People v. Burke

Defendant appeals from a judgment of conviction of violation of section 11500 of the Health and Safety Code by possession of marijuana. He contends that the judgment should be reversed because evidence which he asserts was illegally obtained was admitted over his objection.

The People do not appeal, but they ask reversal of the judgment for the purpose of having defendant’s sentence increased. They contend that the trial court erred in ordering that the charge of a prior conviction of violation of section 11500 of the Health and Safety Code, a misdemeanor, which was alleged in the information and admitted by defendant, be “stricken [in effect, set aside or dismissed] in the interest of justice, ’ ’ and in sentencing defendant to the county jail. It is the position of the People that section 11712 of the Health and Safety Code (hereinafter quoted), which provides the punishment for violation of section 11500, requires that one who admits a prior conviction “of any offense described in this division [div. 10, Health & Saf. Code] ’ ’ be sentenced to state prison. Specifically, they request “that the judgment be reversed and the ease remanded with directions to enter judgment in accordance with [the People’s construction of] . . . Section 11712.”

We have concluded that the arguments of both parties are without merit.

Claimed Illegal Search and Seizure

Defendant was tried by the court without a jury. The following facts appear from the testimony of John Storer, a narcotic inspector: “At approximately 11:00 o’clock p.m.” on March 28, 1955, Inspector Storer and three other officers, without warrant, went to defendant’s apartment “To make a narcotic investigation.” Also “at approximately 11:00 o’clock p.m.” on that date Storer arrested defendant. When the arrest took place in relation to the other events herein described does not appear from the record; according to defendant’s opening brief it took place following the discovery of the narcotics hereinafter described.

The officers knocked and “defendant came to the door and opened it a small distance and asked who was there, and Inspector Hollingsworth stated, ‘We are officers. We would like to talk to you. ’ The defendant stepped back and said, ‘Just a moment.’ He opened the door, turned on the light, and we walked into the room. I then asked him if his name was Robert Burke and he said it was.” Defendant did not state that the officers could enter the apartment “but his' implication was plain. . . . Officer Hall asked him if he had ever been arrested for narcotics, and the defendant said . . . he had been arrested in 1950. Officer Hall then asked him, ‘Do you have any narcotics here at the present time?’ And the defendant said no. Officer Hall then said, ‘You don’t mind then if we search your apartment do you ? ’ And the defendant said, ‘No, go ahead.’ ”

In their ensuing search of defendant’s apartment the officers found leafy marijuana and partially smoked marijuana cigarettes. Defendant freely admitted to the officers that the material was marijuana, that he had purchased it a week before, and that he had smoked some of it.

The marijuana was admitted in evidence over defendant’s objection that it was obtained in violation of the exclusionary rule enunciated in People v. Cahan (1955), 44 Cal.2d 434 [ 282 P.2d 905 ]. The trial court in admitting the evidence declared: “There was certainly no need for a search warrant here, because the defendant, according to the testimony of this witness, consented to the search, and the officers had a reasonable ground to believe a crime was committed there.”

It is defendant’s position that there was no showing of reasonable cause to justify the arrest without warrant, and thereby to justify the search without search warrant as incident to a lawful arrest, since Inspector Storer testified merely that the officers had “prior information that narcotics were used on those premises,” without disclosing the source of such information. (See Willson v. Superior Court (1956), 46 Cal.2d 291 , 294 [ 294 P.2d 36 ] ; People v. Boyles (1955), 45 Cal.2d 652 , 656 [ 290 P.2d 535 ] [since the court must determine whether the arresting officer acted upon reasonable cause, the officers must testify to the information upon which they acted].)

Defendant relies upon Amos v. United States (1921), 255 U.S. 313 [ 41 S.Ct. 266 , 65 L.Ed. 654 ], and Johnson v. United States (1948), 333 U.S. 10 [ 68 S.Ct. 367 , 92 L.Ed. 436 ]. The officers here did not come to defendant’s home, as it was determined that they came in the Amos case (p. 317 of 255 U.S.), “demanding admission to make search of it under Government authority.” And as was said in People v. Michael (1955), supra, page 753 of 45 Cal.2d, concerning the Johnson ease and other cases, “Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances. Since the cases that have determined this question under varying factual circumstances are difficult if not impossible to reconcile [citations], and may reflect imperfectly the factual situations before the courts that decided them, they point to no compelling solution in the present case.” We conclude that defendant has shown no ground for reversal of the judgment.

The People’s Request for Reversal Based on the Trial Court’s Claimed Violation of Section 11712 of the Health and Safety Code

Section 11712 of the Health and Safety Code (as amended 1953) provides: “Any person convicted under this division [div. 10, which includes § 11500] for having in possession any narcotic . . . shall he punished by imprisonment in the county

The power to strike or dismiss the proceeding as to a prior conviction is within the power referred to in section 1385 of the Penal Code, which provides that “The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. ...” The authority to dismiss the whole includes, of course, the power to dismiss or “strike out” a part. (Cf. People v. Superior Court (1927), 202 Cal. 165 , 173 [ 259 P. 943 ].) The striking or dismissal of a charge of prior conviction (regardless of whether it has or has not been admitted or established by evidence) is not the equivalent of a determination that defendant did not in fact suffer the conviction (see People v. Simpson (1944), 66 Cal.App.2d 319 , 329 [ 152 P.2d 339 ] ; People v. Horowitz (1933), 131 Cal.App.Supp. 791 , 794 [ 19 P.2d 874 ]) ; such judicial action is taken, in the words of defendant’s counsel, “for the purpose of sentencing” only and “any dismissal of charges of prior convictions . . . does not wipe out such prior convictions or prevent them from being considered in connection with later convictions” (People v. Coyle (1948), supra, 88 Cal.App.2d 967 , 973-974).

The People argue that by providing in section 11712 of the Health and Safety Code that if a prior conviction, whether of misdemeanor or felony, “is admitted by the defendant, he shall be imprisoned in the state prison” (italics added) the Legislature intended to take from the court the power to dismiss or strike a charge of prior conviction if the defendant admits the charge. According to the People, the trial court was required to sentence defendant to state prison and the judgment should be reversed for the purpose of directing it to do so.

Section 11712 is based upon section 7 of the former State Narcotics Act (Stats. 1929, ch. 216, § 7, as am. Stats. 1935, eh. 813, § 5c). Section 7 provided in material part that a person convicted of illegal possession of drugs “shall upon conviction be punished by imprisonment in the county jail or in the State prison for not more than six years; provided, however, that any person convicted [of such possession] . . .

The statute provides that defendant “shall be imprisoned in the state prison” whether the conviction is “found to be

In the trial court the People did not object to the striking of the charge of prior conviction or advance the construction of section 11712 which they now urge. Rather, the conduct of the prosecuting attorney in remaining silent (as to that aspect of the requested action) when the trial court announced its intention to strike the charge (see footnote 1, ante, p. 50) amounted to assent to the ruling. (See Exposita v. United Railroads (1919), 42 Cal.App. 320 , 323 [ 183 P. 576 ] ; People v. Ganger (1950), 97 Cal.App.2d 11 , 13 [ 217 P.2d 41 ] ; People v. Montgomery (1940), 41 Cal.App.2d 574 , 577 [ 107 P.2d 291 ] ; Cummings v. Cummings (1929), 97 Cal.App. 144 , 149 [ 275 P. 245 ].)

Furthermore, the People failed to appeal, although the order striking the charge of prior conviction was in its nature one of the orders specified as appealable either by paragraph 1 or by paragraph 6 of section 1238 of the Penal Code. That statute provides that the People may. appeal “1. From an order setting aside the indictment, information, or complaint; . . . 6. From an order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed.” The trial court’s action was in substance “an order setting aside [a part of] the . . . information”; having set aside that part of the information charging a prior conviction the court properly made no finding on that issue. The People contend, implicitly or explicitly, not only that it was error to set aside the charge but that on the record the court was bound to let the information stand as filed, to accept the defendant’s admission, and to make a finding and to enter sentence in accord therewith. If for purposes of this decision we accept the People’s above stated contention then it would follow that the purpose and ultimate effect of the court’s order were the same as those of “an order modifying the

The People argue that their failure to appeal is immaterial because of the provision of section 1252 of the Penal Code that “On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the State which it may be requested to pass upon by the .Attorney General.” But the “statute here involved was intended to give the People the right, on an appeal by the defendant,- when a judgment of conviction is reversed, to raise points that might he involved on a retrial. The statute was not designed to give the People a right in the nature of an appeal. The right of appeal is governed by other sections of the code.” (Italics added.) (People v. Zelver (1955), 135 Cal.App.2d 226 , 236-237 [ 287 P.2d 183 ].)

For the..reasons aboye stated, the judgment is affirmed.

Gibson, C. J., Shenk, J., Carter, J., Traynor, J., Spence, J., and McComb, J., concurred.

Respondent’s petition for a rehearing was denied October 17, 1956.