Ruby

Lawrence S. Ruby, a drug-addicted, decorated Vietnam combat veteran, appeals from a judgment convicting him of unlawfully possessing a controlled substance (Health & Saf. Code, 1 § 11350, subd. (a)) with a prior possession conviction within the meaning of section 11370, subdivision (a). Ruby contends the trial court erred in believing it had no discretion to strike the section 11370, subdivision (a) allegation and grant him probation, and in failing to evaluate his amenability to serve his sentence in a federal correctional institution designed to treat drug-addicted Vietnam combat veterans as required by Penal Code section 1170.9. For the reasons which follow, we conclude the trial court erred in believing it had no discretion to strike the prior conviction allegation. We further find the record does not show the court fully evaluated whether it was appropriate to commit Ruby to federal confinement pursuant to Penal Code section 1170.9 in light of the substantial legislative concern for such placement where drug addiction is shown to be associated with postcombat trauma incurred by those who served in Vietnam. We remand for resentencing in accordance with our…

I concur in the conclusions reached in part two of the majority opinion. The trial court, having once found that Ruby suffered from a Vietnam-related stress syndrome, ought to have considered whether Ruby should be committed to federal custody under the provisions of Penal Code 1 section 1170.9. In view of Ruby’s history of three felony convictions within a span of two years, and occasional possession of firearms, it is not a bit clear that he was a suitable candidate for such commitment. But the sentencing court cannot reject the possibility out of hand. Discretion must be exercised.

I respectfully dissent from part one of the majority opinion. In my view, the trial court correctly ruled it had no power to strike the prior conviction or to grant probation.

The holding of the Supreme Court in People v. Tanner (1979) 24 Cal.3d 514 [ 156 Cal.Rptr. 450 , 596 P.2d 328 ] is determinative. In that case it was decided that the unequivocal language of section 1203.06 conclusively barred the trial court from exercising discretion to dismiss or strike under the provisions of section 1385. The language of Health and Safety Code section 11370, subdivision (a), is indistinguishable from that…

Lawrence S. Ruby, a drug-addicted, decorated Vietnam combat veteran, appeals from a judgment convicting him of unlawfully possessing a controlled substance (Health & Saf. Code, [1] § 11350, subd. (a)) with a prior possession conviction within the meaning of section 11370, subdivision (a). Ruby contends the trial court erred in believing it had no discretion to strike the section 11370, subdivision (a) allegation and grant him probation, and in failing to evaluate his amenability to serve his sentence in a federal correctional institution designed to treat drug-addicted Vietnam combat veterans as required by Penal Code section 1170.9. For the reasons which follow, we conclude the trial court erred in believing it had no discretion to strike the prior conviction allegation. We further find the record does not show the court fully evaluated whether it was appropriate to commit Ruby to federal confinement pursuant to Penal Code section 1170.9 in light of the substantial legislative concern for such placement where drug addiction is shown to be associated with postcombat trauma incurred by those who served in Vietnam. We remand for resentencing in accordance with our…