Opinion
Cr. 5497
4-3-1956
The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert BURKE, Defendant and Appellant.*
Cletus J. Hanifin, El Monte, for appellant. Edmund G. Brown, Atty. Gen., Robert S. Rose, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Robert BURKE, Defendant and Appellant.*
April 3, 1956.
Hearing Granted May 2, 1956.
Cletus J. Hanifin, El Monte, for appellant.
Edmund G. Brown, Atty. Gen., Robert S. Rose, Deputy Atty. Gen., for respondent.
FOURT, Justice.
In an information filed by the District Attorney of the county of Los Angeles, appellant Robert Burke, was charged with a violation of section 11500, Health and Safety Code, a felony, in that he 'did willfully, unlawfully and feloniously have in his possession flowering tops and leaves of Indian Hemp (cannabis sativa)'. The information also charged the appellant with a prior conviction of a violation of section 11500, Health and Safety Code, a misdemeanor.
Appellant was arraigned in Superior Court on April 18, 1955, where he entered his plea of 'not guilty' and admitted the prior conviction as alleged. Following a trial before the court without a jury, appellant was found guilty as charged.
When the matter came on for hearing on the appellant's application for probation, and the pronouncement of judgment, the court struck the prior conviction and sentenced the appellant to imprisonment in the county jail for the term of one year. Appellant has appealed from the judgment.
A fair resume of the facts of the case are as follows: Sometime prior to 11:00 p. m., March 28, 1955, Officer John E. Storer, a narcotic inspector for the State of California, received information that narcotics were being used on the premises at 2064 North Argyle Street, Hollywood, California. At approximately 11:00 p. m. on that date, Officer Storer, in the company of officers Hollingsworth and Jensen of the State Narcotics Bureau and officer Hall of the Los Angeles Police Department, arrived at the 2064 North Argyle Street address. Inspector Hollingsworth knocked on the door. The appellant opened the door in response to the knock. Inspector Hollingsworth then identified the officers and stated: 'We would like to talk to you.' The defendant stepped back and said, 'Just a moment.' After the door had been fully opened and appellant had turned the lights on, the officers walked into the apartment.
Officer Hall asked appellant, 'Do you have any narcotics here at the present time?' The defendant replied 'No', and officer Hall then said, 'You don't mind then if we search your apartment do you?' The defendant said, 'No, go ahead.' The officers then proceeded to search the apartment. In a wooden box located at the foot of appellant's bed the officers found a paper sack containing a quantity of green leafy material and six partially smoked cigarettes. The parties stipulated that if Daniel C. McCalley, a qualified forensic chemist, had been called as a witness he would testify that in his opinion the green leafy material contained cannabis sativa, or marijuana.
Inspector Hall asked the defendant what it was. The appellant stated: 'It's marijuana.' Appellant then stated that he had purchased it from two negro men in the city of Pasadena about one week previously. Subsequently Officer Storer conversed with appellant and the appellant said that he knew it was illegal to smoke marijuana but he didn't feel it was immoral.
Appellant contends that the search and seizure was unreasonable and the evidence, therefore, erroneously admitted. It is not disputed that Storer had received information prior to the arrest that narcotics were being used on the premises in question. In People v. Boyles, 45 Cal.2d 652, 290 P.2d 535, at page 537, the court said, 'It is settled, however, that reasonable cause to justify an arrest may consist of information obtained from others and is not limited to evidence that would be admissible at the trial on the issue of guilt. Brinegar v. United States, 338 U.S. 160, 171-176, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. Li Fat Tong, 2 Car., 152 F.2d 650, 652; Aitken v. White, 93 Cal.App.2d 134, 145, 208 P.2d 788; Cook v. Singer Sewing Machine Co., 138 Cal.App. 418, 422-423, 32 P.2d 430.'
In People v. Michael, 45 Cal.2d 751, 290 P.2d 852, at page 853, the court said:
'To protect his right to object to an unreasonable search or seizure a defendant need not forcibly resist an officer's assertion of authority to enter his home or search it or his person, United States v. Di Re, 332 U.S. 581, 594, 68 S.Ct. 222, 92 L.Ed. 210; Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654, but if he freely consents to an entry or search, or voluntarily produces evidence against himself, his constitutional rights are not violated and any search or taking of evidence pursuant to his consent if not unreasonable. Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 90 L.Ed. 1477; Davis v. United States, 328 U.S. 582, 593-594, 66 S.Ct. 1256, 90 L.Ed. 1453; In re Dixon, 41 Cal.2d 756, 761, 264 P.2d 513. Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances. * * * * * *
'* * * Thus, it is not unreasonable for officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes. Such inquires, although courteously made and not accompanied with any assertion of a right to enter or search or secure answers, would permit the criminal to defeat his prosecution by voluntarily revealing all of the evidence against him and then contending that he acted only in response to an implied assertion of unlawful authority.'
It is at once apparent from the facts of this case that when the appellant opened the door in response to the knock, no constitutional right of the appellant had been infringed upon and there did exist probable cause to arrest him.
The search was made contemporaneously with the arrest and involved the immediate premises. A search and seizure incident to a lawful arrest is not unreasonable. People v. Simon, 45 Cal.2d 645, 290 P.2d 531.
In this case the officers, in addition to having probable cause, gained entrance to the apartment of the appellant by an implied consent. Appellant now contends that his consent was given under coercion and submission to authority and was not a waiver of his constitutional right, and cites as authority for his position the cases of Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 370, 92 L.Ed. 436, and Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 267, 65 L.Ed. 654. In the Johnson case the government conceded that, under Washington law, 'the arresting officer did not have probable cause to arrest petitioner' and admittance was demanded 'under color of their police authority, on which they made the arrest'. In the Amos case, the arresting officers told the defendant's wife that 'they * * * had come to search the premises 'for violations of the revenue law.'' Thereupon the defendant's wife submitted to the official demands and the court held that she had acquiesced under an implied coercion.
In any event the California Supreme Court, in adopting the exclusionary rule of evidence, left open '* * * the door to the development of workable rules governing searches and seizures', and expressly reserved the right of the courts of this state to reject those federal decisions which impose '* * * needless limitations on the right to conduct reasonable searches and seizures * * *'. People v. Cahan, 44 Cal.2d 434, 450, 451, 282 P.2d 905, 915.
In two recent decisions, the Supreme Court has enunciated the rule that if a defendant '* * * freely consents to an entry or search * * * his constitutional rights are not violated and any search or taking of evidence pursuant to his consent is not unreasonable.' People v. Michael, supra, 45 Cal.2d 751, 290 P.2d 852, 853; People v. Gorg, 45 Cal.2d 776, 291 P.2d 469.
Whether consent was freely given or under coercion is a question of fact to be determined in the light of all the surrounding circumstances. The appellant herein did not testify. We believe the facts disclose that the appellant freely consented to the entry and search of his apartment.
It is the contention of respondent that the court erred in ordering the prior conviction stricken and sentencing appellant to one year in the county jail. We are satisfied that this contention must be sustained. Conceding that the court has the power to strike its own findings, we are not here confronted with a situation wherein the court ordered its own finding stricken because the truth of the allegation of the prior conviction was not found by the court, but admitted by the accused himself. And where an accused admits the prior, the court is directed by the statute to impose the sentence prescribed therein. The appellant's admission of the truth of the alleged prior conviction was not a finding by the court, but amounted to a pleading of a party and may not be stricken for the purpose of circumventing the mandatory provisions of the statute.
At the time of the hearing on the application for probation and the pronouncement of judgment, among other things, the following was said: 'Mr. Karch (Defendant's counsel): * * * Now, I realize that the man does have a prior. I also realize that in the past there have been cases where a prior has been struck just for the purpose of sentencing. I humbly request that the Court in this particular case strike the prior for the purpose of sentencing, and give this man a short period of incarceration in the County Jail, following by a probationary period. 'The Court: Well, I don't think he is entitled to probation, frankly. According to what he has told the probation officer, he didn't live up to the terms of probation when he had it before. 'Mr. Karch: If the Court please * * * 'The Court: He was on probation for a period of three years. And that occurred--what was that, 1950? 'The Defendant: That's right. 'The Court: And for the last five years, with the exception of six months, he's still been smoking marijuana. He was on probation for three years. '* * * 'The Court: * * * Probation is denied. Is there any legal cause to show why sentence should not now be pronounced? 'Mr. Karch: None, your Honor. 'The Court: Mr. Crail (the Deputy District Attorney), the Court has jurisdiction in this case to send the man to the County Jail, does he not? 'Mr. Crail: Not with a prior narcotic. 'The Court: It's possession and not sale. 'Mr. Crail: That doesn't make any difference. '* * * 'The Court: Yes, in reference to the striking of the prior. I wasn't quite sure. In the interest of justice, I am going to strike the prior. Are you ready for sentence? 'Mr. Karch: Yes, your Honor. 'The Court: It is the judgment and sentence of this Court that for the offence of which you have been convicted that you spend one year in the County Jail. Good time will be allowed if earned. Road camp is recommended. 'If you have another one, you are bound to go to the penitentiary.'
The Health and Safety Code, section 11712, provides as follows: '[Imprisonment in county jail or State prison.] Any person convicted under this division for having in possession any narcotic, or of violating the provisions of Section 11530 or 11557 shall be punished by imprisonment in the county jail for not more than one year, or in the state prison for not more than 10 years. '[Effect of prior conviction.] If such a person has been previously convicted of any offense described in this division or has been previously convicted of any offense under the laws of any other state or of the United States which if committed in this State would have been punishable as an offense described in this division, the previous conviction shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or is admitted by the defendant, he shall be imprisoned in the state prison for not less than two years nor more than 20 years.'
The history of this section indicates that the legislature is fully cognizant of the narcotic problem in this state, and having the matter in mind, has from time to time provided for more severe penalties for violations of the laws with reference to narcotics. In 1939 the section read in part: 'If such a person has been previously convicted of a felony * * * and if * * * charged in the indictment or information and is * * * admitted by the defendant, he shall be imprisoned in the State prison for not less than six months nor more than six years.' In 1940, the last clause was amended to read, 'he shall be imprisoned in the State prison for not more than 10 years'. In 1953, the statute was amended to read, 'If such a person has been previously convicted of any offense described in this division * * * the previous conviction shall be charged in the * * * information and if * * * admitted by the defendant, he shall be imprisoned in the state prison for not less than two years nor more than 20 years.' (Emphasis added.)
The language used by the legislature in the section in question is mandatory; that is, if a prior conviction of an offense described in Division 10 (Narcotics) is 'admitted', the defendant 'shall be imprisoned in the state prison for not less than two years nor more than 20 years.' The legislature did not use such words as 'may', 'might', 'should', or 'ought', nor any other equivocal words or phrases in the section in question. In common and ordinary usage 'shall' has a compulsory or mandatory meaning. In this sense 'shall' is inconsistent with the excludes the idea of discretion and operates to impose a duty--particularly if public policy is in favor of this meaning, or when addressed to public officials or where public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless an intent to the contrary appears; but the context ought to be very strongly persuasive before it is softened into a mere permission. 80 C.J.S., Shall, p. 137.
In the instant case the appellant was convicted in 1950 of a violation of section 11500 Health & Safety Code, and he was apparently placed on probation. The transcript discloses that during most of the probationary period and thereafterwards, he continued to engage in the narcotic traffic and was finally caught and properly convicted.
A recital of the facts demonstrates that public policy and public interest, for all intents and purposes, demand the construction which we are placing upon the words used in the section.
Traffic in narcotics is of most serious concern to the state. The addict, for all intents and purposes, becomes worthless to himself and his family--he loses his sense of decency, his sense of honor and integrity. He degrades and demoralizes the very health and safety of the whole community. It is obvious that ordinarily a user in a short perior of time is unable to finance the purchase of needed narcotics from his ordinary income and as a consequence, resorts to all sorts of criminal activities to get the money to pay the peddler. Ultimately and finally, he sinks into the abyss of degradation and is lost to society forever.
The court said, in People v. Rose, 26 Cal.App.2d 513, 518-519, 79 P.2d 737, 739: '* * * The legislature of this state has said that one who commits a crime after having been convicted of another crime is a greater offender than as though he had not previously been convicted, and the punishment inflicted therefor is solely for the second offense, to which a greater degree of criminality is thus attached. * * * It is true that a police measure must fairly tend to accomplish the purpose of its enactment, and must not go beyond the reasonable demands of the occasion, but nevertheless a large discretion is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests. In criminal cases it must be remembered that the offense is against the state, and it does no violence to any constitutional guaranty for the state to rid itself of depravity when its efforts to reform have failed. The true ground upon which these statutes are sustained is, that the punishment is awarded for the second offense only, and that in determining the amount or nature of the penalty to be inflicted, the legislature may require the courts to take into consideration the persistence of the defendant in his criminal course. 8 R.C.L. 271. When a person has proved himself immune to the ordinary modes of punishment inflicted upon first offenders, then it becomes the duty of government not only to seek some other method to curb his criminal propensities, that he might not continue to further inflict himself upon law-abiding members of society (In re Rosencrantz, 205 Cal. 534, 537, 538, 539, 271 P. 902), but as well, by example, to deter others in like situations from committing second offenses. In enacting that upon conviction for a second or subsequent offense against the laws, the punishment shall be one of greater severity, the legislature has acted in accordance with the dictates of a wise policy and has invaded no constitutional right. People v. Biggs, 9 Cal.2d 508, 71 P.2d 214 ; People v. Dutton, 9 Cal.2d 505, 71 P.2d 218.'
The judgment is modified by deleting the portion thereof ordering that the prior conviction be stricken in the interest of justice and that defendant be punished by imprisonment in the County Jail of the County of Los Angeles for the term of one year and inserting in lieu thereof that defendant has admitted the prior conviction and that defendant be confined in the state prison of the State of California for the term prescribed by law, and that he be delivered into the custody of the Director of Corrections at the state prison at Chino, California (California Institution for Men), and as so modified the judgment is affirmed.
WHITE, P. J., concurs.
DORAN, J., dissents. --------------- * Opinion vacated 301 P.2d 241.