Martinez

By order of this court filed October 24, 1974, defendant’s appeals in 3 Crim. 7746 (the first offense) and 3 Crim. 7680 (the second offense) were consolidated for hearing and decision.

The first offense involved the sale of 1,000 amphetamine capsules in violation of section 11912 of the Health and Safety Code (now § 11379). Following conviction, defendant was sentenced to state prison for the term prescribed by law, but execution of the sentence was suspended and on February 23, 1973, defendant was placed on probation for three years.

The second offense occurred on January 15, 1974, while defendant was on probation; he was booked into the Roseville jail (for being drunk in public—Pen. Code, § 647, subd. (f)) where a lawful search of his person uncovered 50 red capsules, later analyzed as barbiturates. He was then charged with violation of section 11377 of the Health and Safety Code, and after plea negotiation, pleaded guilty and admitted suffering the 1973 conviction. Judgment was entered on May 16, 1974; sentencing defendant to state prison for from 2 to 20 years.

Thereafter, on June 26, 1974, defendant having signed a waiver of his right to appear, his probation on…

In his petition for rehearing, the Attorney General voices certain concerns, which suggest a misconception of a portion of the language of our opinion. We herewith clarify:

In the case at bench the probation officers report filed in the first case states in part: “On May 16, 1974 the defendant appeared in Superior Court on this matter [the second offense], probation was denied, and he was committed to the California Department of Corrections.” We interpret the italicized words to mean that defendant was actually physically confined in prison. If such were not the case, the probation report would and should contain such contrary information.

By order of this court filed October 24, 1974, defendant's appeals in 3 Crim. 7746 (the first offense) and 3 Crim. 7680 (the second offense) were consolidated for hearing and decision.

The first offense involved the sale of 1,000 amphetamine capsules in violation of section 11912 of the Health and Safety Code (now § 11379). Following conviction, defendant was sentenced to state prison for the term prescribed by law, but execution of the sentence was suspended and on February 23, 1973, defendant was placed on probation for three years.

The second offense occurred on January 15, 1974, while defendant was on probation; he was booked into the Roseville jail (for being drunk in public — Pen. Code, § 647, subd. (f)) where a lawful search of his person uncovered 50 red capsules, later analyzed as barbiturates. He was then charged with violation of section 11377 of the Health and Safety Code, and after plea negotiation, pleaded guilty and admitted suffering the 1973 conviction. Judgment was entered on May 16, 1974, sentencing defendant to state prison for from 2 to 20 years.

Thereafter, on June 26, 1974, defendant having signed a waiver of his right to appear, his…