People v. Allen

Dist., Nо. 31964. Div. Second One. Nov. [Crim. 1978.] PEOPLE, THE Plaintiff and Appellant, ALLEN,

CHARLES BERNARD Defendant and Appellant.

Counsel Van de District

John K. Sondheim, B. Donald Kamp, Attorney, J. Harry Palmer, M. and District Kaplan George Plaintiff Deputy Attorneys, and Appellant.

Frank Duncan for Defendant and Appellant.

Opinion

LILLIE, Acting P. J. The trialcourt found defendant guilty for sale of heroin. Both defendant from possession People appeal (order judgment granting probation), challenging denial of his 1538.5, motion to Code, to section Penal suppress pursuant of the order People, validity granting probation. Appeal

Defendant’s Based on information that one Reeves was heroin from his dealing arrests, residence and that he had narcotic Officers Gilbert and previous knocked; went to Reeves’ housе to a voice Seegers response asking there, himself; who was Officer Gilbert identified heard sound they from the door and a toilet narcotics were running flushing believing kicked Reeves door observed outside being destroyed, open just he had flushed bathroom; Reeves but admitted just hedged finally toilet; house, if he had in the Reeves heroin down the asked any dope no; asked, search, don’t care “You if we do Reeves responded you?” “No, out. You want”; knock can search all answered yourself you and no narcotics were found. residence was searched handcuffed, arrested, Reeves told that the officers would take was nevеr him to the threatened. Officer Gilbert told station investigation he no case on him because he rid” of the heroin but “the Reeves had “got from”; the I’m interested in is stuff your guy you’re getting guy really Reeves talked and became and told him about friendly,” they “pretty “Blue,” he had been heroin from him for and the sometime time buying of sale were set and he to call offered place always up telephone, “Blue.” had no went Reeves to the station to voluntarily telephone make the call. “Blue” Reeves made with to meet him for

By telephone arrangements sale of at a certain where “Blue” $50 the worth heroin store liquor the Reeves told Officer intended to meet others for same Gilbert purpose; balloons; in small the that “Blue” heroin officers were packaged “Blue” carried in his mouth as is common informed that often narcotics was the dealers. Reeves taken to store and among liquor practice “Blue;” saw instructed when he an automobile the signal matching defendant, matched and driven who Reeves given by description “Blue,” area; into his moved gave signal description Reeves defendant, himself, Officer identified his Elliott pointed approached him to his mouth head” ordered revolver “real close his open heroin; did not out five balloons gun whereupon spit throat; Officer Gilbert his touch at the same time defendant’s gun pointed balloons, him to but he denied at defendant’s head out ordering spit it or I’ll blow head off.” said anyone up your “Spit Elliott face Defendant testified that Officer stuck his gun through window, and stuck car and Officer Gilbert into car jumped mother, out, or I’ll in his neck and said blow you your F-ing gun “Spit he out.”; were in his neck and was brains three all guns jammed neck; not were in his he could swallow because the stuck guns frightened; he have swallowed the had opportunity, “probably” balloons of heroin. the trial court’s in the record to

There is substantial evidence support into Mr. “even original assuming arguendo entry finding Reeves’ home was . . the chain an illegal,. leading quite [defendant] attenuated one and that taint has been because of the any dissipated Reeves,” conduct of Mr. and that defendant’s independent [voluntaiy] lawful. arrest was evidence,

On the issue of the the trial court admissibility head, found that the officers “held near at his gun possibly [defendant’s] throat, a few and, inches from his head” only possibly notwithstanding Gilbert, the denial Officer was “inclined to believe [defendant] ” substance, said in words and it out or I’ll blow head they off.’ ‘Spit your We are bound this factual because it is finding supported by evidence. In the motion the court commented that denying this conduct was from a and a very “disturbing” sаfety standpoint ‍‌‌‌​​​‌​​‌‌​‌​​‌‌‌‌​​​​​‌​​​​‌‌​‌​‌​‌​​‌‌‌​‌‌‌​​‍dangerous “very but concluded it was not unlawful practice,” conduct. attacks the of the evidence on both due

Appellant admissibility process Const., Amend., 1; Const., I, 14th Cal. art. (U.S. § and unreason 15) § Const., 1; (U.S. Amend., able search and seizure 4th Amend., 14th Cal. § Const., I, art. § under Rochin 13) v. 342 grounds U.S. (1952) California 183, 165 205, L.Ed. 72 S.Ct. 25 A.L.R.2d v. [96 People 1396] Bracamonte, 15 528, Cal.3d 394 540 P.2d He identifies Cal.Rptr. [124 624]. with defendant cases those in which intrusion into the human was condemned. v. (Rochin body 165, 342 U.S. 166 California, supra, [96 183, L.Ed. out]; v. Braca 186-187] forcibly pumped [stomach People monte, 394, 398; 15 Cal.3d 547, v. 71 supra, People Rodriguez, Cal.App.3d 549 administered nasal Cal.Rptr. tube]; [139 [emetic through 509] People 3 890, v. 896 Kraft, Cal.App.3d Cal.Rptr. sample [84 280] forcibly [blood Sanders, obtained]; 802, v. 268 People Cal.Rptr. [74 350] [judo United States choking v. Camer technique prevent swallowing]; Cir. (9th 254, 1976) 538 F.2d and enema cavity probed [rectal administered].)

In 165, Rochin v. 342 U.S. court held California, that the supra, high administration of an emetic solution—“ ‘stomach pumping’ produced L.Ed. vomiting” (p. 187])—constituted [96 p. impermissible police which shocked the conscience and offended basic activity of due concepts under the due clause of the Amendment, Fourteenth process process reversed the conviction. such conduct an issue Although presented constitutional Amendment, dimensions under the Fourth the court did not consider it because the rule was not then exclusionary applicable Bracamonte, the states. (See 394, v. 15 Cal.3d 399-400 People [124 528, 540 P.2d In 1975 the 624].) California Court Cal.Rptr. Supreme v. Bracamonte on the search and seizure decided ground finding People v. Scott to reach due contentions. process unnecessary P.2d court 21 Cal.3d 284 high 123] a administered in barred evidence obtained massage prostate at a in Bracamonte differ from those bench The facts rectum suspect. cases and the same elements but detect the same coercion both we Amendments and California into focus the Fourth and Fourteenth bring not which are which are under proscribеd parallel provisions “[s]earches which are made in an under the circumstances or improper justified Bracamonte, 15 Cal.3d As manner. 400.) (People supra, [Citation.]” Bracamonte, here it cannot be asserted that defendant willfully his mouth. On the search and the balloons from voluntarily ejected be issue, the said at 403 “not must there more seizure only page [citations], than cause to believe that contraband will be found probable arrest, but to a lawful there also be the search incident must justify need to the arrested from obtaining weapon prevent person Bracamonte, evidence.” 15 Cal.3d 394.) destroying found, so, The trial court therе was cause to properly probable his mouth. But the believe defendant was the contraband in concealing trial not here even the is though weapon applicable possibility, the of a was to have drawn at time commented it guns felony appropriate or or to them who be armed arrest of one unknown “may dangerous such force as is an officer use some kind of threat.” may Though present 835a, was never Code), a Pen. it (§ felon’s arrest necessaiy accomplish did was for that Nor that officers’ conduct contended here the purpose. or belief fear for himself others either officer articulate any any is The conclusion be armed or defendant dangerous. inescapable might the arrest nor neither and threat were used for the protection guns Nor, under the evidence. out the but to force defendant spit here. circumstances, the destruction of evidence applicable possibility he was scared because that he out the balloons Defendant did testify spit he had he had the no choice admitted that had but opportunity however, had that he would have swallowed them. Assuming, “probably” evidence balloons, was the swallowed the there no reason to believe While conceal or would be there is no .еvidence right destroy destroyed. Bracamonte, 15 Cal.3d 404) of criminal conduct v. (People supra, of evidence which in the record fear of destruction any nothing supports in taken “It that defendant action herein. thus might justify appears in the instant case could have been jail placed easily transported an surveillance.” v. isolation cell and under kept proper Bracamonte, 394, 404; 71 v. 15 Cal.3d Rodriguez, supra, supra, People on in his 557-558.) Actually prosecutor argument Cal.App.3d 1538.5 motion section flirted with this resolution of situation as “the course to let it better ... out of the and then recover them.”1 pass body contend that defendant was not choked or brutalized as People Rochin, Bracamonte, Cameron, Sanders and the force Rodriguez, Kraft, used was no than was more destruction reasonably necessary prevent evidence and the conduct of the officers does not descend to simply the level of found in cases. those There is little comfort for the indignities Bass, their from People quote People Cal.App.2d 778], we evidence, like verbal “Although agree physical confessions, not be accused, ‘tortured’ from the it does not may lips follow that because has merely substance behind his suspect placed is entitled to when the officer of lips, necessarily cry ‘sanctuary’ law, under circumstances, directs him to appropriate surrender it.” (P. Of course each 746.) case must be decided situation, on its own factual and the circumstances” in Bass included threat, no “appropriate weapon, use force or The officer his hand choking. merely placed defendant’s neck to him from and ordered prevent him to swallowing out,” Further, which he did. assert, “Spit attention to People calling Rand, cited cases [100 Cal.Rptr. 473] therein, that the officer’s threat to blow head off defendant’s “was never intended to be resisted,” carried out if ruse,” but was “a simply under the First, circumstances. recоrd proper nothing supports assertion that it was “a ruse” or concerns officer’s intention in connection with the threat. All that the evidence is that the shows officers were when defendant out the contraband. surprised immediately spit Second, defendant did not know it was “a and ruse” that the threat was intended” out, Third, “never to be carried “ruse,” nor do we.2 the trick or Rand, referred to in 579 and cases strategy supra, Cal.App.3d cited therein be 582-583) cannot with officers two (pp. equated holding contended, 1It was never and there is no evidence that defendant would have been in course, had he any danger swallowed the rubber Of balloons. there is аlways possibility that the rubber balloon can break while in the tract but it is a common open digestive dealers to heroin in among balloons the mouth for the obvious practice carry purpose the evidence if swallowing apprehended. Caucasian, 2Defendant who is black testified that the officers were he was alone in his dark, scared, car in the area of and it Century Figueroa, was he was his main concern was “survival,” “hurt,” killed,” not “shot or three getting (the officers testified guns there were two) me, were aimed at head “If only have been his and shot it was I dark and ... would they’d assumed, another dead just without “witnesses.” Defendant person” any under thе circumstances we cannot he had right no to make the say that had assumption, he resisted or failed to the order physically he would have been shot in the head. obey or head him to out contraband at suspect’s ordering spit they guns his head off. would blow

Defendant was not handcuffed and suffered no trial physical pain—the that court discounted his claim were in his throat guns jammed it that him from cannot be denied preventing swallowing—but fear, that he and the real would suffer suffered physical anxiety prospect or United States v. Cameron Cir. 538 F.2d (9th 1976) harm death. (See would either 258.) support Only speculation People’s pure did or the not intend shoot assеrtion reality threat, we out their but defendant’s fear that agree they carry conduct is and “a trial such asserted “disturbing” judge, very that the and emotional and by physical dangerous practice,” appellant the officer with an such threat could evoke well cause might response he had cause follow to believe that justifiable “itchy trigger finger” with which he was the threat immediately carrying through capable trial that had not out the We also with the out. spit agree have basis contraband there would been “no whatsoever following It would be without such threat. through any totally justification pull here, the officers were Needless to on the record trigger.” say, need; than all their conduct can do no less beyond encourage aggressive between violent confrontations police. suspects We are there is which to unable to conclude that basis any upon search, not this balloons should have been received uphold to reach evidence. we deem foregoing unnecessary light claims, the substance of merits due examine appellant’s process the People’s appeal. is reversed. (order judgment granting probation)

THOMPSON, J. I concurin the clear typically analysis controlling in its Justice Lillie result. precedent opinion consequently ‍‌‌‌​​​‌​​‌‌​‌​​‌‌‌‌​​​​​‌​​​​‌‌​‌​‌​‌​​‌‌‌​‌‌‌​​‍a rift This has concurring thought opinion impelled in the seamless web of California law which should decisional developed our be noted its induce may Supreme possibility presence Court to its decisions in v. 15 Cal.3d reconsider Bracamonte (1975) People 528, 540 P.2d 21 394 v. Scott Cal.3d 624], (1978) Cal.Rptr. [124 876, P.2d 578 123], 284 Cal.Rptr. [145 Bracamonte holds that use of an emetic medical to by personnel “

cause to vomit is a violation such of an suspect ‘integrity ” individual’s as to render the of an person’ process equivalent illegal search where evidence, another alternative to obtain the there the course nature, Bracamonte, is v. 15 Cal.3d at In 404.) present. (People supra, p. Scott, our court held that a intrusion in the of a form high bodily to the rectum of physician-administered prostate massage suspect obtain a semen is a invasion of both “significant sample dignity . . . ... most intimate functions ... as [involving privacy bodily extreme as the forced at issue Bracamonte and Rochin regurgitation [v. 183, 205, U.S. 165 L.Ed. (1952) (96 S.Ct. 25 A.L.R.2d California Scott, . . .” 1396)]. 21 Cal.3d at Hence Scott 294.) (People supra, p. bars evidence of there indicia a venereal disease transmitted to a guilt, molestation, victim of child obtained the process. contrast, our Court held five some weeks after its decision Supreme

in Scott that a defendant’s conduct a female victim of a assaulting forcible and forcible oral as so burglary by sodomy, rape, copulation, cause trauma manifested in could great psychological by vomiting, part not have been intended to have been reasonably Legislature within the definition of infliction as encompassed “great bodily injury” used enhance the phrase penalty burglary. Caudillo Cal.3d 580 P.2d 274].) The invasion of the female victim in upon “dignity privacy” Caudillo seems to me to be no less an intrusion her “most intimate upon functions” than was the bodily administered to the massage prostate in Scott. The the victim in suspect regurgitation Caudillo experienced by the defendant’s her him seems to me to be forcing orally copulate no less traumatic to the victim than was the regurgitation by medically means in Bracamonte. approved imposed upon suspect I hence see no in which Caudillo can be reconciled way with Bracamonte and Scott. trauma cause can Certainly psychic great than can greater injury trauma. So as the body purely physical long conduct in Caudillo is characterized as of a nature which the Legislature could not have intended to be included in the reasonably definition of infliction of conduct of a “great less drastic character bodily injury,” results similar to those desсribed in causing Bracamonte and Scott cannot be characterized as to the conscience seemingly to the shocking extent it is so described in Bracamonte and Scott.

We, course, are bound Bracamonte and Scott as they protect of crimes from conduct relevant persons suspected seeking as We bound Caudillo evidence of are guilt. protects equally however, I of a term. from enhancement defendants suggest, prison Scott, Caudillo, Bracamonte and which post-dates appears require cases be reconsidered. earlier col those HANSON, J. dissent from my portions I respectfully Allen’s and which which address defendant appeal opinions leagues’ on the must be reversed that the conviction conclude ground judgment motion made denied defendant’s that the trial court pursuant improperly as 1538.5) section (hereinafter to Penal Code section 1538.5 suppress I his mouth.1 which he out of balloons of heroin evidence the four spit affirm the conviction. would judgment did not since the trial court the People’s

Additionally addressing appeal I would to state but him sentence defendant granted prison probation, with for to the trial court remand the matter resentencing compliance section (hereinafter of Penal Code section the mandatory provisions here, which under the circumstances 1203) present require, find and state on the record “specific affirmatively sentencing that the interests of which render the case so “unusual” circumstances” defendant would best be served by granting probation. justice Appeal I affirm Suppress): Motion to Defendant’s (The reasons: of conviction for following judgment The cited cases colleagues controlling precedent First: by my defendant’s erred in that the trial court their conclusions denying support all are 1538.5 motion evidence section factually distinguish- suppress of the such a result under circumstances and do not able compel a or either cited all involved involuntary case. The cases choking instant in Chicago Justice for Research in Criminal of the Center 1“Hans W. Mattick to a likened the criminal justice system nevertheless accurately but somewhat indelicately hose; the courts—the mouth and suction power; vacuum cleaner: the police—the Cal.Rptr. 809-810 (1976) 331] bag.” Holly Cal.App.3d [133 prisons—the Hanson, omitted.) J.) (dis. fn. opn. sale, felon, free go is allowed heroin for again guilty possessing Here once irrational extension of the and further the “hose” application “hole” in through of criminal justice an system which has created upside-down rule exclusionary innocence of guilt from the the focus the criminal diverting prosecution (See Swearingen to a trial police. 3-4, Hanson, fns. which recommends J.) (dis. opn. 578-582 755] see also Wilkey, Fourth Amendment individual rights; alternative methods protecting the constable blundered? the criminal because go Rule—Should Exclusionary free Judicature, (Nov. 1978) 214-232.) pp. 957 into the of the intrusion orifices human (forcible use of a police body stomach emetic solution to force enema or pump, vomiting, prostrate to recover the contraband or In the case at evidence. bench massage) there was no and no intrusion of defendant’s chоking physical body surface police.

The of the conduct officers in the instant case in no descends to the way level of cases relied on in “indignities” present my colleagues’ “It is clear decisions,. from of these . . that opinions. reading courts were there concerned with the excessive force exerted condemning upon the individual rather than the ‘mouth’ a sacred orifice into which making contraband be and thereafter of in may placed fashion. disposed leisurely evidence, confessions, like ‍‌‌‌​​​‌​​‌‌​‌​​‌‌‌‌​​​​​‌​​​​‌‌​‌​‌​‌​​‌‌‌​‌‌‌​​‍verbal Although agree physical [I] may not be accused, ‘tortured’ from the it does not follow that lips because hаs a substance behind merely his suspect placed lips, is entitled to law, when the officer of the necessarily under cry ‘sanctuary’ circumstances here], directs him to surrender it.” appropriate [as (People v. Bass 742, 214 (1963) 746 778].) Cal.App.2d [29 Cal.Rptr. is, “In the final is, the test here itas whether analysis always

Second: under the facts and circumstances and on the total of the case atmosphere the officer’s conduct was 407, reasonable v. 53 Cal.2d 412 (People Ingle, . when tested .]) the standard aof who reasonable officer against [. in the ‘devious and devices used experienced narcotics cunning offenders to conceal Williams, their crimes.’ (People Cal.App.2d 726, 728 . .].)” v. Trevino 686, (People (1977) [. [140 243].) Cal.Rptr.

“A under section 1538.5 to proceeding evidence is a full suppress on the issues before the hearing as finder of fact. superior sitting witnesses, resolve power [Citations.] conflicts judge credibility evidence and inferences, draw factual testimony, weigh is vested in the trial court. On all favor appeal exercise of that presumptions proper and the trial court’s power, findings—whether express implied—must be if substantial upheld evidence. supported by [Citations.]” Court 13 Cal.3d Superior (Keithley)

530 P.2d 585].) case at bench the record reflects that the officers clearly

had causе to believe that defendant was at the location to make probable heroin and that he as is a (Blue), a sale of common practice among dealers, heroin was his lethal merchandise in balloons hidden in carrying the the of the sale or case of at time to swallow

his mouth for delivery to Since the were about the officers imminent by police. apprehension an armed arrest of unknown make suspect, they possibly felony because of authorized, to insure their own in order were safety certainly drawn of (none to have their the hazardous nature activity, pistols to at head in order were them defendant’s which cocked) point shoot them in him from he had time dissuade thinking gun pull an effort arrest. to escape

Therefore, the scene factor above upon only superimposed base their conclusion of which “unreasonable” my colleagues police reversal under the rule is exclusionary activity merely requiring utterance words in street simultaneous following police mother, or The out, it I’ll blow brains out.” your F-ing jargon: you “Spit of that lexicon was for the shock reaction effect in obvious hopes purpose would be startled into the reflex out the defendant response spitting He It was the 4 heroin. It worked. did. balloons balloons of stipulated and 2 officers were of 3.6 of heroin narcоtic contained grams expert out were for sale which is borne facts. they opinion possessed I am unaware of law so as to case far control any goes statutory the verbal actual officers under such circum- language exigent police war stances. As a matter officers in their conducting practical police dealers and narcotic against drug pushers trying bring rampant under control cannot be always reasonably expected problems simply Queen’s or adhere to the rules use English Queensberry Marquis still their official duties under such circumstances. Having perform that under the circumstances the officers were concluded certainly defendant, have drawn and at would authorized to their pistols pointed out, be if an had it their conduct officer said: permissible only you “Spit if it mother?” Would the conduct be he said: out.” permissible only “Spit It is doubtful defendant would have balloons certainly spit up if heroin the officers had at him and said: their merely pointed fingers “Boo.” fact defendant testified would have swallowed “probably” the balloons heroin.

Here, used the trial court found that the words strong impliedly were in the of a defendant his mouth form officers ordering empty into out the balloons of to shock defendant “ruse” or spitting “ploy” I under all the circumstanсes. and were not unreasonable heroin agree. the immediate there were at least three officer witnesses in fact that The indicate had no intention of defendant they clearly presence whatsoever their if defendant did not out the firing weapons spit The that Officer Dick whom (the balloons. Elliott one testimony Lloyd later, said used the commented I can’t believe words) “Hey, when I said it out. It came this. out right right guy just spit spit just out,” constituted substantial evidence to the trial court’s support implied that the officers used the words as a “ruse” or finding merely shock defendant into out the four balloons of heroin “ploy” spitting and did not constitute conduct. police impermissible

Third: Even the test for by analogy applying stringent balancing whether a search warrant should be authorized an actual determining intrusion described in Scott Cal.3d 284 bodily 876, 578 P.2d the from instant case in that (distinguished 123] here no search warrant was and there was no the sought intrusion), bodily of scales are a of justice heavily tipped against finding impermissible in the instant case. activity In Scott the test to determine whether the character of the balancing search is lists the factors to be considered: appropriate the ‍‌‌‌​​​‌​​‌‌​‌​​‌‌‌‌​​​​​‌​​​​‌‌​‌​‌​‌​​‌‌‌​‌‌‌​​‍following of the method to be the of reliability seriousness the employed; criminal offense and in underlying interest society’s consequent obtaining conviction; a the of law enforcement of strength evidence suspicions revealed; crime will be of the evidence and the importance sought; evidence be recovered alternative means less possibility may by violative of Fourth Amendment The freedoms. considerations foregoing are, turn, to be balanced of the intrusion. against severity proposed the above case, standards to the instant here the method used

Applying was a “ruse” the use of words which did a not involve physical bodily intrusion.

The seriousness of the criminal offense is in view of underlying great of narcotic “All impact mushrooming prоblem society. reports indicate abuse in the United States drug continues on the upswing, out control and running to all virtually levels of The spreading society. cost of abuse is . . 5,000 drug More than Americans die each staggering,. from overdose. The total cost to year drug $17 Americans is billion up A year. large absence of Americans’ percentage personal safety streets, on the businesses, in their homes attributed to the directly fact, In it is estimated drug problem. that as much as one-half of all robberies, are muggings committed burglaries addicts to drug their . habits. . .” support Holly, supra,

(dis. Hanson, fn. J.), omitted.) opn. was the balloons that defendant officers’ carrying suspiсions the fact that defendant in fact were

heroin his mouth justified by spat in that balloons of heroin was out. them important Recovery for sale sale) narcotics cases recovery (possession, possession essential for conviction. is often the actual contraband of Fourth which are less violative the alternative means In balancing the constitutional also consider freedoms we should rights Amendment traffickers of the narcotic be free of the way citizens by-product robberies, committed addicts by drug burglaries muggings officers in of law enforcement and the habits their rights support of their official duties. performance in the сase startle the tactics used present my opinion more of were much out the balloons heroin

into preferable spitting alluded to than the alternative colleagues (citing reasonable by my People 528, 624]), 540 P.2d 15 Cal.3d (1975) Bracamonte 394 v. Cal.Rptr. [124 balloons, him to to allow defendant to swallow jail, transport namely of and then recover balloons him in isolation until he defecates place is the first there heroin from his excretion. In the danger place from an could be in defendant’s life distinct jeopardy possibility in from stomach acids. the balloons my overdose Secondly, by rupturing on law enforcement the obscene ridiculous view indignity imposed official duties to of their them in paw officers performance by requiring loss evidence far feces retrieve outweighs any through dope pusher’s defendant have been by which of experienced privacy” may “dignity the instant case. in reason of the means employed by of minimal Here, of the intrusion was consisting also the only severity actual methods of involving words the shock reaction opposed that no other constitutional rights I further conclude intrusion. bodily due were violated including process. People’s Appeal I this case to would remand 1203): (Section trial court for with the resentencing comply mandatory provisions section 1203. has the that the cоurt

Section 1203 superior pertinent part provides felon, of a convicted to grant upon application authority probation, “the and where convicted is where the eligible probation, person that there are determines mitigation punishment circumstances subserved or that the ends of would be law justice prescribed

961 to the (§ 1203, It granting subd. further probation (a).) person.” provides in subdivision (d) in unusual cases where the interests “[e]xcept would best be served if the is justice granted person probation, probation shall not be (italics added) who has been granted” convicted anyone twice aof or to who has been previоusly felony convicted once anyone of a wherein used or previously use felony attempted deadly “[h]e a human in connection with the weapon such upon being perpetration crime” (subd. or who (d)(6)(h)) inflicted previous “willfully great bodily or torture in the of such crime.” injury (Subd. perpetration previous (d)(6)(iii).) subdivision (e) when Finally, provides probation ato who comes within one or granted more of the person provisions 1203, section subdivision listed (d), above “the court shall specify circumstances that the interests of indicating best be served justice such a (Italics added.) disposition.”

The word “shall” when used in the context of section 1203 has been held tо indicate a directive and the court has no discretion and mandatory must with the statute. v. comply requirements (People Municipal Court 767, (1956) 375]; 775-778 P.2d Parks [Lozano] Cal.App.2d [303 Court (1971) 645]; Superior Cal.App.3d [96 Johnson P.2d 74].)

Here, defendant Allen was found of for sale of guilty possession heroin, and two convictions alleged were found true prior felony by court and not disturbed at the time Thus, sentencing hearing. defendant falls within the of subdivision of section 1203 (d)(4) provisions not be requiring in an “unusual” probation case. granted except addition, the record shows defendant also falls within the provisions subdivisions ‍‌‌‌​​​‌​​‌‌​‌​​‌‌‌‌​​​​​‌​​​​‌‌​‌​‌​‌​​‌‌‌​‌‌‌​​‍and (d)(6)(ii) because (d)(6)(iii) in the earlier convic- prior tion a he used in connection with an assault which deadly weapon inflicted Therefore, great victim. the record on bodily injury upon shows that defendant Allen was not entitled a appeal grant a absent the court the case was probation specific finding by “unusual” a statement the reasons therefor which the court did not do.

In the case at listed defendant’s bench the prior report probation denied and the criminal and recommended be activity probation trial of section 1203 prosecuting attorney brought provisions court’s attention. The trial court placed suspended proceedings others, condition, defendant on for five on among probation years the record the on without first local custody specifying year spend section 1203. for by such circumstances grant probation required circumstances view, not disclose does The record my appeal, would sentence and the appropriate granting probation justify law. the term for to be state prescribed prison appear trial court for resentencing the case to However, I remand state the the court to required specifications for the allowing purpose do if it can so. section 1203 December was denied A for a rehearing petition Court Supreme hearing plaintiff appellant petition 24, 1979. was denied January

Case Details

Case Name: People v. Allen

Court Name: California Court of Appeal

Date Published: Nov 30, 1978

Citation: 150 Cal. Rptr. 568

Docket Number: Crim. 31964

Court Abbreviation: Cal. Ct. App.