People v. Diaz

• Decision Date: 21 September 1966
• Docket Number: Cr. 11166
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alfonso Ramirez DIAZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 666

53 Cal.Rptr. 666

245 Cal.App.2d 74

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alfonso Ramirez DIAZ, Defendant and Appellant.

Cr. 11166.

District Court of Appeal, Second District Division 2, California.

Sept. 21, 1966.

Michael G. Dave, Beverly Hills, under appointment by the District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Alan R. Wolen, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Justice.

Defendant appeals from the order of the trial court denying his petition for writ of error coram nobis.

The record before us indicates that on November 14, 1961, appellant entered a plea of guilty to a charge of violating section 11500 of the Health and Safety Code. The information also alleged that appellant previously had been convicted of violating section 11500 of the Health and Safety Code on March 23 and June 16, 1954. At the time appellant's plea of guilty to the principal charge was received, it was stipulated by the district attorney and appellant and his counsel that no finding need be made on the alleged previous offenses until the time of sentencing.

On December 11, 1961, at appellant's probation and sentence hearing, the trial court expressed its doubt as to whether appellant would be deemed eligible for the narcotic rehabilitation program because of his status as a parolee but agreed to make no findings on the alleged previous convictions until after appellant had been referred to department 95 for determination of his eligibility in accordance with sections 6451--6452 of the Penal Code (now Welf. & Inst.Code, §§ 3051--3052).

It appears from the record before us that appellant was found to be ineligible for treatment and was returned to the trial court solely by reason of his status as a parolee although no order revoking his parole had then been made.

On December 18, 1961, after appellant's return, the probation and sentence hearing was resumed. The trial court then stated: 'Well, that part of it is taken care of, then. We can't do anything about it.' Only thereafter did the trial court state that it had read and considered the probation officer's report and based thereon determined that appellant had suffered two previous convictions as alleged. The court stated that 'this man has a narcotic problem' and imposed sentence as required by law.

On April 20, 1965, appellant filed his present petition for coram nobis relief relying largely upon the then pending case subsequently decided by our Supreme Court on May 3, 1966, in In re Rascon, 64 A.C. 549, 50 Cal.Rptr. 790, 413 P.2d 678. Appellant's petition was denied without a formal hearing on May 13, 1965, and the present appeal is taken therefrom. The law is now settled that a parolee may not be denied the opportunity for treatment solely by reason of his parole status. (In re Rascon, supra, p. 553, 50 Cal.Rptr. 790, 413 P.2d 678; People v. Rummel, 64 A.C. 541, 543, 50 Cal.Rptr. 785, 413 P.2d 673; In re Swearingen, 64 A.C. 545, 548, 50 Cal.Rptr. 787, 413 P.2d 675.)

Respondent's brief, filed before the Supreme Court decision cited supra, suggests that coram nobis is not the appropriate remedy for correcting the error committed herein. While this might well be true from a strict and technical application of the rule regulating the use of this particular extraordinary writ, exactly this method was used by the trial court in In re Rascon, supra, 64 A.C. at pp. 550 et seq., 50 Cal.Rptr. 790, 413 P.2d 678, so that tacitly at least its employment has been approved by our highest court. In any event, no purpose would be served by our upholding the denial of the appellant's present petition on this formal ground for the Supreme Court would then be constrained to treat the present appeal as a petition for writ of habeas corpus filed in that court (People v. Rummel, supra, 64 A.C. at p. 542, 50 Cal.Rptr. 785, 413 P.2d 673) with an equivalent result being reached.

Respondent also suggests that appellant's record of criminality might have been such that he would not have been found eligible for treatment quite apart from his status as a parolee. This may well be true but it is clear that appellant's rejection was not based on this ground and such considerations are appropriately left to the trial courts and the authorities administering the rehabilitation program (In re Rascon, supra, 64 A.C. at p. 554, 50 Cal.Rptr. 790, 413 P.2d 678) rather than this appellate court.

It is equally clear, of course, that even if we were to assume that the two essentially contemporaneous 'prior' convictions alleged against appellant were such as to convert the present principal conviction into a third conviction within the meaning and intent of section 11500 of the Health and Safety Code, ¹ such 'prior' convictions would not have served to prevent appellant's acceptance into the narcotic rehabilitation program prior to any finding having been made thereon. (Cf. People v. Ibarra, 60 Cal.2d 460, 467--468, 34 Cal.Rptr. 863, 386 P.2d 487.)

Since the criminal proceedings were suspended and no finding had been made on appellant's alleged 'prior convictions' at the time he was declared ineligible for the narcotic program, the potential problems created by section 11718 of the Health and Safety Code did not exist. ² (Cf. People v. Sidener, 58 Cal.2d 645, 650 et seq., 25 Cal.Rptr. 697, 375 P.2d 641.)

Further, since the district attorney did not object to appellant's referral for consideration of his eligibility for treatment prior to findings being made on his alleged 'priors', it would appear reasonable to assume that no objection based on section 11718 would have been tendered in any event. As stated in People v. Ibarra, supra, 60 Cal.2d 460, 467, 34 Cal.Rptr. 863, 868, 386 P.2d 487, 492, 'We are not persuaded that district attorneys otherwise inclined to dismiss prior convictions will refrain from so doing to render defendant ineligible for the rehabilitation program.'

However, although the record before us fails to disclose the present status of appellant's parole, it would appear certain that an order revoking his parole has been made. In a case such as the present one, the Adult Authority has the right to exercise its own discretion whether to revoke or suspend parole or to permit the parolee to be committed by the trial court to the rehabilitation center. (People v. Rummel, supra, 64 A.C. at p. 544, 50 Cal.Rptr. 785, 413 P.2d 673; In re Swearingen, supra, 64 A.C. at p. 548, 50 Cal.Rptr. 787, 413 P.2d 675.)

It is perhaps not possible to ascertain what disposition of appellant's...