People v. Cruz

• Decision Date: 09 August 1966
• Docket Number: Cr. 11435
• Citation: 53 Cal.Rptr. 354,244 Cal.App.2d 137
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Fermin CRUZ, Defendant and Appellant.

Page 354

53 Cal.Rptr. 354

244 Cal.App.2d 137

The PEOPLE, Plaintiff and Respondent, v. Richard Fermin CRUZ, Defendant and Appellant.

Cr. 11435.

District Court of Appeal, Second District Division 4, California.

Aug. 9, 1966.

As Modified on Denial of Rehearing Aug. 29, 1966.

Hearing Denied Oct. 4, 1966.

[244 Cal.App.2d 139] Dorothy Powell Goldberg, Claremont, under appointment by the District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Stephen H Silver, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Justice.

Defendant was charged with a violation of section 11500.5 of the Health and Safety Code (possession of heroin for sale); two prior felony convictions, both for burglary, were alleged. After a motion under section 995 of the Penal Code had been made and denied, defendant pled not guilty and denied the priors. Trial by jury was duly waived and the case was submitted on the transcript of the preliminary examination, supplemented by additional testimony on the part of the People and by a stipulation (hereinafter discussed) that defendant be deemed to have testified in a certain manner. The court found defendant guilty of the offense charged and ordered a probation report. Thereafter, pursuant to what was then section 6451 of the Penal Code, ¹ the criminal proceeding was suspended and proceedings under the Narcotic Rehabilitation Law were instituted and defendant was committed to the Narcotic Rehabilitation Center. Thereafter he was returned to court by the authorities of that institution, purportedly acting under the provisions of section 6453 of the Penal Code, ² on two grounds: (1) that defendant was on parole for one of the burglary offenses; and (2) that his past history indicated that he was a serious security problem and that his attitudes in narcotic treatment programs conducted in the prison and parole systems had shown him to be uncooperative. The criminal proceedings were resumed, and the trial court, having before it not only the formal order of the Director of Corrections returning defendant to it but a copy of the evaluation report on which that order was based, made a formal finding as follows: 'The Defendant having been returned by the California Rehabilitation Center as not a fit subject for their program, the Court makes a finding that this was not an abuse of discretion on the part of that Institution in view of the evidence before the Court.'

The court then found the two priors to be true as alleged, probation was denied ³ and a state prison sentence was imposed, to run concurrent with 'any other sentence he may be serving.' Defendant has appealed. ⁴

On this appeal, defendant urges the following contentions: (1) that evidence introduced against him was obtained by the use of a search warrant invalid on its face; (2) that the stipulation as to testimony by defendant, above referred to, was improper because it amounted to a plea of guilty made without the consent or approval of defendant; (3) that defendant has been subjected to double jeopardy by reason of the present sentence entered after the earlier commitment to the Rehabilitation Center; (4) that submission of the case on the preliminary transcript amounted to a denial of due process of law; and (5) that there are inconsistencies in the evidence not satisfactorily explained.

I

The last three of these contentions can be disposed of briefly.

The alleged inconsistencies consist of the fact that, while it was undisputed that both defendant and his companion were properly warned of their constitutional rights to remain silent and to consult counsel, there was divergent testimony as to which officer gave the warnings. Such inconsistencies go only to the weight of the evidence, are for the trial court, and its determination, implicit in its ultimate decision, is binding here.

In support of the fourth contention, counsel relies on the opinion of a federal district court in Gray v. Wilson (N.D.Calif.1964) 230 F.Supp. 860. But, subsequent to the filing of appellant's brief, that decision was expressly overruled by the court of appeals (Wilson v. Gray (9th Cir. 1965) 345 F.2d 282, and certiorari was denied, 382 U.S. 919, 86 S.Ct. 288, 15 L.Ed.2d 234). We conclude that the constitutional validity of a submission in whole or in part on the transcript of a preliminary examination is now settled.

The contention that the nonpunitive commitment for treatment under the Narcotic Rehabilitation Act violates the prohibition against double jeopardy where a defendant is thereafter discharged from that program and sentenced to prison has been rejected, for reasons which we need not repeat here. (People v. Moreno (1965) 235 Cal.App.2d 386, 388--389, 45 Cal.Rptr. 243.)

II

At the trial, defendant's principal effort was an attack on the admissibility of evidence against him which had been procured under circumstances hereinafter considered. The trial court rejected the contentions of invalidity of a search warrant and connected issues of unlawful search and seizure. Defense counsel then tendered a stipulation, which was accepted, concerning testimony by defendant. The record shows the following in that connection:

'MR. ARTHUR: Your Honor, at this time the defendant would offer the following stipulation, that if the defendant were called to testify and did testify, that he, one, would deny that any contraband at the apartment at which he was living at that time was going to be used for sale, other than a slight amount or amounts for his own use;

'Secondly, the defendant has offered to stipulate that he was a user of narcotics at that time, and was using the amount that he told Officer Leeds, as related to this Court by Officer Leeds;

'Thirdly, that he was occupying that particular apartment with another person, a female, and that to his knowledge she was also a user of narcotics at that time.

'MR. BOON: I am willing to stipulate to the substance of what counsel has said, your Honor. I feel that the way he has worded his offered stipulation has the same defect that it had yesterday. He said, 'if the defendant was called, he would testify so.'

'THE COURT: Maybe he added this other 'and did testify' in the stipulation, did you not,--

'MR. ARTHUR: Yes.

'THE COURT: You are offering to stipulate that the defendant has been called, sworn, and so testified; is that your stipulation?

'MR. ARTHUR: Yes, it is, your Honor.

'MR. BOON: I will join in the stipulation.

'THE COURT: And that, if I understand the stipulation correctly, that not any of the contraband was going to be used for sale other than a slight amount for his own use?'

Defendant's counsel in this court relies on People v. Rogers (1961) 56 Cal.2d 301, 14 Cal.Rptr. 660, 363 P.2d 892, and urges that this stipulation amounted to a plea of guilty entered by counsel and not by defendant personally. But in Rogers, the stipulation was that the trial court was not to consider either a finding of first degree murder or a finding of not guilty, but was to restrict its deliberation to a choice between murder in the second degree and manslaughter. Clearly, that stipulation amounted to a plea of guilty to one of the two lesser degrees of homicide and, as such, required the clear personal concurrence of the defendant. But here the stipulation went no further than to admit, on behalf of defendant, certain facts. Whether or not those facts, taken together with other evidence would support a finding of the offense charged, or of some lesser offense, or of no offense at all, remained a matter for argument and for the exercise of judicial determination.

As the Attorney General points out, in the then status of the case, there was before the court evidence which overwhelmingly supported a finding of possession of heroin by defendant for the purpose of sale. The trial counsel could not, if the facts set out in the stipulation were true (and that it not denied), allow his client to take the stand and deny the testimony from the People's witnesses which incriminated him. The attorney then was faced with three choices: (a) to rest without further testimony--a tactic which could have had no result other than a conviction of the offense charged; (b) to place his client on the stand, have him tell his version, necessarily admitting--either on direct or on cross-examination--the facts here stipulated to--a tactic which, if defendant were unprepossessing or otherwise not a 'good' witness, might well prejudice him; or (c) to keep his client off the stand, candidly admit as little as was consistent with truth, and hope for some favorable reaction from the court. These are always difficult considerations of trial strategy and tactics ⁵ and the determination thereof by counsel is part of his professional obligation. We cannot, and do not attempt to second guess him here. (People v. Brooks (1966) 64 Cal.2d 130, 143, ^A 48 Cal.Rptr. 879, 410 P.2d 383; and cf. People v. Dickerson (1966) 242 Cal.App.2d 73, ^B 51 Cal.Rptr. 113.)

III

For some time, the police had been investigating the activities of defendant and of a woman named Tellez whom they suspected of involvement in the sale of narcotics. On November 23, 1964, Officer Leeds set forth the results of that investigation in an affidavit for a search warrant which he presented to a magistrate of Los Angeles County, and on the basis of which a search warrant issued. We set forth hereinafter the contents of that affidavit. Among the information secured by the police was the fact that defendant was on parole, that he had violated his parole, and that a warrant for his arrest as a parole violator was outstanding. Armed with the data obtained by the police investigation, and with the search warrant, Officer Leeds, accompanied by three other officers, went to the address set forth in the warrant (which was the residence of Mrs. Tellez), entered and arrested defendant for parole violation. They advised...