I concur in the judgment of my colleagues. I write separately, however, to discuss a very troubling issue which the majority has chosen not to consider.
Before determining the competency of defense counsel’s performance, we must understand the context in which he was required to perform. Defendant Shaw had been charged with a robbery alleged to have been committed while he was on probation for another robbery offense. Pursuant to the usual practice followed by the San Francisco Superior Court, the defendant was forced to appear at a probation revocation proceeding prior to trial or disposition of the underlying robbery charge. And it is this procedure—the routine practice of requiring criminal defendants to face probation revocation proceedings prior to trial or disposition of the underlying charges— which clearly engendered many of the problems in this case.
The issue is hardly a novel one for this court. We first recognized the problems inherent in permitting revocation proceedings to precede trial in People v. Coleman (1975) 13 Cal.3d 867 [120 Cal.Rptr. 384, 533 P.2d 1024], In Coleman, we began by noting the clear constitutional dilemma confronting probationers who face such pretrial revocation proceedings and undertook a lengthy discussion of the constitutional rights which are threatened by such a procedure. We stated that “[w]hen a pending or potential criminal charge forms the basis of an alleged violation of a condition of *544probation, a probationer who can explain his actions only by jeopardizing his chances of acquittal at a subsequent criminal trial may understandably feel that his opportunity to be heard is more illusory than real and that he is being deprived of his liberty without one of the essential elements of rudimentary fairness—a meaningful chance to speak on his own behalf. Moreover, the deterrent effect of concurrent criminal liability also serves to defeat the intelligent and just exercise of the court’s broad discretion in a probation revocation proceeding by impairing the accuracy and restricting the scope of the fact finding process .... [Mjitigating evidence [presented by the probationer] is just what is most likely to be withheld from the court by virtue of the probationer’s fear of self-incrimination, since mitigating evidence often involves damaging factual admissions coupled with more or less compelling moral excuses.” (P. 874.)
We found that permitting testimony from a revocation proceeding to be used at a subsequent trial created an intolerable tension between a probationer’s fundamental right to due process at the revocation hearing and the equally fundamental right to remain silent at trial. (Id. at p. 878.) We therefore held that testimony offered by a probationer at a revocation hearing should be inadmissible in a subsequent criminal trial. We believed that this would eliminate the intolerable situation in which the People, by moving to revoke a defendant’s probation prior to trial, could seek to force the probationer into self-incriminating statements at the revocation hearing.
At the time of our Coleman decision, however, we noted additional problems which may arise when a revocation hearing precedes trial: “Because of the inapplicability of certain evidentiary rules and the lower standard of proof obtaining at a probation revocation hearing, the People are generally more likely to achieve a probationer’s incarceration through the probation revocation process than through the new prosecution and conviction. 'When a probationer is deterred from testifying at his revocation hearing by fears of self-incrimination at his subsequent trial, the People’s chances of securing his incarceration through the revocation proceeding are further enhanced. And if a probationer does successfully fight revocation by testifying at the hearing, the People’s chances of securing his conviction of a new offence will have been improved by the probationer’s having been forced, in effect, to be one of the prosecution’s principal witnesses in its case in chief at his trial.” (Coleman, supra, 13 Cal.3d at pp. 876-877, fns. omitted.)
Regardless of whether a probationer succeeds or fails in his efforts to oppose revocation, he is effectively required to reveal much of the theory and substance of his defense at such a hearing—either through his own testimony, the testimony of witnesses who appear on his behalf, or through *545his attorney’s cross-examination of the People’s witnesses.1 In essence, a procedure in which a revocation hearing invariably precedes trial denies a probationer awaiting trial the same protections under the laws of criminal discovery that are afforded to a defendant who is not a probationer, and hence does not face such a hearing. Although the majority in Coleman recognized the substantial burden imposed by such a procedure, our ruling has apparently done little to remedy the situation.
When we decided Coleman, we hoped that our newly fashioned exclusionary rule would suffice to protect the rights of probationers.2 Even then, however, we admonished courts and prosecutors that the more desirable method would be to hold probation revocation hearings after disposition of the underlying criminal charges. (Coleman, supra, at p. 896.) Unfortunately, our admonitions have largely been ignored by the San Francisco Superior Court, the jurisdiction in which the instant case arose. Apparently, the San Francisco courts have followed a routine policy of setting virtually all probation revocation hearings prior to trial, without exercising discretion in each case.3 Such a policy directly contravenes the spirit of our Coleman ruling as well as this court’s explicit reaffirmation of its preference for posttrial revocation proceedings set forth in People v. Belleci (1979) 24 Cal.3d 879, 888, footnote 7 [157 Cal.Rptr. 503, 598 P.2d 473],
*546We recently had the opportunity in People v. Jasper, supra, 33 Cal.3d 931 to strengthen the Coleman rule and to eliminate the enormous and unjust burden which this procedure imposes on defendants and their attorneys alike. Unfortunately, a majority chose not to exercise our supervisory powers to require a change in the existing practice, and left the scheduling of probation revocation hearings “in the reasonable discretion of the trial court.” (People v. Jasper, supra, 33 Cal.3d at p. 935.)
Defense counsel in this case was a highly experienced and respected attorney who has practiced criminal law for more than 20 years, most of them in San Francisco County. He clearly was aware that the courts of this county routinely hold revocation proceedings prior to trial. It is equally clear from the record of the referee’s hearing that his knowledge of this unfortunate practice significantly impacted on his handling of the matter. Thus, while that knowledge did not excuse his performance, it is conceivable that if the Coleman/Jasper rules were otherwise, counsel would have performed differently. This case therefore presents yet another example of how Coleman and Jasper foster undesirable results, and provides a sound reason why their approach should be abandoned.
As I suggested in my dissent in Jasper, we should exercise our supervisory powers to impose a judicial rule of procedure requiring that absent a showing of good cause by the prosecutor or waiver by the probationer, revocation proceedings should be held after trial or disposition of the underlying charges. (See People v. Jasper, supra, 33 Cal.3d at p. 942 (dis. opn. of Broussard, J.).) This rule would place the burden for changing that procedure where it belongs. To the extent that it would also prevent the kind of regrettable situation which the instant case presents—one which seriously impairs the fundamental rights of criminal defendants and limits the effectiveness of attorneys who represent them—the criminal justice system as a whole would benefit.
Bird, C. J., and Reynoso, J., concurred.
Respondent’s petition for a rehearing was denied March 15, 1984.
For example, defense counsel in the instant case stated repeatedly during the referee’s hearing that one of his principal reasons for not conducting a more thorough investigation or presenting more evidence at the revocation hearing was his concern about tipping his hand to the prosecution before trial. While this was not an adequate explanation for his overall performance, it clearly highlights one of the major problems spawned by our Coleman ruling.
As I pointed, however, out in my dissent in People v. Jasper (1983) 33 Cal.3d 931, 942, 944 [191 Cal.Rptr. 648, 663 P.2d 206], “the majority fail to recognize that Coleman's exclusionary rule will be seriously questioned in a future case because the ‘truth in evidence’ provision of the recently passed Proposition 8, now embodied in section 28, subdivision (d), article I of the state Constitution, has purportedly ‘repealed’ such state-imposed exclusionary rules (an issue which we carefully avoid deciding today), thus rendering the majority opinion in this case useless in the immediate future.”
Only a year after our Coleman decision, the Court of Appeal felt compelled to note this “routine” practice in People v. Sharp (1976) 58 Cal.App.3d 126, 130 [129 Cal.Rptr. 476], where appellant probationer presented significant statistical evidence to that effect. Moreover, during the referee’s hearing in the instant case, several of the most respected criminal defense attorneys in the Bay Area were called to testify. All of them stated that the routine practice of holding revocation proceedings prior to trial continues to this day in San Francisco Superior Court and that motions for continuances are virtually futile. As one might expect, they also expounded on the dilemma which this creates for defense attorneys and their clients. (See e.g., hearing testimony of Ephraim Margolin.) In addition, judges from San Francisco County who testified at the hearing, including the judge who presided in this case, acknowledged that motions to continue revocation proceedings until after trial are only “infrequently granted.” Further, the district attorney who prosecuted Shaw, Alfred Chiantelli, stated unequivocally that, “The policy is that motions to revoke are held prior to time of trial . . . it’s practiced regularly in the Municipal Court and Superior Court.” (Italics added.)