People v. Navarro

Decision Date23 May 1972
Docket NumberCr. 15795
Citation102 Cal.Rptr. 137,497 P.2d 481,7 Cal.3d 248
CourtCalifornia Supreme Court
Parties, 497 P.2d 481 The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry Macias NAVARRO, Defendant and Appellant. In Bank

Robert A. Martin, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger and Thomas C. Lynch, Attys. Gen., and Robert R. Granucci, Deputy Atty. Gen., for plaintiff and respondent.

McCOMB, Justice.

Henry Macias Navarro was charged with two violations of section 11501 of the Health and Safety Code (selling and furnishing heroin, offering to sell) and a prior conviction (assault with a deadly weapon, Pen.Code, § 245). He pleaded not guilty and denied the prior. His motion to suppress evidence under section 1538.5 of the Penal Code was denied. At the trial he did not testify but his counsel vigorously defended on the grounds of entrapment and illegal seizure of evidence. The jury found him guilty on each count. Review of the evidence indicates that it was sufficient to support the verdict. 1

After the jury returned its verdict the court suspended imposition of sentence to conduct proceedings authorized by section 3051 of the Welfare and Institutions Code 2 to ascertain if Navarro was a narcotic addict or in imminent danger of becoming one, for the purpose of considering commitment to the custody of the Director of Corrections for confinement in the narcotic detention, treatment and rehabilitation facility (§§ 3001, 3300). It found that Navarro was a narcotic addict. The court then held a sentencing hearing to determine whether section 3052 precluded the commitment of Navarro to the treatment program. 3

Section 3052 makes absolutely ineligible for that program persons who are convicted of, or who have previously been convicted of, certain crimes, specifically including violation of section 245 of the Penal Code, assault with a deadly weapon. Section 3051 modifies this by providing that 'In any case to which Section 3052 applies, the judge may request the district attorney to investigate the facts relevant to the advisability of commitment pursuant to this section. In unusual cases, wherein the interest of justice would best be served, the judge may, with the concurrence of the district attorney and defendant, order commitment notwithstanding Section 3052.'

The prior conviction was admitted by Navarro and he expressed his desire for commitment to the treatment program. His counsel argued that Navarro's prior conviction was, pursuant to section 17 of the Penal Code, made a misdemeanor by sentence (commitment to the California Youth Authority); that section 3052 contemplates only Felony offenses; and that if the district attorney refused to concur in the proposed commitment to the treatment program, such refusal should be based on facts peculiar to this case and not on the fact that a defendant pleaded not guilty or, as here, called the prosecution's informant as a defense witness.

The court held that it had no authority to inquire into the reasons for the concurrence or nonconcurrence of the district attorney.

The district attorney refused to concur but he did state his reasons: that Navarro was, by conviction, a seller of heroin and this merited a state prison sentence; that the prior conviction involved the stabbing of two people; that whether or not the prior conviction was a felony or a misdemeanor Navarro had admitted a prior Felony and had raised no objection at the time it was in that posture before the Court; that he had polled the jury after the guilt trial and they were of the opinion that a state prison sentence should be given; that the probation report indicated that Navarro did not have an 'uncontrollable habit'; that he found no sincere desire on the part of Navarro to seek rehabilitation; that if Navarro did recognize the wrongfulness of his prior conduct he would seek to cooperate with the various authorities; and that on a variety of factors he felt that Navarro did not belong in the California Rehabilitation Center but belonged in state prison.

Navarro testified in his own behalf that he was not really a 'dealer,' that he needed rehabilitation is an addict, and that he would like to get help and treatment. His counsel argued that there was no evidence in the record that Navarro was a 'big supplier'; that there was evidence of his addiction; that Navarro had had a daily habit for two years and had tried to go off it a few times without success; and that he might be more amenable to the treatment program than if he had a severe long-term habit.

The court thereupon stated for the record that it found section 3052 made inapplicable section 3051 to this defendant and to this case. It further stated that 'if the court were wrong . . . if section 3051 did apply to this case, that the Court would commit this defendant to the rehabilitation center. I find that I have no authority to do so.' It denied probation and committed Navarro to state prison for the term to be set by law, sentences to run concurrently on each count.

Subsequent to entry of judgment herein this court decided in People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, that section 11718, Health & Safety Code, which required approval and action by the district attorney in order for the court to dismiss a prior conviction, violated the separation of powers doctrine and the vesting of judicial power in the judiciary. (Cal.Const., art. III, art. VI, § 1.) In Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140, this court struck, on the same grounds, the provision in Penal Code section 17, subdivision (b)(5), which required the consent of the prosecutor to be obtained before a magistrate could exercise his judicial power to determine that a charged offense was to be tried as a misdemeanor. We denied hearing in People v. Clay (1971) 18 Cal.App.3d 964, 96 Cal.Rptr. 213, in which the Court of Appeal invalidated, on the same grounds, the provision in section 1203 of the Penal Code which required district attorney concurrence in order for the court to grant probation to a class of defendant. Tenorio expressly declared its retroactive effect on sentencing procedures (supra, 3 Cal.3d 89, 95, fn. 2, 89 Cal.Rptr. 249, 473 P.2d 993), and stated that any prisoner suffering a sentence imposed after the effective date of section 11718, Health and Safety Code (Sept. 18, 1959) and prior to the filing of Tenorio (Sept. 1, 1970) could file a habeas corpus petition with the superior court inviting the exercise of its discretion to hold a new sentence hearing for the purpose of dismissing the prior conviction. In In re Cortez (1971) 6 Cal.3d 78, 88--89, 98 Cal.Rptr. 307, 490 P.2d 819, we further outlined the procedure to be followed.

Navarro has therefore raised on this appeal not only the issue that the requirement of district attorney concurrence in section 3051 be declared constitutionally invalid but that, if he does not prevail on that issue, the case be remanded to the trial court for sentencing so that court may consider the question whether it should strike the prior conviction, as authorized by Tenorio and thus have 'authority' to carry out its expressed desire to commit Navarro to the treatment program. He also argues alternative grounds: 1, that section 3052 applies only to Felony convictions for the offenses stated, that by sentence to the Youth Authority the court had made his prior conviction only a misdemeanor, and therefore section 3052 does not apply to him; and 2, that by reason of his honorable discharge from the Youth Authority 4 he was statutorily and automatically released from all 'penalties and disabilities' resulting from his prior conviction (§ 1772) and this included release from the ineligibility provisions of section 3052.

Unlike the defendants in Tenorio and Cortez, Navarro's prior conviction was for a non-narcotics offense. In those cases striking of prior Narcotics convictions was sought in order that the statutorily increased penalty for the current narcotics conviction might be avoided, in the discretion of the court. Here, striking a prior non-narcotics conviction would make inapplicable a statutorily imposed restriction on Navarro's eligibility for the treatment program. The rationale of allowing the sentencing court, in its discretion, to strike the prior conviction is as persuasive in Navarro as in Tenorio and Cortez. Availability of such relief is not limited to proceedings where the question of striking priors was raised below. (See In re Cortez, supra, 6 Cal.3d 78, 87--88, 98 Cal.Rptr. 307, 490 P.2d 819.)

However, the more important issue is here directly presented, to which this court must address itself, and that is whether section 3051 is itself tainted with constitutional infirmity,--violation of the separation of powers mandate and the vesting of judicial powers in the judiciary required by the California Constitution. This issue has been considered by the Court of Appeal, subsequent to this conviction and subsequent to Tenorio, with conflicting results. People v. Rotsell, 14 Cal.App.3d 689, 92 Cal.Rptr. 542, held that the requirement of district attorney concurrence in section 3051 as a prerequisite to a defendant's being committed to the treatment program as an unusual case, was an unconstitutional restraint on the exercise of the judicial function. 5 People v. Harris (1971) 17 Cal.App.3d 388, 95 Cal.Rptr. 80, held that even if it was unconstitutional this provision was not severable and if declared invalid the whole amendment, making absolute ineligibility merely conditional, should be deleted. As above noted there are other alternative grounds for decision raised by Navarro on this appeal.

Question: One (a) Is section 3051 of the Welfare and Institutions Code unconstitutional insofar as it requires the concurrence of the district attorney in order for the court,...

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