People v. Bravo

California Court of Appeal Oct 13, 1965 No. Crim. 9895Published

Before: Herndon

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Holding. The trial court erred by using a probation report to determine the defendant's guilt for a more serious offense after accepting a guilty plea for a lesser included offense. The court held that once a plea to a lesser included offense is accepted, it is binding, and the judgment must be modified to reflect the conviction for that lesser offense.

Issues

Whether a trial court may determine a defendant's guilt for a more serious offense after accepting a guilty plea for a lesser included offense based on a probation report.
Whether a plea to a lesser, necessarily included offense is binding upon the trial court once accepted.

Disposition. Modified and affirmed

Quotations verified verbatim against the opinion

“We regard this latter action as improper.”

“By a parity of reasoning, if such plea to a lesser, necessarily included offense is accepted and acted upon by the trial court, it should be binding upon it.”

“We therefore treat this appeal as one taken from a judgment on a plea of guilty but we correct the judgment to reflect the fact that the appellant’s conviction was for a violation of section 11500”

HERNDON, J.

Defendant appeals from the judgment convicting him of possessing heroin for purposes of sale in violation of section 11500.5 of the Health and Safety Code. Appellant was found to have suffered three prior felony convictions including two prior narcotic offenses.

In the court below and upon this appeal counsel for both the People and the defense have treated the judgment herein as a disposition based upon a plea of guilty. Counsel appointed by this court has so indicated in his review of the appeal filed herein. While this treatment undoubtedly is substantially

[461]

correct, the record does show the need for a technical modification.

In the trial court, appellant, with the consent of counsel and the prosecuting attorney, offered to,

and did,

plead guilty to the crime of possessing heroin in violation of section 11500 of the Health and Safety Code. Nevertheless, while this plea was apparently accepted by both parties and by the court, a further stipulation was entered into which purported to authorize the court to determine at the time of the probation and sentence hearing whether or not the possession admitted by appellant had been for the purpose of sale. At the indicated hearing, the court, presumably acting upon the material contained in the probation report, “found” appellant guilty of the more serious crime of possession for purposes of sale. We regard this latter action as improper.

Unlike crimes such as burglary and robbery which are divided into degrees, for purposes of punishment, dependent upon the time and manner in which the crime itself was committed (Pen. Code, §§ 211a and 460), or crimes such as statutory rape where the jury is given the power of recommending the punishment (Pen. Code, § 264), sections 11500 and 11500.5 of the Health and Safety Code define two separate and distinct crimes. Obviously, of course, the possession penalized by section 11500 is a lesser offense necessarily included in possession for purposes of sale under section 11500.5.

The elements of the two crimes are different for purposes of establishing the guilt of the accused, and not merely for purposes relating to punishment after guilt has been established. “The corpus delicti of possessing a narcotic for sale is (1) possession of the narcotic by someone, and (2)

People v. Bravo

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HERNDON, J.

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