People v. Spence (2000)

THE PEOPLE, Plaintiff and Respondent, v. KEVIN BRYAN SPENCE, Defendant and Appellant.

[Modification fn. * of Opinion (79 Cal.App.4th 1242) on denial of petition for rehearing.]

THE COURT. fn. * -

It is ordered that the opinion filed herein on March 10, 2000, be modified as follows:

1. On page 7 [78 Cal. App. 4th 1248, advance report], the language of footnote 4 is deleted and the following new language is inserted in its place:

Footnote 4 now reads:

The Attorney General describes the probation roster as a "judicial document." Although we need not decide this issue, it appears the Attorney General is correct. In most counties, chief probation officers are appointed by and serve at the pleasure of the court. (Pen. Code, §§ 1203.5, 1023.6; cf. Welf. & Inst. Code, § 270; see People ex rel. Deputy Sheriffs' Assn. v. County of Santa Clara (1996) 49 Cal. App. 4th 1471, 1487.

2. On page 13 [78 Cal. App. 4th 1251, advance report], the following three paragraphs are inserted as new text immediately preceding the Disposition.

In a petition for rehearing, the Attorney General contends for the first time that the exclusionary rule should not be applied to probation revocation proceedings. The contention is not properly before us because it was not raised in the trial court or in the respondent's brief. (People v. Whitson (1998) 17 Cal. 4th 229, 244, fn. 4.)

If the Attorney General's contention were properly before us, we would conclude it has no merit. The rationale for refusing to apply the exclusionary rule to probation revocation proceedings is the lack of any "incremental deterrent effect that will realistically be achieved" by excluding the evidence. (In re Martinez (1970) 1 Cal. 3d 641, 649 [parole revocation hearing]; Pa. Bd. of Parole v. Scott (1998) 524 U.S. 357, 364 [141 L. Ed. 2d 344] [same]; People v. Harrison (1988) 199 Cal. App. 3d 803, 811 [probation revocation hearing]; People v. Nixon (1982) 131 Cal. App. 3d 687, 691 [same]; see People v. Reyes, supra, 19 Cal.4th at pp. 755-756.) Here, however, the incremental deterrent effect is substantial and the foregoing rationale does not apply.

The probation roster that was relied upon in this case had been consciously designed to omit the limitations that the sentencing judge had placed upon defendant's search condition. If court and probation officials are put on notice that reliance upon the roster in its present form will result in the exclusion of evidence, those officials will have a powerful incentive to redesign the probation roster. If the roster is redesigned, this case will have had a significant deterrent effect.

There is no change in judgment.

The petition for rehearing is denied. FN *. This modification requires adding a new headnote (5) on page 1244 to read as set out above. Movement of text will be made affecting pages 1244-1251 of the bound volume report.

FN *. Before Davis, Acting P. J., and Morrison, J.