People v. Berry

• Decision Date: 19 January 1967
• Docket Number: Cr. 11203
• Citation: 56 Cal.Rptr. 123,247 Cal.App.2d 846
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Leroy BERRY, Defendant and Appellant.

Page 123

56 Cal.Rptr. 123

247 Cal.App.2d 846

The PEOPLE, Plaintiff and Respondent, v. Richard Leroy BERRY, Defendant and Appellant.

Cr. 11203.

Court of Appeal, Second District, Division 3, California.

Jan. 19, 1967.

Howard Meyerson, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for respondent.

MOSS, Justice.

Defendant was convicted in 1964 of possessing heroin and marijuana for sale in violation of sections 11500.5 and 11530.5 respectively of the Health and Safety Code. At the time of this conviction he was on probation following conviction in 1959 of possession of marijuana in violation of section 11530 of the Health and Safety Code. On June 11, 1964, after reading the probation report, the court found that defendant was probably addicted to the use of narcotics, revoked probation in the earlier case and ordered that proceedings be initiated with respect to him under Penal Code section 6451. ¹ Later, the superintendent of the rehabilitation center (under authority of the Director of Corrections ²) certified to the court pursuant to Penal Code section 6453 ³ that defendant was not a fit subject for confinement or treatment at the center. The court ordered defendant returned for further proceedings and thereafter revoked probation in the earlier case (Superior Ct. No. 211580) and denied probation in the later case. (Superior Ct. No. 284286) Thereupon the court sentenced defendant to state prison in the later case and county jail in the earlier case, both sentences to run concurrently. He appeals from the judgments. (Pen.Code § 1237(1).)

Defendant's sole contention on appeal is that the trial court erred in failing to find that the Director of Corrections had abused his discretion in rejecting defendant for the rehabilitation program.

The record of proceedings in the earlier criminal case, the later criminal case and the civil commitment proceedings (conducted in department 95, No. NDA 3393) are before this court by reason of the augmentation of the record whereby the entire superior court files in said cases were transmitted here.

Defendant was received at the California Rehabilitation Center on June 26, 1964 and certified as unfit for confinement or treatment by letter of the superintendent dated September 25, 1964.

Upon the return of defendant from the Department of Corrections, the court (in department 95) ordered the civil commitment proceedings dismissed and referred further criminal proceedings in both criminal cases to the judge who had tried the later case. (NDA 3393(1).) After several continuances (as to which no question is raised on this appeal) the defendant came before the court for sentencing in both cases on March 18, 1965. Before pronouncing sentence the court stated, 'The court is in receipt of the report returning you from Department 95. The court has read and considered the report and, likewise, read and considered the probation report on file herein, along with the supplements.' ⁴

The statutory scheme under which defendant was initially committed to the narcotics facility requires the trial judge to conduct proceedings to ascertain if the convicted defendant 'is addicted to narcotics or in imminent danger thereof unless in the opinion of the judge The defendant's record and probation report indicates such a pattern of criminality that he does not constitute a fit subject for commitment under this section.' (Emphasis added) Penal Code section 6451 (now Welf. & Inst. Code § 3051). The statute thus makes clear that the trial judge, in forming his opinion as to the defendant's fitness for commitment shall rely upon the defendant's record and probation report. It is also proper for the trial judge to request guidance from the Director of Corrections at this stage of the proceedings and to rely upon the information and recommendations received. (In re Rascon, 64 Cal.2d 523, 50 Cal.Rptr. 790, 413 P.2d 678; People v. Corona, 238 Cal.App.2d 914, 923, 48 Cal.Rptr. 193.) His decision will not be disturbed on appeal in the absence of abuse of discretion. (People v. Zapata, 220 Cal.App.2d 903, 913, 34 Cal.Rptr. 171.)

The initial determination of the trial judge that a person is not an unfit subject for commitment is made reviewable by the Director of Corrections. Penal Code section 6453 (now Welf. & Inst. Code § 3053) provides that the director shall return a person from the narcotics treatment facility if at any time after 60 days following receipt of the person 'the Director of Corrections concludes that the person, because of excessive criminality or for other relevant reason, is not a fit subject for confinement or treatment' in the program. There is no specific statutory provision for review by any court of the determination of the director under section 6453 of the Penal Code. However, the trial court should require the Director of Corrections to reconsider his decision where the record shows that the director, in rejecting a person, abused his discretion. (In re Swearingen, 64 Cal.2d 519, 50 Cal.Rptr. 787, 413, P.2d 675; People v. Gallegos, 245 Cal.App.2d 53 ^*, 53 Cal.Rptr. 663; cf. People v. Sunderman, 244 Cal.App.2d 628 ^**, 53 Cal.Rptr. 326) (director reached his conclusion before the expiration of the 60-day period); (People v. Rummel, 64 Cal.2d 515, 50 Cal.Rptr. 785, 413 P.2d 673; People v. Pate, 234 Cal.App.2d 273, 44 Cal.Rptr. 462) (director misconstrued the law as to the eligibility of a person for the program). In reviewing a decision of the director the trial court may rely upon the record, probation reports and information furnished to the court by the director. We see no reason to require the trial judge to conduct an independent investigation upon review of a decision of the director when such investigation is not required by the statute when the trial judge initially determines the fitness for commitment of a convicted defendant. (People v. McCowan, 244 A.C.A. 705, 709, 53 Cal.Rptr. 406; People v. Marquez, 245 Cal.App.2d 253, 257, 53 Cal.Rptr. 854, hrg.den. Nov. 23, 1966 ^***.)

We turn now to the record and reports before the court when it sentenced defendant. The record as augmented shows that in 1959 defendant was convicted of a violation of Health and Safety Code section 11530 by reason of his possession of a package of marijuana. He was placed on probation for three years. One of the conditions of probation was that he abstain from use of narcotics. On April 28, 1961, after receipt of a probation officer's report stating that defendant had been found by police with marks on his arm indicating use of narcotics, that defendant had held no employment during the entire probationary period and that because of a lack of funds his wife and three children had been supported exclusively by his wife and her parents, the court revoked and reinstated probation on condition that defendant spend six months in county jail.

A probation officer's report filed with the court on May 21, 1963 stated that narcotics detectives in Van Nuys had notified the probation officer that defendant was suspected of dealing extensively in narcotics. The police had received information from narcotics addicts that they were buying narcotics from someone named 'Ritchie' in the Hollywood Hills. When police entered a residence where they suspected narcotics activity was taking place, as soon as the officers identified themselves, the defendant reached for some capsules, put them in his mouth and swallowed them by the time the police were admitted to the room. Defendant was found by the police to have over $400 on his person at that time and he appeared to be under the influence of narcotics. While the police were interrogating defendant, three other persons who were known to have narcotics records called at the residence. The probation officer also reported that defendant had made no contributions to the support of his family. Following receipt of this report, the defendant was found in violation, probation was revoked and he was referred to department 95 pursuant to section 6451 of the Penal Code. He was returned from department 95 as not addicted to narcotics, whereupon probation was modified by extending the period of probation to June 12, 1965.

At the time of his second narcotics conviction defendant was found in possession of 119 grams of marijuana and 17 grams of heroin.

The probation officer in his supplemental report filed with the court on May 13, 1964 (approximately one month before sentence was imposed) reported that during the period that defendant was on probation he had consistently falsified his address and had been contacted by police officers on more than one occasion for associating with known narcotics users. To that date he had still made no effort to support his dependents.

The superintendent of the California Rehabilitation Center in his letter of September 25, 1964 gave his reasons for rejection of defendant as follows: 'After Subject's arrival here, our Parole and Community Services Division made a special investigation of the case in an attempt to establish the degree of his illicit narcotic trafficking. A copy of the special investigation report is incorporated in the Cumulative Case Summary which we are enclosing. At the time of the special investigation, investigating and arresting officers of the Los Angeles Police Department were contacted. Officers...