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Court of Appeal, First District, Division 4, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Dale Irven WEST, Defendant and Appellant.

Cr. 7376.

Decided: January 09, 1970

John M. Moore, Myers, Hawley, Morley & Moore, Los Altos, for appellant. Thomas C. Lynch, Atty. Gen. of the State of Cal., Robert R. Granucci, Timothy A. Reardon, Deputy Attys. Gen., San Francisco, for respondent.

For Opinion on Hearing, see 91 Cal.Rptr. 385, 477 P.2d 409

Dale Irvin West appeals from an order admitting him to probation after a plea of nolo contendere to violating Health & Safety Code, section 11557 (maintaining a place for sale of narcotics).   Appellant had been charged by information with a violation of Health & Safety Code, section 11530 (possession of marijuana).   After denial of a motion by appellant under Penal Code, section 1538.5 to suppress evidence appellant, with the consent of the district attorney and the approval of the court, pleaded nolo contendere to a violation of Health & Safety Code, section 11557 (maintaining a place for sale of narcotics).   This was apparently done on the misunderstanding that the offense to which appellant pleaded was included within the offense charged.   Because the order must be reversed on procedural grounds, it is not necessary to relate the evidence received at the hearing on the motion to suppress evidence.

Preliminarily we consider respondent's contention that the appeal is subject to dismissal for failure of appellant to obtain a certificate of probable cause for appeal, which under Penal Code, section 1237.5 is generally prerequisite to an appeal after a plea of not guilty or nolo contendere.  Penal Code, section 1538.5, subdivision (m), provides in part that “[a] defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty.   Such review on appeal may be obtained by the defendant providing that at some stage of the proceedings prior to conviction he has moved for the return of property or the suppression of the evidence.”   Respondent concedes that the quoted language dispenses with the requirement of a certificate of probable cause to support an appeal from a judgment predicated upon a plea of guilty.  (See Moran v. St. John (1968) 267 Cal.App.2d 474, 73 Cal.Rptr. 190;  People v. Rose (1968) 267 Cal.App.2d 648, 73 Cal.Rptr. 349.)   Respondent contends, however, that because the appeal in this case is not predicated upon such a plea but upon a plea of nolo contendere, the exception of Penal Code, section 1538.5, subdivision (m), does not apply.   Respondent argues that the legislative silence with regard to nolo contendere in section 1538.5, subdivision (m), indicates that a plea of nolo contendere was not to be considered within the exception to the general requirement that a certificate be obtained.

 Arguments from legislative silence are likely to be inconclusive;  here a more persuasive indication of legislative intent is available.  Penal Code, section 1016, subdivision 3, provides in part that “[t]he legal effect of [a plea of nolo contendere] shall be the same as that of a plea of guilty, but the plea may not be used against the defendant * * * in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.”   This language explicitly declares legislative intent that there shall be a single distinction between a plea of nolo contendere and a plea of guilty.   The mere omission, in the later enactment of section 1538.5, of a separate reference to a plea of nolo contendere, does not indicate an intention to create new distinctions between the pleas.   Moreover there is nothing to indicate why the Legislature might intend such a result.   We hold that a certificate of probable cause was not prerequisite to the present appeal.

 The information charged appellant only with a violation of Health & Safety Code, section 11530 (possession of marijuana);  it specifically recited that appellant did possess marijuana.  Health & Safety Code, section 11557, which penalizes one “who opens or maintains any place for the purpose of unlawfully selling, giving away or using any narcotic” requires proof of “opening” or “maintaining” the place in question.  (People v. Horn (1960) 187 Cal.App.2d 68, 72, 9 Cal.Rptr. 578;  People v. Holland (1958) 158 Cal.App.2d 583, 588, 322 P.2d 983.)   Neither the language of the information, nor the elements of the offense charged, includes the elements of “opening” or “maintaining.”   Thus a violation of Health & Safety Code, section 11557 is not included within the charged violation of Health & Safety Code, section 11530.  (People v. Marshall (1957) 48 Cal.2d 394, 399, 405, 309 P.2d 456;  In re Hess (1955) 45 Cal.2d 171, 288 P.2d 5;  see also Witkin, California Criminal Procedure, §§ 542, 543.)   Therefore the judgment of conviction must be reversed.  (In re Hess, supra;  Witkin, California Procedure, § 552.)   We cannot at this stage of the proceedings dispose with finality of the search and seizure points which appellant has advanced;  therefore we shall leave consideration of that point to further proceedings which may follow the entry of a valid plea.

The order of the trial court granting probation is reversed with directions to rearraign appellant for plea.