Record and brief — California v. Winson

UOnNad

81-749

IN THE SUPREME COURT OF THE UNIT FORRTRTER, dr 3

October Term, 1981 irn

i SEP 21 19st

ALEXANDER L STEVasS.

—

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

V.

RICHARD SHIRES WINSON, IR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA SUPREME COURT

GEORGE DEUKMEJIAN,

Attorney General

ROBERT H. PHILIBOSIAN,

Chief Assistant Attorney

General--Criminal Division

DANIEL J. KREMER,

Assistant Attorney General

JAY M. BLOOM,

Deputy Attorney General

STEVEN H. ZEIGEN,

Deputy Attorney General

110 West "A" Street, Suite 700

San Diego, California 92101

Telephone: (714) 237-7679

Attorneys for Petitioner

i.

IONS PRESENTED

Whether the Sixth Amendment

guarantee of confrontation is denied when

the preliminary hearing testimony of an

absent witness was introduced during pro-

bation revocation proceedings, despite

the trial court's finding the witness was

not legally unavailable for purposes of

introducing that testimony at the sub-

stantive criminal trial.

ii.

TOPICAL INDEX

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED

STATEMENT OF THE CASE

A. History of the Case

B. Statement of Facts

REASONS FOR GRANTING THE WRIT

ARGUMENT

THE TRIAL COURT PROPERLY

ADMITTED THE PRELIMINARY

HEARING TRANSCRIPT OF THE

ABSENT WITNESS AT THE

PROBATION REVOCATION

HEARING, EVEN THOUGH THAT

WITNESS WAS NOT FOUND

LEGALLY UNAVAILABLE FOR

PURPOSES OF INTRODUCING

HIS TESTIMONY AT SUBSTAN-

TIVE CRIMINAL TRIAL

CONC IS ION

Pages

13-31

32

A.

iii.

TOPICAL INDEX

(Continued)

APPENDIX

California Supreme Court

Opinion

Evidence Code sections 1291

and 240

5 Wigmore, Evidence (3d ed.

1940) sections 1395, 1396

iv.

TABLE OF AUTHORITIES

CASES

Barber v. Page (1968)

390 U.S. 719

California v. Green (1970)

399 U.S. 149

Commonwealth v. Quinlan.

(1977) 380 A. 2d 854

Gagnon v. Scarpelli (1973)

411 U.S. 778

Mancusi v. Stubbs (1972)

408 U.S. 204

Morrissey v. Brewer (1972)

408 U.S. 471

Ohio v. Roberts (1980)

448 U.S. 56

People v. Cambitsis (1980)

101 Cal.App.3d 141

People v. Vickers (1972)

8 Cal. 3d 451

People v. Winson (1981)

29 Cal.3d 711

STATUTES

Evidence Code

Ss 240

1291

Pages

22

21,22,23,

24

18

15,17,20,29

22

15,16,17,20

28, 29,30

21,22,23,24

26

19,20,30

17

26

22-25

22-23

ve

TABLE OF AUTHORITIES

(Continued)

Pages

TEXT

5 Wigmore, Evidence

(3d ed. 1940)

§§ 1395, 1396 19

oie

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1981

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

v.

RICHARD SHIRES WINSON, IR., |

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA SUPREME COURT

Petitioner, the People of the

State of California respectfully requests

a writ of certiorari issue to review the

judgment of the California Supreme Court,

which was entered on July 23, 1981, and

became final on August 23, 1981. (Cal.

Rules of Court, Rule 24a.)

22

OPINION BELOW

The opinion of the California

Supreme Court may be found at 29 Cal.3d

711, Cal. tr. A copy of the

opinion appears as Appendix A to this

petition.

JURISDICTION

The judgment of the California

Supreme Court became final on August 23,

1981. This petition for writ of certio-

rari was filed within 60 days of that

date. This Court's jurisdiction is

invoked under 28 U.S.C. section 1257(3).

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution,

Amendment VI:

"In all criminal prosecu-

tions, the accused shall enjoy

the right to a speedy and pub-

lic trial, by an impartial jury

of the state and district

wherein the crime shall have

— 7

been committed, which district

shall have been previously

ascertained by law, and to be

informed of the nature and

cause of the accusation; to be

confronted with the witnesses

against him; to have compulsory

process for obtaining witnesses

in his favor, and to have the

assistance of counsel for his

defense."

STATEMENT OF THE CASE

A. History of the Case

A two-count information filed

by the District Attorney of San Diego

County on March 2, 1978, charged respon-

dent Richard Shires Winson, Jr. with

attempted armed robbery during which a

weapon was used (Pen. Code, 5 211,

12022(b)), and with assault with a deadly

weapon. (Pen. Code, § 245(a).) It was

additionally alleged great bodily injury

42035

was inflicted upon the victim. (Pen.

Code, § 12022.7.) (CT 1.)1/

On April 26, 1978, respohdent

pled guilty to count II pursuant to a

plea bargain whereby the district attor-

ney dismissed the other count. (CT 2-3.)

On May 26, 1978, respondent was placed on

probation for three years on the con-

dition he serve 365 days in the county

jail. (CT 4.)

After being released from

custody on discharge on November 29,

1978, respondent was arrested on

December 20, 1978, on charges of

attempted robbery and assault. (CT 7-8.)

On January 9, 1979, the preliminary

hearing in the later offense was held.

1. CT refers to the clerk's

transcript of the proceedings in the

superior court.

-5-

Pre-trial motions on the subse-

quent case were argued on March 15 and

16. The trial court, after noting the

victim of the later assault was absent,

found that the prosecution had not used

due diligence in attempting to locate

him, and ruled the preliminary hearing

testimony of the witness could not be

‘admitted at trial. (CT 22-23.) On March

19, 1979, a motion to dismiss these

charges was granted. (CT 24.)

Respondents probation revo-

cation hearing began April 13, 1979. (CT

21.) On April 23, 1979, the trial court

ruled the absent witness' preliminary

hearing testimony would be admitted in

the probation revocation hearing.

Thereafter, appellant's probation was

revoked. (CT 22, 10.) Respondent was

then sentenced to the upper term of four

years. (CT 10-11.) Respondent filed a

timely notice of appeal from the revoca-

tion of his probation. (CT 12-13.)

On July 23, 1981, the

California Supreme Court reversed the

revocation of respondent's probation on

the ground he was denied his Sixth

Amendment right to confrontation.

(Appendix A.)

B. Statement of Facts

At approximately 5:00 p.m. on

December 19, 1978, Gerald Winther, the

victim, ate dinner at the Cafe Maya

Restaurant. Inside the establishment

were both respondent and Mike May. He

had known the latter approximately six

months and said to hin, "How's it going?"

When he had finished his dinner, Winther

oJ

went outside and walked down an alley

near Georgia Street. (PHT 27-31.)2/

Shortly after hearing

footsteps, Winther was pushed against a

wall by May, who said, "Up your money."

At this time, respondent pulled a knife

on Winther and put it to his jaw, cutting

him on the right side. Both May and

respondent repeated, "Up your money."

May then pulled Winther down and respon-

dent stabbed the victim in the back of

the head and hit him with a hard object,

possibly the blunt end of the knife.

Winther yelled for help and for someone

to call the police. The two assailants

then left the area. (PHT 32-39.)

Corrinne Pike lived in an apartment whose

bedroom window opened onto the alley.

2. PHT refers to the preliminary

hearing transcript of the proceedings in

the municipal court which were introduced

during the hearing on revocation of

respondent's probation.

Between 5:00 and 5:30 p.m. on December

19, 1978, she heard scuffling noises in

the alley and heard a voice identified as

Mr. May's say “shut up." She then heard

someone yell for help and to call the

police. In response to these pleas, Ms.

Pike did call the police. (PPT 9-12.)

Officer Copher of the San Diego

Police Department contacted the victim on

the sidewalk near the alley. The victim

gave the officer descriptions of the two

assailants. One was described as being

Mexican-looking, standing about five feet

ten inches, weighing approximately 165

pounds, and having teardrop tatoos by his

eye. Three days after tlie incident, the

victim immediately identified respon-

dent's picture from a photographic lineup

saying as he made his selection, "He's

the one with the knife." (RTM 64-75.)3/

Appellant was arrested during

the early morning hours of December 20,

1980. At the time of his arrest, he was

in the company of Mike May. Both men

were carrying knives. (RTM 78; PHT 65-

69.)

Defense testimony at the pro-

bation hearing produced Lisa A. Wennstrom

who said in talking to the victim immedi-

ately after the assault, she had supplied

respondent's name and had asked the vic-

tim if the assailant had teardrop tatoos.

(RIM 89-90.)

Respondent testified he had run

into May in the restaurant by accident,

and had left before May. After leaving

3. RT@™ refers to reporter's trans-

cript of the various motions made during

proceedings in the superior court.

2 19 <

the restaurant, appellant: went to his

apartment and fell asleep about 5:30 p.m.

May later entered respondent's apartment

through a window, and began watching TV

while respondent slept. Some time be-

tween 12:00 and 1:00 a.m., a Richard

Atteberry stopped by saying he had some

work for respondent. Respondent was on

his way to Atteberry's when arrested.

(RTM 93-96.)

REASONS FOR GRANTING THE WRIT

This case presents a funda-

mental question regarding the extent of

the constitutional guarantee of

confrontation, particularly as it

applies to probation revocation

proceedings: whether the constitutional

guarantee of confrontation is denied when

the preliminary hearing testimony of an

absent witness is introduced at probation

revocation proceedings, despite the trial

° il -

court's finding the witness was not

legally unavailable for purposes of

introducing that testimony at trial.

In rendering its decision in

People v. Winson (1981) 29 Cal.3d 711,

the California Supreme Court held the use

of an absent witness' preliminary hearing

testimony violated the federal

Constitution's due process requirements

for probation revocation hearings under

Morrissey v. Brewer (1972) 408 U.S. 471,

and Gagnon v. Scarpelli (1973) 411 U.S. |

778, where there has been no showing the

witness was unavailable.

The State of California

believes that while confrontation is

guaranteed to probationers during revoca-

tion hearings, that right has been pro-

tected when the probationer, during a

preliminary hearing on the substantive

underlying criminal charge, has had ample

o 19 «

opportunity to cross-examine his accuser.

When that witness is later absent at the

time of the criminal trial the previously

recorded testimony should be admissible

in probation revocation hearings without

requiring the prosecution make the same

showing of legal unavailability as is

required to warrant the introduction of

this testimony at the criminal trial.

It has been long held that

while the right to confrontation does

attach to probation revocation hearings,

hearsay evidence may be introduced even

though such evidence would be inad-

missible at a criminal trial. If the

confrontation applicable in probation

revocation hearings acquires the presence

of the victim, unless the prosecution can

make the same legally unavailable showing

necessary for purposes of introducing

that testimony at trial, the efficient

oD we

operation of the probation revocation

system will be severely impaired. This

case, therefore, is of extreme importance

in California, and has ramifications

nationwide.

ARGUMENT

THE TRIAL COURT PROPERLY ADMITTED

THE PRELIMINARY HEARING TRANSCRIPT

OF THE ABSENT WITNESS AT THE

PROBATION REVOCATION HEARING, EVEN

THOUGH THAT WITNESS WAS NOT FOUND

LEGALLY UNAVAILABLE FOR PURPOSES

OF INTRODUCING HIS TESTIMONY AT

SUBSTANTIVE CRIMINAL TRIAL

Petitioner, the People of the

State of California, respectfully

requests this Court grant this petition

for writ of certiorari to consider the

fundamental question of whether an absent

witrees' preliminary hearing transcript

is properly admissible for purposes of a

probation revocation hearing, even though

that witness has not been found legally

‘navailable for purposes of introducing

o 34 @

the same testimony at the underlying cri-

minal trial.

Obviously, this issue brings

into play the extent to which the right

to confrontation, guaranteed by the Sixth

Amendment, is applicable to probation

revocation proceedings. An analysis of

this question, in turn, brings two addi-

tional areas of inquiry into focus;

First, the degree of the due process

necessary to ensure a fair revocation

proceeding; and second, the circumstances

in which an absent witness' testimony may

be introduced at a judicial proceeding.

Synthesizing the issue even further, this

Court is being asked to decide whether

the due diligence which must be exercised

before an absent witness’ testimony may

be introduced at a criminal trial is

equally applicable at a probation revoca-

tion setting.

= $5 @

The genesis of any analysis

into the due process requirements of a

probation (or parole) revocation hearing

is this Court's opinions in Morrissey v.

Brewer (1972) 408 U.S. 471, and Gagnon v.

Scarpelli (1973) 411 U.S. 778. In

Morrissey, this Court for the first time

concluded the federal Constitution man-

dated certain minimum due process safe-

guards apply in the parole revocation

setting. Among these safeguards was the

right to confront and cross-examine

adverse witnesses. This finding was

required to protect the interests of both

the parolee and the State. Recognizing

that the revocation process was not part

of the criminal prosecution, however,

this Court concluded,

»The full panoply of

rights due a defendant in such

a proceeding does not apply to

parole revocation." (408 U.S.

at 480. )

« 16 «

In discussing what was called

flexible due process, this Court never

failed to recognize the difference be-

tween the criminal trial and revocation.

"Given the previous con-

viction and the proper imposi-

tion of conditions, the State

has an overwhelming interest in

being able to return the indi-

vidual to imprisonment without

the burden of a new adversary

criminal trial if in fact he

has failed to abide by the con-

ditions of his parole." (408

U.S. at 483.)

Thus, the court sought to

establish through an informal hearing a

procedure which afforded the trier of

fact an opportunity to exercise an

informed discretion based on verified

facts and an accurate knowledge of the

parolee's behavior. (408 U.S. at 484.)

At no time, however, was a revocation

hearing equated with a criminal prosecu-

tion. To the contrary, this Court

allowed the process to be flexible enough

« 19 «

to consider “letters, affidavits and

other material that would not be

admissible in an adversary criminal

trial.“ (408 U.S. at 489.)

In Gagnon v. Scarpelli, supra,

decided by this Court the year after

Morrissey, supra, this Court extended the

minimum due process requirements appli-

cable to parole revocation hearings to

probation revocation proceedings as well.

(411 U.S. at 785.)

California adopted the

Morrissey -- Gagnon standards through the

decision rendered in People v. Vickers

(1972) 8 Cal.3d 451. Since that time, a

number of cases have reexamined the extent

of the due process afforded an individual

at revocation proceedings. Very few

cases, however, have considered the

application of the right to confrontation

= 18 -

applicable in such hearings when dealing

with an absent witness.

In Commonwealth v. Quinlan

(1977) 380 A. 2d 854, the victim of an

alleged rape did not testify at the revo-

cation hearing. Rather, the probation

officer and the two police officers who

investigated the crime testified to the

circumstances of the alleged sexual

assault. The judge hearing the matter,

however, found good cause to excuse the

victim from testifying, finding that

requiring her to testify would have sub-

jected her to unnecessary embarrassment

and harassment. In addition, it was

noted the victim had been cross-examined

at great length by counsel at the preli-

minary hearing. (380 A.2d at 857.)

A case directly in point, yet

one which the California Supreme Court

2 19 «-

chose to distinguish, is People v.

Cambitsis (1980) 101 Cal.App.3d 141. In

Cambitsis, an absent witness‘ preliminary

hearing testimony was introduced at the

probation revocation hearing without any

showing of unavailability. In so ruling,

the Cambitsis court declared the require-

ment of unavailability loosened in the

setting of probation revocation hearings.

(101 Cal.App.3d at 146.) This loosening

was not done in the context of the court

having an opportunity to observe a

witness' demeanor. In fact, Cambitsis

noted such observations were, secondary

and dispensable. (101 Cal.App.3d at

145; 5 Wigmore, Evidence (3d ed. 1940) §

1395, 1396; see Appen. C for full text of

statute.) Nor did it do so because there

was another witness who personally testi-

fied at the probation revocation hearing.

« =

Rather, it did so on the

grounds the absent witness had been

cross-examined at the preliminary hearing

and,

"It is doubtful that

cross-examination at the proba-

tion revocation hearings would

have been any more extensive or

thorough than it was at tue

preliminary hearing." (101

Cal. App. zd at 145.)

In fact, the court concluded the

loosening of the requirement of unavail-

ability was mandated:

"So long as the defendant

in the formal proceeding was

afforded the right, and had a

similar motive to cross-examine

the witness, and the record of

the cross-examination is pro-

vided to the court in the pro-

bation revocation hearing, it

would appear that ‘substantial

compliance with the purposes“

of the rule adequately provides

the defendant in a probation

revocation hearing the right to

confront and cross-examine wit-

nesses guaranteed by Morrisse

and Gagnon.” (101 Cal. .

at 146.

o Te

Thus, the issue has been synthe-

sized to its core. 10 what extent, if any,

does due process require unavailability be

shown before an absent witness’ testimony

can be properly at a probation revocation

hearing?

This Court, through its deci-

sions in California v. Green (1970) 399

U.S. 149, and Ohio v. Roberts (1980) 448

U.S. 56, has made it clear that under

certain circumstances he pre-recorded

testimony of an absent witness may be

introduced even in the arena of a crimi-

nal trial which, as noted, does invoke the

full panoply of rights guaranteed by the

Constitution,

Succinctly stated, the circum-

stances warranting the introduction of

such testimony are: (1) the witness

whose testimony is sought to be intro-

duced, is unavailable; that is, despite a

- 22 -

good faith effort by the prosecution the

witness’ attendance was not procured.

(Ohio v. Roberts, supra, 448 U.S. at 74;

Barber v. Page (1968) 390 U.S. 719, 724-

725); and, (2) the evidence to be intro-

duced must have sufficient indicia of re-

liability to afford the trier of fact a

satisfactory basis for evaluating the truth

of the prior statement. (Ohio v. Roberts,

supra, 448 U. 8s. at 65, citing Mancusi v.

Stubbs (1972) 408 U.S. 204, 213; California

v. Green, supra, 99 U.S. at 161.4/

4. The introduction of former

testimony in California is governed by

Evidence Code sections 1291 and 240.

Section 1291 provides:

(a)] Evidence of former

testimony is not made inadmis-

sible by the hearsay rule if the

declarant is unavailable as a

witness and:

"(1) The former testimony

is offered against a person who

offered it in evidence in his own

*

As concerns the opporturity to

cross-examine both Roberts and Green held

Footnote 4 continued:

behalf on the former occasion

or against the successor in

interest of such person; or

"(2) The party against

whom the former testimony is

offered was a party to the

action or proceeding in which

the testimony was c ven and had

the right and opportunity to

cross-examine the declarant with

an interest and motive similar

to that which he has at the

hearing." (See Appen. B for

full text of statute.)

Section 240 provides:

(a)] Except as otherwise

provided in subdivision (b),

‘unavailable as a witness’ means

that the declarant is:

"(1) Exempted or precluded

on the ground of privilege from

testifying concerning the matter

to which his statement is rele-

vant;

"(2) Disqualified from

testifying to the matter;

» 36

the cross-examination which occurred at

the preliminary hearing afforded “ sub-

stantial compliance with the purposes be-

hind the confrontation requirement’ ...

no less so than classic cross-examination."

(Ohio v. Roberts, 448 U.S. at 68-69;

California v. Green, 399 U.S. at 166.)

The very “accounterments of the prelimi-

nary hearing” guaranteed the trustworthi-

ness of the evidence. (448 U.S. at 73.)

Footnote 4 continued:

"(3) Dead or unable to

attend or to testify at the

hearing because of then exist-

ing physical or mental illness

or infirmity;

"(4) Absent from the hear-

ing and the court is unable to

compel his attendance by its

process; or

"(5) Absent from the hear-

ing and the proponent of his

statement has exercised reason-

able diligence but has been

unable to procure his attendance

by the court's process.

- 25 -

In the instant matter, it is

irrefutable the second factor authorizing

introduction was met. The victim of the

assault was present at the preliminary

hearing, and was subjected to cross-

examination by counsel. Moreover, a

transcript of that examination was sub-

mitted to the trial court prior to the

taking of additional live testimony at

the revocation hearing.

What is missing is the finding

by the trial court the witness was

legally unavailable. Rather, the court,

in “an awful close" decision ruled the

prosecution had failed to exercise reason-

able diligence in procuring the witness'

attendance at trial, thereby refusing to

Footnote 4 continued:

(See Appen. B for full text of

statute.)

o % «

allow the preliminary hearing testimony

to be admitted at trial.5/ Without

further hearing, however, the trial court

ruled the testimony admissible for pur-

poses of a revocation hearing.6/

This Court should affirm the

trial court's decision. It must be

remembered the full panoply of rights

attendant to the criminal trial are not

present in revocation hearings. While

one of the minimum due process require-

ments applicable in revocation pro-

ceedings is the right to confront and

5. Although petitioner cannot now

argue the wisdom of this aspect of the

trial court's decision, a far greater

showing was made of the effort to locate

the witness than was made in Ohio v.

Roberts, supra.

6. The California Supreme Court

decision (People v. Winson (1981) 29 Cal.

3d 711, 71 Makes reference to the deputy

district attorney informing the trial court

he could produce the witness at the revo-

cation hearing. Petitioner has been unable

to substantiate this reference in the record,

= 29 «

cross-examine adverse witnesses, the fact

remains confrontation was “substantially”

afforded when respondent was able to

cross-examine the victim at the prelimi-

nary hearing.

Moreover, as revocation hear-

ings were never thought to be equated

with criminal trials there appears to be

no constitutional mandate to strictly

apply the unavailability requirement.

Respondent has already been validly found

guilty of the crime for which he was ori-

ginally placed on probation. While peti-

tioner does not suggest this Court give

blanket approval to every failure of the

prosecution to obtain the personal atten-

dance of a witness, where the prosecution

has exercised good faith, albeit not

perhaps due diligence, in obtaining that

witness, no good reason emerges for

- 28 -

allowing the probationer to escape with

impunity.

In the instant case, there was

no question the prosecution had made a

good faith attempt to obtain the witness.

What the prosecution failed to do, in the

eyes of the trial court, was exercise

reasonable diligence; in other words, the

search for the witness began too close to

the actual time of trial. This failure,

however, in no way impeded the trial

court from exercising an informed dis-

cretion, based upon verified facts, in

concluding respondent had violated pro-

bation. (See Morrissey v. Brewer, supra,

408 U.S. at 484.) Indeed, every essence

of fair play was present in the

revocation. Respondent's claim he was

denied confrontation was not based on a

failure to have cross-examined the

victim, but rather on the legal“ finding

= 29 «

the witness was not unavailable. Had the

trial court ruled the witness was

unavailable, not only would the prelimi-

nary hearing transcript have been

admitted at trial, there would be no

question as to its admissibility at the

revocation hearing as well.

Morrissey and Gagnon sought to

ensure conditional liberties of parolees

and probationers could not arbitrarily be

snatched away. To prevent this a system

of initial preliminary hearings and sub-

sequent revocation hearings were said to

be constitutionally mandated. Within

this mandate was encompassed a con-

ditional right to an attorney, as well

as, inter alia, notification of the

charges against the individual and a

right to confront and cross-examine

adverse witnesses. Where a probationer

=

has cross-examined a witness at a pre-

liminary hearing this right to confron-

tation has been satisfied.

If this Court concludes the

prosecution has to sustain the same

strict standard of exercising reasonable

diligence in procuring the personal

attendance of witnesses at revocation

proceedings the revocation process will

evolve into a traditional adversary sys-

tem. No longer will hearsay evidence be

admissible. (Morrissey v. Brewer, supra,

408 U.S. at 489.) Such an evolution will

have a drastic effect on the efficient

operation of the revocation process.

In order to avoid this conse-

quence, this Court should adopt the

reasoning of the California Court of

Appeal in People v. Cambitsis, surpa,

wherein the requirements of unavail-

ability, given the cross-examination of

» 1 @

the absent witness which occurred at the

preliminary hearing, was “loosened” in

the revocation setting. This loosening

of the first prong to the introduction of

an absent witness’ testimony will permit

the revocation process to continue

to operate smoothly, while at the same

time ensuring that the minimum due pro-

cess requirements necessary to protect a

parolee or probationer's interests are

not diminished.

» 92 «

CONCLUSION

For the foregoing reasons, it

is respectfully submitted the petition

for writ of certiorari be granted.

Respectfully submitted,

GEORGE DEUKMEJIAN,

Attorney General

ROBERT H. PHILIBOSIAN,

Chief Assistant Attorney

General--Criminal Division

DANIEL J. KREMER,

Assistant Attorney General

_ JAY M. BLOOM,

Deputy Attorney General

STEVEN H. ZEIGEN,

Deputy Attorney General

Attorneys for Petitioner

Appendix A

[Filed July 23, 1981]

IN THE SUPREME COURT OF THE STATE

OF CALIFORNIA

CRIM. NO. 21675

(Sup. ct. No. CR-42770)

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD SHIRES WINSON, IR.,

Defendant and Appellant.

ee ee ee ee ee ee ee ee ee —

A preliminary hearing

transcript of a witness’ testimony in a

defendant's related criminal case is not

a proper substitute for the live testi-

mony of the witness at defendant's proba-

tion revocation hearing in the absence

of the declarant's unavailability or

other good cause.

We have reached the foregoing

conclusion in reviewing the revocation of

2 2

defendant's probation imposed following

his 1978 conviction of assault with a

deadly weapon. Defendant was placed on

formal probation for three years, the

conditions of which included one year's

confinement in the county jail and

compliance with all state laws. Three

weeks after his release from county jail,

he was arrested and charged with two

offenses, an attempted robbery and an

assault with a deadly weapon against

Winther (victim).

— SEE CONCURRING OPINION --

At defendant's preliminary

hearing on the new charges the victim

testified that on December 19, 1978, he

saw defendant and codefendant Mike May in

a San Diego restaurant. He exchanged

greetings with May, ate dinner, and left

the restaurant. As the victim walked

282

through an adjacent alley, May grabbed

him from behind, shoved him against a

wall, and demanded money. According to

the victim, defendant then drew a knife,

placing it against the victim's jaw. In

an ensuing struggle, defendant cut the

victim along the jaw and stabbed him in

the back of the head.

Residents from a nearby apart-

ment house, including Lisa Wennstrom, an

acquaintance of defendant and May,

responded to the victim's cries. Lisa

had seen neither the confrontation nor

the assailants, but the victim told her

he was attacked by "Mike," a blond stocky

man, and a tall, dark, “male Mexican."

Wennstrom supplied Mike's last name, and

after inquiring whether the other man had

a mustache and teardrop tattoos on his

face, told the victim that the man was

probably Richard.“

o and o

Shortly thereafter, defendant

was arrested in the company of May and a

third man at which time both defendant

and May were carrying knives. The victim

identified May from a photographic lineup

supplied by police on the night of the

attack. Three days later he similarly

identified defendant from a second photo-

graphic lineup.

On February 27, 1979, defendant

was given notice to show cause why his

probation should not be revoked. On

March 16, 1979, and after the victim had

left the state, an evidentiary hearing

was held on the prosecution's request to

utilize the transcript of defendant's

preliminary hearing at the forthcoming

criminal trial. Concluding that the pro-

secution had not exercised due diligence

in attempting tc locate and maintain con-

tact with the victim, the court denied

= Bn @

use of the transcript, and thereafter

dismissed the criminal charges arising

from the assault.

Subsequent proceedings then

focused on defendant's probation revo-

cation hearing. He objected to use of

the transcript of the victim's prelimin-

ary hearing of its proposed intended use,

hearsay, and a denial of the rights to

confrontation, cross-examination, and due

process. Although no further infocmation

regarding the victim's availability was

offered, the prosecutor stated that the

victim could be found and produced at the

hearing. Without explanation the court

rejected defendant's objections, ruled

that the transcript could be used, and it

was thereafter read at the revocation

hearing. The court also heard additional

testimony from Wennstrom and two investi-

gating police officers. The victim was

@ Enf o

not produced, although the prosecutor

again repeated his belief that the victim

might be available. Rejecting defendant's

alibi, the court thereupon found that he

had violated his probation and sentenced

him to four years in state prison on the

original offense. He appeals.

Defendant contends that the

trial court erred in admitting and con-

sidering the preliminary hearing tran-

script as evidence at his probation revo-

cation proceeding. Pointing to the

court's earlier ruling that the prose-

cution had not exercised due diligence in

maintaining contact with the victim,

defendant argues that use of the tran-

script denied him his due process rights

to confront and cross-examine adverse

witnesses. We consider whether the court

may, at the probation revocation hearing

and without a further showing or explicit

© p=

finding of good cause, use the prelimi-

nary hearing transcript over defense

objections.

It is fundamental that both

the People and the probationer or parolee

have a continued post-conviction interest

in accurate fact-finding and the informed

use of discretion by the trial court.

The probationer or parolee's concern is

"to insure that his liberty is not

unjustifiably taken away and the

State['s] to make certain that it is

neither unnecessarily interrupting a2 suc-

cessful effort at rehabilitation nor

imprudently prejudicing the safety of the

community." (Gagnon v. Scarpelli (1973)

411 U.S. 778, 785; People v. Coleman

(1975) 13 Cal.3d 867, 873-874.)

The People, relying on People

v. Cambitsis (1980) 101 Cal.App.3d 141,

defend the trial court's admission and

—— 2

use of the transcript. They stress that

defendant at the preliminary hearing had

an adequate opportunity to cross-examine

the witness, and that the use of hearsay

evidence at such hearings has been judi-

cially approved.

While the People's argument has

a surface appeal, we are unable to

reconcile it with the minimum due process

standards on parole revocation hearings

as defined by the United States Supreme

Court. In Morrissey v. Brewer (1972) 408

U.S. 471, the court observed that “We

begin with the proposition that the revo-

cation of parole is not part of a crimi-

nal prosecution and thus the full panoply

of rights due a defendant in such a pro-

ceeding does not apply to parole

revocations." (408 U.S. at p. 480.) The

high court distinguished criminal and

parole revocation proceedings. Referring

to the latter, it observed that “the pro-

cess should be flexible enough to con-

sider evidence including letters,

affidavits, and other material that would

not be admissible in an adversary crimi-

nal trial." (P. 489.) The court

nonetheless insisted that among the

minimum parole revocation procedures

required by due process is “the right to

confront and cross-examine adverse wit-

nesses (unless the hearing officer

specifically finds good cause for not

allowing confrontation); . .." (Ibid,

italics added.)

Thereafter in Gagnon v.

Scarpelli, supra, 411 U.S. at page 782,

the high tribunal extended the Morrissey

protections to probationers. Answering

the contention that interstate probation

violations would cause “difficulty and

expense [in] procuring witnesses," the

- A-10 -

court “emphasize[d] that we did not in

Morrissey intend to prohibit use where

appropriate of the conventional substi-

tutes for live testimony, including

affidavits, depositions, and documentary

evidence." (411 U.S. at pp. 782-783,

fn. 5; italics added.) We faithfully

applied the Morrissey/Gagnon requirements

to state probationers in People v.

Vickers (1972) 8 Cal. 3d 451.

In criminal trials, the right

to confront and cross-examine adverse

witnesses, constitutionally protected by

the confrontation clause of the Sixth

Amendment to the federal Constitution, is

strongly preferred although not absolute.

Recently, the high tribunal in examining

the interaction of the confrontation

Clause and the hearsay rule, observed

»The Court has emphasized that the

- 11

Confrontation Clause reflects a pre-

ference for face-to-face confrontation

at trial, and that ‘a primary interest

secured by [the provision] is the right

of cross-examination." (Ohio v. Roberts

(1980) 448 U.S. 56, 63, fn. omitted.) The

court cautioned that the rule is not

absolute and restricts rather than bars

all hearsay, noting, however, that "In

the usual case (including cases where

prior cross-examination has occurred),

the prosecution must either produce, or

demonstrate the unavailability of, the

declarant whose statement it wishes to

use against the defendant." (Id, at p.

65, italics added.) If a witness is

unavailable, the “statement is admissible

only if it bears adequate ‘indicia of

reliability. (Id., at p. 66.)

The Cambitsis court char ac-

terized the opportunity to cross-examine

- A-12 -

an adverse witness as the “main and

essential" purpose of the right of

con-frontation, while describing as

"secondary and dispensable" the oppor-

tunity for the tribunal to observe the

witness’ demeanor. (101 cal. App. zd at

145.) The Supreme Court, however, has

given equal weight to the latter purpose.

Last year in Ohio v. Roberts, supra, the

high tribunal, quoting from its holding

in Mattox v. United States (1895) 156

U.S. 237, 242-243, noted that the con-

frontation clause “envisions ‘a personal

examination and cross-examination of the

witness in which the accused has an

opportunity, not only of testing the

recollection and sifting the conscience

of the witness, but of compelling him to

stand face to face with the jury in order

that they may look at him, and judge by

his demeanor upon the stand and the

- A-13 -

manner in which he gives his testimony

whether he is worthy of belief.'

{Citation.]" (448 U.S. at pp. 63-64.)

So important are these interests “that

the absence of proper confrontation at

trial ‘calls into question the ultimate

"integrity of the fact-finding process.

{[(Citation.]" (Ibid.) Thus the court has

indicated that both interests -- cross-

examination and the opportunity to

observe the demeanor of the witness —

are not lightly to be disposed of in the

criminal, fact-finding process. (See

People v. Green (1969) 70 Cal.2d 654, 661

["“cross-examination neither may be nunc

pro tunc nor may it be tung pro nung.“ 1.)

Our conclusion that a finding

of good cause is required before the pre-

liminary hearing transcript may be used

at a revocation hearing is thus compelled

by the high court's precise enunciation

- A-14 -

of minimum due process requirements in

such proceedings. It also is compelled

by the emphasis of the Supreme Court on

the equal value of cross-examination and

the opportunity for observation of the

witness' demeanor.

In addition, and within

differ-ent contexts, our own prior

interpretations of the enunciated

Morrissey standards presage the result

here. For example, in People v. Vickers

we characterized the Morrissey require-

ments as follows: "Adverse witnesses are

to be made available for questioning by

the parolee except when the hearing

officer determines that an informant

would be subject to risk of harm if his

identity were disclosed." (8 cal. zd at

p. 457.) Similarly, in In re Bye (1974)

12 Cal. 3d 96, in discussing the rights of

those outpatients who are in civil addict

- A-15 -

programs but threatened with revocation

of their outpatient status, we affirmed

that before termination of such status

they are entitled to Morrissey protec-

tions including the right to cross-

examine adverse witnesses.

In In re Coughlin (1976) 16

Cal.3d 52, in like fashion, we examined

procedures for revocation of probation

following acquittal on criminal charges.

Rejecting petitioner's claim that the

probation revocation hearing subjected

him to double jeopardy, we stated "The

proceeding took the form of a trial, with

the presence of witnesses and the intro-

duction of evidence, only because due

process principles required such a

hearing for petitioner's own protection."

(16 Cal. zd at p. 61, italics added.)

Finally, in People v. Ramirez

(1979) 25 Cal. 3d 260, we held that a

- A-16 -

California Rehabilitation Center (CRC)

inpatient is entitled to a hearing before

exclusion from CRC. Analyzing the due

process rights to be afforded such

inmates, we concluded that because the

decision is “evaluative” in nature and

based on “specialized subjective judgment

+ « « Father than on the existence of

particular and contestable facts" (25

Cal. zd at p. 275), confrontation and

cross-examination need not be afforded

the patient. We distinguished the

inpatient's interests from those of an

outpatient on the basis of lack of a

liberty interest in the latter. (In re

Bye, supra, 12 Cal. zd at p. 96.) We

therefore held the formal Morrissey pro-

cedures were not entirely applicable.

We cannot accept the People's

suggestion that if the same evidence

which was contained in the transcript had

- A-17 -

been summarized in the probation

officer's report it would have been suf-

ficient to revoke defendant's probation.

Only a summary revocation of probation to

preserve jurisdiction may be based upon a

parole or probation officer's report.

(People v. Vickers, supra, 8 Cal. zd at

pp. 460-461; Pen. Code, § 1203.2.) In

such cases the parolee or probationer

must thereafter be given a Morrissey

hearing with its attendant due process

protections “to afford the defendant

an opportunity to require the Authority

to establish that the alleged violations

did in fact occur and justified the

revocation." (Vickers, at p. 460.)

We emphasize that within this

context the right of confrontation is not

absolute. Confrontation may be denied

if the trier-of-fact finds and expresses

good cause for doing so. Thus, the risk

- A-18 -

of harm to an informant may suffice to

deny a parolee the right to confrontation

(Morrissey v. Brewer, supra, 408 U.S. at

p. 487; People v. Vickers, supra, 8 Cal.3d

at p. 457.) Generally, if the witness is

legally unavailable, the former testimony

may be admitted. Similarly, where

appropriate, witnesses may give evi-

dence by document, affidavit or deposi-

tion (Gagnon, 411 U.S. at p. 782, fn. 5;

Morrissey, supra, at p. 487 [the parolee

"may bring letters, documents, or

individuals who can give relevant infor-

mation to the hearing officer“ ]; In re

Bye, supra, 12 Cal. zd, at p. 110, fn. 15.)

In California, the Evidence Code specifi-

cally authorizes the use in later pro-

ceedings of previous testimony of a

witness currently “unavailable"® as that

term is statutorily defined. (§§ 240 and

1290 et seq.)

- A-19 -

The issue of whether former

testimony may be utilized in lieu of a

witness’ personal appearance is best

resolved on a case-by-case basis. (See

Note, The Impossible Dream?: Due Process

Guarantees for California Parolees and

Probationers (1974) 25 Hastings L.J. 602,

611-612.) In the case before us the

following circumstances, in combination,

persuade us that the preliminary hearing

transcript was improperly admitted into

evidence: the testimony at issue was

that of the sole percipient witness to

the alleged parole violation, a finding

of no legal unavailability was made in

the underlying proceedings in which the

charges were then dismissed, no addi-

tional evidence was introduced which

established the witness’ unavailability,

and the court made no specific finding of

good cause for denying the right to

confront and cross-examine.

The judgment is reversed and

the cause is remanded to the trial court

for further proceedings consistent with

this opinion.

RICHARDSON, J.

WE CONCUR:

Bird, C.J.

Tobriner, J.

Mosk, J.

*Kingsley, J.

*Klein, J.

* Assigned by the Chairperson of the

Judicial Council.

- A-21 -

PEOPLE V. WINSON

Crim. 21675

CONCURRING OPINION BY NEWMAN, J.

I concur, but would have based

the opinion on the California rather than

the federal constitution.

NEWMAN, J.

- A-22 -

PEOPLE V. WINSON

Crim. 21675

COUNSEL FOR PARTIES:

For Respondent: Steven H. Zeigen, Deputy

Office of the Attorney

General

110 West A Street

San Diego, CA 92101

714-237-7679

For Appellant: Andrew Freeman, Deputy

Office of the State

Public Defender

110 West c Street

San Diego, CA 92101

714-237-7794

San Diego County No. 42720

Hon. G. D. Adams

- A-23 -

Appendix B

Section 1291 of the California Evidence

Code, states:

(a) Evidence of former

testimony is not made inadmis-

siable by the hearsay rule if

the declarant is unavailable as

a witness and:

(1) The former testimony

is offered against a person who

offered it in evidence in his

own behalf on the former occa-

sion or against the successor

in interest of such person; or

"(2) The party against

whom the former testimony is

offered was a party to the ac-

tion or proceeding in which the

testimony was given and had the

right and opportunity to cross-

examine the declarant with an

- A-24 -

interest and motive similar to

that hic be has at the hear-

ing.

bb) The admissibility of

former testimony under this

section is subject to the same

limitations and objections as

though the declarant were

testifying at the hearing,

except that former testimony

offered under this section is

not subject to:

"(1) Objections to the

form of the question which were

not made at the time the former

testimony was given.

"(2) Objections based on

competency or privilege which

did not exist at the time the

former testimony was given."

- A-25 -

Section 240, California Evidence

Code, states:

(a) Except as other-

wise provided in sub-

division (b), ‘unavailable

as a witness’ means that

the declarant is:

"(1) Exempted or pre-

cluded on the ground of

privilege from testifying

concerning the matter to

which his statement is

relevant;

"(2) Disqualified

from testifying to the

matter;

"(3) Dead or unable

to attend or to testify

at the hearing because of

then existing physical or

- A-26 -

mental illness or infir-

mity;

"(4) Absent from the

hearing and the court is

unable to compel his

attendance by its process;

or

"(5) Absent from the

hearing and the proponent

of his statement has exer-

cised reasonable diligence

but has been unable to

procure his attendance by

the court's process.

b) A declarant is

not unavailable as a wit-

ness if the exemption,

preclusion, disqualifica-

tion, death, inability,

or absence of the declar-

ant was brought about by

- A-27 -

the procurement or wrong-

doing of the proponent of

his statement for the pur-

pose of preventing the

declarant from attending

or testifying."

- A-28 -

Appendix C

5 Wigmore, Evidence (3d ed. 1940) section

1395 provides:

»In the period when the

hearsay rule was being

established, and ex parte

depositions were still used

against an accused person

(§ 1364 supra), we find him

frequently protesting that the

witness should be ‘brought face

to face, or that he should be

confronted“ with the witnesses

against him. The final esta-

blishment of the hearsay rule

in the early 1700s meant that

this protest was sanctioned as

a just one -- in other words,

that confrontation was required.

What was, in principle, the

meaning and purpose of this

- A-29 -

confrontation? So far as there

is a rule of confrontation,

what is the process that satis-

fies this rule?

"It is generally agreed

that the process of confron-

tation has two purposes, a main

and essential one, and a secon-

dary and dispensable one:

"(1) The main and

essential purpose of confron-

tation is to secure for the

opponent the opportunity of

cross-examination. The oppo-

nent demands confrontation,

not for the idle purpose of

gazing upon the witness, or of

being gazed upon by him, but

for the purpose of cross-

examination, which cannot be

had except by the direct and

- A-30 -

personal putting of questions

and obtaining immediate answers.

"That this is the true and

essential significance of con-

frontation is clear, from the

language of counsel and judges

from the beginning of the hear-

say rule to the present day:

Thus the main idea in the pro-

cess of confrontation is that

of the opponent's opportunity

of cross-examination; the

former is merely the dramatic

feature, the preliminary

measure, appurtenant to the

latter.

»The following historical

incident is a telling illustra-

tion of the value of confron-

tation as an expedient for

- A-31 -

subjecting witnesses to cross-

examinations:

"(2) There is, however,

a secondary advantage to be

obtained by the personal appear-

ance of the witness; the judge

and the jury are enabled to

obtain the elusive and incom-

municable evidence of a witness’

deportment while testifying,

and a certain subjective moral

effect is produced upon the

witness. This subordinate

advantage has been expounded

in the following passages:

"This secondary advantage,

however, does not arise from

the confrontation of the oppo-

nent and the witness; it is

- A-32 -

not the consequence of those two

being brought face to face. It is

the witness’ presence before the

tribunal that secures this secon-

dary advantage--which might equally

be obtained whether the opponent

was or was not allowed to cross-

examine. In other words, this

secondary advantage is a result

accidentally associated with the

process of confrontation, whose

original and fundamental object is

the opponent's cross-exaninat ion.“

- A-33 -

5 Wigmore, Evidence (3d ed. 1940) section

1396 provides:

»The question, then,

whether there is a right to be

confronted with opposing wit-

nesses is essentially a ques-

tion whether there is a right

to cross-examine. If there has

been a cross-examination, there

has been a confrontation. The

satisfaction of the right of

cross-examination (under the

rules examined §§ 1371-1393

supra) disposes of any objec-

tion based on the so-called

right of confrontation.

"Nevertheless, the secon-

dary advantage, incidentally

obtained for the tribunal by

the witness' presence before

it--the demeanor-evidence--is

- A-34 -

an advantage to be insisted

upon whenever it can be had. |

No one has doubted that it is

highly desirable, if only it is

available. But it is merely

desirable. Where it cannot be

obtained, the requirement ceases.

It is no essential part

of the notion of confrontation;

it stands on no better footing

than other evidence to which

special value is attached; and

just as the original of a

document (§ 1192 supra) or a

preferred witness (§ 1308

supra), may be dispensed with

in case of unavailability, so

demeanor-evidence may be dis-

pensed with, in necessity.

Accordingly, supposing that the

indispensable requirement of

- A-35 -

cross-examination has been

satisfied, the only remaining

inquiry is whether the deameanor-

evidence, to be obtained by the

witness* production before the

tribunal, is available.

"This inquiry--the condi-

tions of unavailability of

demeanor-evidence, by reason

of death, illness, and the like

--remains now to be made.

"But first the effect must

be considered of the constitu-

tional sanction, in the United

States, of the principle of

confrontation; for this has

sometimes erroneously affected

the judicial attitude towards

demeanor-evidence." (Fn.

omitted.)

STATE OF CALIFORNIA }

‘S$. AFFIQAVIT OF SERVICE BY MAIL

COUNTY OF SAN DIEGO ) ;

- a „de ing duly sworn, deposes

says: ant is over the age of 18 years. and not a party to the

within action; that affiant's/place of employment and busifess address is

110 West “A” Street, Suite 700, San Diego, California. 92101; that on the

2 day of September „ 19 , affiant enclosed

one true copy of the within

PETITION FOR WRIT OF CERTIORARI TO THE CALIFORNIA SUPREME COURT

in an envelope for each of the persons named below, addressed to each of

them at tne address set out immediately below each respective name, sealed

said envelope, and deposited the same in the United States Mail at the City

of San Diego, County of San Diego, State of California, with postage thereon fully

prepaid; that there is delivery service by United States Mail at each of the

places so addressed, or there is regular communication by mail between the said

place of mailing and each of the places so addressed.

That all parties required to be served have been served as shown below:

Andrew Freemen, Deputy

Office of the State Public Defender

110 West c“ Street, Suite 2101

San Diego, California 92101

Clerk of the Court

California Supreme Court

3580 Wilshire Boulevard, Room 213

Los Angeles, California 90010

Robert D. Zumwalt, Clerk

San Diego Superior Court

220 West Broadway

San Diego, California 92101

FOR DELIVERY TO THE HONORABLE

G. DENNIS ADAMS, JUDGE

Honorable Edwin Miller

San Diego District Attorney

220 West Broadway, Room 7062 |

San Diego, California 92101

Robert L. Ford, Clerk

Court of Appeal, Fourth

Appellate District, Division One y

1350 Front Street, Room 6010 ay)

= )

San Diego, California 92101 8 ‘ /

FOR DELIVERY TO THE HONORABLE _ 7 — 2 <P Agee

GERALD BROWN, PRESIDING JusticeE——C<—~—

7

1 / Wag, — to de fore ne N } /

eae 0 Spun ber 5

Diego, State of California. ere COUNTY OF SAN Ox

— ee 03, 1%.

. — ＋

— 2 —

Med for the County of @ KARIN K. 4. |

9 .

SD CL-3 (11/78)

ono

2 RECEIVED

No. 81-749 JAN 7 4982

IN THE SUPREME COURT OF THE UNITED STA Sick OF THE CLERK

SUPREME COURT, U.S.

October Term, 1981

THE PEOPLE OF THE STATE OF CALIFORNIA

Petitioner,

‘ve

RICHARD SHIRES WINSON, JR.,

Respondent.

— — — ee awe H— cee —

On Petition for a Writ of Certiorari

to the California Supreme Court

RESPONDENT'S BRIEF IN OPPOSITION AND

MOTION TC PROCEED IN FORMA PAUPERIS

QUIN DENVIR

State Public Defender

ELAINE A. ALEXANDER

Chief Assistant State Public Defender

ANDREW FREEMAN

Panel Attorney

110 West C Street

Suite 2102

San Diego, — 92 01

17141 237-7794

Attorneys for Respondent

TABLE OF CONTENTS

RESPONDENT'S BRIEF IN OPPOSITION

I. PROCEDURAL HISTORY

II. REASONS FOR DENYING THE PETITION

III. CONCLUSION

MOTION TO PROCEED IN FORMA PAUPERIS

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED IN

FORMA PAUPERIS

MOTION FOR APPOINTMENT OF COUNSEL ON APPEAL BY DEFENDANT 12

(Certified Copy of Original on File in San Diego County

Superior Court).

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases

Barber v. Page (1968) 390 U.S. 719

120 L. Ed. 2d 255; 88 S.Ct. 1318)

Gagnon v. Scarpelli (1973) 411 U.S. 778

136 L.Ed.2d 656; 93 S.Ct. 1756)

In re Bye (1974) 12 Cal.3d 96

Morrissey v. Brewer (1972) 408 U.S. 471

133 L. Ed. 2d 484; 92 S.Ct. 2593)

Ohio v. Roberts (1980) 448 U.S. 56

165 L. Ed. 2d 597; 100 S.Ct. 2531)

People v. Cambitsis (1580) 101 Cal.App.3d 141

People v. Vickers (1972) 8 Cal. 3d 451

People v. Winson (1981) 29 Cal. 3d 711

Statutes

California Evidence Code

section 240

sections 1290 et seq.

California Penal Code

section 211

section 245

13

No. 81-749

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1981

THE PBOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

J

)

U

1

v. J

U

RICHARD SHIRES MIN SON, IR., )

1

Respondent. U

J

— —— — — — — —— — — —

On Petition for a Writ of Certiorari

to the California Supreme Court

RESPONDENT'S BRIEF IN OPPOSITION

Respondent Richard Shires Winson, Jr., respectfully

requests that this Court deny the petition for writ of certiorari

to the California Supreme Court in this case.

I. PROCEDURAL HISTORY

On May 26, 1978, respondent Richard Shires Winson,

Jr., was placed on probation after pleading guilty to a charge

of assault with a deadly weapon (Cal. Penal Code § 245). He

was arrested on December 20, 1978, on new charges of attempted

robbery (Cal. Penal code § 211) and assault with a deadly

weapon against one Gerald Winther. Winther testified at the

January 9, 1979, prelivinary hearing on the new charges but

could not be located on March 16, at the time of the trial

on those charges and the hearing to revoke respondent's probation

oj<-

on the original conviction. The trial court ruled that the

prosecution had not used Gue diligence in keeping track of

Winther. It dismissed the new charges, but at the probation

revocation hearing the court, over respondent's objection, ad-

mitted into evidence the transcript of Winther's testimony at

the preliminary hearing. Respondent's probation was revoked

primarily on the basis of this evidence, and he was sentenced

to four years in state prison.

On appeal respondent argued that the use of the

preliminary hearing transcript denied him the constitutional

right to confront adverse witnesses at his probation revocation

hearing. The California Supreme Court agreed and reversed

the order revoking probation in an opinion entered July 13,

1981, People v. Winson, 29 Cal.3d 711 (Pet. for Cert., Appendix).

The California Attorney General's application for stay of

execution and enforcement of the judgment of the California

Supreme Court was denied by Justice William H. Rehnquist on

October 2, 1981.

11. REASONS FOR DENYING THE PETITION

The petition for writ of certiorari should be denied

because the decision of the California Supreme Court in this

case accurately interprets this Court's decisions concerning

the requirements of due process in probation revocation hearings

and the meaning of the right to confrontation.

This Court has held that principles of due process

guarantee the right to confront and cross-examine adverse

witnesses at a probation revocation hearing unless the trial

court specifically finds good cause for not allowing confronta-

tion. Morrissey v. Brewer (1972) 408 U.S. 471, 489 [33 L.Ed.2d

484; 92 S.Ct. 2593); Gagnon ». Scarpelli (1973) 411 U.S.

778, 782 136 L.Ed.2d 656; 93 S.Ct. 1756). This Court has

also held that the guerantee of confrontation includes, not

ae

only the right to cross-examine, but also the right to require

adverse witnesses to appear personally and face the trier

of fact, so that the trier may judge their credibility by

their demeanor. Barber v. Page (1968) 390 U.S. U.S. 719,

721 (20 L.Ed.2d 255; 88 S.Ct. 1318]; Ohio v. Roberts (1980)

448 U.S. 56, 63 [65 L. Ed. 2d 597; 100 S.Ct. 2531).

Applying these principles, the California Supreme

Court in this case held, in a virtually unanimous decision’,

that the recorded testimony of Gerald Winther was improperly

admitted into evidence. Winther was the victim and sole

percipient witness to the alleged probation violation, and

therefore the need for live confrontation and an opportunity

to test his credibility before the trier of fact, in person,

was especially acute. Further, Winther's unavailability

was due to the lack of due diligence on the part of the prosecution,

not to “good cause” as required by this Court. Under these

circumstances, the California court held, respondent was

Genied due process at his probation revocation hearing.

The California Supreme Court's decision was a correct,

reasonable, and carefully limited application of principles

already announced in this Court's decisions. It was hardly

revolutionary; petitioner points to not a single case in

direct conflict with it and to only one--a readily distinguishable

decision of the California intermediate Court of Appeal--which

even contains language in possible conflict with it. Despite

petitioner's fear that requiring prosecutors to use reasonable

diligence in procuring the attendance of key witnesses at

probation revocation hearings will cause an “evolution” that

1/ Justice Newnan concurred but would have based the opinion on

the California Constitution. (Pet. for Cert., Appendix, A-21.)

will ultimately have a “arastic effect" on the revocation

process (Pet. for Cert., p. 30), that speculation is as far-

fetched as it sounds and is unsupported by any showing that

the efficiency of the process depends on denying confrontation

in cases such as this.

Petitioner, in short, has given this Court no good

reasons for granting certiorari. Tile petition should be

denied.

In establishing minimal due process standards for

parole and probation revocation proceedings, this Court has

included “the right to confront and cross-examine adverse

witnesses.” Morrissey v. Brewer, supra, 40% U.S. 471, 489;

Gagnon v. Scarpelli, supra, 411 U.S. 778, 782; see also

People v. Vickers (1972) 6 Cal.3d 451, 457-458. The richt

to confrontation and cross-examination is expressly guaranteed

under these decisions, even though in general revocation

proceedings are not to be equated with adversary criminal

trials and some evidence inadmissible at trial, such as letters,

affidavits, and reports, may be considered. Morrissey vs

Brewer; supra, 308 U. S. at 489.

Although confrontation may be denied upon a finding

of gaod cause (Morrissey v. Brewer, supra, 408 U.S. at 489),

there was no valid reason for the trial court to consider

the preliminary hearing testimony of the absent witness at

respondent's probation revocation hearing. The prosecutor

did not attempt to claim or prove “good cause” in this case.

The only reason he could offer for asking Winther's recorded

testimony be received in evidence was that Winther's whereabouts

"were no longer known by that time. However, the trial court

found that the prosecution had failed to exercise due diligence

in securing Winther's presence. For that reason, Winther's

unavailability did not amount to good cause for disallowing

confrontation. The suggestion by petitioner that there is

a new standard to be considered--"where the prosecution has

exercised good faith, albeit not perhaps due diligence, in ob-

taining the witness” (Pet. for Cert., p. 27)--is unfounded

both in fact and in law.

Morrissey and Gagnon spoke of the right to “confront

and cross-examine" witnesses. (Emphasis added). The chance

to have the trier of fact observe the witness is a vital aspect

of confrontation. As this Court observed in Ohio v. Roberts,

supra, 448 U.S. 56, 63: “(T]he Confrontation Clause reflects

a preference for the fact-to-face confrontation...." This

Court further explained in Barber v. Page, supra, 390 U.S.

719, 721:

“Many years ago this Court stated

that ‘(t]he primary object of the

[Confrontation Clause of the Sixth

Amendment]...was to prevent depo-

Sitions or ex parte affidavits...

being used against the prisoner in

lieu of a personal examination and

cross-examination of the witness in

which the accused has an opportunity,

not only of testing the recollection

and sifting the conscience of the

witness, but of compelling him to

stand face to face with the jury in

order that they may look at him,

and judge by his demeanor upon the

stand and the manner in which he

gives his testimony whether he is

worthy of belief.‘ Mattox v. United

States, 156 US 237, 242-243, 39 L. Ed.

409, 411, 15 8. Ct. 337 (1985)."

(Emphasis added).

This aspect of the right to confrontation thus serves a con-

stitutionally significant function, and it may not be denied,

as petitioner would seem to allow, without good reason. The

a’sence of a witness because of the People's negligence is

not a good reason for denying this right.

Generally, if the witness is legally unavailable,

the former testimony may be admitted. Similarly, where “appro-

priate,” witnesses may give evidence by document, affidavit,

or deposition. (Gagnon v. Scarpelli, supra, 411 U.S. at

782, fn. 5; Morrissey v. Brewer, supra, 408 U.S. at 487

[the parolee “may bring letters, documents, or individuals

who can give relevant information to the hearing officer");

In re Bye (1974) 12 Cal.3d 96, 110, fn. 15). In California,

the Evidence Code specifically authorizes the use in later

proceedings of previous testimony cf a witness currently

“unavailable” as that term is statutorily defined, ( Sections

240 and 1290 et seq.).

The issue of whether former testimony may be utilized

in lieu of a Witness’ personal appearance is best resolved

on a case-by-case basis.

As the California Supreme Court said in this case:

"We emphasize that. . . the right of

confrontation is not absolute.

Confrontation may be denied if the

trier-of-fact finds and expresses

good cause for doing so.”

(Pet. for Cert., Appendix, A-17).

The right to test the witness in all available

ways was particularly important in this case. The missing

witness was the key to the prosecution's case--the victim,

the only eyewitness, and the sole source of information con-

cerning the facts of the crime and the identity of the

6

perpetrators. Winther's credibility was very uch in issue,

and his demeanor on the stand could have been a critical

factor.

In these respects this case is quite different

factvally and legally from People v. Cambitsis (1980) 101

Cal.App.3d 141, on which petitioner relies heavily. (Pet.

for Cert., pp. 19-20, 30-31). In Cambitsis, the witness

whose recorded testimony was read gave evidence that was

only cumulative and indirectly incriminating. Whatever the

possible tolerance of the Due Process Clause for denial of

personal confrontation under those circumstances might be,

it hardly extends to a case such as the present one, where

the missing witness was the key to the entire case.

The California Supreme Court's decision does not

change the existing procedure for probation revocations,

as suggested by petitioner. All it does is require that

the prosecution do what it always has been required to do

at probation revocations. Unless good cause is shown (as

extensively defined by California and federal law), the pro-

secution must on request produce its witnesses, who will then

be subject to confrontation and cross-examination. If good

cause is shown, the prosecution will be permitted to use

alternative methods of proof, such as using an absent witness’

preliminary hearing testimony.

The California court's decision is a reasonable

and correct application of existing principles as enunciated

by this Court. It does not effect a significant change in

the present law or practice. Petitioner has stated no sub-

stantial] grounds which would warrant this Court's exercising

its certiorari jurisdiction. The petition should be denied.

111. CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for writ of certiorari should be denied.

Dated this 2 day of January, 1962, at San

Diego, California.

Respectfully submitted,

QUIN DENVIR

State Public Defender

“as hia 2

ELAINE A. ALEXANDER *

Chief Assistant State Public Defender

ANDREW FREEMAN

Panel Attorney

Attorneys for Respondent

EAA: AF;11

1/4/82

No. 81-749

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1981

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

RICHARD SHIRES WINSON, JR.,

1

]

1

1

v. U

)

)

J

Respondent. )

J

— ee — ——

on Petition for Writ of Certiorari

to the California Supreme Court

MOTION TO PROCEED IN FORMA PAUPERIS

Respondent, Richard Shires Winson, Jr., by his

undersigned counsel, asks leave to file the attached Brief

in Opposition without prepayment of costs and to proceed in

forma pauperis pursuant to rule 46.

Respondent has been represented by appointed counsel

at trial, on appeal, and in these post-appeal proceedings.

ELAINE A. ALEXANDER

Chief Assistant State Public Defender

Attorney for Respondent

i

AFFIDAVIT IN SUPPORT OF MOTION 70

PROCEED IN FORMA PAUPERIS

I, Elaine A. Alexander, being duly sworn, depose

and say in support of the motion to proceed in forma pauperis:

I am a member of the bar of the United States Supreme

Court.

I hold the position of Chief Assistant State Public

Defender and throughout the appeal of this case have represented

Richard Shires Winson, Jr., respondent herein.

I have had no contact with Mr. Winson since the

fall of 1980. In August of 1981, I spoke on the telephone

with Mr. Richard McCoy, an attorney from Souix City, Iowa,

who stated that he was representing Mr. Winson in a criminal

matter in that state. When I called Mr. McCoy in September

of 1981, in an effort to find Mr. Winson, however, he informed

me that he did not know his then-current whereabouts and

to his belief Mr. Winson had been returned to California

authorities. Since then I have tried but been unable

to locate Mr. Winson through the California state prison

information system, through his probation officer, and through

local addresses and contacts we had during the early stages

of the appeal. For these reasons, I have been unable to obtein

Mr. Winson's affidavit in support of this motion.

However, I have substantial reason to believe that

itr. Winson is entitled to proceed in forma pauperis. Throug’ it

the proceedings in this appeal, Mr. Winson has been found by

the California courts to be indigent. A copy of Mr. Winson's

declaration of indigency, as originally sulmitted to the

San Diego County Superior Court and acted upon by both the

California Court of Appeal and the California Supreme Court,

is attached to this motion and affidavit. In view of his

recent record of incarceration and his apparent instability

in terms of residence, I have reason to believe that Mr. Winson's

condition of indigency has not changed.

-10-

Therefore, as attorney for respondent, I ask that

respondent be given leave to proceed in forma pauperis, without

prepayment of costs or fees.

7 -

Jah fF 2. ,

, .

Ke i L L .

—

ELAINE A. ALEXANDER

Chief Assistant State Public Defender

TO 1946 Ce .@ Te;

Attorney for Respondent

, Cag rire €

(Individual) Gis wis

STATE OF CALIFORNIA ancos Company

county or SAN DIEGO } *

on January 6, 1982 before me, the undersigned, a Notary Public in and for said

g * . known to me

to be the person whose name 18 subscribed

to the within instrument and acknowledged that she

executed the same.

WITNESS my hand and official seal

*

—— reer

Slate, personally appeared Elaine A. Alexander

„„ ————cͤõ 2ũ2mã 2

OFFICIAL SEAL

N AVIS JULIA KELSO

wd”) NOTARY PUSLIC CALIFORNIA

3 PRATPAL OFFICE IN

$AN DIEGO COUNTY

My Commisnon Eapwes September 19 1983

———K˖ 2 9 7

——

Dre

11

oon ow f® 8 ND —

— — — ow

Soe 3 SF ＋ 5 N EH S

3

Robert A. Mulvaney, Esq.

600 “B“ Street, Suite 1800

San Diego, Calife nia 92101

Telephone: 238-1010

Attorney for Defendant

Richard S. Winson

1

Tut PEOPLE OF THE STATE OF

ö FOR THE COUNTY OF SAN DIEGO

| SUPERIOR COURT OF THE STATE OF CALIFORNIA

)

CALIFORNIA, ) No. CR 42770

) i

Plaintiff, MOTION FOR APPOINTMENT OF

‘i ) COUNSEL ON APPEAL hy

. ) DEFENDANT

‘RICHARD S. WINSON, )

)

| Defendant. )

= SS — — — = — —

0 I, RICHARD S. WINSON, defendant and appellant in the

0 f

above-entitled proceeding, now pending in the Court of Appen of

tate of California, Fourth Appellate District, Division On

hereby request the Court to appoint an attorney to represent

lin this proceeding.

In support of this request, I declare that I have no mean:

f retaining an attorney to represent me, and that I have no

nome or assets.

rue and correct.

pated: 2 — 16

Defendant 2

-]2-

I declare under penalty of perjury that the foreco

Weed Wes.

Appellant

Defendant requests that his counsel in the Superic:

hot be appointed. Counsel does not consent to the appointrw:

— (

CERTIFICATE OF SERVICE

I hereby certify that I am a member of the Bar

of the Supreme Court of the United States and that I served

a copy of Respondent's Brief in Opposition and Motion to

Proceed in Forma Pauperis on petitioner by depositing a copy

in the United States mail, first class mail, postage prepaid,

addressed as follows:

George Deukmejian

Attorney General

110 West A Street, Suite 700

San Diego, California 92101

Clerk

California Supreme Court

4250 State Building

350 McAllister Street

San Franciseo, California 94102

All parties required to be served have been served.

/

Done this „ day of January, 1982.

ELAINE A. ALEXANDER

Chief Assistant State Public Defender

Office of the State Public Defender

110 West C Street, Suite 2102

San Diego, Celifornia 92101

Attorney for Kespondent.

-13-