In re Becerra

Court of Appeal of California, Third DistrictJul 30, 1963
218 Cal.App.2d 746 (Cal. Ct. App. 1963)

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Docket No. 3390.

July 30, 1963.

PROCEEDING in habeas corpus to secure release from custody. Order to show cause discharged and petition denied. Motion for an order directing a reference denied.

Robert Carl Anderson, under appointment by the District Court of Appeal, for Petitioner.

Stanley Mosk, Attorney General, and Edsel Haws, Deputy Attorney General, for Respondent.


THE COURT.

In 1959 petitioner was convicted in Sacramento County of selling narcotics in violation of then section 11500 of the Health and Safety Code. (See People v. Beccera, 175 Cal.App.2d 53 [ 345 P.2d 269].) He is now confined in the state prison as the result of that conviction. The Sacramento County charge included an allegation that in 1954 he had been convicted in Los Angeles County of a violation of Health and Safety Code section 11721. He admitted this prior conviction. As a second offender he suffers an augmented prison term. [1] His petition for habeas corpus challenges validity of the prior conviction. The challenge is based on Robinson v. California, 370 U.S. 660 [82 S.Ct. 1417, 8 L.Ed.2d 758], decided June 25, 1962. The Robinson case nullified section 11721 so far as it attempted to impose criminal penalties for narcotics addiction as distinguished from use.

The evidence before us demonstrates that petitioner was charged in Los Angeles in 1954 by a criminal complaint which alleged conjunctively that he "did wilfully and unlawfully use and be addicted to the unlawful use of narcotics." To this complaint he pleaded guilty. His plea resulted in a conviction of both elements alleged in the complaint, that is, use as well as addiction. ( People v. Mullane, 182 Cal.App.2d 765, 768 [ 6 Cal.Rptr. 341].) Since he was convicted not alone of narcotics addiction but of narcotics use as well, the prior conviction is not affected by Robinson v. California.

Petitioner has filed a motion for an order directing a reference, which motion is denied. The petition for the writ of habeas corpus is denied and the order to show cause discharged.

Petitioner's application for a hearing by the Supreme Court was denied September 18, 1963.