People v. Solorzano

Opinion

KAUS, P. J.

Defendant was found guilty of violations of Health and Safety Code section 11352, subdivision (a) (count 1), and 11351 (count 2). With respect to each count the jury found that more than one-half ounce of a substance containing heroin was involved. Probation was denied and defendant appeals.

[415]

Defendant’s first three arguments are directed to the conviction on count 2. Since the Attorney General concedes one of defendant’s points—that within the factual context of this case count 2 “is a lesser included offense to count 1”—defendant’s other arguments relating to count 2 become irrelevant.

The Attorney General also concurs in defendant’s final claim that a minute order granting him only 26 days credit under section 2900.5 is in error and that the correct figure should be 36.

This leaves for consideration defendant’s main argument that section 1203.07, subdivision (a)(2), of the Penal Code is unconstitutional.

Defendant attacks section 1203.07 on a broad front:

(1) He claims that it violates the doctrine of separation of powers. (See

People

v.

Tenorio

(1970) 3 Cal.3d 89, 93-95 [89 Cal.Rptr. 249, 473 P.2d 993].) This argument is hard to follow in the light of

People

v.

Navarro

(1972) 7 Cal.3d 248, 258 [102 Cal.Rptr. 137, 497 P.2d 481]: “Defining offenses and prescribing punishments (mandatory or alternative choices) are legislative functions designed to achieve legitimate legislative goals and objectives.”

Navarro

approves what was said in

People