People v. Romero

• Decision Date: 29 March 1977
• Docket Number: Cr. 29205
• Citation: 137 Cal.Rptr. 675,68 Cal.App.3d 543
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose ROMERO, aka Joe Romero, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 675

137 Cal.Rptr. 675

68 Cal.App.3d 543

The PEOPLE, Plaintiff and Respondent, v. Jose ROMERO, aka Joe Romero, Defendant and Appellant.

Cr. 29205.

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

March 29, 1977.

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Martin J. Stein, Deputy State Public Defender, Los Angeles, for appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen.--Crim. Div., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz, Michael Nash, Deputy Attys. Gen., Los Angeles, for respondent.

THE COURT: ^*

Joe Romero was convicted in a jury trial of selling heroin (Health & Saf.Code, § 11352, subd. (a)). He was sentenced to state prison and appeals contending: 'I. The trial court abused its discretion in not granting appellant's motion for a mistrial in light of the prosecutor's misconduct during the course of his cross-examination of appellant. II. Appellant was denied a fair probation and sentencing hearing by virtue of the reference to numerous police contacts with which he was never charged and/or convicted. III. The trial court abused its discretion in refusing to adjourn the criminal proceedings so that civil commitment proceedings could be commenced pursuant to the provisions of Welfare and Institutions Code section 3051.'

We view the evidence in the light most favorable to the judgment as is required by the familiar rule governing appellate review. At approximately 7:00 p.m. on October 15, 1975, Detective E. Frederick Browning, working in an undercover narcotics capacity, went to the residence of one Apolonio Cortez Romo. Browning had earlier successfully solicited the unwitting Romo to help him (Browning) purchase heroin. Romo told Browning that they would purchase the heroin through Joe, appellant herein. Browning and Romo went to Joe who, in turn, indicated that they would have to go to yet another residence to get the heroin. Upon arrival at the latter location, Browning gave appellant $25 in recorded county funds and appellant exited the vehicle and disappeared from Browning's view. He returned and produced a pink balloon, the contents of which were later analyzed to contain .79 grams of heroin. On the way back to his residence, appellant removed a 'pinch' of heroin for himself. ¹

Appellant testified in his own behalf, tendered the defense of entrapment, and the jury was instructed thereon. Appellant admitted that he took Romo and Detective Browning to a heroin source as a favor to Romo. Appellant received $25 from Romo, went to the residence where he obtained the heroin, and gave the balloon to Romo. He characterized the transaction as 'scoring' or 'buying for somebody' as opposed to a sale.

Appellant's first contention based upon the quoted portion of the transcript ² is without merit.

'. . . 'A motion for a mistrial is addressed to the sound discretion of the trial court. It may properly be refused where the court is satisfied that no injustice has resulted or will result from the occurrences of which complaint is made.' . . .' (People v. Ray, 252 Cal.App.2d 932, 962, 61 Cal.Rptr. 1, 19; see also People v. Slocum, 52 Cal.App.3d 867, 884, 125 Cal.Rptr. 442.) 'Misconduct of the prosecutor implies a dishonest act or an attempt by an attorney to persuade the court or jury by the use of deceptive or reprehensible methods. (Citation.) 'Whether the prosecution has committed misconduct depends upon the particular circumstances of each case and bad faith must be shown to establish the existence of misconduct. . . .' (Citation.) ( ) Bad faith may be manifested by the prosecutor's intentionally asking questions of witnesses, the answers to which he knows are inadmissible because of their prejudice to the accused (citation), or by asking questions of witnesses knowing those questions to be inadmissible and improper and not expecting to receive answers to them. (Citations.)' (People v. Gomez, 63 Cal.App.3d 328, 338, 133 Cal.Rptr. 731, 736.)

Applying the aforementioned principles to the instant case, we conclude that the trial court did not abuse its discretion (see People v. Rist, 16 Cal.3d 211, 219, 127 Cal.Rptr. 457, 545 P.2d 833) in denying the motion for a mistrial notwithstanding its premise that the subject question was, in fact, objectionable. 'The trial court's use of an unsound course of reasoning is immaterial if the action ultimately taken . . . was proper. (Citation.)' (People v. Patton, 63 Cal.App.3d 211, 219, 133 Cal.Rptr. 533, 538.) We are not convinced that the prosecutor's question was improper. On the contrary, it appears that the question was based upon a permissible inference or deduction 'grounded on evidence of record. (Citations.)' (People v. McDaniel, 16 Cal.3d 156, 176, 127 Cal.Rptr. 467, 545 P.2d 843.) ³

Appellant's second contention is meritorious. In People v. Calloway, 37 Cal.App.3d 905, 112 Cal.Rptr. 745, the defendant contended that '. . . the inclusion in the probation report of the seven 'police contacts' in connection with which he was neither convicted nor charged prejudicially associates him with seven serious crimes and so infected his probation hearing as to deny him due process of law.' (People v. Calloway, supra at 908, 112 Cal.Rptr. at 746.) The court, agreeing in part, indicated 'Such records, without supporting factual information, should not be included in a probation report. They are unreliable, highly prejudicial, and under many circumstances could result in a fundamentally unfair hearing. ( ) While an applicant for probation is not entitled to the same procedural safeguards as in the case of a trial on the issue of guilt, he must be afforded hearing procedures which are fundamentally fair (citation). There must be some substantial basis for believing the information contained in the probation report is accurate and reliable. (Citation.) ( ) The practice of including raw arrest data in a probation report is condemned by the American Bar Association's Standards for Criminal Justice. '. . . the Advisory Committee means to include only those charges which have resulted in a conviction. Arrests, juvenile dispositions short of an adjudication, and the like, can be extremely misleading and damaging if presented to the court as part of a section of the report which deals with past convictions. . . .' (People v. Calloway, supra, at 908, 112 Cal.Rptr. at 746; see also People v. Chi Ko Wong, 18 Cal.3d 698, 719--721, 135 Cal.Rptr. 392, 557 P.2d 976.)

In the instant case, the trial court indicated that it had 'read and considered the probation report' and after hearing defense counsel, said ⁴ '. . . I think the record should reflect we have had a lengthy conference in chambers, and much of the information that you have relayed now was discussed in chambers. ( ) Mr. Romero has A lengthy record. Four times he's been given the maximum sentence in County Jail. That is a year sentence in the County Jail. And apparently it has not done any good whatsoever. ( ) I am going to find, first of all, by virtue of excessive criminality, that Mr. Romero is not a suitable candidate for placement at the California Rehabilitation Center for Narcotics addiction. ( ) Probation in this matter will be denied. I am going to sentence Mr. Romero to State Prison for the term prescribed by law.' (Emphasis added.)

Under the heading of 'arrest record' ⁵ we note 31 entries, approximately one-third of which resulted in misdemeanor convictions; 10 other entries are followed by 'No Disposition'; five others were dismissed. As was the case in People v. Calloway, supra, 37 Cal.App.3d 905, 909, 112 Cal.Rptr. 745, 747, '(t) he prejudice arising from the inclusion of such information in a probation report is obvious.' We are unable to conclude as did the court in People v. Morales, 49 Cal.App.3d 732, 738, 122 Cal.Rptr. 804, that the sentencing judge did not rely on that portion of the probation report which recited 'police contacts.' In this case, the trial court improperly relied, to some degree, upon appellant's 'lengthy record' in its choice of a proper disposition. Given the facts and circumstances we believe that appellant is entitled to have a trial court consider the invocation of Welfare and Institutions Code section 3051 on a probation report consistent with the views expressed herein. We express no opinion on how the court should exercise its discretion, but we deem it beneficial to make certain observations with respect thereto.

Welfare and Institutions Code section 3051 in relevant part provides as follows: 'Upon conviction of a defendant for any crime in any superior court . . . if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics he shall adjourn the proceedings or suspend the imposition or execution of the sentence and order the district attorney to file a peition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment and rehabilitation facility unless, In the opinion of the judge, the defendant's record and probation report indicate such a pattern of criminality that he does not constitute a fit subject for commitment under this section.' (Emphasis added.)

It is well established that a trial court has discretion to invoke the provisions of Welfare and Institutions Code section 3051 and we have found no reported case wherein the refusal to invoke the statute has been held to be an abuse of discretion. (People v. Flores, 6 Cal.3d 305, 309--310, 98 Cal.Rptr. 822, 491 P.2d 406; People v. Morales, 49 Cal.App.3d 732, 736--738, 122 Cal.Rptr. 804; People v. Stevens, 38 Cal.App.3d 66, 71, 113 Cal.Rptr. 49; People v. Deas, 27 Cal.App.3d 860, 862--863, 104 Cal.Rptr. 250.) Nevertheless, "(t)he discretion (to invoke Welfare and Institutions Code section 3051 Vel non) . . . vested in the court should be exercised with...