People v. Calloway

California Court of Appeal Mar 13, 1974 No. Crim. 5491Published

Before: Ault

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Holding. The court held that while including raw arrest data in a probation report without supporting factual information is fundamentally unfair and improper, the defendant's due process rights were not violated because the trial court did not rely on that information in its sentencing decision.

Issues

Whether the inclusion of 'suspicion arrests' in a probation report violates a defendant's right to due process.
Whether the trial court's consideration of unreliable arrest data in a probation report constitutes a denial of fundamental fairness.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Such records, without supporting factual information, should not be included in a probation report. They are unreliable, highly prejudicial, and under many circumstances could result in a fundamentally unfair hearing.”

“Fundamental fairness dictates such information should not be included in the probation report or considered by the judge unless additional facts are supplied which indicate the applicant was involved in the listed offenses”

“The trial judge was not misled by the prejudicial information contained in the probation report.”

Opinion

AULT, J.

Defendant Danny Calloway was found guilty of burglary (second degree) by a jury and applied for probation. After referral to the Department of Corrections for a diagnostic study pursuant to Penal Code section 1203.03, his application for probation was denied and he was committed to the California Youth Authority. On appeal he raises no issues related to his trial and conviction, but asserts his commitment to the Youth Authority should be set aside because of frequent reference in the probation report to “suspicion arrests” which did not result in convictions. He also claims it was a denial of due process for the trial court to consider such “arrests” in denying his application for probation.

In that portion of the probation report denominated “Prior Record,” page 3 of the report contains a listing of Calloway’s prior contacts with law enforcement agencies and counts.

The dispositions shown for eight of these matters (some of them traffic violations) indicate convictions or the equivalent. In four matters (all relating to traffic violations) the disposition is “unknown.” Seven police contacts, under the headings of grand theft, burglary and assault with a deadly weapon, all bear the notation: “Not arrested, 849b(l) P.C.”

Section 849, subdivision (b)(1), of the Penal Code reads: “Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever: . . . [h]e is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested.”

Subdivision (c) of the same section states: “Any record of arrest of a person released pursuant to paragraphs (1) and (3) of subdivision (b) shall

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include a record of release. Thereafter, such arrest shall not be deemed an arrest, but a detention only.”

Calloway contends the inclusion in the probation report of the seven “police contacts” in connection with which he was neither convicted nor charged prejudicially associates him with seven serious crimes and so infected his probation hearing as to deny him due process of law. We agree in part. Such records, without supporting factual information, should not be included in a probation report. They are unreliable, highly prejudicial, and under many circumstances could result in a fundamentally unfair hearing.

People v. Calloway

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AULT, J.

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