Russell Hackler Convicted Shoplifting Beer from Supermarket

On December 5, Russell Allen Hackler pleaded guilty to a single count of petty theft with a prior robbery conviction. He also admitted a prior prison term enhancement allegation. Russell Hackler and another man were apprehended when each took two 12-packs of beer from a store without paying for them.

On January 2, the court offered Russell Hackler a grant of probation for three years with certain conditions. Russell Hackler accepted the offer, so the court suspended imposition of sentence and placed him on probation. Because Russell Hackler was then incarcerated for parole violation, the probation conditions were to take effect when he was released in April. The conditions included 118 days in jail (satisfied with 118 days of presentence credit); a requirement that Russell Hackler report to the court daily until such time as he found employment; a directive that Russell Hackler attend Alcoholics Anonymous meetings thrice weekly; and finally, a requirement that Russell Hackler wear as an outer garment a court-supplied T-shirt whenever he was outside his home during the first year of probation. That T-shirt stated on the front, “My record plus two six-packs equals four years,” and on the back, “I am on felony probation for theft.”

The condition required Russell Allen Hackler, convicted of shoplifting beer from a supermarket, to wear an outer garment bearing a bold, printed statement of his status as a felony theft probationer. The requirement applied whenever the probationer was outside his actual living quarters.

On August 7, Russell Hackler’s probation officer filed with the court a charge that Russell Allen Hackler had violated his probation in that he had been charged with two counts of burglary allegedly occurring on July 7 and July 9. He requested that Russell Allen Hackler’s probation be revoked. The following day, Russell Allen Hackler appeared and denied the allegations. A hearing was set for August 21.

At the August 21 hearing, Russell Allen Hackler’s attorney asked Judge Howard Broadman, who had accepted the plea and granted probation, to disqualify himself, or, in the alternative, for a continuance so that Russell Allen Hackler could formally move for disqualification based on actual prejudice. The request was denied, the judge maintaining that he was not biased and pointing out that the request was untimely. Russell Allen Hackler’s request that the matter be heard at or near the time of the trial of the burglary charge was likewise denied.

After hearing some of the evidence regarding the alleged burglaries, the court, on its own motion, arraigned Russell Allen Hackler for violating the T-shirt condition. Russell Allen Hackler, through his attorney, expressly refused to waive the filing of a certificate and affidavit of probable cause by the probation officer. Over Russell Hackler’s objection the court announced it would hear the T-shirt violation matter upon concluding the hearing on the burglary charges. After hearing the remainder of the evidence regarding the noticed violations, the court concluded that Russell Hackler violated his probation through participation in at least one burglary. It then received additional evidence regarding the T-shirt condition and likewise concluded Hackler violated this condition by appearing in the hallway outside his apartment without his T-shirt. The court set the matter for sentencing.

On September 6, the court imposed a four-year prison sentence, consisting of the upper term of three years and a one-year enhancement. A $500 restitution fine was also ordered.

Russell Hackler’s timely appeal is from both the order revoking probation and the sentence.

In the published portion of this opinion the Court of Appeals of California, Fifth District, held that a condition of probation was unreasonably overbroad and invalid.

When it offered Russell Hackler probation the court below told him, on the one hand, that it wanted “to turn you around,” and ordered that he “come to court each morning until you get employment.” On the other hand, the court severely compromised Hackler’s chances of finding employment by imposing the T-shirt condition. Prospective employers are unlikely to have a favorable impression of a job applicant who must publicly advertise his status as a felony theft probationer. Although the court told Hackler it would reconsider the T-shirt requirement after Hackler found employment, it made clear that he must first get a job.

The conduct required here (advertising on Hackler’s chest and back his status as a convicted thief) may relate to the crime for which he was convicted and arguably has some bearing on future criminality. The relationship is so incidental, however, that the Court of Appeals of California, Fifth Districtcannot find it reasonable. If followed, the condition would probably make it more difficult for Russell Hackler to continue shoplifting. But he was not just required to wear the shirt at times and places where shoplifting might be a possibility. Rather, the court ordered that Russell Hackler wear the shirt at all times while he was outside his actual living quarters. Clearly, the condition could adversely affect Hackler’s ability to carry on activities having no possible relationship to the offense for which he was convicted or to future criminality. The condition was unreasonably overbroad and as such was invalid.

In the unpublished portion of the opinion the Court of Appeals of California, Fifth District, further held that the trial court deprived Russell Hackler of his due process right to written notice that he was charged with having violated the probation condition and that the court erred when it denied Russell Hackler’s motion for continuance of the probation revocation hearing.

The order revoking probation and the judgment of sentence are reversed and remanded for further proceedings consistent with the views expressed in the opinion by the Court of Appeals of California, Fifth District.

The facts summarized above are excerpted from what was written by the Court of Appeals of California, Fifth District. More information is available from the source documents: F014589, Court of Appeals of California, Fifth District, February 24, 1993, opinion of Thaxter with Best and Buckley concurring