People v. Villegas

MOORE, P. J.

Having been convicted in August, 1950, of possessing a preparation of heroin and placed on probation, appellant was again accused of having committed the same offense in May, 1951. Following conviction, he was denied probation. He was thereupon sentenced to the state prison and at the same time his first probation was revoked and for the first conviction he was sentenced for a term to run concurrently with the sentence pronounced upon his offense of May, 1951. He has appealed from the judgment of conviction of the later offense and from the order denying his motion for a new trial.

No question is raised as to the sufficiency of the evidence to support the conviction. Indeed, appellant pleaded guilty to the charge. After presenting statements of the trial judge to show that the latter “felt considerable sympathy toward appellant,” it is contended that at the time appellant appeared for sentence and judgment he came within the provisions of section 11712 of the Health and Safety Code as amended in 1941 which provided for imprisonment in the county jail for not less than 90 days nor more than one year, or imprisonment for not more than six years on a first offense nor more than ten years on a second offense. From this he argues (1) that there was nothing in section 11712

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elude the granting of probation for a second offense; (2) that since section 11715.6 was amended in 1951, appellant is not chargeable under that section as then amended; therefore he must be .punished under the law of 1949 which governed at the time of the offense committed in May, 1951.

Section 11712 contains nothing but provisions for penalties for cultivating certain narcotic plants, for maintaining resorts to which narcotic addicts may go; also, it enlarges the punishment for prior offenders. It does not prohibit probation for violators of either provision. But appellant was not accused under that section. He was charged with violating section 11500 of the Health and Safety Code which inhibits the possession of a narcotic by any person except upon the written prescription of one of those authorized to prescribe narcotics.

In his attempt to obtain probation, appellant contends that section 11715.6 of the Health and Safety Code as amended in 1949 is the guiding rule. It is as follows: “In no ease shall any person convicted of violating Sections 11713, 11714, 11715, or of committing any offense referred to in those sections, or upon a second or subsequent conviction of Section 11712, be granted probation by the trial court, nor shall the execution of the sentence imposed upon such person be suspended by the court.” That section expressly prohibits probation in every ease to violators of the specified sections. Because section 11712 is not included among the statutes first listed in section 11715.6 appellant contends that the Legislature did not aim to forbid probation to a person who has violated section 11712 and that inasmuch as the trial court was sympathetic toward appellant, it unjustly denied probation because of its misinterpretation of the law. There are two answers to such contention.