People v. Carter

Opinion

AULT, Acting P. J.

Defendant Johnny French Carter appeals from the judgment imposing a prison sentence following revocation of probation in this case (No. 28087) on account of a new criminal charge then pending in a second case (No. 30808). He contends the court violated his right to due process by refusing to continue his probation revocation hearing until after his trial on the new criminal charge. He also contends there was a violation of constitutional prohibitions against double jeopardy when, in the context of a statute providing for an alternative county jail sentence, the superior court suspended imposition of sentence and granted probation, then later imposed a state prison sentence on revocation of probation.

[372]

In December 1972 Carter was charged by information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and possession of a concealable firearm by an ex-felon (Pen. Code, § 12021). He pleaded guilty to violation of Penal Code section 12021 (which is punishable as either a felony or a misdemeanor) and was found guilty of the misdemeanor offense of exhibiting a deadly weapon in violation of Penal Code section 417 as a lesser included offense of Penal Code section 245, subdivision-(a). On April 25, 1973, the court suspended imposition of sentence for three years and granted him probation under terms which prohibited him from having any firearm under his control or in his possession.

By December 1973 Carter was facing a new charge of violating Penal Code section 12021. The transcript of the preliminaiy hearing in case No. 30808 discloses that an unloaded revolver had been found on his person during a pat-down search on December 15 when police intervened in an argument between him and Mrs. Geneva Brown.

On March 7, 1974, the superior court, after denying defendant's motions under Penal Code sections 995 and 1538.5 in the new case, scheduled a hearing on revocation of probation in this case, remanding Carter to custody pending the hearing.

On March 14, 1974, the revocation hearing was held. At the outset defense counsel requested a continuance on the ground a full court hearing on the probation revocation would result in revealing any defenses Carter might have as to the pending trial, set for March 27, 1974. The attorney also stated he wished to present as a witness a probation officer who was not then available. The court denied the motion without prejudice to renewal after evidence was taken, saying it placed no undue burden On Carter to rebut, explain or deny the prima facie showing of a flagrant violation of the probationary conditions. As evidence for the People, the court accepted the transcript of the preliminary hearing in case No. 30808 and also a supplemental probation report.