People v. Glaser

J.Defendant has appealed “from the judgment . . . entered ... on the 16th day of October, 1964, and from the whole of said judgment.” On that day the court revoked probation granted to the defendant April 17, 1964, following his conviction, on March 27, 1964, by verdict of a jury, of possession of marijuana in violation of section 11530 of the Health and Safety Code. Imposition of sentence had been suspended in the order granting probation, and upon revocation of probation he was arraigned for judgment with counsel and sentenced to state prison for the term provided by law.

Scope of the Appeal

Defendant, except insofar as he questions the constitu

In People v. Natividad (1963) 222 Cal.App.2d 438 [ 35 Cal.Rptr. 237 ], the court properly denied a motion to dismiss an appeal from a judgment which was pronounced following revocation of probation two years after defendant’s conviction and admission to probation, because he was entitled to a review of the validity of the order revoking probation. The court indicated that it should also review “any irregularities going to the jurisdiction or legality of the proceedings.” (P. 440.) It examined and overruled defendant’s contentions “that he did not know he was pleading guilty to a felony, but believed that the offense charged against him was a misdemeanor,” and “that he was not properly represented by counsel.” Insofar as the irregularities referred to by the court are those which could be raised on a postconviction collateral attack despite a failure to appeal, it would appear proper to consider them. Insofar as the irregularities are those for which the law offers and requires a timely review by appeal, there is no merit in delaying the review, or giving the defendant alternative remedies, i.e., either on conviction and granting of probation, or on sentencing if probation is revoked. Any advantage of diminishing the number of appeals which might arise because a defendant would accept the milder punishment of probation without contesting a questionable judgment, is offset by the difficulties of review

In People v. McCurdy (1958) 165 Cal.App.2d 592 [ 332 P.2d 350 ], the sole question presented on appeal, from a judgment following revocation of probation, was “whether an information charging an assault with intent to commit murder under Penal Code, section 217, will support a conviction under Penal Code, section 245, on the theory that the crime defined in the latter section is a lesser offense necessarily included within the former as charged.” (Pp. 594-595, fns. omitted.) The People contended that review of this question was precluded by defendant’s failure to appeal from the order granting probation which had been made earlier following his conviction. The court stated: “Our disposition of appellant’s assignment of error on its merits renders it unnecessary for us to consider this latter contention.” (P. 598.) The case is neither precedent for the proposition that the appeal from the subsequent judgment permits review of the preconviction proceedings, nor for the principle that a variance between the accusatory pleading and the verdict or finding of guilt is an irregularity which may be raised at any time. (See, however, In re Hess (1955) 45 Cal.2d 171 , 174-175 [ 288 P.2d 5 ]; and People v. Carter (1965) 233 Cal.App.2d 260 , 262-264 [ 44 Cal.Rptr. 440 ].)

People v. McCree (1954) 128 Cal.App.2d 196 [ 275 P.2d 95 ], does give some solace to appellant. There defendant appealed from the judgment and from an order denying a new trial. The opinion recites: “Respondent contends that this appeal was taken from the judgment of conviction and from the order denying a new trial, and as there was no judgment entered other than the order granting probation to the appellant, the appeal from the judgment should be dismissed. This contention must be sustained. Orders granting probation are now appealable. (Pen. Code, § 1237.) But here it is apparent, since appellant makes no attack on that order, that she did not intend to appeal therefrom. Hence we cannot construe her notice as such an appeal, as was done in People v. Robinson, 43 Cal.2d 143 [ 271 P.2d 872 ]. Since no judgment was entered there cannot be an appeal therefrom. (People v. Guerrero, 22 Cal.2d 183 , 184 [ 137 P.2d 21 ];

Prom the foregoing the defendant urges that because there is no longer an appeal from an order denying a motion for a new trial, a defendant must be entitled to a review of his conviction on appeal from a subsequent judgment after revocation of probation. Any inference from McCree that an appeal from a “judgment” will not be countenanced as an appeal from an order granting probation, is inconsistent with the pronouncements of the same judge less than four months later (People v. Camargo (1955) 130 Cal.App.2d 543 , 544-545 [ 279 P.2d 194 ]), and prevailing appellate practice. (People v. Vetri (1960) 178 Cal.App.2d 385 , 387 [ 2 Cal.Rptr. 795 ]; People v. Easley (1957) 148 Cal.App.2d 565 , 566 [ 307 P.2d 10 ]; People v. Goldstein (1955) 136 Cal.App.2d 778 , 793 [ 289 P.2d 581 ]; People v. Reed (1954) 128 Cal.App.2d 499 , 502 [ 275 P.2d 633 ]; and People v. Silberstein (1958) 159 Cal.App.2d Supp. 848 , 849 [ 323 P.2d 591 ].) The foregoing authorities also all recognize that such an appeal, as is authorized by statute, from “an order granting probation,” gives rise to a review of all the antecedent proceedings (see Pen. Code, § 1259) because the order “shall be deemed to be a final judgment, ’ ’ and is not limited to a mere examination of the propriety of the order itself.

Defendant’s failure to establish that his appeal as a matter of course encompasses a review of all matters leading to his conviction does not relieve this court of the obligation to consider those alleged errors which may be raised at any time because they involve violations of fundamental constitutional rights. “Fundamental jurisdictional defects, like constitutional defects, do not become irremediable when a judgment of conviction becomes final, even after affirmance on appeal. [Citation.] However, the petitioner must show that the defect so fatally infected the regularity of the trial and conviction as to violate the fundamental aspects of fairness and result in a miscarriage of justice.” (In re Winchester (1960) 53 Cal.2d 528 , 531-532 [ 348 P.2d 904 ].)

The Constitutionality of Section 11530 of the Health and Safety Code

Within the foregoing rule it is necessary to review defendant’s claim that the statute under which he was convicted is

Defendant, in the brief submitted on his behalf and through a supplemental brief which he personally prepared and filed, asserts that the prohibition on the right to possess marijuana is a violation of a right reserved to the people by amendment IX of the United States Constitution and section 23 of article I of the state Constitution, each of which provides that the constitutional enumeration of rights shall not be construed to deny other rights retained by the People. He alleges that the cultivation of marijuana (cannabis sativa, hemp, or Indian hemp, as so defined in Health & Saf. Code, § 11003) was practiced by George Washington and others prior to the adoption of the Constitution, and therefore cannot subsequently be prohibited. The right to prohibit the manufacture of intoxicating liquors has been upheld against the contention that it is a denial of the “rights, privileges and immunities guaranteed by the Constitution of the United States.” (Mugler v. Kansas (1887) 123 U.S. 623 , 675 [ 8 S.Ct. 273 , 31 L.Ed. 205 ].) The court recognized that “the right of each citizen to manufacture intoxicating liquors for his own use as a beverage . . . does not inhere in citizenship. ’ ’ (P. 662; and see also Johnson v. Board of County Comrs. of Reno County (1938) 147 Kan. 211 , 223 [ 75 P.2d 849 , 857-858].)

The constitutionality of California statutes prohibiting the possession of narcotics and dangerous drugs has often been upheld. (Matter of Yun Quong (1911) 159 Cal. 508 , 511-515 [ 114 P. 835 , Ann.Cas. 1912C 969]; People v. Mistriel (1952) 110 Cal.App.2d 110 , 111-112 [ 241 P.2d 1050 ]; People v. Oliver (1944) 66 Cal.App.2d 431 , 434-435 [ 152 P.2d 329 ]; and see People v. Hicks (1963) 222 Cal.App.2d 265 , 271-272 [ 35 Cal.Rptr. 149 ]; and People v. Shephard (1959) 169 Cal.App.2d 283 , 287 [ 237 P.2d 214 ].) Defendant, in his personal argument, alleges that marijuana is harmless, that it may properly be cultivated commercially or as a garden plant, and may be possessed as a medicine or ornamental bush. He asserts that it is therefore as unconstitutional to prohibit its mere possession as it would be to prohibit the mere possession of an intoxicating beverage. (See Matter of Application of Luera (1915) 28 Cal.App. 185 [ 152 P. 738 ].) This argument was made and rejected in People v. Mistriel, supra, wherein

During the course of this examination the court interrogated the defendant concerning his age, education, occupation, familiarity with court proceedings, his cognizance of the nature of the charge and the elements of the offense involved. Defendant stated: “I am fully convinced that I can learn the appropriate law necessary for the defense of this case by the time I go to trial ... I will consult with outside attorneys ... I have discussed this [selecting a jury] with an attorney.” At the conclusion of this hearing he displayed an awareness of his right to exercise a peremptory challenge to one judge, and the matter was again continued.

In his interrogation of the defendant during the two court sessions mentioned above the trial judge voiced his negative impression as to defendant’s emotional qualification to defend himself, and stated that defendant would be at a terrible disadvantage because of his lack of knowledge of the complexities of the pleadings and intricacies of a criminal action. To all of the judge’s expressions of his misgivings about permitting the defendant to proceed in propria persona, the defendant gave rational answers and on the whole demonstrated sufficient comprehension to sustain the court’s order permitting this course.

At the subsequent hearing it was necessary for the court to advise the defendant that although Code of Civil Procedure section 170.5 was repealed, section 170.6 was added. In this connection the court stated: “But already now, you see, you indicate, or impress me with the fact that possibly you don’t have the competency to represent yourself.” Later in the day he filed the requisite affidavit and the judge, who had theretofore acted, withdrew upon transferring the ease to another department. There the defendant entered his plea of not guilty and the matter was set for trial.

The court in chambers, prior to the impanelment of the jury, advised the defendant of the general procedure which would be followed. The defendant displayed an awareness of the difference between a peremptory challenge and a chai

Thereafter he examined the People’s expert on voir dire and cross-examination; he conducted voir dire of the police officer on the search which immediately preceded his actual arrest; and presented to the court a decision of the United States Supreme Court (Preston v. United States (1964) 376 U.S. 364 [ 84 S.Ct. 881 , 11 L.Ed.2d 777 ]) which had only just been announced, and other authorities dealing with unlawful search and seizure. He subsequently cross-examined the officer and the doctor who had examined him, and used the transcript of the preliminary examination in the process.

At the conclusion of the People’s ease the following transpired: “Mb. Meehan [Plaintiff’s Attorney] : People rest. The Court: All right. You may proceed, Mr. Glaser. Mr. Glaser: My first witness is Mr. Meehan.” Mr.. Meehan was excused after a few preliminary questions, and then the record reflects: “Mr. Glaser : My next witness is myself. The Court: All right. I understand you do not wish to be sworn but you will affirm? Mr. Glaser: I will affirm, yes. Leonard B. Glaser, the Defendant, was affirmed as a witness in his own behalf and testified. ...” .

The record fails to show that the trial court at any time advised the defendant that he had the privilege to refuse to testify. (U.S. Const., Amends. V and XIV; Griffin v. California (1965) 380 U.S. 609 , 611 [ 85 S.Ct. 1229 , 14 L.Ed.2d 106 ]; Malloy v. Hogan (1964) 378 U.S. 1 , 3 and 6 [ 84 S.Ct. 1489 , 12 L.Ed.2d 653 ]; Cal. Const., art. I, § 13; Pen. Code, §§ 688 and 1323; and cf. Evid. Code, §§ 930-940.) It is established that a defendant cannot be required to testify against himself where he objects on constitutional grounds. (Ex parte Gould (1893) 99 Cal. 360 , 363 [ 33 P. 1112 , 37 Am.St.Rep. 57 , 21 L.R.A. 751 ]; Killpatrick v. Superior Court (1957) 153 Cal.App.2d 146 , 149 [ 314 P.2d 164 ]; In re Ferguson (1954) 123 Cal.App.2d 799 , 801 [ 268 P.2d 71 ]; People v. Talle (1952) 111 Cal.App.2d 650 , 661-668 [ 245 P.2d 633 ].) Where the accused is not represented by counsel the trial judge has a duty to inform the accused of his constitutional right not to testify, and the fact the accused voluntarily takes the stand does not constitute a waiver of the privilege. (People v. Kramer (1964) 227 Cal.App.2d 199 , 201-

Similar considerations govern the application of the Escobedo-Dorado doctrine (Escobedo v. Illinois (1964) 378 U.S. 478 , 490-491 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338 , 353-354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]), which in part rests on the concept of protecting the privilege against self-incrimination (62 Cal.2d at pp. 352-353). Judgments which were final before the date that the United States Supreme Court rendered the decision in the former case may not be collaterally attacked because the doctrine was violated. (In re Lopez (1965) 62 Cal.2d 368 , 382 [ 42 Cal.Rptr. 188 , 398 P.2d 380 ].) A subsequent judgment which is open to attack will only be reversed where the record reflects prejudice to the defendant because the improperly elicited and used statement constitutes a confession, or, if not a confession, is of such a nature that its use caused prejudice to the defendant under the provisions of section 4½ of article VI of the California Constitution. (People v. Mathis (1965) 63 Cal.2d 416 , 432-434 [ 46 Cal.Rptr. 785 , 406 P.2d 65 ]; People v. Hillery (1965) 62 Cal.2d 692 , 712-713 [ 44 Cal.Rptr. 30 , 401 P.2d 382 ].) Finally, it is noted that the failure to appeal precludes attack on the grounds that evidence was improperly received. (In re Sterling (1965) 63 Cal.2d 486 , 487-488 [ 47 Cal.Rptr. 205 , 407 P.2d 5 ], and cases set forth infra.)

From the foregoing it is concluded that the mere failure to adAdse the defendant Avho volunteers to testify of his right to

So, in the instant ease, the judgment should not be vacated for mere failure of the court to give the admonition required by Kramer unless it appears that the defendant was in fact compelled to be a witness against himself. An examination of the record fails to reflect that defendant’s acting as a witness was other than voluntary, or that he was “a witness against himself. ’ ’

In the first place, on collateral attack the defendant should show affirmatively that he was not aware of his privilege. The matters set forth above indicate that he intended to and he had secured information about the procedure, rules of evidence and substantive law involved, and well may have known of his right to remain silent. The court’s remark, “I understand you do not wish to be sworn but you will affirm?” indicates that at some time, not indicated in the record, consideration was given to the matter of the defendant’s taking the stand, and it may well be that this exchange of information dehors the record gave an opportunity to test defendant’s knowledge of his rights. Unlike Kramer the record here does not reflect that the defendant “exhibited an almost complete lack of any knowledge of evidentiary rules or of criminal judicial procedures.” (227 Cal.App.2d at p. 203.)

. The prosecutor and the defendant himself brought out his

If it be assumed that the court had properly advised the defendant of his right to refrain from testifying he would have had two choices open. If he refrained from taking the stand he was faced with the uneontradicted evidence that the butt of a marijuana cigarette had been found on his person, and that he was a person who had previously publicly proclaimed that he had used and was familiar with marijuana. It may be inferred that the jury would have followed the uncontradicted evidence and convicted him. His alternative was to take the stand as he did. It is true that he did not aid his case by his recital, in spite of the court’s admonition, of his prior use of marijuana and other drugs, but these matters were already before the jury. He did attempt to show that he had no conscious dominion and control over the substance which was extracted from his pocket. Here he gave the jury an issue over which to deliberate, and it is unreasonable to postulate that his case would have been stronger had he refrained from testifying. Under these conditions the warning would have availed naught, even if it be assumed, contrary to his entire approach that he would have refrained from testifying. There is no error demonstrated which justifies collateral attack on the judgment on this score.

His objection to the sufficiency of the evidence to show that he had knowledgeable possession of the cigarette butt found in his possession, and knowledge of its nature, cannot be raised on collateral attack and should not be reviewed on this appeal. (In re Dixon, supra, 41 Cal.2d 756 , 760; In re Lindley (1947) 29 Cal.2d 709 , 723 [ 177 P.2d 918 ].)

The prosecution showed possession of a cigarette butt of a size sufficient to permit the arresting officer to observe vegetable matter which resembled marijuana, and sufficiently large to enable the chemist to analyze it as such. People v. Melendez (1964) 225 Cal.App.2d 67 , 71-73 [ 37 Cal.Rptr. 126 ] and People v. Aguilar (1963) 223 Cal.App.2d 119 , 123 [ 35 Cal.Rptr. 516 ], upon which defendant relies, are not applicable in any event. Defendant’s admitted difficulty in evaluating and comprehending what was going on at the time of his arrest and subsequent physical examination, and his equivocal testimony regarding knowledgeable possession merely created a conflict with that evidence which revealed the cigarette butt was found in his pocket, and which of itself is sufficient to sustain the conviction. (People v. Hurst (1960) 183 Cal.App. 2d 379 , 387 [ 6 Cal.Rptr. 483 ] and People v. Anders (1959) 167 Cal.App.2d 65 , 69 [ 333 P.2d 854 ].)

Illegal Search and Seizure

Defendant complains that the marijuana taken from his possession was obtained by an illegal search and seizure. The authorities are clear “that habeas corpus is not available to challenge the use of evidence obtained by an unconstitutional search and seizure.” (In re Sterling (1965) 63 Cal.2d 486 , 487 [ 47 Cal.Rptr. 205 , 407 P.2d 5 ]; In re Shipp (1965) 62 Cal.2d 547 , 550 [ 43 Cal.Rptr. 3 , 399 P.2d 571 ]; In re Lessard (1965) 62 Cal.2d 497 , 503-504 [ 42 Cal.Rptr. 583 , 399 P.2d 39 ]; and see Traynor, J., concurring opinion, In re Harris (1961) 56 Cal.2d 879 , 880-886 [ 16 Cal.Rptr. 889 , 366 P.2d 305 ]; In re Winchester, supra, 53 Cal.2d 528 , 532; In re Lindley, supra, 29 Cal.2d 709 , 723.) The propriety of this search and seizure has been before the magistrate, the arraigning judge in the trial court, one division of this court, the Supreme Court, and again before the trial judge. It was also open to review by appeal after conviction. At some time there must be a point of no return.

It may be observed as in Lessard, supra, “even if petitioner’s point were properly before us, we doubt its merit.” (62

The judgment is affirmed.

Sullivan, P. J., and Molinari, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied February 16, 1966.