People v. Rafter

[560]

Opinion

THE COURT.

This is an appeal by the People under the provisions of subdivision (a)(5) of section 1238 of the Penal Code from an order of the San Mateo County Superior Court reinstating respondent Rodney G. Rafter on probation after a hearing on a motion to revoke probation. The theory of this appeal is that the trial court committed prejudicial error in refusing to admit and consider relevant and admissible evidence which the People sought to introduce át the revocation hearing.

The People attempted to introduce evidence that respondent was in possession of drugs in violation of the terms of his probation. This evidence took the form of a certified abstract of judgment of the United States District Court for the Southern District of California finding him guilty of possession of a controlled substance with intent to distribute, and a certified copy of an opinion of the United States Court of Appeals for the Ninth Circuit reversing that conviction solely on the ground that the evidence was the product of what the court deemed an unreasonable search. The trial court rejected the evidence on the grounds that the rationale of

In re Martinez

(1970) 1 Cal.3d 641, 649-651 [83 Cal.Rptr. 382, 463 P.2d 734] (cert. den., 400 U.S. 851 [27 L.Ed.2d 88, 91 S.Ct. 71]) does not apply to revocation of probation and that neither the documents nor proof of the conviction would be competent evidence.

Although the revocation or reinstitution of probation is a matter within the sound discretion of the trial court, the court may not act arbitrarily or capriciously in exercising that discretion.

(People

v.

Robart

(1973) 29 Cal.App.3d 891, 893 [106 Cal.Rptr. 51].) Failure to consider relevant and competent evidence bearing on the issue of revocation is an abuse of discretion.

In

In re Martinez, supra,

it was held that on revocation of parole all relevant evidence should be considered, and that the Fourth Amendment and