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Court of Appeal, Third District, California.

IN RE: Earl W. GRANT, on habeas corpus.

Cr. 7982.

Decided: May 02, 1975

Ernest L. Brown, Sacramento, for petitioner. Evelle J. Younger, Atty. Gen. by Paul H. Dobson, Deputy Atty. Gen., Sacramento, for respondent.

Petitioner was convicted of the sale of marijuana with two prior felony narcotic convictions and sentenced to 10 years to life without possibility of parole for 10 years. (Health & Saf. Code, § 11531 as amended by Stats.1970, ch. 1098, § 9.)1 He petitions this court for a writ of habeas corpus on the ground that the portion of this statute which precludes possibility of parole for a minimum of 10 years is cruel or unusual punishment in violation of article I, section 6, of the California Constitution.

The California Supreme Court has set forth a three-pronged test for determining whether a punishment is cruel or unusual:

1. The nature of the offense and the offender;

2. Comparison of the punishment with punishments imposed within the same jurisdiction for offenses which may be deemed more serious than that for which the questioned punishment is imposed;

3. Comparison of the punishment with punishments prescribed in other jurisdictions for the same offense. (In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921.)

In the case of In re Foss (1974) 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073, the defendant was charged with furnishing heroin. The court applied the Lynch test to the provisions of Health and Safety Code section 11501 and its successor, section 11352, which precluded parole consideration of repeat and third-time offenders of narcotics laws for a minimum of 10 and 15 years, respectively, and found those statutes to be cruel and unusual punishment.

Although part of the court's determination in Foss that the first prong of the Lynch test was violated rested on factors not present in the instant case2 ; the Foss decision taken as a whole compels the conclusion that Health and Safety Code sections 11531 and 11360 are constitutionally invalid in their parole restriction provisions. A contrary decision would have the anomalous effect of rendering a seller of marijuana ineligible for parole for 10 years while a seller of heroin is eligible for parole after 40 months.

The parole eligibility provisions for repeat offenders are severable from the remaining portions of the statute, leaving the minimum and maximum penalties intact and constitutional. (In re Kapperman (1974) 11 Cal.3d 542, 114 Cal.Rptr. 97, 522 P.2d 657; Foss, supra, 10 Cal.3d p. 929, 112 Cal.Rptr. 649, 519 P.2d 1073.) Such sentences allow for parole consideration after the expiration of one-third the minimum term. (Pen.Code, § 3049.)

The provisions of Health and Safety Code sections 11531 and 11360 precluding parole consideration for the minimum terms are set aside. The Adult Authority is directed to grant parole consideration to petitioner at such time as is otherwise required under the laws of this state. Petitioner is not entitled to release, however, until such time as the Adult Authority determines that he is eligible for parole under the 10-year-to-life term validly imposed by section 11531. The order to show cause is discharged and the writ of habeas corpus denied.


1.  This section was repealed by Stats.1972, chapter 1407, and replaced by Health and Safety Code section 11360, which provides the same sentence for sale of marijuana with two prior felony narcotic convictions.

2.  There was extensive discussion in Foss of the fact that Foss was a heroin addict and sold it to support his habit. The court said that to the extent repetition of the sale of heroin was attributable to an addiction, any increased punishment for a further offense could be attributed to the offender's status as an addict and deemed punishment for such status. The court concluded that the ‘rationale of Robinson [Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758] . . . that it is both cruel and unusual punishment to impose criminal sanctions upon the status of addiction, adds a compelling consideration’ to their determination of the Foss issue. (Foss, supra, p. 923, 112 Cal.Rptr. p. 656, 519 P.2d p. 1080.)This reasoning would not apply in the case of a seller of marijuana, which is not an addictive drug.