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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Bobby Gerald DAVIS, Defendant and Appellant.

Cr. 4377.

Decided: May 28, 1981

Quin Denvir, State Public Defender, appointed by the Court, Antonia D. Radillo, Deputy State App. Defender, Sacramento, for defendant and appellant. George Deukmejian, Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher and James Ching, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


Appellant stands convicted after jury trial of selling heroin (a felony) and being under the influence of heroin (a misdemeanor) in violation of Health and Safety Code sections 11352 and 11550.   He contends for several reasons that the felony and misdemeanor counts were improperly joined for prosecution in the superior court.   He also asserts sentencing errors.

The procedural history of the case is as follows:  On January 8, 1979, a criminal complaint was filed in the Fresno Municipal Court alleging in count I that appellant had violated Health and Safety Code section 11352, sale of heroin, on October 19, 1979;  count II alleged a violation of Health and Safety Code section 11550, being under the influence of heroin, on January 4, 1979.   After a preliminary hearing, the magistrate found probable cause to hold appellant to answer on the felony charge of sale of heroin.   The order holding appellant to answer stated:  “[misdemeanor] to accompany felony charge.”

An information then was filed in the superior court accusing appellant of the felony offense of selling heroin in count I and also accusing him of the misdemeanor offense of being under the influence of heroin in count II.   The information alleged that “all of the acts of the said [appellant] described in the First and Second counts of this Information constitute different offenses of the same class of crimes and offenses and/or were connected together in their commission.”

Appellant thereafter moved under Penal Code section 995 to set aside both counts of the information, arguing the evidence adduced at the preliminary hearing was insufficient to hold appellant to answer on count I, and as to count II there was no evidence presented at the preliminary hearing.   The motion was denied as to both counts.

On the first day of trial, before a jury was empaneled, appellant moved to sever count II from count I on the ground that joinder was too prejudicial because the jury would infer if defendant was guilty of one crime, he was also guilty of the other.   The motion was denied.

At the sentencing hearing following appellant's conviction on both counts, the judge denied probation without stating any reasons for his sentencing decision;  however, he stated that the aggravated prison term of five years would be imposed for the following reasons:

“The reasons are primarily because of the prior criminal record of this defendant, which ranges from the time he was 15 years old as a juvenile until—at that point until age 21, there was practically not a year of his youth from age 15 on that he was not in trouble with the law in one form or another, and including as I recall, one commitment to CYA on Nov[e]mber 3rd, 1961 or thereabouts.   When he became an adult, it was a continued—continuous course of criminal activity involving various charges, sentence, prior commitment to state prison.   I think he was sentenced initially to CRC about 1972 and was returned four different times over the next several years.

“And finally, he was found to be not a fit person for continuation and was excluded from the civil addict program.   For all of these reasons, the court finds it is appropriate in this case to sentence the defendant to—and the court does sentence him to the aggravated term of five years in this case.”

Appellant contends the sentencing judge erred by failing to state reasons for denying probation and by relying upon appellant's prior CRC commitment as a circumstance in aggravation.


Officers in the Narcotics Division of the Fresno Police Department supervised a controlled heroin buy on October 19, 1978, during which Gail Abello purchased heroin from her former boy friend, appellant.   Prior to the narcotics purchase, Ms. Abello was searched and was supplied with funds and a vehicle which had also been searched for contraband.   Abello drove this car to the designated meeting place for the sale, in accordance with a plan she and appellant had arranged during a telephone call monitored by police.   Several police officers in their respective cars participated in a surveillance of appellant and Ms. Abello during the operation.   After Ms. Abello made her contact with appellant, she gave Officer James Bernard two balloons which were subsequently determined to contain heroin.

As to the misdemeanor alleged in count II, Officer Bernhard testified that on January 4, 1979, when he arrested appellant on the sales offense charged in count I, he noticed that appellant appeared to be under the influence of narcotics.   He asked Officer Clark, a police officer with special training related to drug use, to examine appellant.   Clark noted that appellant appeared relaxed and sleepy, that his pupils were constricted, and that his arms had fresh and old track marks.   Officer Clark asked appellant to submit to a urine test and appellant refused, stating:  “Hell, no.   I know better than that.”   Based upon his examination of appellant, Clark was able to form the opinion that appellant was under the influence of an opium alkaloid at that time.


 Appellant contends that his Penal Code section 995 motion should have been granted as to the misdemeanor count because no evidence relating to this count was presented at the preliminary hearing.   The contention fails.   Penal Code sections 859 and 859b 1 when read together direct the magistrate at the time the defendant appears for arraignment on a public offense over which the superior court has original jurisdiction to set a time for a preliminary examination if the public offense is a felony.   No statute requires a preliminary examination for a misdemeanor.

In Kellett v. Superior Court (1966) 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206, the Supreme Court held that the Legislature intended by amendments to Penal Code section 954 to require joinder of related offenses in a single prosecution to prevent harassment of the defendant and to achieve judicial economy (Id., at pp. 825–827, 48 Cal.Rptr. 366, 409 P.2d 206).   Nothing in Kellett suggests the Supreme Court or the Legislature intended the procedural safeguards governing felonies to be extended to misdemeanors.

The rationale for requiring a preliminary hearing where a felony is charged is to afford greater protection to those charged with serious crimes.  (See Jones v. Superior Court (1971) 4 Cal.3d 660, 667–668, 94 Cal.Rptr. 289, 483 P.2d 1241).   The mere fact that a misdemeanor is being tried with a felony in the superior court does not alter the nature of the misdemeanor charge;  nor does the superior court procedure deprive the defendant of any substantive rights or expose him to any risk of greater punishment for the misdemeanor.   We, therefore, see no reason to require a preliminary examination for a misdemeanor triable in the superior court.   Nothing in the cases cited by appellant persuades us to the contrary (see Burris v. Superior Court (1974) 43 Cal.App.3d 530, 538, 117 Cal.Rptr. 898;  People v. McKerney (1967) 257 Cal.App.2d 64, 64 Cal.Rptr. 614;  People v. Hardin (1967) 256 Cal.App.2d Supp. 954, 64 Cal.Rptr. 307).2

 We turn now to appellant's contention that joinder of the felony and misdemeanor charges was improper because the crimes were not related in their commission nor were they of the same class of crimes nor were they based on the same act punishable under different provisions of the law.

Penal Code section 954 provides in relevant part that two or more different offenses “connected together in their commission” or of the “same class of crimes” may be charged in the same accusation or may be consolidated for trial;  however, the court “in the interests of justice and for good cause shown, may in its discretion order that the different offenses ․ be tried separately ․”

Aydelott v. Superior Court (1970) 7 Cal.App.3d 718 at page 722, 86 Cal.Rptr. 713 explains:

“For purposes of joinder, offenses are deemed to have been ‘connected together in their commission’ where there was a common element of substantial importance in their commission, even though the offenses charged did not relate to the same transaction and were committed at different times and places and against different victims.  [Citations.]  Similarly, within the meaning of section 954, offenses are ‘of the same class' if they possess common characteristics or attributes.  [Citations.]”

In the present case, heroin is the common element of substantial importance in the two counts charged in the information.

In People v. Winston (1956) 46 Cal.2d 151, 293 P.2d 40, our Supreme Court held that section 954 authorized joinder of three counts of furnishing marijuana to minor girls and one count of possessing marijuana on a different date.   This case is dispositive of appellant's argument that joinder in the present case is not allowed under the statute.

Appellant next contends that even if joinder was allowable under the statute, the trial court should have granted his motion for severance because a joint trial on these offenses was too prejudicial.   Appellant argues that the evidence of his use of narcotics in the misdemeanor count may well have convinced the jury that he was a heroin addict, thereby establishing a motive for the sale alleged in the felony count.   The argument is without merit.

 A severance motion lies within the broad discretion of the trial judge;  denial of the motion will be disturbed on appeal only for abuse of discretion resulting in substantial prejudice to the defendant (People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752).   The Matson court quoted with approval the following passage from Witkin:  “[w]here the consolidation meets the test of joinder ․ the difficulty of showing prejudice from denial of severance is so great that the courts almost invariably reject the claim of abuse of discretion.”  (Ibid.)

Even if the charges had been severed, the evidence that appellant was observed under the influence of heroin arguably would have been admissible in the felony trial.  Evidence Code section 1101, subdivision (b) provides, “Nothing in this section prohibits the admission of evidence that a person committed a crime ․ or other act when relevant to prove some fact (such as motive, ․ knowledge, ․) other than his disposition to commit such acts.”  (Emphasis added.)   That appellant may have been addicted to heroin provides a motive to sell heroin to “feed his habit.”   It also supports an inference of knowledge of the narcotic nature of heroin on appellant's part.

 Admitting evidence of uncharged offenses lies within the sound discretion of the trial judge.   The probative nature of the uncharged offense need only outweigh the prejudicial effect of the evidence (Evid.Code, § 352).

 Furthermore, a denial of the severance motion would not necessarily have been an abuse of discretion even if the misdemeanor evidence would not have been admitted had the charges been tried separately.   As stated in People v. Matson, supra:

“The judge's discretion in refusing severance is broader than his discretion in admitting evidence of uncharged offenses.  ‘The requirements of similarity that apply to the admission of evidence of uncharged offenses [citation] are not applicable when all offenses are charged.”  [Citation.]  In both cases the probative value of considering one alleged offense in light of another must be weighed against the prejudicial effect, but additional factors favor joinder.  ‘Joinder of related charges ․ ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials.’ ”  (13 Cal.3d at p. 41, 117 Cal.Rptr. 664, 528 P.2d 752.)

 Appellant next contends that the case should be remanded for resentencing because the trial court did not state its reasons for denying probation.   Indeed, the sentencing judge did neglect to state reasons for choosing prison over probation.   It has been held that a choice of prison as opposed to probation is a sentencing choice which requires a statement of reasons under Penal Code section 1170, subdivision (c).   Whether a particular court has taken the approach that reasons must be stated for the denial of probation (e. g., People v. Arceo (1979) 95 Cal.App.3d 117, 121, 157 Cal.Rptr. 10) or has taken the view that reasons must be stated for imposing a prison term, thereby implicitly explaining why probation is denied (e. g., People v. Ramos (1980) 106 Cal.App.3d 591, 599, 165 Cal.Rptr. 179), there has been agreement on the general concept that the choice of prison over probation requires articulation of reasons.

 However, error in failing to state why prison is chosen over probation has been deemed cured when the sentencing judge does state his reasons for imposing the upper base term.  (Id., at p. 600, 165 Cal.Rptr. 179.)   In the present case, the error in failing to state reasons for choosing prison over probation was cured when the trial court stated its reasons for imposing the aggravated term.

 Appellant next contends that the sentencing judge erred by relying on appellant's prior commitment to California Rehabilitation Center (CRC) as a circumstance in aggravation, to justify, in part, the imposition of the upper prison term.

Appellant relies on People v. Lara (1979) 95 Cal.App.3d 247, 158 Cal.Rptr. 847, where it was held that a CRC commitment did not constitute a prior prison term for the purposes of an enhancement pursuant to Penal Code section 667.5.   Appellant argues that the court in this case could not use appellant's CRC commitment as a prior prison term for purposes of aggravation under rule 421(b)(3).

Appellant's contention is without merit.   Rule 421(b)(3) provides that the court may consider, as a circumstance in aggravation, the fact that defendant has served prior prison terms whether or not chargeable as an enhancement under section 667.5.   This makes it clear that Lara, upon which appellant relies, is not dispositive.   Even though a CRC commitment may not be sufficient for enhancement under section 667.5, it still qualifies as a circumstance in aggravation under rule 421(b)(3).   A CRC commitment bears some similarity to a prior prison term (see People v. Valenzuela (1981) 116 Cal.App.3d 798, 803–808, 172 Cal.Rptr. 284, holding that a CRC commitment is a term in a “penal institution” for purposes of Penal Code section 666).3

 A CRC commitment may be considered a circumstance in aggravation under rule 421(b)(3).   Even if a CRC commitment does not technically fit within the language of that subsection, rule 408 makes it clear that the enumeration of certain aggravating circumstances is not intended to be exclusive.   Other criteria “reasonably related to the decision being made” may also be considered.   Reliance on a CRC commitment comports with the spirit of rule 421 because that rule lists several facts relating to the defendant and his prior record which may be considered.   In this case, consideration of a CRC commitment seems particularly appropriate because the instant offenses were narcotics related.   We conclude that a CRC commitment was well within the penumbra of rule 421.

Finally, the court's comments in this case show that the CRC commitment was considered part of the defendant's pattern of continuing criminal conduct.   This is proper under rule 421(b)(2).

The judgment is affirmed.


1.   Penal Code sections 859 and 859b are part of chapter 7, part 2 of the Penal Code governing preliminary examinations of a defendant.

2.   Even assuming that evidence of the misdemeanor offense should have been presented to the magistrate, the error would be harmless under the principle articulated in People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 165 Cal.Rptr. 851, 612 P.2d 941.   Although procedural irregularities at a preliminary hearing may be asserted by pretrial writ without a showing of prejudice, on appeal from a judgment of conviction the irregularity shall be deemed harmless absent a showing of prejudice to the defendant (id., at p. 529, 165 Cal.Rptr. 851, 612 P.2d 941).   This harmless error standard is applicable to a claim of insufficient evidence at the preliminary hearing (People v. Chambers (1980) 108 Cal.App.3d 985, 990–991, 166 Cal.Rptr. 815;  People v. Hampton (1981) 116 Cal.App.3d 193, 198–199, 172 Cal.Rptr. 25).   Appellant's claim of insufficient evidence before the magistrate on the misdemeanor count “is not such specie of error that affects the jurisdiction of the superior court in the fundamental sense of legal power to hear and determine the cause.”  (Id., at p. 199, 172 Cal.Rptr. 25.)

3.   Penal Code section 666 establishes the punishment for petty theft under certain circumstances.   It provides:  “Every person who, having been convicted of petit theft, grand theft, burglary, or robbery and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for such offense, is subsequently convicted of petit theft, then the person convicted of such subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.”  (Emphasis added.)

FRANSON, Associate Justice.

GEO A. BROWN, P. J., and HANSON, J., concur.

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