Code, § 664.) In this case the court had discretion to revoke or modify probation or to continue probation, depending upon its analysis of the circumstances before it.

(People

v.

Coleman, supra;

Pen. Code, § 1203.2.) Section 664 of the Evidence Code supports the presumption that the court went through the necessary intellectual steps to reach its decision to revoke.

In the cases upon which appellant relies, the records affirmatively showed that the trial courts were not exercising discretion which was theirs.