People v. Miller

[760]

Opinion

STRANKMAN, J.

I.

Background

Appellant Harry Benjamin Miller II was charged with six felony counts of sale of heroin (Health & Saf. Code, § 11352) and one felony count of possession of heroin (Health & Saf. Code, § 11351). Pursuant to a negotiated plea bargain, appellant pled guilty to three sale counts, and the trial court dismissed the remaining four counts with a

Harvey

waiver

(People

v.

Harvey

(1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396]) as to the dismissed sale counts, i.e., with the reservation that these three counts could be considered at the time of sentencing.

The probation report disclosed that on six separate occasions between May 27, 1988, and June 23, 1988, appellant sold heroin to a confidential informant. The heroin was a potent black tar type sold in quantities ranging from .02 grams to half a gram. On June 24, 1988, a search warrant was served at appellant’s residence where the police found hypodermic syringes, spoons, burned cotton, and other drug paraphernalia. Appellant had been using heroin for several years and, at the time of his arrest, was using between .25 and .5 grams of heroin daily. He stated that he switched from alcohol to heroin following two convictions for drunk driving. He told the probation officer that he became involved in the sale of drugs approximately six months prior to his arrest and that his profits were expended on his own habit and to purchase more heroin for further sales.

Appellant told the probation officer that while in custody following his arrest, he experienced some withdrawal symptoms, but since his release he had not returned to the use of heroin.

Other than his convictions for drunk driving, there was no record of prior criminal convictions.

The trial court denied commitment to the California Rehabilitation Center (CRC), imposed a prison sentence, and also imposed a restitution fine of $1,000 with an additional order that $540 of the fine be paid to the Napa Special Investigations Bureau (NSIB).