People v. North

Opinion

BROWN (Gerald), P. J. Dennis James North appeals the judgment sentencing him to prison for second degree burglary, following an order revoking his probation.

While on probation, North was charged with assault with a deadly weapon and carrying a concealed firearm. He admitted being out of the jurisdiction without the permission of his probation officer, but denied the. alleged criminal violations. At the evidentiary hearing North did not testify. He contends he was forced to an unfair election between his right to testify at the probation revocation hearing and his right to remain silent about the criminal charges.

[532]North’s claim of error was asserted before the Supreme Court decision in People v. Coleman, 13 Cal.3d 867 [120 Cal.Rptr. 384, 533 P.2d 1024]. Coleman made the same argument as that advanced here claiming that since his testimony at the probation revocation hearing could be used against him at the related criminal trial “. . . the meaningful opportunity to be heard assured him by Morrisseys. Brewer (1972) 408 U.S. 471, 489, . . . was essentially nugatory.” (People s. Coleman, supra, 13 Cal.3d 867, 871.) The Supreme Court refused to consider the constitutional issues raised by Coleman; rather, under their inherent supervisory powers, they declared the following exclusionary rule: “We accordingly declare as a judicial rule of evidence that henceforth upon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges, save for purposes of impeachment or rebuttal. . . .” (People s. Coleman, 13 Cal.3d 867, 889 [120 Cal.Rptr. 384, 533 P.2d 1024].)

Application of the rule is to be prospective only. “The rule is accordingly declared to be applicable ónly to probation revocation proceedings held on or after the date of the filing of this opinion.” (People v. Coleman, 13 Cal.3d 867, 896 [120 Cal.Rptr. 384, 533 P.2d 1024].) North, in a supplemental brief filed after the Coleman decision, claims his appeal is a probation revocation proceeding which is being decided after the date Coleman was filed and, thus, he is entitled to a reversal and the benefit of the exclusionary rule. However, the word “proceeding” in the opinion is used interchangeably with the words “hearing” and “trial” (see e.g. People s. Coleman, supra, 13 Cal.3d 867, 891); there is nothing to indicate the Supreme Court intended its new rule to apply to revocation hearings which had already been held once and were pending on appeal. In addition, the reason the rule was given prospective application was “the sound administration of justice.” To give it retroactive effect by reversing would burden the lower courts with rehearings and retrials which would not further this goal.