People v. Gentry

California Court of Appeal Oct 11, 1974 No. Crim. No. 6649Published

Before: Whelan

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Holding. The court held that while the trial court lacked statutory authority to initiate civil narcotic commitment proceedings for a defendant currently on probation for the same offense, the subsequent revocation of probation and imposition of sentence were within the court's jurisdiction and did not constitute an abuse of discretion.

Issues

Whether the superior court had jurisdiction to remand the defendant to the criminal division after initiating civil commitment proceedings.
Whether the criminal division had jurisdiction to impose sentence in the underlying criminal cases.
Whether the trial court abused its discretion in finding the defendant unfit for the California Rehabilitation Center due to a pattern of criminality.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Neither the pendency of commitment proceedings under Welfare and Institutions Code section 3051, nor an actual commitment to CRC, would deprive the criminal court of jurisdiction to impose sentence”

“The subsequent revocation of probation and imposition of sentence were not in excess of jurisdiction, and were not, under the then existing circumstances, abuses of discretion.”

“There was no abuse of discretion in the judge’s decision that defendant’s record and probation report indicated such a pattern of criminality that he did not constitute a fit subject for commitment”

[446]Opinion

WHELAN, J. Henry Dave Gentry, defendant, has appealed from each of two judgments imposing concurrent sentences in two unrelated criminal proceedings.

In case No. CR-26253, defendant was charged, on April 27, 1972, with possession of marijuana in violation of Health and Safety Code section 11530 (now § 11357), to which he entered a plea of guilty. On November 29, 1972, he was granted probation subject to certain terms and conditions.

In case No. CR-29027, defendant was charged, on April 24, 1973, in three counts, with unlawful possession for sale of controlled substances (heroin) in violation of Health and Safety Code section 11351, unlawful possession of marijuana in violation of Health and Safety Code section 11357, and unlawful possession of paraphernalia used in administering controlled substances in violation of Health and Safety Code section 11364.

In addition, the information in case No. CR-29027 alleged the prior felony conviction of possession of marijuana in case No. CR-26253.

On June 18, 1973, pursuant to a plea bargain, defendant, in case No. CR-29027, pleaded guilty to possession for sale of heroin; the other two counts were dismisssed and the allegation of the prior was stricken.

Upon entry of the guilty plea, a probation and sentencing hearing was set for July 9, 1973. Defendant was allowed to remain free on his own recognizance, and failed to appear for sentencing at the appointed time.

Meanwhile, a probation revocation proceeding in the first case, No. CR-26253, was commenced following the filing of the information in the second case, No. CR-29027. During the revocation hearing on April 30, 1973, the criminal proceedings were suspended pursuant to Welfare and Institutions Code section 3051, and the matter was certified to the mental health division of the superior court to determine if defendant was addicted to, or in imminent danger of becoming addicted to, narcotics.

Defendant was examined by two court-appointed medical examiners, who filed a report on May 9, 1973, stating their concurrence that defendant was then addicted to narcotics. They recommended treatment at California Rehabilitation Center. A hearing to determine if defendant was addicted was set for May 23, 1973. At that time the matter was continued until November 21, 1973, on defendant’s motion, upon the condition he participate in the local narcotic treatment program at Deer Park.

People v. Gentry

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