People v. Bradford

HERNDON, J.

By an information filed on May 15,1961, it was charged that appellant was in possession of heroin on April 5, 1961, in violation of section 11500, Health and Safety Code. No prior conviction was charged in this information. At appellant’s request the matter was continued from time to time until October 10, 1961. On this date the cause was duly submitted on the transcript of the preliminary hearing and appellant was found guilty. The cause was continued to November 15, 1961, for appropriate disposition.

On September 25, 1961, during the pendency of the cause above mentioned, a second information was filed charging appellant with a further violation of said section 11500 allegedly committed on August 2, 1961. The latter information alleged that on May 5, 1959, appellant had been convicted of a violation of said statute which violation had been classified as a misdemeanor. On November 10, 1961, appellant entered a plea of guilty to this charge, and the court found the allegation of the prior conviction to be true. The latter cause was thereupon continued to November 15, 1961, for disposition in conjunction with the other pending cause. It was stipulated that a probation report which had been filed in the first cause might be considered in both.

On November 15, 1961, the date set for probation hearing and sentencing in both matters, appellant requested the court to institute proceedings under section 6451 of the Penal Code as recommended in the probation officer’s report. This section provides in applicable part as follows:

“Upon conviction of a defendant for any crime in any superior court, if the judge ascertains that the defendant is addicted or by reason of repeated use of narcotics is in imminent danger of becoming addicted to narcotics he shall adjourn the proceedings or suspend the imposition of the sentence and direct the sheriff to file a petition to ascertain if such person is addicted to narcotics or in imminent danger thereof unless in the opinion of the judge the defendant’s record and probation report indicate such a pattern of criminality that he does not constitute a fit subject for commitment under this section ...”

In response to appellant’s said request, the trial court stated that appellant did not qualify under this section for

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