IN RE: Jesus Cuevas HEREDIA

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Court of Appeal, Third District, California.

IN RE: Jesus Cuevas HEREDIA, on Habeas Corpus.

Cr. 7666.

Decided: November 05, 1975

Dennis M. Wilson, Sacramento, for petitioner. Evelle J. Younger, Atty. Gen., by Willard Jones, Deputy Atty. Gen. Sacramento, for respondent.

Petitioner is confined in prison upon a judgment after jury trial in which he was convicted of possession of heroin for sale in violation of former Health and Safety Code section 11500.5.1 His sentence as provided by statute is ten years to life imprisonment with a mandatory minimum of six years without possibility of parole, because he was charged with and admitted conviction of one prior felony narcotic offense. Section 11500.5, under which petitioner was convicted, is set out in full in the margin.2 This section has since been repealed and replaced by section 11351 (Stats.1972, c. 1407, pp. 2987, 3012, §§ 2, 3) which, as amended (Stats.1973, c. 1078, p. 2172, § 3), retains the identical penalties.

The petition for habeas corpus maintains that section 11500.5 is unconstitutional insofar as it imposes a mandatory minimum of six years before petitioner is eligible for parole; such mandatory minimum is claimed to be cruel and unusual punishment. Petitioner's argument is based upon the rationale of In re Foss (1974) 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073, in which the California Supreme Court devised an analytical formula consisting of three techniques to determine whether or not a given punishment is so disproportionate to the crime for which it was imposed that it is unconstitutional under article I, section 6, of the California Constitution. The Court in Foss applied the formula to section 11352 (formerly § 11501) and held that the provision in section 11352 requiring a mandatory minimum of ten years imprisonment for a repeat narcotic offender convicted of selling heroin was cruel and unusual punishment and therefore unconstitutional.

Arguments in the instant case on the part of both petitioner and respondent are essentially the same and based upon the same authorities as are presented to us in the case of In re Carter (1975) Cal.App., 125 Cal.Rptr. 177 filed concurrently herewith. The Carter case involved the constitutionality of the portion of section 11500 (now § 11350) which deals with mandatory minimum sentences without possibility of parole for possession of certain drugs. We held such mandatory minimum to be unconstitutional, on the authority of Foss. The question here is whether the Foss rationale also requires a similar fate for the six-year minimum without parole for possession for sale. We hold that it does not.

As a result of In re Foss, supra, it is presently the law of California that a minimum ten-year imprisonment without possibility of parole for sale of heroin with one prior narcotic felony conviction is unconstitutional as cruel and unusual punishment. However a three-year minimum term of imprisonment without possibility of parole for sale of heroin without prior narcotic felony conviction is not cruel and unusual punishment and hence constitutional. (People v. Serna (1975) 44 Cal.App.3d 717, 118 Cal.Rptr. 904.) Involved here is a six-year no-parole minimum for possession of heroin for sale with one prior, which minimum lies just below midway between the ten years condemned in Foss and the three years upheld in Serna.

Our basic inquiry is whether this six-year minimum “… ‘is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”’ (In re Foss, supra, 10 Cal.3d at p. 919, 112 Cal.Rptr. at p. 654, 519 P.2d at p. 1078.) To answer this question we apply, of course, the three techniques enunciated in Foss, the first of which requires “an examination of the nature of the offense and/or the offender, with particular regard to the degree of danger both present to the society․ relevant to this inquiry are the facts of the crime in question, the non-violent nature of the offense, and whether there are rational gradations of culpability that can be made on the basis of the injury to the victim or to society in general․ [A]lso relevant is a consideration of the penological purposes of the prescribed punishment.” (Id. at pp. 919-920, 112 Cal.Rptr. at p. 654, 519 P.2d at p. 1078.)

In the hierarchy of baseness of illegal acts involving hard drugs such as heroin, simple possession (§ 11350), logically ranks at the bottom. It may involve every type of offender, from the wholesale provider and distributor of the drug in vast quantities to the individual addict who at a given moment controls a minute quantity sufficient for a single self-administered dose. The spectrum of culpability within the definition of possession is unlimited, but it includes the theoretically (and relatively) least harmful form of drug activity. At the other extreme, there is probably little disagreement with the Legislature's treatment of furnishing to or otherwise involving minors in drugs and drug activity (§ 11353) as the most deplorable of narcotic offenses.

Between the least serious hard-drug crime, simple possession, and the most serious, furnishing to or involving minors, are transportation and furnishing (§ 11352) involved in Foss and Serna, and possession for sale (§ 11500.5, now § 11351) involved here. The Legislature treated the former as somewhat more serious than the latter,3 but in reality their relative culpability is debatable. Possession for sale requires the specific intent to sell the drug (People v. Newman (1971) 5 Cal.3d 48, 54, 95 Cal.Rptr. 12, 484 P.2d 1356) and such intent is generally indicated by possession of a large quantity (People v. Grant (1969) 1 Cal.App.3d 563, 570, 81 Cal.Rptr. 812). Where one possesses a large quantity of heroin and concurrently intends to sell it, he will doubtless ultimately consummate one or more sales. Hence the two offenses of furnishing (sale) and possession for sale, unquestionably far more serious than simple possession, have equally invidious social consequences.

Proceeding from this observation to the fact pointed out above that a three-year minimum without parole for a first offense of sale of heroin is constitutional while a ten-year minimum without parole for sale of heroin with a prior narcotic felony conviction is unconstitutional, we cannot say that a minimum of six years without parole for a second offense of possession for sale is cruel and unusual punishment. To do so would be to read much more into the Foss opinion than it appropriately suggests. If the Legislature had fixed the minimum for sale with a prior at six years rather than ten, would the Foss court have held the six years to be cruel and unusual? We do not think so. Ten years is indeed a considerable time, and in the framework of an adult lifetime constitutes a substantial fraction thereof. It is otherwise with six years. The Foss case pointed out as a part of its rationale that sentences of under five years imprisonment are most often appropriate where the goal is to rehabilitate offenders. (In re Foss, supra, 10 Cal.3d at p. 924, 112 Cal.Rptr. 649, 519 P.2d 1073.) The ten-year minimum involved in Foss exceeded that five-year preference by twice its amount. The six-year minimum involved here exceeds that five-year preference by one year only, and thus does not seem to us prima facie to partake of the deleterious effect (as envisioned by Foss) of a ten-year minimum.

Moreover, the Foss Court recognized (p. 924, 112 Cal.Rptr. 649, 519 P.2d 1073) two additional legitimate purposes of the penal laws as to which the recommended five-year maximum does not apply, isolation of the offender from society and deterrence. While these were not sufficient in Foss to overcome the evil of a minimum actual imprisonment equal to twice that recommended for rehabilitation, we do not see that when the Legislature exceeded that recommended minimum by a single year for so serious an offense as possession for sale, the same result should follow. When dealing with higher narcotic crimes such as sale or possession for sale, the objective of isolation of the offender from society is substantial. Traffic in narcotics is in the judgment of many among the vilest of the offenses contained in the Penal Code, rivaling crimes of violence such as murder and robbery.4 While in the context of a ten-year minimum isolation and deterrence as objectives of incarceration are not sufficient to override the objective or rehabilitation and the recommended five-year maximum sentence associated therewith, in the context of a six-year minimum, they are sufficient to tip the scale in favor of constitutionality.

Applying the second prong of the Foss case, we cannot say that any minor inconsistency of the Legislature in enacting less serious or lengthy minimums without parole for other serious offenses is sufficient to indicate constitutional impropriety of the six years involved here. Again this is based upon the baseness of offenses involving trafficking in hard drugs.5 We are not prepared to say categorically that a person who furnishes hard drugs to addicts is less a danger to society than a person who commits murder or armed robbery.

Application of the third prong of the Foss case does not persuade us that out-of-state authorities indicate California's six-year minimum without parole in this case to be beyond reason.

At best, the question is a close one. Such being the case, the Legislature is entitled to the benefit of the doubt and to the presumption of validity of its enactments (5 Witkin, Summary of Cal.Law (8th ed. 1974) Constitutional Law, § 43, p. 3281); the penalty should therefore be upheld. As for our own view, the six-year minimum without parole for a second offense involving possession of hard drugs for sale does not shock our conscience nor offend our fundamental notions of human dignity.

Our decision here cannot be reconciled with the majority holding in People v. Malloy (1974) 41 Cal.App.3d 944, 116 Cal.Rptr. 592. There the court of appeal, on the authority of Foss, held that a five-year minimum imprisonment without parole possibility for a second offense of sale of LSD under section 11379 (formerly § 11912) is unconstitutional as cruel and unusual punishment. We disagree with that holding, preferring the views expressed therein by Justice Gardner in his separate concurring and dissenting opinion.

The order to show cause issued herein is discharged and the petition is denied.

I concur in the result.

In between the prohibited ten-year (In re Foss (1974) 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073) and the permitted three-year (People v. Serna (1975) 44 Cal.App.3d 717, 118 Cal.Rptr. 904) mandatory minimum periods of incarceration for sale of narcotics, lies a range of something less than seven years. I assume that minimum periods of incarceration within this range for narcotic offenses judged more serious than sale by a first offender will pass constitutional muster, if the increment in excess of three years is roughly proportionate to the extent by which the gravity of the offense surpasses that of sale by a first offender. In assessing proportionality of a six-year minimum period of incarceration to the offense of possession of heroin for sale with a prior felony narcotic conviction, I find the tripartite test set forth in Foss of little or no assistance. Applied to the very few permissible increments in penalty available in such a contracted range, the Foss rationale does not reveal, to me at least, any distinctions of constitutional significance. I therefore rest my concurrence in the judgment upon the premise that possession of heroin for sale with a prior narcotic conviction is an offense more serious than sale of heroin by a first offender. This proposition finds support in the legislative judgment reflected in the recent reenactment of the existing penalty scheme for narcotic offenses. (Stats.1972, ch. 1407, § 3.) True, the Foss case quotes an opinion of the Michigan Supreme Court (People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827, 833) for the proposition that “experts on penology and criminal corrections tend to be of the opinion that, except for extremely serious crimes or unusually disturbed persons, the goal of rehabilitating offenders with maximum effectiveness can best be reached by short sentences of less than five years' imprisonment.” (Footnote omitted.) Considered in the factual context of Foss, which involved a mandatory minimum period of incarceration far in excess of five years, the proposition just quoted has not achieved the status of constitutional writ. Moreover, greater dignity must be accorded to the opinion of the people's elected lawmakers than to that of “experts on penology and criminal corrections” in determining the constitutionality of California's statutory law relating to punishment for crimes.

The punishment imposed on petitioner herein is constitutionally proportionate to his crime and is not of such a nature that it shocks the conscience or offends the moral sense of the public.

FOOTNOTES

1.  Unless otherwise indicated, section references hereinafter are to the Health and Safety Code.

2.  Section 11500.5: “Except as otherwise provided in this division, every person who possesses for sale any narcotic other than marijuana shall be punished by imprisonment in the state prison for a period of not less than five years or more than 15 years and shall not be eligible for release upon completion of sentence or on parole or any other basis until he has been imprisoned for a period of not less than 2 1/212 years in the state prison.“If such person has been previously convicted once of any felony offense described in this division or Section 11911, 11912, or 11913 or of any offense under the laws of any other state or the United States which, if committed in this state, would have been punishable as a felony offense described in this division or Section 11911, 11912, or 11913, the previous conviction shall be charged in the indictment or information and, if found to be true by the jury upon a jury trial or by the court upon a court trial or if admitted by the person, he shall be imprisoned in the state prison for a period of not less than 10 years and shall not be eligible for release upon completion of sentence or on parole or any other basis until he has been imprisoned for a period of not less than six years in the state prison.“If such person has been previously convicted two or more times of any felony offense described in this division or Section 11911, 11912, or 11913 or of any offense under the laws of any other state or the United States, which, if committed in this state, would have been punishable as a felony offense described in this division or Section 11911, 11912, or 11913, the previous convictions shall be charged in the indictment or information and, if found to be true by the jury upon a jury trial or by the court upon a court trial or if admitted by the person, he shall be imprisoned in the state prison for a period of not less than 15 years and shall not be eligible for release upon completion of sentence or on parole or any other basis until he has been imprisoned for a period of not less than 15 years in the state prison.”

3.  The sentence for a first offender is five years to life, three years without parole for furnishing (§ 11352, subd. (a)), and five years to fifteen years, two and one-half years without parole for possession for sale (§ 11351, subd. (a)). With a prior narcotic felony conviction, the legislatively-enacted sentence is ten years to life, ten years without parole for furnishing (§ 11352, subd. (b)), and ten years to life, six years without parole for possession for sale (§ 11351, subd. (b)). Otherwise, the statutory penalties are the same.

4.  When a narcotic dealer is apprehended for sale of possession for sale of narcotics, it is fatuous to assume that the occasion constitutes the first or only one on which he so offended. Thus during the period of his incarceration, narcotic crimes, and possibly other consequential crimes, which he could and would commit or bring about if free will not take place. Therefore, over and above the general deterrent effect of a severe penalty, the mere fact of incarceration of a narcotic criminal is itself a deterrent, at least as to the incarcerated criminal.

5.  Assuming that a given defendant possesses drugs for sale, it can be logically concluded that those drugs ultimately are sold. When they are sold, they are presumably used, and when they are used they very often cause the users to commit violent crime.

REGAN, Associate Justice.

PARAS, J., concurs. PUGLIA, Presiding Justice (concurring in result).