IN RE: Gilbert PEREZ on Habeas Corpus.

Reset A A Font size: Print

Court of Appeal, First District, Division 3, California.

IN RE: Gilbert PEREZ on Habeas Corpus.

Cr. 14664.

Decided: November 21, 1975

Wild, Christensen, Carter & Hamlin, Fresno, for petitioner. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Robert R. Granucci, Deputy Attys. Gen., San Francisco, for respondent.

Gilbert Perez petitioned this court directly for a writ of habeas corpus and we issued an order to show cause why his petition should not be granted. Perez was convicted on his plea of guilty to possession of methadone (Health & Saf.Code, § 11500, now § 11350) and admission of one prior felony narcotics conviction.

Perez contends that his prior conviction should be stricken because the oral pronouncement of judgment did not contain a recitation of the prior conviction. He further contends that a sentence of imprisonment for 5 to 20 years with no eligibility for parole for 5 years constitutes cruel and unusual punishment.

We first consider whether the prior conviction must be stricken. Perez relies on In re Candelario (1970), 3 Cal.3d 702, 91 Cal.Rptr. 497, 477 P.2d 729, and People v. Mesa (1975), 14 Cal.3d 466, 121 Cal.Rptr. 473, 535 P.2d 337. In Candelario, the court stated: “Reference to the prior conviction must be included in the pronouncement of judgment for if the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true.” (3 Cal.3d at p. 706, 91 Cal.Rptr. at p. 499, 477 P.2d at p. 731, emphasis added.) In relying on Candelario, the Mesa court held: “In pronouncing judgment, the trial judge must make it clear the defendant is sentenced as one whose prior conviction has been admitted or found true. The trial judge here having failed to make it clear that he intended to sentence defendant as a prior offender, the reference to two prior robbery convictions is stricken from the abstract of judgment.” (14 Cal.3d at p. 472, 121 Cal.Rptr. at p. 477, 535 P.2d at p. 341.)

Perez was charged in the information with violations of Health and Safety Code section 11500.5 (possession of heroin for sale), Health and Safety Code section 11500 (possession of methadone), and Health and Safety Code section 11910 (possession of amphetamines). Two prior convictions were also alleged, violations of Health and Safety Code section 11500 and United States Code, title 26, section 4724(c) (possession of heroin without having paid federal tax).

Perez was convicted on his plea of guilty after a negotiated pre-plea offense bargain with the district attorney. At the time of the guilty plea on February 8, 1973, Perez's attorney, in referring to the two prior convictions, stated: “Gilbert Perez will not enter a plea or change his admission or denials to those but that will be a matter taken up at the time of the Probation Report, at which time, depending on the Probation Report, if the District Attorney insists that Mr. Perez will at that time change his admission to the first and second prior convictions—.” Whereupon, the court responded: “You mean he will admit them at that time”; to which Perez's attorney replied: “At that time, Your Honor.”

The record then reveals a detailed discussion with Perez as to the punishment enhancing effect of his admission of either one or both prior convictions. Thereafter, the judge stated to Perez: “You understand that if at the time the Probation Report is returned, the District Attorney insists on an admission of the first prior conviction, you would then go to the penitentiary for a term of five to twenty years with a minimum of five years; do you understand that?”; to which Perez replied, “Yes.” In further emphasis on the intended sentence, the court stated: “On the other hand, if he were to insist that you admitted both prior convictions and you were sentenced to the penitentiary on this charge that you want to plead guilty to, you would then go on a sentence of from fifteen years to life and you would have to spend fifteen years before you were eligible for parole; do you understand that?”; to which Perez replied, “Yes.”

Thereafter, on motion of the district attorney, the court dismissed count one, possession for sale of heroin (Health & Saf.Code, § 11500.5) and count three, possession of amphetamines (Health & Saf.Code, § 11910).

At sentencing on March 23, 1973, the record discloses that Perez admitted the Health and Safety Code section 11500 prior conviction. The second prior was stricken by the judge. Immediately thereafter Perez's attorney waived formal arraignment for judgment and sentence. The court then sentenced Perez to prison for the term prescribed by law for violation of Health and Safety Code section 11500, without mentioning the prior conviction that had just been admitted.

Perez attempts to read Candelario and Mesa as requiring oral reference to the prior conviction in the pronouncement of judgment. However, both cases require only that the record makes it clear that it is the intent of the court to sentence the defendant on admitted priors.

It is abundantly clear that Perez was sentenced as one whose prior conviction had been admitted. Although the judge made no mention of the prior conviction in his oral pronouncement of judgment, the record is replete with references to the prior conviction and its enhancing effect, and the clear intent of the judge to impose the enhancing effect of the prior conviction. The admission of one prior and the dismissal of the second would have been an idle act were we to view the proceedings differently.

There is no indication that the judge, in the exercise of his discretion, was going to dismiss either of the prior convictions. There can be no question that the defendant understood that he was being sentenced to prison with the enhancing effect of the prior conviction. The admission of the prior was a part of the plea bargain entered into by the People. To strike the prior would be to deprive the People of the benefit of their bargain.

The denial by the court of Perez's request for a report pursuant to Penal Code section 1168 in contemplation of possible resentencing, indicates an intent not to be lenient.

The Attorney General urges two additional issues which distinguish the case at bench from either Candelario or Mesa. The first is that when the admission is the fruit of a plea bargain, the court is without jurisdiction to dismiss the prior absent a concurrence by the district attorney. (See People v. Orin (1975) 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193.) Secondly, when the sentencing procedure occurs after a waiver of formal arraignment for judgment, it is unnecessary for the sentencing judge to recite the offense of which the defendant stands convicted and any punishment enhancing findings. We need not, however, address those contentions in this case, as it appears that the Candelario-Mesa criteria have in fact been met.

We next consider whether the punishment prescribed by Health and Safety Code section 11500 (now section 11350, subdivision (b)) is proscribed by article I, section 6 of the California Constitution as cruel or unusual punishment.

Health and Safety Code section 11350, subdivision (b) provides that a person convicted of possession of any controlled substance or narcotic drug, as therein defined, who has previously suffered a conviction of an offense involving a controlled substance or narcotic, shall be imprisoned in the state prison for a period not less than 5 nor more than 20 years, and shall not be eligible for parole until he has been imprisoned for not less than 5 years.

The thrust of Perez's challenge here is to that portion of section 11350, subdivision (b) which requires that he serve a minimum of 5 years before he is eligible for parole. He relies principally on In re Foss (1974), 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073. Foss held that the 10-year minimum eligibility requirement for parole contained in Health and Safety Code section 11501, now section 11352 (sale of a narcotic with one prior conviction), is unconstitutional.

We are compelled to hold unconstitutional the mandatory minimum term of imprisonment without possibility of parole imposed by Health and Safety Code section 11350, subdivision (b). (In re Foss, supra; In re Carter (1975) 52 Cal.App.3d 955, 125 Cal.Rptr. 177, concurring opinion of Puglia, P. J.)

In People v. Wingo (1975), 14 Cal.3d 169, 183, 121 Cal.Rptr. 97, 108, 534 P.2d 1001, 1012, the court held that when a defendant convicted “under a section encompassing a wide range of conduct challenges the statute as imposing cruel or unusual punishment, judicial review must await an initial determination by the Adult Authority of the proper term in the individual case.” The criminal conduct enhancing the possible maximum to 20 years' imprisonment is the conviction of a prior controlled substance or narcotic drug felony. This can encompass a wide range of prior convictions. (See Health & Saf.Code, § 11350, subd. (d).) Perez does not contend that the Adult Authority has set his maximum term in violation of the Constitution, or that it has unreasonably delayed in setting his maximum. Until he presents a challenge by habeas corpus asserting either of those contentions, it is inappropriate for this court under Wingo to consider the validity of Perez's maximum term.

The unconstitutional portion of section 11350, subdivision (b), providing for a mandatory minimum term before eligibility for parole, is severable from the remainder of the statute. Hence, the 5 to 20 year sentence imposed on Perez remains valid. (In re Foss, supra, 10 Cal.3d at p. 917, 112 Cal.Rptr. 649, 519 P.2d 1073; People v. Malloy (1974) 41 Cal.App.3d 944, 116 Cal.Rptr. 592.)

The Adult Authority is directed to grant parole consideration to Perez at such time as is otherwise appropriate under the laws of the State of California. The order to show cause is discharged and the petition for writ of habeas corpus is denied.

SCOTT, Associate Justice.

DRAPER, P. J., and HAROLD C. BROWN, J., concur.