I dissent. We should exercise our supervisory power over courts to hold that probation revocation hearings, absent good cause or waiver by the defendant, must be held after trial on related criminal charges.
We first sought to protect the rights of the probationer in People v. Coleman (1975) 13 Cal.3d 867 [120 Cal.Rptr. 384, 533 P.2d 1024] by using our supervisory power to render testimony offered by a probationer at his revocation hearing inadmissible in a subsequent criminal trial. We recognized that “[w]hen a pending or potential criminal charge forms the basis of an alleged violation of a condition of probation, a probationer who can explain his actions *943only 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 factfinding process. . . . [Mitigating 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.)
The probationer would have faced an intolerable predicament had we allowed his testimony at the revocation hearing to be used in a subsequent criminal trial. “Whenever a probationer is charged with a criminal offense the People may, by the simple device of moving to revoke probation prior to trial, seek to force the probationer into a self-incriminatory statement at the revocation hearing. Indeed, to the extent that the object of the prosecution is simply to secure the probationer’s incarceration, whether by revocation of probation or by conviction and sentencing for the new offense, the prosecution’s instigation of a pretrial probation revocation hearing currently puts it in a ‘tails we win, heads you lose’ position vis-a-vis the probationer. 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 offense 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.” (Pp. 876-877; fns. omitted.)
We had hoped that our judicially imposed exclusionary rule would adequately protect the rights of the probationer. We nevertheless warned prosecutors that the better method would be to hold probation revocation hearings after criminal trials on related charges were completed. “[W]e wish to note that the most desirable method of handling the problems of concurrent criminal and probation revocation proceedings may well be for revocation proceedings not even to be initiated until after disposition of the related criminal proceedings.” (P. 896.) Unfortunately, our advice has been ignored: in San Francisco County, revocation proceedings are held prior to criminal trials as a matter of *944routine—such practice was erroneously approved by the Court of Appeal in People v. Sharp (1976) 58 Cal.App.3d 126 [129 Cal.Rptr. 476]. The practice apparently continues today, despite our reiteration of our admonition in People v. Belleci (1979) 24 Cal.3d 879, 888, footnote 7 [157 Cal.Rptr. 503, 598 P.2d 473].
The majority erroneously believe that Coleman will continue to be a viable solution to a probationer’s predicament, and that courts will exercise discretion in holding revocation proceedings prior to or after criminal trial. Yet, 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.
Furthermore, the majority fail to give guidance to trial courts in the “exercise of discretion” to hold revocation hearings prior to or after related criminal trials. They do not enunciate a standard to be employed: Under which circumstances should a trial court hold the hearing before a related criminal trial? Under which circumstances should a trial court hold the hearing after the related criminal trial? We are left hopelessly guessing as to which factors signal which procedure to be employed. Indeed, the majority themselves fail to examine whether in this case the trial court below properly exercised its discretion.
It is clearly the time to impose a judicial rule of procedure on the timing of probation revocation hearings. We need not go so far as the Chief Justice suggests—we need not hold that the state constitutional privilege against self-incrimination requires revocation proceedings to be held after a criminal trial on related charges. In Coleman we exercised our supervisory power over courts to fashion the exclusionary rule; a similar use of such power seems appropriate today. We have used our supervisory power in many instances in the past: to require the reasonable doubt standard to determine the admissibility of a confession (People v. Jimenez (1978) 21 Cal.3d 595 [147 Cal.Rptr. 172, 580 P.2d 672]); to prohibit a jury instruction which encourages jurors to consider the numerical division of the jury in reexamining their views (People v. Gainer (1977) 19 Cal.3d 835 [139 Cal.Rptr. 861, 566 P.2d 997, 97 A.L.R.3d 73]); to require trial courts to render a brief statement of reasons when denying a motion for bail on appeal (In re Podesto (1976) 15 Cal.3d 921 [127 Cal.Rptr. 97, 544 P.2d 1297]); to prohibit city attorneys with prosecutorial responsibilities from representing criminal defendants (People v. Rhodes (1974) 12 Cal.3d 180 [115 Cal.Rptr. 235, 524 P.2d 363]); to require representation by counsel to a probationer in a revocation proceeding (People v. Vickers (1972) 8 Cal.3d 451 [105 Cal.Rptr. 305, 503 P.2d 1313]); to exclude admissions made by a minor *945to the juvenile judge or the juvenile probation officer in a criminal prosecution (Bryan v. Superior Court (1972) 7 Cal.3d 575 [102 Cal.Rptr. 831, 498 P.2d 1079]); and to adopt a search and seizure exclusionary rule (prior to its imposition upon the states) (People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513]).
The majority have unfortunately reversed an otherwise appropriate rule: they allow a court to hold revocation proceedings prior to a related criminal trial upon a proper exercise of discretion. I would hold the opposite', that absent good cause or waiver by the probationer, the revocation proceeding be held after trial as a matter of course. Under such a rule, the prosecutor, rather than the probationer, would incur the burden of convincing the trial court that sufficient reasons exist to reverse the procedure.
Therefore, I would vacate the order revoking defendant’s probation.
Reynoso, J., concurred.
Appellant’s petition for a rehearing was denied July 20, 1983. Bird, C. J., Broussard, J., and Reynoso, J., were of the opinion that the petition should be granted.