Harris

Defendant was sentenced to state prison following his plea of guilty to possession of heroin in violation of section 11500 of the Health and Safety Code, with an admitted prior conviction of the same offense, and a second admitted prior conviction of robbery in violation of section 211 of the Penal Code. By this appeal he seeks review of the denial of his motion to be committed to the narcotic rehabilitation program under the provisions of section 3051 of the Welfare and Institutions Code. He contends: (1) that the provisions of section 3051 which require the concurrence of the district attorney and the defendant before the judge may order a commitment in unusual cases constitute an unconstitutional invasion of judicial power by an executive officer and a lay person; (2) that the director of the California Rehabilitation Center acted unlawfully and abused his discretion in advising the court that he would refuse to accept the commitment of the defendant to the center; and (3) that section 3052 of the Welfare and Institutions Code is unconstitutional because it denies equal protection of the law to those excluded from the rehabilitation program by its terms. These…