Pope v. Superior Court

California Court of Appeal Jul 17, 1970 No. Civ. 28198Published

Before: Draper

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Holding. The court held that an Adult Authority parole revocation hearing does not require the presence of counsel, confrontation of witnesses, or the right to subpoena witnesses, and that the dismissal of criminal charges due to an illegal search does not preclude the use of the underlying facts as grounds for parole revocation.

Issues

Whether a parolee is entitled to counsel, confrontation, and subpoena rights at a parole revocation hearing.
Whether the dismissal of criminal charges based on an illegal search bars the Adult Authority from relying on the underlying facts for parole revocation.
Whether a superior court has the authority to transfer a habeas corpus proceeding to another county for an evidentiary hearing.

Disposition. Peremptory writ of prohibition and mandate issued.

Quotations verified verbatim against the opinion

“an Adult Authority hearing on revocation does not require presence of counsel, confrontation of witnesses, or the right to subpoena witnesses”

“mere dismissal of a criminal charge does not preclude reliance upon its underlying facts as ground for revocation of parole.”

Opinion

DRAPER, P. J.

Convicted on two counts of sale of marijuana (Health & Saf. Code, § 11531) and one count of taking an automobile without consent of the owner (Veh. Code, § 10851), Thomas Earl Bush commenced serving concurrent prison terms December 24, 1963. He was paroled December 24, 1968. He was arrested by Los Angeles police July 9, 1969 and charged with possession of a concealable firearm (Pen. Code, § 12021). The action was dismissed by the superior court September 27, 1969. The parole agent’s report (not contravened by Bush) states that the dismissal was because the search which produced the gun was illegal, and summarized the ruling as based upon a finding “that the informant whose information was used to gain entrance to the premises was unreliable and did not justify the police officer’s entrance into that premises without a search warrant.” On October 20, 1969, Bush was charged by his parole agent with violation of parole “by having under his control a firearm, to wit, a .32 caliber automatic pistol.” Bush pleaded not guilty. The record recites that “By his own admission to the panel he did have control of the weapon. Found guilty on this basis.” Parole was revoked. Bush then applied to the Superior Court, Solano County, for habeas corpus. His application did not deny control of the gun, but asserted only a lack of due process in that he did not have counsel or the right to confront witnesses or to subpoena witnesses at the revocation hearing. He also relied on dismissal of the court proceeding.

Nonetheless, the trial court found on the written record alone that Bush

[652]

had “established a prima facie case that parole was revoked without cause.” It ordered the case “transferred” to the Superior Court, Los Angeles, “for an evidentiary hearing”. The superintendent of the prison at Vacaville petitioned us for prohibition and mandate. We issued alternative writs, return has been filed and the case has been fully argued.

We have held in

Pope

Superior Court

(Mozingo)

Pope v. Superior Court

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DRAPER, P. J.

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