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District Court of Appeal, Second District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Karl SIDENER, Defendant and Appellant.*

Cr. 7472.

Decided: September 07, 1961

Ellery E. Cuff, Public Defender, Fred Kilbride and James L. McCormick, Deputy Public Defenders, Los Angeles, for appellant. Stanley Mosk, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

This is an appeal from a judgment wherein the appellant was convicted of a violation of Section 11500 Health and Safety Code.

In an information filed in Los Angeles County on April 6, 1960, the defendant was charged with possessing heroin on March 24, 1960 and further that before the commission of the offense charged the defendant was, on or about February 7, 1955, convicted of the crime of violation of Section 11500 Health and Safety Code in Los Angeles.

This court, pursuant to the Rules on Appeal, upon its own motion ordered to this court the original files in the cases referred to herein and which have from time to time been referred to by the respective parties to the end that this court would have before it that which was before the trial judge.

The public defender was appointed to represent the defendant on April 13, 1960. On April 18, 1960 the defendant, with the public defender as his counsel, pleaded not guilty to the charge and denied the prior conviction. On or about May 7, 1960 the defendant was released on bail. The premium of the bail bond was $262.50. The trial was set for May 27, 1960 and on that date the trial was continued to June 27, 1960 at the request of the defendant who was then out on bail and was represented by the public defender as an indigent, or as a person financially unable to engage an attorney.

On June 27, 1960 the defendant with his counsel, the public defender, appeared in court and both sides waived a jury trial. Among other things a hypodermic outfit and a quantity of heroin was introduced into evidence by the prosecution; also Los Angeles County Superior Court file entitled People v. Robert Sidener, No. 168,529 was received into evidence by reference. The defendant and his grandmother testified in his behalf. The latter testified in effect that the officers came into her house without a search warrant and frightened her and that she did not use heroin.

The defendant's testimony was to the effect that he had not given the officers permission to come into his room. On cross-examination the defendant denied that he had previously been convicted as charged in the information. The public defender then further advised the defendant to deny the prior conviction in spite of the fact that the judge at that time had before him the file in case numbered 168,529 which contained the judgment indicating without question that the defendant was previously convicted as charged in the information. The court found the defendant guilty as charged and at the request of defendant's counsel deferred its finding on the prior conviction and said among other things:

‘The Court: If counsel have no objections with reference to determination of the truth and falsity of the prior violation of Section 11500 Health and Safety Code, that matter may go over to the time of probation and sentence.’

Time for sentence was waived by the defendant and he suggested that the matter go over to August 10, 1960. A probation officer's report was ordered. The defendant was permitted to remain on bail. On August 10, 1960 the cause was continued to September 14, 1960. On September 14, 1960 the case was continued to September 28, 1960. On September 28, 1960 the matter was continued to October 5, 1960. On October 5, 1960 the court found the allegation of the prior conviction to be true. A probation officer's report previously had been submitted and was considered by the judge. The probation officer's report indicated that the defendant for some time had been ‘largely unemployed,’ that he had no military record because of his narcotics record The defendant reportedly had stated to the probation officer that ‘he never used narcotics,’ although the probation officer noted many marks on the veinous portions of each of defendant's inner arms which indicated that defendant was a user of narcotics. The record further recited that defendant had been involved in the possession and selling of narcotics as a juvenile.

As heretofore stated, the defendant as an adult, had been charged in an information in case numbered 168,529 with possessing a narcotic on October 22, 1954 in Los Angeles County. He was found guilty as charged in that case and was granted probation on March 3, 1955. In a letter to the probation officer at or about that time he admitted the possession of the narcotic in question. One of the conditions of his probation in case numbered 168,529 was that he pay $150.00 fine and refrain from the use of narcotics and keep away from users thereof. The judge said to the defendant at the time of the probationary hearing:

‘I have about concluded, counsel, that the best way to combat this dope problem that we have—and believe me it is a problem—is to take these people that deal with it out of circulation.—I am going to place this man on probation, but I want to warn him now that if he is back in this court on anything having to do with dope in any form that he is headed straight to State Prison. Do you understand that, sir?

‘The Defendant: Yes, sir.’ (Emphasis added.)

The defendant violated the probation granted to him in a number of respects. Among them he was convicted of violating Section 270 of the Penal Code on May 1, 1958 in Long Beach and was placed on probation in that court for three years in that particular case.

He violated the Long Beach court probation and was sentenced to a year in the county jail. He was released in six months. Incidentally, at that time he still owed a balance of $100 on the original fine imposed in the narcotics case. The probation granted for the narcotics offense referred to in case numbered 168,529 was continued in effect.

On February 23, 1960 on application of the defendant the probation officer recommended to the court that the offense as described in case numbered 168,529 of a narcotic violation be fixed as a misdemeanor and that the period of probation be terminated and the case dismissed. The probation officer noted to the judge that the defendant gave no indication of any criminal tendencies, although he had not been gainfully employed and had failed to support and maintain his children; and further the probation officer noted that the felony conviction of possessing narcotics might prove a handicap to him. The cause was then reduced to a misdemeanor, and dismissed.

As heretofore indicated, on April 6, 1960 the defendant was charged in the present information with the offense of possessing heroin on March 24, 1960 (some 29 days following his complete release and discharge from the previous narcotics offense).

On October 5, 1960 at the time of the probationary hearing on the present offense, the following occurred:

‘The Court: In this case the Court found the defendant guilty of violating Section 11500 of the Health and Safety Code of this State and at the present time it makes the finding that the allegation with reference to a prior conviction for a violation of Section 11500 Health and Safety Code on or about February 7th, 1955, is true; and furthermore, that it was thereafter reduced to a misdemeanor. Now is the time for pronouncing judgment. Do you waive further arraignment for judgment?

‘Mr. Kilbride: Yes, your Honor. My client fully knows the charges.

‘The Court: Very well. The Court has read and considered the Probation Officer's report. Is there any legal cause why judgment should not be pronounced and sentence passed?

‘Mr. Kilbride: Your Honor, I am in doubt—there is no legal cause other than I do not know yet what the decision of the District Attorney was.

‘The Court: I will let that be made known to you at this time. The District Attorney after due deliberation has declined to initiate a motion to strike the prior conviction alleged. It therefore ties the hands of this Court in which the Court has no discretion.

‘Mr. Kilbride: Nothing to add, your Honor.’

The probation officer in his report to the court noted that the defendant's house had been under surveillance and he had been seen on several occasions with known users of narcotics—that one such person was arrested upon leaving the defendant's house and was found to possess heroin. When the officers arrested the defendant they found heroin and hypodermic kits on the premises. He admitted to the ownership of the hypodermic kits, but denied that the heroin was his. It was also noted that this was the third time the defendant had been before the court on narcotic offenses (once as a juvenile and twice as an adult), and that despite the defendant's statements to the effect that he was not a user or dealer in heroin the physical facts belied his contentions. It was then recommended that probation be denied. The bail theretofore granted was ordered exonerated.

On October 10, 1960, the defendant filed a notice of appeal. The judge stayed the execution of the sentence pending appeal and set bail at $5,000 plus five percent. A bail bond was put up by the defendant, the premium thereon being $525. The public defender continues to represent the defendant in this court upon the basis apparently that the defendant is an indigent, or financially unable to employ an attorney—this in spite of the fact that the defendant has paid or caused to be paid out in this case the sum of $787.50 in bail bond premiums. In July of 1961 the bonding company asked for an order to exonerate the bail bond on behalf of the defendant for the reason that the defendant had been arrested by the federal officers on January 12, 1961 upon a charge of selling 28 grams of heroin on December 19, 1960 and of selling 22 grams of heroin on January 12, 1961. It will be noted the these offenses occurred while the appellant was out on bail and within ninety days of his being sentenced in the state court. The defendant apparently pleaded guilty in the federal court to one count of sale and concealment of heroin. On March 28, 1961 he was given the minimum mandatory federal sentence of five years in the penitentiary and on April 5, 1961 was confined in a federal prison for the sale and concealment of heroin.

No useful purpose would be served by setting forth the facts involved in the present case. Suffice it to say that the evidence was practically conclusive against the appellant and he makes no contention at this time with reference to the sufficiency of the evidence or to the facts of that case. His contention now is that he was deprived of his constitutional rights to due process of law in that he was sentenced under the provisions of Section 11718 of the Health and Safety Code which section it is claimed is unconstitutional in that it provides for a delegation of an inherently judicial power to the executive branch of the government

Section 11718 Health and Safety Code reads as follows:

‘In any criminal proceeding for violation of any provision of this division no allegation of fact which, if admitted or found to be true, would change the penalty for the offense charged from what the penalty would be if such fact were not alleged and admitted or proved to be true may be dismissed by the court or stricken from the accusatory pleading except upon motion of the district attorney.’

The essence of the appellant's argument is that the district attorney can now, under the law, force the judge into an order which the judge otherwise might not want to impose.

The function of a judge in a proceeding in court is fairly obvious. As said in People v. Sturman, 56 Cal.App.2d 173, 178, 132 P.2d 504, 508: ‘The judicial power is the power of a court to make and enter a final judgment with respect to the rights of persons or property upon a defined issue presented by adversary parties. * * *’

It is stated in In re Berman, 105 Cal.App. 270, 273, 287 P. 373, 375: ‘* * * [M]atters of policy affecting the prosecution (of a criminal case are not within the province of the courts). These are questions for the district attorney, * * *’.

A reading of the section in question indicates that the judge is in no way limited or restricted from determining the truth or falsity of the charge of the prior conviction. Indeed it is clear that it is the duty of the judge to make such a finding. The only question involved is whether the judge, in a narcotics case, can presently strike a prior conviction without the motion of the district attorney to do so having first been made. The judge in this case followed the law as written. He made no statement to the effect that but for the statute in question he would have struck the prior conviction and sentenced the defendant as a first offender and, of course, he did not strike the prior conviction.

Section 1385 of the Penal Code reads as follows:

‘The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.’

Sections of substantially the same phrasing as is contained in Section 1385 are to be found in at least the following states: Idaho Code Ann. 19–3505; Iowa Code 795.5; Minnesota Statutes 631.21; Montana Revised Code Ann. 94–9506; Nevada Revised Statutes 178.510; New York Criminal Code 672; N.D.Revised Code, Section 29–18–05; Oklahoma Statutes, title 22, Section 816; Oregon Revised Statutes, 134.160; S.D.Compiled Laws Ann. Section 4811; Utah Code Ann. 77–51–4; Washington Revised Statutes Ann. Section 2314.

Nolle prosequi was intended to be used in only the most unusual cases and then only to prevent a grave injustice. The power was put into the hands of the prosecutor in this country following the system as adopted in England. In spite of the fact that the authority was to be used only in unusual cases, the books disclose that prosecutors abused the authority and as a consequence various statutes were adopted to curb the prosecutor. Section 1386 of the Penal Code in this state abolished the entry of a nolle prosequi and at the same time Section 1385 of the Penal Code was adopted to provide for what nolle prosequi had theretofore accomplished. In other words, the Legislature attempted to put a stop to the practice of prosecutors in compromising cases, bargaining for pleas and other similar activities—to put a stop to the ‘spirit of an auction’ in the administration of justice. (See article by Raymond Moley, 2 So.Calif.L.Rev. 97–127.)

The earliest case of any consequence to be found in this state which discusses or determines the matter is People v. More, 1887, 71 Cal. 546, 12 P. 631. Therein the Superior Court judge dismissed a criminal action and the prosecution appealed. The Supreme Court said with reference thereto:

‘* * * But the order in question, is in its nature and character, one from which the people cannot appeal. The power under which the order was made is substantially the same as that held by the attorney-general in England, and by the prosecuting officer in many of the American states, to enter a nolle prosequi. The court, for the purposes of the order of dismissal, takes charge of the prosecution, and acts for the people. It holds the power to dismiss, as the attorney general in England holds the power to enter a nolle prosequi, by virtue of the office and the law; and it is exercised upon official responsibility. The court, having acted for the people, and under express power granted by them to so act in their criminal prosecutions, there is no appeal on their part for such action. Of course, if a defendant should appeal from such an order, as he well might if it were made after the impaneling of a jury, a different case would be presented. (Commonwealth v. Tuck, 20 Pick. 356, 365.)’

The language above set forth is quoted with approval in People v. Valenti, 49 Cal.2d 199, 207–208, 316 P.2d 633.

22 C.J.S. Criminal Law § 456, pages 704 and following, sets forth a dissertation on nolle prosequi. There it is said in part as follows:

‘Section 456. Nolle Prosequi.

‘A nolle prosequi is an entry of record that the prosecution will proceed no further; and while it is not an acquittal, it constitutes a termination of the particular prosecution.

‘Nolle prosequi is a formal entry on the record by the prosecuting officer by which he declares that he will not prosecute the case further, either as to some of the counts of the indictment, or as to part of a divisible count, or as to some of the persons accused, or altogether.’

‘Section 457.

‘In the absence of statutory regulation, the power to enter a nolle prosequi is vested in the prosecuting official, but the conditions of its exercise may vary according to the stage of the prosecution.

‘At common law, only the attorney-general could exercise the power to enter a nolle prosequi on an indictment, and unless by statute the authority is transferred elsewhere, this power is still reposed in the attorney-general or in the several public prosecutors. Moreover, in some jurisdictions the power to enter a nolle prosequi is specifically vested in the public prosecutor by statutory of constitutional provisions. It is generally recognized that the right to enter a nolle prosequi varies according to the stage of the prosecution, there being three periods of the prosecution in which a nolle prosequi, may be entered, namely, before the jury is impaneled, while the case is before the jury, and after the verdict.

‘C. Leave of Court

‘In the absence of a statutory requirement, leave of court ordinarily is unnecessary to the entry of a nolle prosequi before the jury is impaneled, although thereafter leave may be required.

‘At common law, and under the general rule prevailing in the absence of statute, the matter of entering a nolle prosequi rests entirely within the discretion of the prosecuting officer, without leave of court, at all stages of a criminal prosecution before the jury are impaneled, or, as is sometimes stated, before trial, or before the jury is charged with the trial of the case. In some states, however, leave of court may be required, and it has been held that the entry of a nolle prosequi is within the control of the court, although usually the matter is left to the discretion of the prosecutor, at any rate, leave of the court is necessary when required by statute.

‘After the verdict the absolute power of the prosecuting officer to enter a nolle prosequi, without permission of the court or of accused, has been held to revive and continue until the sentence or final judgment; although after a verdict and a refusal to grant a motion for a new trial it has been held that the prosecutor may not dismiss the prosecution without the authority of the court.

‘It is the duty of the prosecuting officer to file a nolle prosequi in any criminal case where it is his judgment that the prosecution of the case should not continue, and a motion to dismiss by the prosecuting official is merely in the nature of a recommendation to the court.’

‘D. Authority of Court to Direct

‘Unless authorized by statute, the court has no power to enter a nolle prosequi of its own motion, although it may advise such an entry.

‘As is explained in subdivision a of this section, at common law only the attorney-general may enter a nolle prosequi, and in the absence of statutory authorization, the court has no power to enter, or to direct the prosecuting officer to enter, a nolle prosequi, and in some jurisdictions the court is expressly prohibited by statute from so doing.

‘On the other hand, where empowered to do so by statute, the court may enter a nolle prosequi, or the entry may be with the concurrence of the prosecuting officer where the statute so directs. However, the mere fact that leave of court is required by statute for the entry of a nolle prosequi does not authorize the court to dismiss an indictment without the consent or over the objections of the prosecuting official.

‘Although the court is without authority to direct the entry of a nolle prosequi, nevertheless it may advise an entry, which advice it is unusual for the prosecuting officer to disregard; or it may enter the nolle prosequi at the instance of the prosecuting officer, or on the recommendation of the grand jury. The court may also require or impose an entry of a nolle prosequi in certain cases as a condition to granting some judgment or order which the state seeks, and which the court might otherwise withhold.’

In a note in 69 A.L.R. 240 titled, ‘Power of Court to Enter Nolle Prosequi or Dismiss Prosecution,’ it is stated: ‘* * * Hence, according to the weight of authority, the entering of a nolle prosequi lies in the sole discretion of the prosecuting officer, in the absence of statute.’ And at page 241: ‘In the absence of statute, the court has no power of its own motion, to enter a nolle prosequi to a good indictment, or to dismiss a criminal prosecution.’ The court should not, in the absence of statute, expect to interfere with the prosecutor's discretion in this respect. Furthermore, it is stated in the note that ‘A statute prohibiting a prosecuting attorney to enter a nolle prosequi without leave of court does not confer upon the court power to enter a nolle prosequi, except at the instance of the prosecuting officer.’ See also 5 Whartons Criminal Procedure 227, Section 2070 and 14 American Jurisprudence (Criminal Law) 968, Section 300; State v. Anderson, 119 Tex. 110, 26 S.W.2d 174, 69 A.L.R. 233; McDonald v. Sobel, 272 App.Div. 455, 72 N.Y.S.2d 4, affirmed in 297 N.Y. 679, 77 N.E.2d 3.

The court in People v. Bruzzo, 24 Cal. 41 in interpreting certain provisions of the California Criminal Practice Act which in effect stated that where two or more persons were jointly indicted, the court may, on application of the district attorney direct any defendant to be discharged, that he might be a witness for the prosecution, held that the trial court had no power to discharge a defendant without an application therefor by the district attorney.

In speaking of the background of the type of statutes with which we are concerned, the court in People v. Romero, 13 Cal.App.2d 667, 670, 57 P.2d 557, 558 stated:

‘* * * Formerly the prosecutor alone had authority to dismiss a criminal action, but with the adoption of sections 1385 and 1386 of the Penal Code, this authority was transferred to the court.

The legislature, in imposing this duty and responsibility upon the court, has gone one step further, however, and has required the court to spread upon the minutes for public reference the reason for its action in dismissing a felony prosecution. From the standpoint of the public welfare, potent arguments suggest themselves as to the wisdom of such a requirement. Indeed, the legislature has gone so far as to guard against the likelihood of the court doing violence to the interest of justice by providing that such order can be made only ‘in the furtherance of justice’. The obvious function of section 1385 of the Penal Code is to impose a duty on the court, but with certain limitations and conditions: the ‘limitation’ that such dismissal must be in furtherance of justice, and the ‘condition’ that the reasons for the dismissal must be entered upon the minutes. The section has nothing whatsoever to do with the rights of the defendant. For the court to fail to perform its duty, therefore, is not a matter about which a defendant can be heard to complain. The order of the court, under section 1385 of the Penal Code, in dismissing a felony action may be a matter of public concern, but in no way, either by motion or by plea, can it be seized upon by a defendant as the technical means to a coveted end.'

In People v. Mock Don Yuen, 67 Cal.App. 597, 227 P. 948, 949 the statute there under consideration provided that upon the first conviction of the offense of unlawful possession of narcotics, the defendant should be deemed guilty of a misdemeanor and that ‘for the second and each subsequent offense of which said person so convicted shall be found guilty, said person shall be deemed guilty of a felony.’ The contention was that since the second offense could not be punished as a felony unless the prior conviction was alleged in the information, then the district attorney would have it arbitrarily within his discretion to punish the prisoner for a felony or a misdemeanor by merely inserting or leaving out the fact of a prior conviction and therefore the statute was unconstitutional. The court said, ‘It would be equally as logical to contend that sections 666 and 667 of the Penal Code and all other statutes imposing greater penalties for second offenses are unconstitutional attempts to delegate legislative power. The contention is so patently untenable as to merit no further discussion.’

The federal rule is found in Rule 48, 18 U.S.C.A. (Rules of Criminal Procedure), page 377 which provides in effect that the Attorney General or the United States Attorney may, by leave of court, file a dismissal. In United States v. Shanahan, D.C., 168 F.Supp. 225, 227 and following it is stated:

“Note of Subdivision (a). 1. The first sentence of this rule will change existing law. The common-law rule that the public prosecutor may enter a nolle prosequi in his discretion, * * * prevails in the Federal Courts, In re Confiscation Cases, 7 Wall. 454, 457, 19 L.Ed. 196; United States v. Woody, D.C.Mont., 2 F.2d 262. This provision will permit the filing of a nolle prosequi only by leave of court. This is similar to the rule now prevailing in many States. A.L.I. Code of Criminal Procedure, Commentaries, pp. 895–897.' (Emphasis added.) 18 U.S.C.A.

‘Apparently, the rule as submitted to the Supreme Court by the Committee as shown by the print that was published at that time—gave the Attorney General or the United States Attorney a right to dismiss without leave of court, but required that there be filed a statement of reasons for the dismissal. The Supreme Court, however, revised the rule and adopted it as it now reads, that no statement of reasons is required but that leave of court must first be obtained. New York University School of Law, Institute Proceedings Vol. VI, pp. 170, 171 (1946).

‘In view of the above, the conclusion would seem inescapable that the Supreme Court, in approving Rule 48(a) in its present form, was expressing in positive fashion its belief that entry of a nolle prosequi by the Government is a permissive right only, requiring in all cases the approval of the court in the exercise of its judicial discretion.’

By the enactment of Section 11718 it is clear that the Legislature returned to the prosecutor a part of the authority which he formerly exercised and which, according to the cases, was at one time his absolute authority. The law obviously does not provide for the delegation of any inherently judicial power to the prosecutor and it does not unconstitutionally invade the adjudicating process of the court.

The Legislature can repeal Section 1385 of the Penal Code and reinstate nolle prosequi as it existed in the common law if it is so minded. It would seem to follow that the Legislature can adopt a measure which in effect provides that in certain types of cases the judge cannot, except upon motion of the district attorney, in effect dismiss a part of the case.

Appellant has cited the article by Judge Burke in 33 State Bar Journal 556 on ‘Striking Priors' as being in point in this particular case. The judge in that article apparently set up a hypothetical man who, many years ago, was involved in an illegal narcotics transaction and who quite recently, very inadvertently and unthinkingly again became involved in an illegal narcotics transaction. The judge pointed out how bad it would be to treat that individual as a second offender and further pointed out his own philosophy that the penalties set up by the Legislature were too severe and that there are other more appropriate ways and methods to handle narcotic peddlers and users. However, in concluding, Judge Burke said at page 569: ‘Finally, individual members of the Legislature may differ and may desire to spell out clearly and positively that the general power of dismissal in the interests of justice should not include the right to strike a prior. No doubt that is within the power of the Legislature.’ It appears that Section 11718 is the answer to the suggestion. The Legislature did, however, make an investigation before it acted upon the matter.

In the ‘Third and Final Report of the Joint Judiciary Committee on Administration of Justice,’ page 53 and following it is set forth among other things as follows:

‘The alarming increase in narcotics offenses had become a source of concern to both local and state officials by the early 1950's. The Legislature in 1953 and 1954 sought to stem the tide by enacting bills providing heavier mandatory sentences for those convicted

‘Until that time, a person found guilty of addiction might be sentenced to three to six months in the county jail, or he might draw a suspended sentence. The new legislation required that everyone convicted serve at least three months in jail, and the court was given power to place them on probation for five years.

‘Before 1953 a convicted seller of narcotics might draw 6 to 12 months in the county jail, or up to six years in prison; this was for a first offense. The legislature changed the possible prison sentence to five years to life. If the defendant had a prior conviction for narcotics, he could draw 10 years to life.

‘For possession of narcotics, the first-offense term remained the same—a year or less in county jail, 1 to 10 years in prison. But the penalty for second offenders, which had been 1 to 10 years, became 2 to 20.

‘The language of the legislation seemed to leave no doubt that the judge and jury must take cognizance of a prior conviction; it could not be overlooked or thrust aside. The wording of Section 11712 in Division X of the Health and Safety Code, for instance, provided that a first offender convicted of possession ‘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.’ Then it continued:

‘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.

‘Similar mandatory wording was placed in Sections 11713 and 11714 dealing with second offenders convicted of selling narcotics.

‘The Legislature also gave the courts specific instructions that prior convictions were not to be ignored when a case was presented for trial. * * *

‘Despite these several sections in the Penal Code and the Health and Safety Code, trial courts, particularly in Los Angeles County, usually ignored prior convictions when sentencing defendants.’

It was therein further set forth under the title, ‘Investigation In Los Angeles,’ as follows:

‘Since most complaints from law enforcement officials and others had centered around Los Angeles courts committee investigators made a detailed check of what happened to convicted narcotic offenders there during a test period, the 11 months from April, 1957, through February, 1958.

‘The investigation disclosed 321 convicted persons had come up for sentencing who were identified as having at least one prior narcotics conviction. Of these, 253 (79 percent) were sentenced as if they had been first offenders; that is, the judge ignored or struck their previous offenses in determining the sentence. This made it possible for the judge to grant them probation, and 35 were so treated. For the others, it meant they were eligible for lighter jail or prison terms.

‘The majority of the defendants were charged with possession of narcotics, a total of 245. The judges, it was found, had disregarded the previous convictions in 74 percent of these cases. The 182 fortunate ones then were sentenced as follows:

‘The remaining 86 defendants having prior convictions were found guilty this time of selling narcotics. The judges struck the priors for four out of five of them! Their sentences were:

‘The committee checked six other large counties—San Francisco, San Diego, Alameda, Santa Clara, Ventura and Kern—to ascertain whether judges there have a policy of striking prior convictions in narcotics cases. None of them does, so far as the committee could learn. Several enforcement and court officials in these counties expressed shock at the Los Angeles practice. * * *

‘No doubt there are instances where the interests of justice require the ignoring of prior convictions and the imposition of the lighter sentence reserved for first offenders. But when this occurs in over 80 percent of the sentences set by certain judges for narcotics pushers with prior convictions, there is something wrong with either the law or the judges' philosophy. From the statements made by some judges, it is apparent that they look upon narcotics offenders, even the pushers, too much as sick people and not enough as criminals, and conceive it to be their primary duty to rehabilitate and re-educate them, instead of punishing them as an example to other dope traffickers.

‘This viewpoint has its place, but there is another point of view much more important: the right of society to rid itself of the narcotics pushers and to stop the infection from being spread to countless thousands of new victims.

‘Two things appear certain: The heavier sentences for repeater narcotics offenders enacted in 1953 have been largely avoided by some judges, and the sale and use of narcotics continues to grow and grow, with its inevitable consequence on vice and crimes of all kinds.’

In the particular case before us, Sidener had been twice before involved in narcotic offenses. In fact, he had been completely released from his last offense less than 30 days before he was caught doing the very thing which resulted in the judgment in this case, and within less than ninety days following the pronouncement of judgment in this case and while out on bail he was caught by the federal officers selling heroin.

Judges of courts should be guided by the rules or procedure made and adopted by the Legislature. Persistent offenders should be treated for just what they are. The public is entitled to be protected from such predators. No one can help having pity and sympathy for the recidivist who has made a miserable failure of his life, but that does not necessarily mean that the recidivist should be permitted to continue to prey on society time after time and on each occasion when he is caught to be sentenced as a ‘first offender.’

No judge should be permitted to nullify a legislative enactment simply because he does not agree with the philosophy of the legislative enactment as adopted. If any judge is hostile to the law he should present himself before the Legislature and attempt to get the law changed to suit his views. Indeed, the record demonstrates that that is exactly the history of the statute in question. If the law as written is not effectuated it stands as a sham and ultimately is looked upon with contempt and derision.

There is nothing new or unsual about enactments which seemingly restrict or restrain judges and properly so.

The judgments is affirmed.

FOURT, Justice.

WOOD, P. J., and LILLIE, J., concur in the judgment.

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