Cruz

Defendant was charged with a violation of section 11500.5 of the Health and Safety Code (possession of heroin for sale) ; two prior felony convictions, both for burglary, were alleged. After a motion under section 995 of the Penal Code had been made and denied, defendant pled not guilty and denied the priors. Trial by jury was duly waived and the case was submitted on the transcript of the preliminary examination, supplemented by additional testimony on the part of the People and by a stipulation (hereinafter discussed) that defendant be deemed to have testified in a certain manner. The court found defendant guilty of the offense charged and ordered a probation report. Thereafter, pursuant to what was then section 6451 of the Penal Code, 1 the criminal proceeding was suspended and proceedings under the Narcotic Rehabilitation Law were instituted and defendant was committed to the Narcotic Rehabilitation Center. Thereafter he was returned to court by the authorities of that institution, purportedly acting under the provisions of section 6453 of the Penal Code, 2 on two grounds: (1) that defendant was on parole for one of the burglary offenses; and (2) that his past history…

In a petition for rehearing, counsel argues that, since both of the trial counsel, and the trial court, were unaware of the subsequent holding (in People v. Butler

*147 (1966) 64 Cal.2d 842 [ 52 Cal.Rptr. 4 , 415 P.2d 819 ]) that an attack on a search warrant might be made at the trial not only as to the legal sufficiency of the affidavit but by way of traverse of the facts therein stated, “ It is impossible to say what testimony could have been turned up had both counsel been proceeding under the rule of the Butler ease.” However, an examination of the record discloses that, in spite of objection by the prosecuting attorney, the trial court allowed extensive cross-examination of the officer-affiant; we do not see what further traverse could have been made even if the parties had anticipated Butler .

The petition for rehearing is denied.

Appellant’s petition for a hearing by the Supreme Court was denied October 4, 1966.

Appendix

“Pacts in support of issuance of search warrant: Tour affiant has been a police officer for 13 years and has been assigned to Narcotic Division for 7 years. Affiant has made hundreds of arrests for possession, possession for sale, sale and use of…

Defendant was charged with a violation of section 11500.5 of the Health and Safety Code (possession of heroin for sale); two prior felony convictions, both for burglary, were alleged. After a motion under section 995 of the Penal Code had been made and denied, defendant pled not guilty and denied the priors. Trial by jury was duly waived and the case was submitted on the transcript of the preliminary examination, supplemented by additional testimony on the part of the People and by a stipulation (hereinafter discussed) that defendant be deemed to have testified in a certain manner. The court found defendant guilty of the offense charged and ordered a probation report. Thereafter, pursuant to what was then section 6451 of the Penal Code, [fn. 1] the criminal proceeding was suspended and proceedings under the Narcotic Rehabilitation Law were instituted and defendant was committed to the Narcotic Rehabilitation Center. Thereafter he was returned to court by the authorities of that institution, purportedly acting under the provisions of section 6453 of the Penal Code, [fn. 2] on two grounds: (1) that defendant was on parole for one of the burglary offenses; and (2) that…