PEOPLE v. WATKINS

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard S. WATKINS, Defendant and Appellant.*

Cr. 32636.

Decided: January 12, 1979

Michael S. Meza, Cerritos, for defendant and appellant. George Deukmejian, Atty. Gen., Evelle J. Younger, former Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Cynthia Sonns Waldman, Frederick C. Grab, Deputy Attys. Gen., for plaintiff and respondent.

Defendant Richard S. Watkins appeals from the judgment entered following a court trial that resulted in his conviction of two counts of selling heroin (Health & Saf. Code, s 11352) and one count of conspiracy to sell heroin (Pen. Code s 182, subdivision 1; Health & Saf. Code, s 11352). It was further found that as to the first count of selling heroin, appellant possessed one-half ounce or more of the narcotic within the meaning of Penal Code section 1203.07, subdivision (a)(2). Appellant raises the following contentions: “1. The trial court was not prohibited by Penal Code section 1203.07 from striking the 1/2 ounce allegation and granting appellant probation. 2. Penal Code section 1203.07 denies equal protection. 3. Penal Code section 1203.07's 1/2 ounce provision imposes cruel and unusual punishment. 4. Appellant was sentenced to concurrent terms on counts II and III in violation of Penal Code section 654.”

Since appellant does not challenge the sufficiency of the evidence to support his convictions, we summarily recite the dispositive facts. On July 19, 1976, appellant met James Welch in a local restaurant; appellant was not aware of the fact that Welch was an undercover Los Angeles police officer. Appellant sold Welch a sample of heroin. Appellant's codefendant Marta Cisneros[FN1] was present during the latter part of this transaction in which the three arranged a sale of a large quantity of heroin for later that day.

That evening Officer Welch accompanied appellant to a local intersection where they met codefendant Cisneros. Cisneros handed appellant a package containing heroin whereupon appellant transferred the contraband to the officer. Appellant and Cisneros were then placed under arrest.

Appellant first attacks the application of Penal Code section 1203.07 to the case at bench. Penal Code section 1203.07, subdivision (a)(2), expressly precludes a grant of probation to a defendant who has been convicted of selling more than one-half ounce of heroin.

Immediately after finding the defendant guilty and at the time a date was set for a hearing on probation and sentence, the trial court alluded to the Court of Appeal opinion in People v. Tanner, 69 Cal.App.3d 469, 138 Cal.Rptr. 167, and indicated that he would consider the possibility of striking the allegation under Penal Code section 1203.07.

Later at appellant's probation and sentencing hearing the court made the following remark: “The record should indicate that in light of the marginal involvement of the defendant in the case itself, the sales transaction, the fact of the lack of prior criminal record, But for the 1203.07 allegation, the court would not have sent the defendant to state prison.” (Emphasis added.) When defense counsel expressed his displeasure with the court's proposed disposition, the trial judge reiterated: “Well, I don't agree with 1203.07 as it applies to this situation, and I think the record should indicate and does indicate the court's comments.”[FN2]

In view of our Supreme Court's recent holding in People v. Tanner (1978, Crim. 20075) Cal., 151 Cal.Rptr. 299, 587 P.2d 1112, we believe that this case should be remanded for resentencing.[FN3] In Tanner the court held that the enactment of Penal Code section 1203.06, which prohibited granting probation to a defendant who was found to have used a firearm during the commission of a specifically enumerated felony, did not nullify the power held by a trial court pursuant to Penal Code section 1385[FN4] to strike the use finding and place the defendant on probation. Inasmuch as Penal Code section 1203.07 contains no explicit restriction on the trial court's authority derived from Penal Code section 1385,[FN5] the reasoning of Tanner applies herein.[FN6] Because the above cited comments of the trial judge do not make it clear as to whether or not he entertained the belief that he was compelled to sentence appellant to state prison, the case will be remanded to the trial court for resentencing[FN7] in light of the guidelines in People v. Tanner.

The judgment is reversed and the cause remanded for the sole purpose of resentencing appellant in accordance with the views expressed herein. In all other respects the judgment is affirmed.

FOOTNOTES

1.  In the trial below Cisneros was also convicted of the same three offenses as appellant, however, she is not a party to the instant appeal.

2.  Moreover, the judgment includes the following comments: “The Court restates its finding of September 23, 1977 that defendant as to Count 1 possessed one-half ounce or more of heroin within the meaning of Section 1203.07 Penal Code. The Court states that in light of defendant's marginal involvement in this case and because of his lack of a prior record that except for the 1203.07 Penal Code allegation the Court would not have sentenced defendant to State Prison.”

3.  Appellant's additional arguments that Penal Code section 1203.07 violates (1) the Equal Protection Clause and (2) the proscription against cruel and unusual punishment were rejected by our colleagues in Division Five of this appellate district in their opinion in People v. Solorzano (1978) 84 Cal.App.3d 413, 415-417, 148 Cal.Rptr. 696 (hearing denied). We adhere to the views expressed therein.

4.  Penal Code section 1385 provides: “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.”

5.  Penal Code section 1203.07 contains the following introductory language which also appears at the beginning of Penal Code section 1203.06: “Notwithstanding the provisions of (Penal Code) Section 1203, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons: . . . .”

6.  In Tanner, the court stated that its holding in respect to striking use findings would apply to “those cases presently pending on appeal in which the defendant can demonstrate that he made a timely claim that the trial court retained the power to strike the use allegation or finding notwithstanding the provisions of section 1203.06 and probation was nonetheless denied . . . so long as the record does not clearly indicate that the trial court would have denied probation even if it had been aware that its power to strike under (Penal Code) section 1385 remained intact.” (People v. Tanner, Supra, —- Cal.3d at p. —- fn. 19, 151 Cal.Rptr. at p. 310 fn. 19, 587 P.2d at p. 1123 fn. 19.) In the instant case while appellant did not specifically make a Penal Code section 1385 motion below, the trial judge's remarks are sufficiently ambiguous on the point of whether he believed he had the authority to strike the possession finding and place appellant on probation, we believe that appellant should be able to raise this issue on appeal.

7.  For the guidance of the trial court in resentencing appellant, we note that his contention that he was improperly sentenced to concurrent terms is correct. Appellant was sentenced to state prison on the first count of selling heroin. The county jail sentences imposed for the second count of selling heroin and the offense of conspiracy to sell heroin were to run concurrently with that imposed on the first count. Inasmuch as the three offenses were a part of one indivisible course of criminal conduct on the part of appellant, to wit, to sell Officer Welch a quantity of heroin, Penal Code section 654 precludes punishment for all of the crimes. (Neal v. California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.) Thus, execution of the last two sentences should have been stayed pending the service of the sentence under the first count, such stay to have become permanent when service of sentence under count I was completed.

COMPTON, Associate Justice.

FLEMING, Acting P. J., and BEACH, J., concur.