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District Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bruce Allyn WALLACE, Defendant and Appellant.

Cr. 8163.

Decided: December 26, 1962

Harry Weiss, Los Angeles, and Burton Marks, Beverly Hills, for appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Louis L. Selby, Deputy Atty. Gen., for respondent.

Defendant1 was convicted of a violation of section 11500, Health and Safety Code (possession of heroin). He was also charged with a prior misdemeanor violation of said section. The court found that defendant had suffered the alleged prior conviction. Defendant was denied probation and sentenced to state prison. He has appealed from the judgment and sentence.

Defendant does not question the sufficiency of the evidence to sustain his conviction nor does he claim any error in the admission or rejection of evidence.

In seeking a reversal, defendant contends that the court erroneously held that (1) he was not eligible for probation, and (2) that in any event the court should have instituted proceedings under section 6451 of the Penal Code.

Was defendant eligible for probation?

Defendant was convicted on June 28, 1961. It was not, however, until December 4, 1961, that the court denied his application for probation and sentenced him to prison. Prior to September 15, 1961, section 11715.6 of the Health and Safety Code read in part as follows: ‘In no case shall any person convicted of violating Sections 11500 * * * be granted probation by the trial court, nor shall the execution of the sentence imposed upon such person be suspended by the court, if such person has been previously convicted of any offense described in this division * * *.’ Having previously been convicted of an offense ‘described in this division’, viz., section 11500, defendant was clearly ineligible for probationary consideration under the law in force prior to September 15, 1961. On this latter date, however, various amendments and additions to the Health and Safety Code became effective.

Section 11715.6 was amended to require that probation shall not be granted, and execution of sentence imposed shall not be suspended by the court ‘* * * if such person has been previously convicted of any felony offense described in this division, * * *.’ (Emphasis added.)

At the same time, section 11504 was added to the Health and Safety Code. That section reads: ‘As used in this article ‘felony offense,’ and offense ‘punishable as a felony’ refer to an offense for which the law prescribes imprisonment in the state prison as either an alternative or the sole penalty, regardless of the sentence the particular defendant received.' Under this definition defendant had been convicted of a ‘felony offense’.

It is thus clear that defendant was ineligible for probation at the time of his conviction June 28, 1961, and at the time his application for probation was denied and he was sentenced to the state prison December 4, 1961.

Defendant, however, argues that the legislature repealed by implication section 11715.6 of the Health and Safety Code when it adopted later in the same session section 6451 of the Penal Code. This new Penal Code section reads in pertinent part: ‘Upon conviction of a defendant for any crime in any superior court, if the judge ascertains that the defendant is addicted or by reason of repeated use of narcotics is in imminent danger of becoming addicted to narcotics he shall adjourn the proceedings or suspend the imposition of the sentence and direct the sheriff to file a petition to ascertain if such person is addicted to narcotics or in imminent danger thereof 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. * * *’ In this connection, it must be pointed out that there is a presumption against implied repeals of statutes. On this point the court, in Penziner v. West American Finance Co., 10 Cal.2d 160, 176, 74 P.2d 252, 260, stated: ‘To overcome the presumption the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation. The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together.’

It is true that both sections (11715.6 of the Health and Safety Code and 6451 of the Penal Code) deal in certain respects with persons involved in the unlawful sector of narcotic activities. Each section embodies a specific legislative policy in dealing with the narcotics problem.

Section 11715.6 of the Health and Safety Code limits the authority of the trial court to grant probation which ‘is defined as an act of grace and clemency, which may be granted by the court to a seemingly deserving defendant, whereby he may escape the extreme rigors of the penalty imposed by law for the offense of which he stands convicted.’ (People v. Hainline, 219 Cal. 532, 534, 28 P.2d 16, 17.)

Section 6451 of the Penal Code, on the other hand, does not deal with punishment. Its purpose is quite different. For the addict or person in imminent danger of becoming an addict, who can qualify under the law, a period of restraint, therapy and special treatment may appear to be more appropriate than incarceration, punishment and attempted rehabilitation in penal institutions currently available.

Not every individual convicted of a violation of the narcotics laws can qualify under sections 6451 and 6452 of the Penal Code. For those unable to qualify, incarceration, or probation in the appropriate case, is provided. It is thus apparent that section 11715.6 of the Health and Safety Code and section 6451 of the Penal Code are reconcilable and not repugnant, and that there was no repeal by implication of the former section when the latter was enacted. It therefore follows that the court did not err in ruling that defendant was ineligible for probationary consideration.

The court was not required to order proceedings instituted under section 6451 of the Penal Code for it does not appear that defendant met the qualifications for commitment under that section. There is no showing that defendant's record and probationary report indicate an absence of ‘such a pattern of criminality’ that he was ‘a fit subject’ for the program.2 (See section 6451, Penal Code, quoted supra.)



1.  Defendant's wife, Elaine Martha Wallace, was charged as a codefendant and found guilty. No appeal was taken by her.

2.  Such information as there is in the record indicates that defendant did not meet the conditions of section 6451 for commitment and treatment thereunder. The arresting officer testified that in order to verify the information regarding defendant furnished by an informant, he called the Criminal Records Bureau which ‘disclosed that the defendant had been arrested several times for narcotics.’ The officer also testified that the informant further stated that defendant would go down to Mexico and buy heroin and bring it back here and that he was in jail in Mexico for narcotics.

FOX, Presiding Justice.

ASHBURN and HERNDON, JJ., concur.