People v. Vargas

On review no merit is found in defendant’s attack on his conviction. We do conclude that, as applied to the facts in this case, the provisions of the Health and Safety Code which fix a 36-month requirement of imprisonment before eligibility for parole are unconstitutional insofar as they exceed the 20 months required under the provisions of section 3049 of the Penal Code.

At about 3 p.m. on Monday, April 5, 1971, the first day of her Easter vacation, Leigh Daly, a 13-year-old eighth grade junior high school student, was walking from a radio station in Santa Clara County to her grandmother’s home. While taking a shortcut through, a vacant lot she stopped to light a cigarette. Because of the wind she stepped behind a tree, but was still unsuccessful in lighting the cigarette and ran out of matches. She noticed a man watching her from a white car. As she started to walk away he approached her and asked her if she needed a light. Miss Daly lit her cigarette from a burning one he handed her. As she returned his cigarette, he pressed some folded tissue paper into her hand, and said, “Here baby, drop some whites.” She tried to hand them back, saying she didn’t need them, and he offered her a ride to wherever she was going. She refused, thanked him for the light, and walked away. Glancing at what was pressed in her hand, she saw yellow tissue but didn’t see what was inside. She saw the man getting back into the car.

Miss Daly took down the license number of the car, UYJ 932. It was a Riviera. She remembered the man wore a T-shirt, jeans, boots, and appeared to be of Spanish descent. He had a mole on his left cheek.

The fact that the defendant, who was on bail, had met all of his required court appearances, including the first day of trial at which the juiy was selected, and had been present and left, not merely failed to appear, at the second day of trial permitted the court to conclude, both on July 15, 1971, and after defendant’s apprehension, that the absence was voluntary. In Taylor v. United States, supra, the court observed, “It is wholly incredible to suggest that petitioner, who was at liberty on bail, had attended the opening session of his trial, and had a duty to be present at the trial, [citation], entertained any doubts about his right to be present at eveiy stage of his trial. It seems equally incredible to us, as it did to the Court of Appeals, ‘that a defendant who flees from a courtroom in the midst of a trial—where judge, jury, witnesses and lawyers are present and ready to continue—would not know that as a consequence the trial could continue in his absence.’ 478 F.2d, at 691 [1973].” (Taylor v. United States, supra, 414 U.S. 17 , 20 [ 38 L.Ed.2d 174 , 178].) The Supreme Court also disapproved United States v. McPherson (D.C.Cir. 1969) 421 F.2d 1127 [ 137 App.D.C. 192 ], upon which relies in this case, insofar as it indicated that the court was required to expressly warn a defendant, not only of his right to be present, but also that the trial would proceed in his absence. (414 U.S. at p. 19, fn. 3 [38 L.Ed.2d at p. 177], and accompanying text. Cf. 421 F.2d at p. 1130.)

The observation made by the prosecuting witness’ mother indicated that the defendant was leaving in haste. Whatever may be said concerning the statements and testimony of defendant’s counsel on July 15, 1971 (see part II below), his testimony was properly considered in the 1974 hearing. Defendant had accused his attorney of having counseled his flight. Evidence Code section 958 provides, “There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” In People v. Morris (1971) 20 Cal.App.3d 659 [ 97 Cal.Rptr. 817 ], the court recognized that the privilege does not preclude the

In affirming the action of the trial court on this point we do not give unqualified approval to the action of the trial court in summarily plunging ahead. The judge gambled and won. In People v. Connolly, supra, the court admonished, “When looking to the initial proceedings involving the determination to proceed with trial, sufficient facts must be before the court to establish what reasonably appears to be a prima facie showing of voluntary absence. In the usual case a continuation of at least a few hours in order to locate defendant is appropriate.” (36 Cal.App.3d at p. 385. See also People v. Malloy, supra, 41 Cal.App.3d 944 , 954; United States v. McPherson, supra, 421 F.2d 1127 , 1128; and Cureton v. United States, supra, 396 F.2d 671 , 672-673.) Discretion may be the better part of valor in order to avoid the necessity of retrial in the event it is later determined that an excusable misunderstanding or emergency has occasioned the absence.

I

t is axiomatic that a defendant accused of crime is entitled to the effective assistance of counsel. (People v. Ibarra (1963) 60 Cal.2d 460 , 464-466 [ 34 Cal.Rptr. 863 , 386 P.2d 487 ]; and In re Greenfield (1970) 11 Cal.App.3d 536 , 541-546 [ 89 Cal.Rptr. 847 ].) Defendant acknowledges that he must show that his counsel’s lack of diligence or competence reduced his trial to a farce or sham and prevented the presentation of a crucial defense. (See People v. Reeves (1966) 64 Cal.2d 766 , 774 [ 51 Cal.Rptr. 691 , 415 P.2d 35 ] [cert. den. (1966) 385 U.S. 952 ( 17 L.Ed.2d 229 , 87 S.Ct. 332 )]; People v. Pena (1972) 25 Cal.App.3d 414 , 424-431 [ 101 Cal.Rptr. 804 ]; and People v. Glover (1967) 257 Cal.App.2d 502 , 507-509, [ 65 Cal.Rptr. 219 ].) He contends, however, that his trial counsel failed in his duty to him, first, by his total disregard of the attorney-client privilege in discussing the reasons for his absence; and, second, by failure to object to numerous items of irrelevant and highly prejudicial evidence offered by the People.

Under the provisions of section 952 of the Evidence Code the statement the defendant made to his attorney, concerning his apprehension that the prosecuting witness would show up to testify against him, arose out of the attorney-client relationship, and, as such, it was “a confidential communication between client and lawyer” within the meaning of that section. It was therefore privileged under the provisions of section 954. The client was the holder of the privilege under the provisions of section 953, but in his absence it was the duty of counsel to assert the privilege on his behalf by refraining from voluntarily disclosing the communication, and by positively asserting the privilege if queried. (Evid. Code, §§ 919 and 955; Jefferson, Cal. Evidence § 35.2, pp. 620-622.) Upon breach of that duty by counsel, the court should have disregarded the revealed statement and excluded it from evidence. (Evid. Code, § 916; and see Stearns v. Los Angeles City School Dist. (1966) 244 Cal.App.2d 696 , 723 [ 53 Cal.Rptr. 482 ].)

The Attorney General suggests that counsel’s statements and at the trial were not improper. Section 956 provides that the privilege does not extend to communications of contemplated criminal acts or fraud. (See, e.g., Abbott v. Superior Court (1947) 78 Cal.App.2d 19 , 21 [ 177 P.2d 317 ] [crime]; Agnew v. Superior Court (1958) 156 Cal.App.2d 838 , 840 [ 320 P.2d 158 ] [fraud]; and note Witkin, op. cit., § 821, pp. 768-769.) The People go to great length to attempt to establish that defendant’s absenting himself from his trial was a contempt of court, punishable as such. (See Pen. Code, § 166, subd. 3; and People v. Anderson (1970) 6 Cal.App.3d 364 , 367 [ 85 Cal.Rptr. 669 ].) They conclude that there was no privilege concerning any statement the defendant might make concerning his flight.

It is unnecessary to pursue that theory. Insofar as the defendant told his attorney that he was going to his car to get his sport coat there was no confidential communication, and the attorney could not be faulted for revealing that information to the court by either his unsworn or sworn statement. It is true that such revelation indicated that the defendant had been present, and had left, ostensibly to go to his car and return. There was nothing confidential about the defendant’s whereabouts which were open to all to observe, and which, as it developed, were observed by the bailiff and by the prosecuting witness’ mother. The gravamen of the attorney’s statement and testimony was his revelation of the declaration which indicated his client’s apprehension—consciousness of guilt. (See

Nevertheless, it is possible to excuse the attorney’s disclosure as necessary to protect the client’s interest. It is arguable that in moving for a continuance the attorney was under a duty to reveal to the court all facts within his knowledge concerning the defendant’s disappearance, and that even if he were not under such duty, it was no abuse of discretion, and an exemplary tactical choice, to reveal all the facts to the court in the hopes of securing time to communicate with his client and to induce him to return for trial or change of plea.

It is unnecessary to pursue the question of whether the attorney did in fact breach any duty owed his client. The disclosure did not prevent the defendant from securing a trial at which he could be present. The record shows that that result was occasioned by the defendant’s voluntarily absenting himself and remaining away until apprehended. A to locate the defendant or otherwise determine his motive in leaving would have been unavailing. (See part I above.) The dereliction, if such it was, of counsel was in no way prejudicial.

-B-

At the time the defendant was arrested, the arresting officer found a piece of tissue paper in his car which was similar in color and texture to that which had encased the amphetamine tablets which the defendant furnished the youthful prosecuting witness. Expert testimony was offered to show the similarity. The expert further testified at the instance of the prosecutor that certain stains on the tissue found in the car had been made by human seminal fluid. No objection was interposed on behalf of the defendant. He now points out that the admission of this irrelevant evidence was extremely prejudicial as it introduced sexual overtones into an incident which was otherwise focused on whether or not the defendant had actually furnished a dangerous drug to the minor. (See Atwood v. Villa (1972) 25 Cal.App.3d 145 , 152-156 [ 101 Cal.Rptr. 508 ].) The People point out that proof of the similarity was relevant to corroborate the witness’ testimony that the pills were furnished by the defendant. The further suggestion, that the testimony was relevant and competent to show a sexual motive in furnishing the pills to the young girl, of itself reveals a situation where the possibility of prejudice far outweighs any remote inference which reasonably could be drawn. Nor

Defendant now also criticizes his trial counsel’s failure to object to testimony that the drug amphetamine can be injected with a hypodermic syringe, to his failure to conduct more extensive cross-examination of the prosecuting witness (without showing what unfavorable facts concerning her background and credibility could have been revealed) (cf. In re Saunders (1970) 2 Cal.3d 1033 , 1048 [ 88 Cal.Rptr. 633 , 472 P.2d 921 ]), and to his offer to plead the defendant to a lesser offense in his absence, in violation of established principles. (See Boykin v. Alabama (1969) 395 U.S. 238 , 242 [ 23 L.Ed.2d 274 , 279, 89 S.Ct. 1709 ]; and In re Tahl, supra, 1 Cal.3d 122 , 131.) Defendant acknowledges that these latter shortcomings, although highly questionable, in fairness, cannot be characterized as incompetent.

A review of the record reflects that the failure to object to the expert’s testimony was not such incompetency of counsel as to reduce the trial to a farce or sham or to deprive the defendant of a fundamental defense. The testimony concerning the furnishing and delivery of the drugs was clear and uncontradicted. Anything reflecting on defendant’s motives was superfluous and could not have been determinative or influential on the jury’s decision.

No merit is found in defendant’s claim that he was deprived of his effective representation by counsel.

Penal Code section 1127c provides, “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [1Í] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [1Í] "No further instruction on the subject of flight need be given.” The court instructed the jury in the language of CALJIC 2.52 which substantially follows the wording of the statute.

In People v. Terry (1970) 2 Cal.3d 362 [ 85 Cal.Rptr. 409 , 466 P.2d 961 ] [cert. den. (1972) 406 U.S. 912 ( 32 L.Ed.2d 112 , 92 S.Ct. 1619 )], the defendant had escaped from jail before trial. The court observed that it is “. . . probable that only one who expects his guilt to be proved at trial will attempt an escape and that an innocent man will stay for trial in order to clear his name, and win lawful liberty. . . .” (2 Cal.3d at p. 395, fn. omitted.) There the court also noted, “. . . the question of time of escape goes to the weight to be given evidence of escape pending trial, not to its admissibility.” (Id.) Similar considerations should apply to one who has voluntarily absented himself from his trial. (See also People v. Cannady (1972) 8 Cal.3d 379 , 391-392 [ 105 Cal.Rptr. 129 , 503 P.2d 585 ]; People v. Caldera (1959) 173 Cal.App.2d 98 , 101 [ 342 P.2d 945 ]; and People v. Mora (1956) 139 Cal.App.2d 266 , 274 [ 293 P.2d 522 ]. Cf. People v. Fremont (1937) 22 Cal.App.2d 292 , 300 [ 70 P.2d 1005 ].) As from the case last cited, in this case there was some evidence of flight, and the instruction was properly given.

Defendant asserts that the instruction violated the defendant’s right to be free of adverse inferences from his failure to testify. Griffin v. California (1965) 380 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ], fails to distinguish between the defendant’s privilege against self-incrimination which is protected under the Griffin rule, and his right, and normally exercised privilege, to be present at trial with counsel and confront the witness against him. The flight instruction only permitted an inference to be drawn from the defendant’s failure to be physically present. The juiy

It is not unnecessary to reconcile the foregoing precedents. In this case the expert testified that the pills in question contained amphetamine, that he did not make a quantitative examination but that the pills were capable of being used, and contained a usable amount. He was of the opinion from the reaction in his test that each contained more than five milligrams of amphetamine, which is the minimum amount used when the drug is prescribed. In response to a request by a juror the court permitted the expert to elaborate on his prior testimony without objection from defense counsel or any formal motion to reopen the People's case. Even if this testimony be disregarded, it was clear that the other uncontradicted evidence showed that the pills contained amphetamine in an amount sufficient to be used as a drug. There was therefore no prejudicial error in receiving the additional evidence, or in the court's interpolated instruction.

V

After the defendant was apprehended the matter of sentencing was continued for preparation and consideration of a probation report and disposition of his motion for a new trial. On April 9, 1974, the motion for a new trial was denied but the offense was reduced. (See fn. 1.) The probation report is not a part of the record, but the court at that time considered it, denied probation, suspended proceedings, and referred the defendant to the Department of Corrections for a diagnostic report, pursuant to the provisions of section 1203.03 of the Penal Code. The department recommended that the defendant be considered for probation on condition that he receive a suspended prison sentence and serve a period of local jail confinement under the work furlough program, and that he abstain from use of alcoholic beverages and not frequent places where alcohol is the chief item of sale.

Defendant complains that it was an abuse ofjudicial discretion to deny him probation. (See People v. Wade (1959) 53 Cal.2d 322 , 336-339 [ 1 Cal.Rptr. 683 , 348 P.2d 116 ]; People v. Valdivia (1960) 182 Cal.App.2d

No good purpose would be served by reviewing the facts in the report of the Department of Corrections which place in favorable perspective the defendant’s old and virtually insignificant criminal record, his service record, including a good conduct medal, his apparently blameless life as a fugitive, and his employment record and vocational evaluation. The diagnostic study recommendation is not binding on the court. (See People v. Martino (1931) 113 Cal.App. 661 , 663-664 [ 299 P. 86 ].) There were ample facts before the court to warrant a grant of probation, but the fact that reasonable minds, even the individuals on this court, might come to that conclusion, does not warrant an interference with the discretion exercised by the sentencing court when it has considered all facts bearing on the offense and the defendant to be sentenced. (See People v. Ozene (1972) 27 Cal.App.3d 905 , 914-915 [ 104 Cal.Rptr. 170 ]; People v. Ingram (1969) 272 Cal.App.2d 435 , 438-440 [ 77 Cal.Rptr. 423 ]; and People v. Hollis, supra, 176 Cal.App.2d 92 , 96-97.)

No reversible abuse of discretion is found in the denial of probation.

Section 11912 (now § 11379) of the Health and Safety Code provides for a prison sentence of from five years to life, and also prescribes that a convicted offender who is sentenced to prison shall serve a minimum of three years before being considered for parole. This contrasts with the ordinary five-to-life sentence which under the provisions of section 3049 of the Penal Code carries with it a minimum

In People v. Anderson (1972) 6 Cal.3d 628 [ 100 Cal.Rptr. 152 , 493 P.2d 880 ] [cert. den. (1972) 406 U.S. 958 [ 32 L.Ed.2d 344 , 92 S.Ct. 2060 ]], the court said: “Historical analysis suggests that the framers intended to outlaw both cruel punishments and punishments of excessive severity for ordinary offenses.” (6 Cal.3d at p. 646.) Shortly thereafter in In re Lynch (1972) 8 Cal.3d 410 [ 105 Cal.Rptr. 217 , 503 P.2d 921 ], the court set forth a three-part test to be used in determining whether a penalty is excessively severe. In passing upon the validity of a penalty, the factors to be considered are the nature of the offense and of the offender, the penalties imposed in the same jurisdiction for other offenses, and the penalties imposed in other jurisdictions for the same offense. (8 Cal.3d at pp. 425-427.) These factors may now be reviewed.

A. The nature of the offense and of the offender.

Considered in the abstract, a violation of section 11379 of the Health and Safety Code is a serious crime. This statute condemns, among others, those who sell or manufacture dangerous drugs. Many of the people convicted under its provisions will be major offenders who make a profit selling or manufacturing large quantities of drugs.

Appellant, however, was not a major offender or dangerous character. He furnished only a small amount of a nonaddictive substance; although there was a potential for harm (had the minor taken the drugs) no harm actually resulted. Appellant was not a drug user and had only a minimal criminal record. The Department of Corrections found that he was not a threat to the community and characterized his offense as the result of “a mistake in judgment.”

The problem thus arises whether the key element of the first prong of the Lynch test is the nature of the offense or the nature of the offender. If the nature of the offense is the dominant factor, then the provision requiring three years in prison as a prerequisite of eligibility for parole is probably justified. But if the nature of the offender is the dominant

It seems that the nature of the offender should be given greater weight than the nature of the offense. In In re Foss, supra, 10 Cal.3d 910 , the court said: “In addition, as pointed out above, also relevant to determining whether a sentence is disproportionate to the offense and offender, is a consideration of the penological purposes of the punishment imposed in light of the particular offense.’.’ (10 Cal.3d at p. 923.) This proposition that a punishment is not valid unless it serves a penological purpose, was supported by Mr. Justice Brennan in his concurring opinion in Furman v. Georgia (1972) 408 U.S. 238 [ 33 L.Ed.2d 346 , 92 S.Ct. 2726 ]. There he wrote, “Although the determination that a severe punishment is excessive may be grounded in a judgment that it is disproportionate to the crime, the more significant basis is that the punishment serves no penal purpose more effectively than a less severe punishment.” (408 U.S. at p. 280 [33 L.Ed.2d at pp. 372-373], fn. omitted.)

The recognition of the basic purpose of the indeterminate sentence law as enunciated in In re Lee, supra, in the more recent cases of In re Foss, supra, and In re Rodriguez, supra, makes clear that punishment imposed under the California laws is to be geared to the individual prisoner, in an effort to make him into a better citizen. As most recently stated in In re Rodriguez, supra, 14 Cal.3d 639 , “. . . [b]oth the Eighth Amendment and article I, section 17, proscribe punishment which is proportionate to the particular offense.” (14 Cal.3d at p. 652. See also People v. Wingo (1975) 14 Cal.3d 169 , 183 [ 121 Cal.Rptr. 97 , 534 P.2d 1001 ].) Where a statute, such as section 11379 of the Health arid Safety Code, encompasses offenses reflecting a wide range of culpability, a parole ineligibility provision which precludes recognition of those gradations of culpability may be unconstitutional. (See In re Foss, supra, 10 Cal.3d 910 , 929; and People v. Malloy, supra, 41 Cal.App.3d 944 , 954-956. Note In re Rodriguez, supra, 14 Cal.3d at p. 648.)

In re Foss, supra, recognized that in the situation of a second offender a denial of parole consideration for three years might allow for consideration of the rehabilitative progress of the offender (10 Cal.3d at p. 929). As noted above, People v. Serna, supra, and People v. Waters, supra, approve the three-year ineligibility provision for a first offender. In the former case it is suggested that the extra 16 months mandatory incarceration imposed by the minimum parole eligibility date is not constitutionally noticeable. (44 Cal.App.3d at p. 721; and see People v.

“We recognize that rehabilitation is not the only purpose behind the imposition of punishment by imprisonment for criminal offenses. In People v. Anderson, supra, ... we noted two additional legitimate purposes of the penal laws; isolation of the offender from the society, and deterrence.” (In re Foss, supra, 10 Cal.3d at p. 924.) Neither of these purposes, however, is sufficient in itself to justify the incarceration of appellant for as much as three years. He is evidently not a threat to society so there is no need to isolate him for the protection of others. The restriction on the power of the Adult Authority to grant early parole is not needed to deter others from furnishing dangerous drugs—the five years to life penalty will be sufficient.

B. Comparison of the penalty imposed under section 11379 with the penalties imposed in California for other offenses

In California, through the operation of Penal Code section 3049, one convicted of second degree murder (Pen. Code, § 190), first degree robbery (Pen. Code, § 213), or first degree burglary (Pen. Code, § 461) is eligible for parole after 20 months in prison. One convicted of second degree robbery (Pen. Code, § 213), assault with intent to murder (Pen. Code, § 217), rape (Pen. Code, § 264), lewd acts with a child (Pen. Code, § 288), arson of a dwelling (Pen. Code, § 447a), or second degree burglary (Pen. Code, § 461) is eligible for parole after he has served one year.

All of these offenses are more serious than that committed by appellant. Indeed, it seems very odd to class appellant with robbers, burglars, rapists, or arsonists. Yet they can be paroled before he can.

The Attorney General seeks to justify the discrepancy on the theory that only punishments out of all proportion to other penalties may be reviewed or struck down. (See In re Lynch, supra, 8 Cal.3d 410 , 424; People v. Waters, supra, 52 Cal.App.3d 323 , 333; People v. Serna, supra, 44 Cal.App.3d 717 , 721; In re Jones (1973) 35 Cal.App.3d 531 , 539-542 [ 110 Cal.Rptr. 765 ]; and In re Maston (1973) 33 Cal.App.3d 559 , 564-565 [ 109 Cal.Rptr. 164 ].) He states that a year or two difference patently is not excessive. This depends upon through which end of the spyglass one looks. As we have seen the punishment for minimum gradations of given offenses are grossly disproportionate and that is what this case is all about.

C. Comparison with other states

The last step is to compare the time in prison required for eligibility for parole under section 11379 with the time required for eligibility for parole under analogous statutes in other states. Both defendant and the People have provided appendices to their briefs which show the penalties for drug offenses in other states. However, the data furnished by defendant does not match those furnished by the Attorney General.

Accepting the data furnished by the People it appears that there are only five other states beside California which require a person convicted for the first time of selling narcotics to serve as many as three years in prison before becoming eligible for parole. They are Arizona, Colorado, Indiana, Nebraska and Oklahoma. Only one state, Colorado, requires a first offender to serve more than five years before becoming eligible for parole. Thus, the mandatory minimum term imposed for a violation of Health and Safety Code section 11379 is as stated in In re Foss, supra, “more severe than that imposed by the vast majority of the states of the Union. This provides us with further indication that the penalty is excessive.” (10 Cal.3d at p. 928.)

Again the Attorney General assumes that the evident discrepancies are constitutionally insignificant without considering their effect on the least culpable offender.

In conclusion we find that under the facts of this case it is unconstitutional to apply a 36-month, as distinguished from a 20-month denial of eligibility for parole.

Molinari, P. J., and Elkington, J., concurred.