Opinion
Docket No. Crim. 16439.
December 14, 1972.
Appeal from Superior Court of the City and County of San Francisco, No. 78584, Walter F. Calcagno, Judge.
COUNSEL
Richard D. Totter, under appointment by the Supreme Court, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Herbert L. Ashby and Edward A. Hinz, Jr., Chief Assistant Attorneys General, William E. James, Assistant Attorney General, John T. Murphy, Karl W. Grossenbacher, Robert R. Granucci, Edward P. O'Brien, Derald E. Granberg and Karl I. Mayer, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Robert Nelson appeals from a judgment upon his guilty plea to a charge of carrying a concealed weapon. (Pen. Code, § 12020.) Following his plea, a probation report was prepared and at sentencing criminal proceedings were suspended and defendant was placed on probation for a period of three years. Within a month he was held to answer new charges of robbery and assault with a deadly weapon. At a hearing attended by defendant and his counsel the court in the instant case read the transcript of the preliminary hearing on the pending charges, the prior probation reports and a current report recommending revocation and, without hearing any witnesses on defendant's behalf, revoked probation over defendant's objections that he "didn't do anything to violate." The appeal is from the subsequent judgment.
Unless it otherwise appears, all statutory references are to sections of the Penal Code.
Proceedings were suspended and probation granted on September 18, 1970. The preliminary hearing on the robbery and assault charge was held on October 9, 1970. At that time defendant was on probation not only for the section 12020 violation but also for an earlier misdemeanor conviction. The revocation hearing was held on December 9, 1970, probation was revoked as to the felony conviction and defendant was sentenced to prison for the term prescribed by law. The court stated, as to the misdemeanor conviction, "probation is terminated on that." The precise disposition of the misdemeanor matter does not appear, but defendant makes no complaint in that connection.
Defendant contends that the trial court committed prejudicial error in refusing to afford a hearing and an opportunity to present evidence which would have established his innocence of the pending charges upon which revocation was predicated. He relies on People v. Youngs (1972) 23 Cal.App.3d 180 [ 99 Cal.Rptr. 901]. (See also Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593].) Either of these cases, if applicable, would afford defendant the relief he seeks.
Morrissey requires in parole revocation proceedings that procedural safeguards, in accordance with minimal standards specified therein, be afforded a parolee under compulsion of due process. Youngs holds that although probation may be summarily revoked in a case where probation had been granted prior to the imposition of sentence a probationer is thereafter entitled to a hearing on the merits of the revocation in compliance with due process requirements.
We have held today in People v. Vickers, ante, page 451 [ 105 Cal.Rptr. 305, 503 P.2d 1313], that Morrissey is to be made applicable to probation as well as parole revocations and that proceedings for such revocations must be in compliance with the procedures mandated by Morrissey. We further held, however, that as Morrissey expressly directs that it be applicable only prospectively from and after its effective date, June 29, 1972, that same date was also the effective date for application of the Morrissey procedures in instances involving probation revocations and probation modifications that result in greater restriction of the probationer's liberty. The revocation of which defendant complains occurred a year and a half prior to the decision of the Supreme Court in Morrissey. Defendant contends, however, that his right to the procedural safeguards required in Morrissey actually predate that decision.
The central theme of defendant's argument is that in cases decided prior to Morrissey property interests once classified as "privileges" were thereupon deemed to be "rights" with full due process protections before deprivation of the same. Such decisions, defendant contends, must be deemed to encompass deprivations of the "right" of liberty. Morrissey, it is asserted, merely gives expression to such preexisting rules. (See Goldberg v. Kelly (1970) 397 U.S. 254 [25 L.Ed.2d 287, 90 S.Ct. 1011]; Shapiro v. Thompson (1969) 394 U.S. 618 [22 L.Ed.2d 600, 89 S.Ct. 1322]; Sniadach v. Family Finance Corp. (1969) 395 U.S. 337 [23 L.Ed.2d 349, 89 S.Ct. 1820]; Armstrong v. Manzo (1965) 380 U.S. 545 [14 L.Ed.2d 62, 85 S.Ct. 1187]; Sherbert v. Verner (1963) 374 U.S. 398 [10 L.Ed.2d 965, 83 S.Ct. 1790]; McCallop v. Carberry (1970) 1 Cal.3d 903 [ 83 Cal.Rptr. 666, 464 P.2d 122]; Orr v. Superior Court (1969) 71 Cal.2d 220 [ 77 Cal.Rptr. 816, 454 P.2d 712]; In re Harris (1968) 69 Cal.2d 486 [ 72 Cal.Rptr. 340, 446 P.2d 148].)
Counsel particularly relies on Mempa v. Rhay (1967) 389 U.S. 128 [19 L.Ed.2d 336, 88 S.Ct. 254] as establishing prior to Morrissey that a probationer is entitled to a due process hearing on revocation of his probationary status. In Mempa as in the instant case, petitioners were placed on probation prior to sentencing and, at proceedings at which they were not represented by counsel following alleged probation violations, probation was revoked and they were sentenced to prison. The high court in that case considered only the question of the right of representation and concluded: "All we decide here is that a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing." (389 U.S. at p. 137 [19 L.Ed.2d at p. 342].) In arriving at such conclusion the court relied only on legal principles relating to the right to be represented at sentencing. It has been correctly stated that Mempa "does no more than assert that upon deferred sentencing following probation violation, a defendant must be afforded the right to counsel. This has for many years been the rule in California. (See People v. Fields, 88 Cal.App.2d 30, 32-33 [ 198 P.2d 104].)" ( People v. Jones (1968) 263 Cal.App.2d 818, 824 [ 70 Cal.Rptr. 13].) Mempa thus does not adjudicate any element of the due process protections announced in Morrissey and cannot be deemed as establishing a retroactive date for its application.
Although we concede that the right to liberty is at the very least entitled to protections equal to or greater than those relating to the property interests dealt with in the cited cases, it was not until Morrissey that the Supreme Court purported to hold for the first time that a parolee's conditional liberty was entitled to certain due process protections. The court noted that a parolee has necessarily been convicted of a crime against the people; that such conviction justified the imposition of severe restrictions if he is to move freely in society because of the real risk that he may not be able to live without committing additional antisocial acts; and that the state had an "overwhelming interest in being able to return the individual to imprisonment" if he could not adjust to the demands of society. (408 U.S. at p. 483 [33 L.Ed.2d at p. 495].) It is thus not only the tenuous nature of a parolee's or probationer's right in his liberty but also the hazard to which society is exposed which distinguishes the limited right to be free from other rights including property rights. This distinction compels the conclusion that the protection of the limited right of freedom of parolees or probationers must be dealt with as an individual and novel matter whose determination could not have been predicated on or dictated by determinations as to other rights which share some but not other critical common characteristics. (1) We cannot, accordingly, conclude that the safeguards prescribed in Morrissey predated the filing of the opinion in that case and, in any event, we cannot ignore the high court's clear direction that it intended to speak prospectively only. We do not, moreover, look to the usual tests for determining the retroactivity of a novel rule as we would in those instances where that question is not answered in the written court opinion giving birth to the rule. (See In re Tahl (1969) 1 Cal.3d 122, 134 [ 81 Cal.Rptr. 577, 460 P.2d 449].)
In seeking to rely on People v. Youngs, supra, 23 Cal.App.3d 180, defendant is again confronted with the burden of establishing that it be applied retroactively. In Vickers we were not required to consider whether Youngs should be applied retroactively or prospectively only, as Youngs expressly excluded its application to a revocation hearing where, as in Vickers, probation had been granted after sentence had been imposed and its execution stayed. Youngs purports to apply in the instant case, however, where criminal proceedings were suspended before the grant of probation, thus necessitating sentencing and judgment upon the revocation thereof. We must, accordingly, now determine the issue we did not reach in Vickers. (2) Whether a rule departing from established practices should be given retroactive application requires a weighing of the following three criteria to determine what application of the new rule, on balance, more nearly accomplishes substantial justice: "`(1) the purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effect retroactive application would have upon the administration of justice.'" ( In re Tahl, supra, 1 Cal.3d 122, 134.)
The purpose of Youngs was to protect a probationer's interest prior to the imposition of judgment and sentence by providing a hearing comporting with due process on the merits of a summary revocation of probation already ordered. In a sense, however, the right to such a hearing preexisted Youngs as a defendant could have moved to set aside the order revoking probation (§ 1203.2, subd. (e)) and thus have obtained a due process determination of the merits of the revocation. ( People v. De Waele (1964) 224 Cal.App.2d 512, 516 [ 36 Cal.Rptr. 825].) In practice then, the Youngs rule may be deemed as merely shifting the burden of initiating the hearing from the defendant. It is thus not of such great innovation as a rule which for the first time might have conferred a novel due process hearing in revocation proceedings. We conclude, accordingly, that because a probationer might have obtained a hearing on the merits of a summary revocation of probation prior to Youngs, there is little in the purpose of the rule enunciated in that decision to require any retroactive application.
As to the second criterion, it is clear that the pre- Youngs rule had been firmly established in this state for a great number of years. Although it appears that some of the more populous counties had provided without compulsion the equivalent of a hearing as prescribed in Youngs prior to the decision (see People v. Youngs, supra, 23 Cal.App.3d 180, 186), this is not to say that the courts and law enforcement agencies in other counties did not rely on the established procedures. In any event we can only conclude that the reliance by both the People and the accused on pre- Youngs procedures, and the courts' reliance on the reports and recommendations of probation departments, has been extensive and well justified under the established practices. Such reliance weighs heavily in the balance against retroactive application of Youngs.
The fact that the Youngs procedures had been voluntarily adopted, or substantially adopted by a significant number of courts would, at least as to revocation proceedings in such courts, render it unnecessary to consider the retroactivity issue. Our concern should be the effect of retroactive application on those courts applying the established rule.
The final criteria of retroactive application requires that we consider the effect of retroactivity on the administration of justice. We are aware, of course, of the increasingly large number of persons convicted of crimes who are placed on probation. (See Crime Delinquency in Cal. 1970, pp. 53-57.) There would unquestionably be a very heavy burden on the administration of justice should a retroactive application of Youngs, even for a limited period prior thereto, require a reexamination of the merits of probation revocations of inmates who are currently incarcerated or whose probation was modified so that greater restrictions were placed on their liberty.
(3) The foregoing considerations all suggest that Youngs must be limited to prospective application only. Not being a decision of statewide compulsion, moreover, some question might be raised as to its statewide applicability. It may well be argued that once a definitive decision of the Court of Appeal departing from established procedures has become final, there no longer remains any sufficient justification for continued reliance on the old procedures, and the new rule, when as in the instant case it is approved by this court, must be given prospective application from the date of such finality. However, in the particular circumstances before us wherein the interrelated demands of Morrissey and Youngs are predicated on due process concepts, we recognize and give effect to Morrissey as an expression of the supreme law of the land. In such circumstances an application of Youngs from some earlier date than that mandated by Morrissey would only add confusion in the orderly administration of justice. We conclude, accordingly, that Youngs is likewise to be applicable from and after the effective date of Morrissey, June 29, 1972. As defendant's revocation predated that date and, incidentally, even the finality of Youngs by 15 months, neither case affords any relief.
Youngs became final on April 27, 1972.
Defendant's remaining contentions are so lacking in merit that they do not require discussion.
The judgment is affirmed.
McComb, J., Peters, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
Respondent's petition for a rehearing was denied January 24, 1973.