PEOPLE v. ORTIZ (1963)

Defendant-appellant was charged in a grand jury indictment and found guilty by a jury of selling heroin, in violation of Health and Safety Code, section 11501. He was sentenced to state prison on August 31, 1962. He appealed from the judgment.

Defendant sold a quantity of heroin to a Department of Justice undercover agent. His entire defense was based on a claim that the officer mistook his identity. The sole contention raised on this appeal is that the trial court mistakenly ascertained that defendant was not eligible to be considered for the narcotic rehabilitation program under Penal Code, section 6451, and he asks this court to remand defendant to the trial court for the purpose of a hearing under that section. (Citing People v. Wallace, 59 A.C. 568, 30 Cal.Rptr. 449, 381 P.2d 185.)

It is apparent therefrom that in order to avoid turning the narcotics rehabilitation program into an automatic delay mechanism for every criminal defendant, section 6451 of the Penal Code establishes the following procedure:

‘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 * * *.’ [Emphasis ours.]

The law does not set forth any formalities which the trial court must follow in making the preliminary ascertainment that the criminal proceedings should be suspended and a special proceeding held to determine whether or not defendant should be accepted into the narcotic rehabilitation program. Neither does the law set forth any particular criteria that the judge must consider in so doing. Therefore, the decision is one first for the sound discretion of the trial court, and the decision should not be disturbed on appeal absent a clear showing of abuse of discretion.

On defendant's application for probation, the court expressed sympathy for defendant and appreciation of his ‘outstanding’ record of employment and expressed unhappiness that a person with the several good characteristics that the defendant displayed should have been convicted of such an offense. The court also impliedly wished that it could grant probation, but, as to the narcotic rehabilitation program, the court disposed of it in the following manner:

‘MR. VERRY: [defense counsel] I don't suppose that he would be eligible, under the present circumstances, to go to the hospital?

‘THE COURT: No. He is not here for being an addict. I notice that he had some marks on his arm at one time.

‘MR. VERRY: Yes.

‘THE COURT: And, so, apparently he is familiar with this type of thing and whether he is an addict or not, there isn't sufficient showing here.’

Thus the court found that although defendant might at some time in the past have used narcotics, there was no basis for believing that he was either addicted thereto at the time of the hearing or using narcotics to such an extent as to be in imminent danger of becoming an addict. The only reference bearing upon possible use of narcotics by defendant is contained in a question and answer upon cross-examination of defendant:

‘Q. You don't know anything about heroin?

‘A. * * * no.’

Defendant testified that he had been employed continuously by the same employer for three years as a carpet layer. The absence of any testimony or other showing of defendant's use of narcotics, the fact that he was charged only with sale and not possession, his positive testimony that he knew little or nothing about heroin, and his testimony that he had held a semi-skilled job for three continuous years with the same employer, all militate most strongly against the idea that defendant used narcotics regularly or repeatedly. A complete reading of the court's statement at the probation and sentence hearing makes it apparent that the court did, in fact, impliedly ascertain that defendant was not addicted or in imminent danger of becoming addicted to narcotics. The case of People v. Wallace, supra, 59 A.C. 568, 30 Cal.Rptr. 449, 381 P.2d 185, relied upon by defendant and People v. Bradford, 212 Cal.App.2d 403, 28 Cal.Rptr. 115, cited by respondent, are not factually similar. There, the trial judge refused to exercise his discretion, believing he had no right to do so, whereas in the present case the trial judge clearly indicated that he was exercising his discretion and indicated that there was no reason shown for believing that the defendant was an addict or in imminent danger of addiction. No other questions are raised on this appeal.

Judgment affirmed.

GRIFFIN, Presiding Justice.

COUGHLIN and GERALD BROWN JJ., concur.