Opinion
NOT TO BE PUBLISHED
City and County of San Francisco Super. Ct. Nos. 206744, 202246.
Siggins, J.
Robert Barnes has filed an appeal and petition for writ of habeas corpus challenging the trial court’s revocation of his probation. He argues that the prosecution’s failure to disclose deficiencies in the processes and practices of the San Francisco Police Crime Laboratory violated his right to due process and the rule of Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215], and compels reversal. Because the material Barnes seeks could not reasonably have affected the outcome of his probation revocation proceedings, we affirm.
Factual and Procedural Background
Barnes was confronted by police when an officer observed him behaving suspiciously along the food line at Glide Memorial Church. When the officer checked Barnes’ identification, he discovered that Barnes was on probation subject to a search condition. The officer searched Barnes and in his pockets discovered what appeared to be hashish and rock cocaine. Barnes was arrested and the suspected drugs were booked into the narcotics drop at police headquarters for testing. Barnes had.29 grams of concentrated marijuana (hashish) and 5.29 grams of cocaine base.
New charges were brought against Barnes based on this incident and the district attorney also moved to revoke his probation that had been granted in two cases. In one case, Barnes entered a guilty plea to charges of possession of marijuana for sale, possession of cocaine for sale and transportation of a controlled substance for sale. He was given suspended, concurrent five-year terms. In the other, he entered a guilty plea to one count of being an accessory to a felony and the court suspended imposition of sentence.
The probation revocation proceedings were consolidated with the preliminary hearing on the new charges. The arresting officer testified about encountering Barnes outside Glide Memorial Church and identified the drugs he took from Barnes’ pockets. The drugs and a report of their analysis from the San Francisco Police Crime Laboratory were admitted into evidence. Finally, a police sergeant testified that the amount of rock cocaine seized from Barnes indicated it was possessed for sale.
The court revoked probation and sentenced Barnes to serve the concurrent five-year terms it had imposed but suspended for the drug offenses, and a three-year concurrent term pronounced as the sentence on the accessory charge. Barnes thereafter moved to set aside the orders of revocation on the basis that the prosecution failed to provide Barnes with evidence concerning deficiencies at the San Francisco Police Crime Laboratory that could have assisted his defense to the revocation charges. Specifically, he contended that the district attorney should have provided him a copy of the November 2009 Inspection Report for the San Francisco Police Department Criminalistics Laboratory that was prepared and issued by the American Society of Crime Laboratory Directors that discussed certain deficiencies in the laboratory’s practices and revoked its accreditation. He also said that he should have been provided information that a laboratory technician was suspected of misconduct. The trial court denied the motion. Barnes timely appealed.
DISCUSSION
The United States and California Constitutions each provide that persons may not be deprived of “life, liberty, or property, without due process of law.” (U.S. Const., 14th Amdt., § 1; Cal. Const., art. I, § 15.) In Brady v. Maryland, supra, 373 U.S. 83, 86-88, the Supreme Court of the United States held that principles of due process require prosecutors to disclose material exculpatory evidence to a criminal defendant before trial.
One California court has held that there is a constitutional duty to provide the defense with evidence that is material to the guilt or innocence of a probationer facing revocation. (County of Placer v. Superior Court (2005) 130 Cal.App.4th 807, 813 [citing People v. Moore (1983) 34 Cal.3d 215, 218-219].) Although, another court of appeal has held that neither the United States Constitution nor California’s criminal discovery statutes require a prehearing reciprocal exchange of evidence in a parole revocation proceeding. (Jones v. Superior Court (2004) 115 Cal.App.4th 48, 62.) While neither case expressly addresses the rule of Brady v. Maryland, supra, the United States Supreme Court has recently made clear that Brady does not apply to compel disclosure in postjudgment proceedings. (District Attorney’s Office v. Osborne (2009) ___ U.S. ___, [129 S.Ct. 2308, 2319-2320; 174 L.Ed.2d 38, 27-28].) Instead, when courts analyze the fairness of postconviction proceedings, they are to consider whether the procedures employed offend some traditional principle of fundamental fairness. (Id. at p. 2320.)
We agree that this is the proper measure for examination of the fairness of probation revocation proceedings. First of all, “[r]evocation of probation is not part of a criminal prosecution, and therefore the full panoply of rights due in a criminal trial does not apply to probation revocations. [Citation.] ‘In placing a criminal on probation, an act of clemency and grace [citation], the state takes a risk that the probationer may commit additional antisocial acts, ’ and ‘the state has a great interest in being able to imprison the probationer [for probation violations] without the burden of a new adversary criminal trial. [Citation.]’ [Citation.] The standard of proof in probation revocation proceedings is proof by a preponderance of the evidence.” (People v. Stanphill (2009) 170 Cal.App.4th 61, 72.)
There is also no right to jury trial on a probation revocation. The rules of evidence are relaxed and the exclusionary rule does not apply. (Jones v. Superior Court, supra, 115 Cal.App.4th at pp. 60-61.) Moreover, the responsibility of the court in deciding whether to revoke probation is not to determine whether the probationer is guilty of a crime, but instead whether a violation of probation has occurred and it remains appropriate for the probationer to retain the conditional liberty afforded by probation. (Id. at p. 60.)
In this context, due process requires that the probationer be afforded: (1) written notice of the claimed violation; (2) disclosure of the evidence against him or her; (3) the opportunity to be heard and present evidence; (4) the right to confront and cross-examine adverse witnesses unless it is denied for good cause; (5) a neutral and detached arbiter; and (6) a written statement of the evidence relied upon and the reasons for revocation. (Jones v. Superior Court, supra, 115 Cal.App.4th at p. 62.) Although a probationer has the right to the evidence to be used against him in a revocation hearing, and the prosecution is required to maintain and produce it (People v. Moore, supra, 34 Cal.3d at pp. 218-221), there is no general right to prehearing disclosure of exculpatory evidence. Instead, in accordance with the United States Supreme Court’s directive in District Attorney’s Office v. Osborne, supra, ___ U.S. ___ [129 S.Ct. 2308], we consider in context whether the evidence withheld from the probationer offends some traditional principle of fundamental fairness.
Viewed through this lens, we have no difficulty affirming the revocation of Barnes’ probation. The arresting officer described and identified the items he discovered and removed from Barnes’ pockets. They were entered into evidence, recognized by the officer in the courtroom, and observed by the trial judge. The criminalist who tested the substances and declared them to be hashish and cocaine was not implicated of wrongdoing in any of the reports Barnes says should have been produced. Barnes made no argument that the items were anything other than what they appeared to be and what testing revealed them to be. In fact, his defense to revocation focused on the legality of his detention by the arresting officer, not the legality of the substances discovered in his pockets.
Had Barnes received the requested material before his probation revocation hearing, he says that he could have questioned the chain of custody of the drugs taken from him, raised potential tampering with the evidence by lab personnel and other questions about the laboratory’s procedures. That may be so, but in light of the standard of proof by a preponderance of the evidence, the officers’ testimony and the lack of any challenge by Barnes’ that the substances were not in fact drugs, there is no reason to conclude that the result of the probation revocation proceeding would have been different. The evidence may not have been sufficient to criminally convict Barnes, but it was sufficient to revoke his probation without offending traditional notions of fair play. (See also People v. Letner and Tobin (2010) 50 Cal.4th 99, 175-176 [even where Brady is implicated, withheld evidence is not material unless the defendant can show a reasonable probability of a different result].)
In fact, the district attorney publicly disclosed the damaging information concerning the San Francisco Police Crime Laboratory after already deciding not to proceed with new charges against Barnes based upon this incident. For this reason, and because disclosure of this material did not implicate Barnes’ probation revocation proceedings, we deny his request for judicial notice of various discovery orders of the San Francisco Superior Court.
DISPOSITION
The order denying the motion to set aside revocation of probation filed under Penal Code section 1203.2, subdivision (e), is affirmed. The petition for writ of habeas corpus is denied.
We concur: Jenkins, J., Pollak, Acting P.J.