(3) This was relied upon in People v. Gray, 65 Cal.App.3d 220 [ 135 Cal.Rptr. 206] in which the court, citing People v. Leonard, 25 Cal.App.3d 1131 [ 102 Cal.Rptr. 435], said at page 224, "once a court has exercised its jurisdiction by initiating a commitment procedure under section 3051, it is without jurisdiction to proceed in the criminal case until the commitment proceedings have been terminated." ( People v. Barajas, 26 Cal.App.3d 932, 939 [ 103 Cal.Rptr. 405]; People v. Leonard, supra, 25 Cal.App.3d 1131, 1136; People v. Davidson, 25 Cal.App.3d 79, 82 [ 101 Cal.Rptr. 494]; People v. Gonzales, 275 Cal.App.2d 741, 743 [ 80 Cal.Rptr. 324] .) The only issue to be determined in narcotic commitment proceedings (here dept. 95) is that of addiction.
Had he wanted to find that this officer (Bass) on this occasion did not have reasonable grounds for believing the cigarette contained marijuana because of his lack of expertise, he could have supported such a finding by simply rejecting the officer's testimony as not worthy of belief. Instead the judge made a blanket statement that no officer whatever his experience, is able to tell a marijuana cigarette by its appearance which runs counter to (1) his finding that Officer Bass' testimony was true, (2) the recognized practice in such cases of proving probable cause by the expert testimony of the arresting officer ( Thomas v. Superior Court, 22 Cal.App.3d 972, 977 [ 99 Cal.Rptr. 647]; People v. Nickles, 9 Cal.App.3d 986, 994 [ 88 Cal.Rptr. 763]; Fraher v. SuperiorCourt, 272 Cal.App.2d 155, 161-162 [ 77 Cal.Rptr. 366];People v. Walker, 203 Cal.App.2d 552, 558 [ 21 Cal.Rptr. 692] (the testimony of a forensic chemist is not required on the issue of probable cause) People v. Barajas, 26 Cal.App.3d 932, 939 [ 103 Cal.Rptr. 405]), and (3) common knowledge that marijuana is used in cigarette form hand-rolled in brown paper ( People v. Walker, 203 Cal.App.2d 552, 558 [ 21 Cal.Rptr. 692] ); and fails to take into account other evidence reinforcing the opinion of Officer Bass. The court pointed out in Fraher v. Superior Court, 272 Cal.App.2d 151 at pages 161-162 [ 77 Cal.Rptr. 366], citing People v. Harris, 62 Cal.2d 681, 683 [ 43 Cal.Rptr. 833, 401 P.2d 225], that reasonable cause for an arrest may be based on the opinion of the arresting officer that a crime is being committed in his presence based upon his prior experience and specialized training in the investigation of narcotic cases.
The judge may not consider other factors. ( People v. Barajas (1972) 26 Cal.App.3d 932 [ 103 Cal.Rptr. 405]; People v. Leonard (1972) 25 Cal.App.3d 1131 [ 102 Cal.Rptr. 435]; see also People v. Navarro (1972) 7 Cal.3d 248 [ 102 Cal.Rptr. 137, 497 P.2d 481].) "By section 3051 . . . the judge is required in all instances whenever it appears to him that the defendant may be addicted or in imminent danger of becoming addicted, to adjourn the proceedings or suspend the imposition of sentence.
Second, defendant failed to move to withdraw his pleas in the trial court. ( People v. Massie (1967) 66 Cal.2d 899, 910 [ 59 Cal.Rptr. 733, 428 P.2d 869]; People v. Pinon (1973) 35 Cal.App.3d 120, 126 [ 110 Cal.Rptr. 406]; People v. Barajas (1972) 26 Cal.App.3d 932, 937 [ 103 Cal.Rptr. 405]; § 1018.) Third, defendant's claim of an illusory plea bargain is based on a faulty premise.
He correctly asserts a right to present evidence tending to mitigate punishment or assist in the determination of his application for probation. (Pen. Code, § 1204; People v. Barajas (1972) 26 Cal.App.3d 932, 939 [ 103 Cal.Rptr. 405]; People v. Valdivia (1960) 182 Cal.App.2d 145, 148 [ 5 Cal.Rptr. 832].) The defendant is entitled to an opportunity to respond to adverse sentencing information.
Counsel thereafter argued, however, that certain portions of the report "were without factual basis"; that police and other authorities generally tend without justification to brand as criminal Chinese youths on the basis of purported association with gang activity; and that there were all sorts of "allegations, unsupported, unfounded" in the probation report. (21) However, defendant did not exercise his right to present any materials or call any witnesses to contradict, explain or otherwise rebut materials in the probation report (see Pen. Code, § 1204; People v. Barajas (1972) 26 Cal.App.3d 932, 939-940 [ 103 Cal.Rptr. 405] ), and he is now foreclosed from raising such issues (see People v. Valdivia (1960) 182 Cal.App.2d 145, 148-149 [ 5 Cal.Rptr. 832]). Nothing we said in People v. Peterson,supra, 9 Cal.3d 717 relieves a defendant from at least initiating procedures to establish the claimed unreliability of materials properly submitted for sentencing purposes; a mere claim of invalidity is insufficient.
The prosecutor's statement was inconsistent with his undertaking to make "no recommendation." Cf. People v. Barajas, 26 Cal.App.3d 932, 935-937, 103 Cal.Rptr. 405, 407-408 (1972); Wood v. Commonwealth, 469 S.W.2d 765 (Ky. 1971); Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); State ex rel. Clancy v. Coiner, 154 W. Va. 857, 179 S.E.2d 726 (1971). As the Supreme Court of Pennsylvania stated in Commonwealth v. Alvarado, supra, 276 A.2d at 529, a prosecutor's promise to make no recommendation as to the sentence reasonably means a "commitment not to make any damning or even potentially damaging statements at the time of sentencing."
Delles, however, was decided prior to the enactment of section 1192.5 which, as we have seen, requires the trial court to inform defendant of his right to withdraw the plea, and which "deems" the plea withdrawn in the event the bargain is not approved by the court. See also People v. Barajas, 26 Cal.App.3d 932, 937 [ 103 Cal.Rptr. 405]. (4a) At oral argument in this case, Johnson's counsel suggested that since the trial court violated section 1192.5 in failing to advise Johnson of his rights thereunder prior to making his plea, Johnson should have the option of enforcing the original bargain according to its terms, as an alternative to the right to withdraw his plea.
The People may present the above-mentioned evidence to support a finding of the truth of a prior serious felony conviction; on the other hand, the defendant must be afforded an ample opportunity, to challenge or refute, any hearsay evidence presented against him. (See People v. Garcia, supra, 216 Cal.App. 3 d at p. 237; People v. Barajas (1972) 26 Cal.App.3d 932, 939 [ 103 Cal.Rptr. 405].) Defendant claims the trial court should have stricken 69112 even if the record does establish the burglary conviction involved an inhabited dwelling.
If a defendant contends the hearsay information is unfair or untrue he is given an opportunity to refute it. ( People v. Barajas (1972) 26 Cal.App.3d 932 [ 103 Cal.Rptr. 405].) Here the trial court specifically focused on Garcia's statements related by the probation officer, finding the statements constituted an admission.