Opinion
Cr. 6084 6085
4-7-1958
The PEOPLE of the State California, Plaintiff and Respondent, v. Babe Otto BARBERA, Defendant and Appellant. *
Harrison M. Dunham, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.
The PEOPLE of the State California, Plaintiff and Respondent,
v.
Babe Otto BARBERA, Defendant and Appellant. *
Harrison M. Dunham, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.
DOURT, Justice.
There are two appeals before the court in this matter. The first case, Superior Court No. 191311, is an appeal from a judgment wherein the defendant was convicted of a violation of the provisions of section 11714, Health and Safety Code (sale of heroin to a sixteen year old child).
The second case is Superior Court No. 172604, and is an appeal from a judgment wherein the defendant was charged with a violation of the provisions of section 11500, Health and Safety Code (possession of marijuana).
The defendant, in case No. 191311, was charged in court I of the information with having sold heroin on April 5, 1957, to a minor of the age of sixteen years. In count II of the information the defendant was charged with having possession of certain narcotics (marijuana) on May 2, 1957. It was also charged in the same information that the defendant had formerly, namely on May 10, 1955, been convicted of the crime of violation of section 11500, Health and Safety Code.
The defendant pleaded not guilty as to both counts and denied the prior conviction. At the time of trial all parties and counsel waived a jury trial and stipulated that the cause be submitted on the testimony contained in the transcript of the proceedings had at the preliminary hearing, and each side reserved the right to introduce additional to a day certain, and on that date witnesses to a day certain, and on that date witness were called and testified in behalf of the plaintiff and defendant.
The court found the defendant guilty of count I and not guilty as to count II of the information, and made no finding as to the charge of a prior conviction. The defendant made an application for probation, and the matter was heard on August 6, 1957. Probation was denied in the heroin selling case and the defendant was sentenced to the state prison and such sentence was ordered to run concurrently with the county jail sentence imposed in case No. 172604.
In case numbered 172604, filed May 3, 1955, the defendant was charged, in substance, with having marijuana in his possession in violation of the provisions of section 11500, Health and Safety Code. On May 10, 1955, the defendant caused his plea of guilty to be entered and made an application for probation. On May 31, 1955, the defendant was sentenced to one year in the county jail; execution of the sentence was suspended and defendant was granted probation for three years on condition that he serve the first ninety days in jail and that he not associate with users of narcotics, obey all laws and follow all rules of the probation department.
The facts of the case having to do with the possession of marijuana in 1955 are substantially as follows: The defendant was of the age of about nineteen years, living at the home of his parents. He had in his possession a quantity of marijuana some of which was in the top bureau drawer in his own room. He pleaded guilty to the possession of marijuana and applied for probation, which was granted on May 31, 1955. The probation officer's report set forth that the defendant had admitted to being a user of marijuana for about three years; it was further set forth that the defendant had been a 'chronic discipline problem,' had defied authority, and further that the defendant could see 'nothing wrong' with using narcotics.
In November, 1955, appellant was arrested and charged with being an addict. The officers at the time suspected that narcotics were being furnished to a certain minor and in the course of the investigation thereof they arrested Barbera who, at the time, was with three persons in an automobile and the officers found nine capsules of heroin in the vehicle. All of the persons in the car, including the defendant, had numerous hypodermic marks on their arms, and each of the persons appeared to be under the influence of a narcotic. The associates of the defendant at or about that time were all engaged in criminal activities for which they were either on bail or had been released on probation.
In the case arising in November, 1955 (addiction), the defendant, after originally pleading not guilty, changed his plea to that of guilty after he heard a tape recording which was introduced into evidence. He was sentenced on that charge on January 17, 1956, to 'three years summary probation with the first ninety days to be served in the County Jail.'
The probation officer thereafter recommended a modification of the probation which had been granted the defendant on May 31, 1955, in case numbered 172604, and the judge, on January 25, 1956, ordered that the defendant serve eighty-three days in jail, such sentence to run concurrently with any other sentence then being served (the addiction sentence), and further that the probation be reinstated and all other conditions remain the same.
After the defendant was released from jail he was again arrested in November, 1956, for certain deliberate violations of the law for which he was convicted and sentenced to ninety days in jail. In one of the instances he escaped from the police as he was being booked, but was later apprehended. His probation as of May 31, 1955 (marijuana possession), was again modified in November, 1956, and the judge ordered that he spend one month in jail, the sentence to run concurrently with the sentence then being served for the other offenses.
The defendant was then arrested on the offense with which we are here concerned, namely, selling heroin to a sixteen year old high school student on April 5, 1956. Probation was revoked in case numbered 172604 on August 6, 1957, and the original sentence of one year in the county jail (imposed May 31, 1955) was put in force and effect; however, it was ordered that such sentence run concurrently with the prison sentence. The defendant filed his notice of appeal from such judgment.
The facts of the case having to do with the sale of heroin to the minor child are as follows: A high school girl by the name of Miss Schwartz, of the age of sixteen years, first saw the defendant in March or April of 1957 at the house of a mutual friend, Miss Barbara Burns, in Los Angeles county. Babe Otto Barbera was at the house of Miss Burns when Miss Schwartz arrived at about 8:00 or 9:00 o'clock P.M. Others were there also. Miss Schwartz testified that she did not pay too much attention to who was there at the time because people were always there and she did not recall their names. She did recall, however, that she probably asked Miss Burns if she thought Barbera could 'get her anything' and that Miss Burns had answered yes. Miss Schwartz talked with Barbera and she inquired of him as to the possibility of getting her some heroin or a 'cap.' Barbera indicated that he could secure heroin for her and they drove off together in an automobile with Barbera driving. They went a relatively short distance to a house, where Miss Schwartz gave Barbera $5, and Barbera got out of the automobile and went into the house. After about ten minutes Barbera came back to the automobile and they drove back to Miss Burns' house. Barbera gave to Miss Schwartz a 'cap' which consisted of a one-half inch capsule with a white powder inside. Before this occasion Miss Schwartz had seen heroin in capsules ten or more times and she had used the substance which she believed to be heroin and was familiar with the effects it produced. She knew the manner of shooting it into a vein with a hypodermic needle and eye dropper. After Miss Schwartz received the 'cap' from Barbera she went to the bathroom at Miss Burns' house and 'took a fix.' She described the sensations she experienced and stated that it was similar to the previous instances when she had taken heroin.
A police officer testified as an expert in the use and effect of narcotics and stated that in his opinion the substance injected into Miss Schwartz was heroin.
Miss Schwartz later signed a police report wherein she listed Barbera as having furnished her with narcotics. The information was relayed to other officers and at about 8:30 o'clock, May 1, 1957, two officers went to Barbera's door. Barbera opened the door and he was placed under arrest. The defendant said he wanted to wash his teeth and get his jacket before leaving with the officers. The officers investigated a room which Barbera said was his and in Barbera's jacket pocket they located a spoon, a piece of cotton, an eye dropper and a hypodermic needle. The room was searched and in a top bureau drawer they found material which later was examined and found to be marijuana.
The defendant testified in his own behalf and stated that he had not sold any heroin to Miss Schwartz; that some of the marijuana he had possessed in 1955 was kept in the top bureau drawer where the officers had found the material which was identified as marijuana in the instant case.
The court asked the question: 'Well, at that time, in 1955, the marijuana they found, was any of it in this dresser drawer that we are talking about here? A. I kept some there, yes.' (Emphasis added.)
The defendant, on direct examination, was asked by his own attorney: 'Now, is it true, or not, that on the 10th day of May of 1955, in the Superior Court of the State of California, County of Los Angeles, that you were convicted of the crime of violation of section 11500 of the Health & Safety Code of the State, a misdemeanor? Is that true?' The following ensued between the defendant and his counsel:
'A. Would you repeat that, please? Repeat it please; I didn't hear it, I didn't hear the beginning.
'Q. I want to know whether or not, on the 10th day of May of 1955, in the Superior Court of the State of California, here in Los Angeles, whether or not you were convicted of a violation of section 11500 of the Health & Safety Code? A. Yes, I was.
'Q. What did that involve? What kind of narcotics were involved there? A. Cannabis sativa, marijuana.
'Q. Marijuana? A. Yes.
'Q. That is the correct date, May 10, 1955? A. I believe so.'
At the oral argument counsel for Barbera stated in effect that it was the defendant's contention at the trial that the marijuana which was found in the bureau drawer in May, 1957, was in fact a part of the marijuana which had been found in May, 1955, and that he had pleaded guilty to possessing that marijuana and had been sentenced therefor, and that he should not be convicted again of having what he contended was a part of the same marijuana. The argument apparently impressed the judge for he found the defendant not guilty of possessing marijuana as charged in the information in count II.
The appellant contends in the present case that the evidence was legally insufficient to sustain the conviction. He asserts that the testimony of Miss Schwartz was impeached by several witnesses and cites People v. Draper, 69 Cal.App.2d 781, 160 P.2d 80, and People v. Graziano, 83 Cal.App.2d 701, 189 P.2d 518, to support his contention. There was no direct evidence in either of the cited cases pointing to the accused as being the perpetrator of the offense charged. The situation was entirely different in the case under sonsideration.
This court is in no position to pass upon the credit which should be given to the witnesses and we are not authorized to review the evidence under the circumstances existing in the present case. People v. Silva, 119 Cal.App.2d 421, 426, 259 P.2d 74.
The fact that there may have been some inconsistencies and some contradictions in the testimony is not sufficient to reverse the judgment. The testimony of Miss Schwartz was not at all improbable. People v. Thomas, 103 Cal.App.2d 669, 672, 229 P.2d 836. The circumstances fully support the judgment. People v. Sykes, 44 Cal.2d 166, 280 P.2d 769.
No argument has been presented to us with reference to the case wherein probation was revoked in case number 172604, and in conformity with People v. Yarter, 138 Cal.App.2d 803, 805-806, 292 P.2d 649, the judgment therein should be affirmed.
This case unfortunately is typical of many cases arising in Los Angeles county wherein the trial judge, in the face of uncontradicted evidence to the contrary, either finds that a charged prior conviction is not true, or arbitrarily strikes such prior conviction supposedly 'in the interests of justice;' or, as in the instant case, fails entirely to make any finding as to the truth or falsity of the prior conviction: in this case the defendant, under oath, brought out in his own testimony on direct examination that he had been previously convicted of a 'violation of section 11500 of the Health & Safety Code.'
In most narcotic cases coming before this court within the past few years the record discloses appellant to have had one or more prior convictions of a narcotic offense or of a felony. In the matter of illicit narcotics, the legislature has clearly spelled out the penalty to be imposed in such cases. If the trial judges ignore or strike prior convictions, the very purpose of the legislature in enacting the statutes in question, that is, to eliminate the narcotic peddlers and users as hazards to themselves and to society, is blocked. If judges repeatedly, by one device or another, see fit to fail in their duties and responsibilities, it is little wonder that law enforcement, in particular with reference to narcotic cases, is falling into disrepute.
Under section 1158, Penal Code, a jury must find whether the defendant has suffered a previous conviction when such prior conviction is charged in an information. It would seem that a judge should not fail to do that which a jury must do. The separate issue of the prior conviction was presented and the judge in this case failed to act. The failure of the judge to find as to the truth or falsity of the prior conviction amounts to a finding that the charge was not true. In re Daniels, 119 Cal.App. 350, 6 P.2d 549; In re Hall, 88 Cal.App. 212, 263 P. 295; People v. Ysabel, 28 Cal.App.2d 259, 82 P.2d 476. Such a finding, in turn, has the effect of reducing the sentence of the defendant by about one-half. Health & Safety Code, & 11714.
Furthermore, on the face of the judgment in the heroin case, the incongruity of the whole matter is evident--the court in effect found that the prior conviction was not true, and then immediately ordered that the sentence in the prior case, which a judge had theretofore imposed (May 31, 1955), be 'placed in full force and effect,' however, to run concurrently with the sentence imposed in the heroin selling case. Such practice is not conducive to sustaining the reputation of the courts for integrity.
'* * * the illicit drug traffic has trebled in the United States since World War II * * *.' '* * * drug addiction is responsible for approximately 50 per cent of all crimes committed in the larger metropolitan areas * * *.' '* * * drug addiction is contagious. Addicts spread the habit with cancerous rapidity * * *.' '* * * Heroin * * * peddlers are selling murder, robbery * * * and should be dealt with accordingly. * * * In truth and in fact, it is 'murder on the installment plan,' leading not only to the final loss of one life, but to others who acquire this contagious infection through association with the original victim.' Report of the Committee on the Judiciary, U. S. Senate Report No. 1440 (Pursuant to Senate Resolution 67).
It is not readily apparent why a judge would vitiate the effectiveness of the existing law by failing to observe the clear mandate of the legislature in the treatment of recidivists. (California, however, has repeatedly been referred to as 'very weak in legislation.' Anslinger, U. S. Commissioner of Narcotics.) 'Without exception the illicit traffic continues to flourish in those problem areas where leniency is an established pattern in the courts. * * * The most effective weapon against the spread of addiction and the elimination of existing addiction is severe punishment in the form of mandatory sentences which effectively deter traffickers.' Report of Subcommittee on Narcotics to the House Committee on Ways & Means 1956.
It appears that if anything would give the peddler of narcotics confidence and an incentive to continue in the illicit traffic, it would be the strong possibility that if he were caught, in any event, he would only receive the lightest sentence possible, and if a recidivist, he might even be fortunate enough to be sentenced as a first offender, as in the instant case. Experience in other states and in the federal government has demonstrated conclusively that the narcotic peddler is gradually going out of business where the penalty is certain and severe. 'He cannot stand that five years without probation and without parole.' Anslinger, U. S. Commissioner of Narcotics.
Had the appellant in this case been apprehended by federal officers and prosecuted and convicted in the federal court, he would have been subjected to a very different penalty, namely, in accordance with the federal law where it is set forth: 'Whoever * * * sells, * * * furnishes, or * * * facilitates the sale, giving, furnishing * * * any heroin * * * to any person who has not attained the age of 18 years, may be fined not more than $20,000, and shall be imprisoned for life, or for not less than ten years, except that the offender shall suffer death if the jury in its discretion shall so direct.' 21 U.S.C.A. § 176b. No suspension of the imposition or execution of sentence or the granting of probation is permitted under the federal law.
No useful purpose was served in the instant matter in permitting the defendant to file an application for probation, because under section 11715.6, Health and Safety Code, the defendant was ineligible in any event.
Under the circumstances of this case the appellant, for no apparent reason, received at the hands of the judge a sentence of about one-half of what the statute specifically provides for in such cases.
The judgment in case number 172604 is affirmed.
The judgment in case number 191311 is affirmed.
LILLIE, J., concurs.
WHITE, P. J., concurs in the judgment. --------------- * Opinion vacated 328 P.2d 973.