The opinion
BIRD, C. J., Concurring and Dissenting.
I agree that Proposition 8 applies to this case and that the exclusionary remedy adopted in People v. Coleman (1975) 13 Cal.3d 867 [ 120 Cal.Rptr. 384 , 533 P.2d 1024 ] survives that legislation. (Maj. opn., ante, at pp. 658-660; Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 808-811 [ 210 Cal.Rptr. 204 , 693 P.2d 789 ].)
However, the practice of holding a probationer’s revocation hearing before the trial on the charge which gives rise to the revocation proceeding violates both the due process guarantee of our state Constitution and the privilege against self-incrimination. (Cal. Const., art. I, §§ 7, subd. (a) & 15.) The probationer’s right to present a defense and to testify in his own behalf at the hearing is literally forfeited. The probationer must choose between (1) remaining silent and virtually assuring an adverse finding in the revocation proceeding or (2) exercising his right to defend himself with the result that the prosecution will be given an opportunity to discover any evidence it wishes which relates to the pending charge.
This court should hold that, absent a waiver by the probationer, revocation proceedings must be conducted after disposition of the criminal charge on which the revocation proceeding is based. (See People v. Jasper (1983) 33 Cal.3d 931, 936-942 [ 191 Cal.Rptr. 648 , 663 P.2d 206 ] (dis. opn. of Bird, C. J.).)