Beal, In re, Cr. 26245

• Decision Date: 14 March 1975
• Docket Number: Cr. 26245
• Citation: 120 Cal.Rptr. 11,46 Cal.App.3d 94
• Court: California Court of Appeals Court of Appeals
• Parties: In re James Thomas BEAL, Petitioner, on Habeas Corpus.

Page 11

120 Cal.Rptr. 11

46 Cal.App.3d 94

In re James Thomas BEAL, Petitioner, on Habeas Corpus.

Cr. 26245.

Court of Appeal, Second District, Division 5, California.

March 14, 1975.

[46 Cal.App.3d 95] Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Andrew D. Amerson, Deputy Attys. Gen., for respondent.

ASHBY, Associate Justice.

Petitioner pleaded guilty to possession of heroin in violation of Health and Safety Code section 11350 and was sentenced to imprisonment in the state prison. His appeal from that judgment, pursuant to Penal Code section 1538.5, subdivision (m), resulted in affirmance of the conviction (People v. Beal, 44 Cal.App.3d 216, 118 Cal.Rptr. 272).

In this petition for habeas corpus petitioner contends he was deprived of the effective assistance of counsel and due process of law at his probation and sentencing hearing. He alleges that his trial counsel showed him the probation report only 10 minutes prior to the hearing, did not discuss the report with him, and did not point out to the court three alleged inaccuracies in the probation report. Petitioner also alleges that prior to the hearing petitioner showed counsel a letter from a narcotics prevention project stating that its representatives would meet with petitioner if he obtained a court order, and that trial counsel stated to petitioner he would obtain such an order, but did not do so.

The alleged inaccuracies in the probation report are as follows:

(1) The probation report states that although petitioner indicated to the probation officer that he had applied to the Bureau of Indian Affairs for a work program which would involve financial assistance and employment as a painter, 'Jack Mauterer, Bureau of Indian Affairs, indicates that their bureau is no longer interested in the defendant for their program. He indicates the defendant is 1/64th Indian and does not qualify for their program but he took an interest in the defendant, advanced him $50.00 which the defendant apparently took and purchased heroin on the streets the next day.'

The petition contains a declaration from Jack Mauterer that he did not tell the probation officer the Bureau of Indian Affairs was not interested in petitioner; that he does not have authority to determine petitioner's present eligibility; that he would have been willing to provide job placement assistance for petitioner if he had been placed on probation; and that he did not tell the probation officer that money issued to petitioner had been used to purchase heroin, he only speculated on that possibility.

(2) The probation report states that Linda Burnett, who had been living in a common law relationship with petitioner off and on for six years, told the probation officer that the longest period he had stayed with her was two months because he leaves when he is using heroin; that when he lived with her she supported him; and that 'I've had it clear up past my ears. I don't know if I will allow him to come back. I'm not certain at this point. He promised me he wasn't going to take drugs or hurt us anymore and I couldn't count the times he has told us this. He enjoys heroin too much to ever give it up.'

The petition contains a declaration of Linda Burnett Schuman that she did not tell the probation officer the longest period she stayed with petitioner was two months; that she did not tell the probation officer she supported petitioner when they lived together; that she did not make the statement (3) The probation report refers to one of petitioner's prior convictions as follows:

quoted in the probation officer's report, or anything of the sort; and, that although remarried, she would welcome petitioner in her home.

'1--26--73 TEXAS PD--LOITERING

'(Defendant found guilty and sentenced to 18 days in county jail--served 10 days prior to his return to California. Defendant found to be standing across the street at 3:00 A.M. from a drug store that had just been robbed. Defendant's hands were found to be bloody and numerous puncture wounds were observed in the Defendant's neck, knee and arm area.)'

Petitioner asserts that this description falsely implies he was involved in the burglary of the store. The petition contains copies of arrest reports from Tyler, Texas, apparently obtained from the probation officer, which indicate that two other suspects admitted the burglary of the store, that petitioner had originally been a suspect but no case was proved against him, and that although he had a recent injury on his arm it was not bleeding, and the numerous needle marks on his arms appeared to be old.

No challenge is made to the accuracy of the remaining portions of the probation officer's report. They indicate that the instant offense occurred two days after petitioner had been released on outpatient status from the California Rehabilitation Center. His commitment to the CRC had apparently followed the revocation of probation, in May 1973, on a 1970 conviction of second degree burglary. Petitioner had also pleaded guilty to violation of Health and Safety Code section 11364 in April 1973, for which he was granted probation with 30 days in county jail. Petitioner had also suffered the following prior convictions: January 1965, illegal entry and tampering with a vehicle ($250 or 25 days); November 1965, forgery (2 years federal probation); December 1968, forgery (6 months county jail); September 1968, failure to provide (180-day county jail sentence suspended, probation revoked and sentence imposed in February 1969); and an additional loitering conviction in Texas in April 1972 ($300 fine). Additionally, petitioner had several arrests, traffic warrants, and bench warrants for failure to appear.

As to petitioner's personal history the probation report indicates the following facts, largely supplied by petitioner himself: Petitioner first began using heroin at age 13. Formal education terminated at tenth grade, whereupon he entered military service. In the service he became involved with morphine, supplied to him by a friend who was a medic. After 18 months' service he received an undesirable discharge for fighting with a sergeant and absence without leave. Petitioner admitted that he had used heroin between 1966 and 1970 ¹ and again in 1973, his habit costing $50 to $70 a day.

As to the present offense petitioner stated that after being released from CRC he felt he owed himself a celebration. The facts of the present offense, as indicated both by the probation report and the record on appeal in People v. Beal, Supra, are that petitioner was observed staggering from the Spic and Span Motel in El Monte. After detention he was observed showing symptoms of being under the influence of a narcotic. He had a balloon containing heroin in his wallet, a hypodermic needle and syringe in his waistband, and had placed another hype kit under his seat in a car. He had numerous recent puncture wounds on his forearm, wrists and hands, only two days after release from the CRC. The probation report states that according to the El Monte police, the Spic and Span Motel is a known residence of various narcotics users. ²

Petitioner stated to the probation officer that CRC 'is not what I want but rather than go to the joint I'll go through that program.' The probation report further states that petitioner's parole agent believes petitioner is not amenable to parole supervision in the community and represents a threat to the community in light of his record.

The probation officer's evaluation, recommending state imprisonment, was: 'Appearing for consideration is a recent parolee with an extensive record for convictions of forgery, failure to provide, possession of counterfeit notes, burglary and narcotics. An admitted heroin user since age 13, he has experienced difficulty in adjusting to the role of a responsible, law abiding citizen and has developed a lifestyle of aimlessness and lack of direction. His background is reflective of one who has continued unchecked on a path of disregard for all those with authoritative responsibility, as demonstrated by his military service, his probation record, his attitude toward the California Rehabilitation Center and the present offense.'

The reporter's transcript of the probation and sentencing hearing is included in the record on appeal in People v. Beal, Supra, 44 Cal.App.3d 216, 118 Cal.Rptr. 272, of which we take judicial notice. The record indicates that petitioner's trial counsel did state that he and petitioner had read the report. Counsel forcefully argued on petitioner's behalf that petitioner had simply had an inadequate opportunity to readjust to the community after his release from CRC, that petitioner had learned a trade while previously in CRC, that only a small amount of contraband and no other criminal conduct were involved, and he urged that petitioner be considered for further narcotics commitment or possibly a county jail term followed by a live-in drug program. Without specific comment on the probation report, the court sentenced petitioner to state prison for the term prescribed by law.

DISCUSSION

In California a criminal defendant has the right to testify, to call witnesses or to produce evidence at the probation and sentencing hearing in order to rebut information in the probation officer's report. (People v. Valdivia, 182 Cal.App.2d 145, 149, 5 Cal.Rptr. 832.) The time for exercising that right is at the hearing itself. As with claims of newly discovered evidence after judgment (E.g., People v. Greenwood, 47 Cal.2d 819, 821, 306 P.2d 427), we view with disfavor the attempt to raise for the first time after sentencing the claim that the probation report was inaccurate. To permit prisoners to wait until after the probation and sentencing hearing to challenge the probation report...