IN RE: Gerald Allen CARTER (1975)

Petitioner is confined in state prison pursuant to judgment following a jury trial in which he was convicted of possession of heroin in violation of former Health and Safety Code section 11500.¹ His sentence as provided by that section is five to twenty years imprisonment, without possibility of parole for five years, because he was charged with and admitted a prior felony narcotic conviction.

The issue presented here is the constitutionality of the provision in section 11500 for actual service of at least five years imprisonment as a condition for eventual release on parole or otherwise. At the time of petitioner's offense and conviction, section 11500 provided as follows:

“Except as otherwise provided in this division, every person who possesses any narcotic other than marijuana, except upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for a period of not less than two years or more 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 two years in the state prison.

If such person has been previously convicted once of any felony offense described in this division 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; 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 five years or more than 20 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 five 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 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, 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 15 years to life 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.”

Subsequent to petitioner's conviction, section 11500 was repealed and replaced by section 11350 (Stats.1972, c. 1407, p. 2987, §§ 2, 3) which, as amended (Stats.1973, c. 1078, p. 2171, § 2), retains the identical enhanced penalty provisions applicable to certain prior narcotic offenders which are here being challenged.

Petitioner argues that to deny release conditionally for a minimum period of five years for possession of a controlled drug with but one prior narcotic conviction is cruel and unusual punishment, proscribed by the California Constitution, article I, section 6.

In In re Foss (1974), 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073, the Court devised a formula, consisting of three techniques or tests, to determine whether or not a given punishment is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. The formula was taken in large part from the earlier case of In re Lynch (1972), 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, as indicated by the following quotation from the majority opinion (10 Cal.3d at pp. 919-920, 112 Cal.Rptr. at p. 654, 519 P. at p. 1078):

“In In re Lynch, supra, 8 Cal.3d 410, 420-424, 105 Cal.Rptr. 217, 503 P.2d 921, we reviewed the cases interpreting article I, section 6, of our Constitution and similar constitutional provisions in other jurisdictions and concluded that ‘in California a punishment may violate article I, section 6, of the Constitution if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ (Id. at p. 424, 105 Cal.Rptr. at p. 226, 503 P.2d at p. 930.) We then ascertained from the case law three distinct techniques used in determining whether a punishment is disproportionate to the offense.

The first such technique involves 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. (8 Cal.3d at p. 435, 105 Cal.Rptr. 217, 503 P.2d 921.) Relevant to this inquiry are the facts of the crime in question, the nonviolent 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. Although not mentioned in Lynch, also relevant is a consideration of the penological purposes of the prescribed punishment. (See, e. g., People v. Anderson, supra, 6 Cal.3d 628, 651-653, 100 Cal. Rptr. 152, 493 P.2d 880; People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827, 833.)

The second technique set forth in Lynch involves a comparison of the questioned 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. We stated that the underlying assumption behind this test ‘appears to be that although isolated excessive penalties may occasionally be enacted, e. g., through “honest zeal” (Weems v. United States (1910) … 217 U.S. 349, 373, 30 S.Ct. 544, 54 L.Ed. 793 …) generated in response to transitory public emotion, the Legislature may be depended upon to act with due and deliberate regard for constitutional restraints in prescribing the vast majority of punishments set forth in our statutes. The latter may therefore be deemed illustrative of constitutionally permissible degrees of severity; and if among them are found more serious crimes punished less severely than the offense in question, the challenged penalty is to that extent suspect.’ (In re Lynch, supra, 8 Cal.3d 410, 426, 105 Cal.Rptr. 217, 227, 503 P.2d 921, 931.)

The third measure of disproportionality described in Lynch involves a comparison of the challenged penalty with punishments prescribed in other jurisdictions for the same offense. The basis of this test is explained as follows: ‘Here the assumption is that the vast majority of those jurisdictions will have prescribed punishments for this offense that are within the constitutional limit of severity; and if the challenged penalty is found to exceed the punishments decreed for the offense in a significant number of those jurisdictions, the disparity is a further measure of its excessiveness.”’ (In re Lynch, supra, 8 Cal.3d 410, 427, 105 Cal.Rptr. 217, 228, 503 P.2d 921, 932).2

The Court in Foss applied the above-quoted formula to section 11352 and held unconstitutional as cruel and unusual punishment the provision thereof requiring a person convicted thereunder with a prior, proved narcotic felony conviction to serve a minimum of ten years without possibility of parole. The Court also held unconstitutional for the same reason, the provision in section 11352 precluding parole of a third-time offender for a minimum of 15 years, but expressed no opinion as to the validity of the three-year minimum period of imprisonment required of a first offender. (See 10 Cal.3d at p. 917, fn. 3, and pp. 920-929, 112 Cal.Rptr. 649, 519 P.2d 1073.) Likewise, the Court did not express an opinion on the constitutionality of the penalty provisions of section 11350 identical to those before us, or of other sections of the Health and Safety Code providing mandatory minimum periods of imprisonment without possibility of parole; in that regard the Court stated that “The constitutional validity of those [other] provisions is not now before us ․” (Id. at p. 927, fn. 12, 112 Cal.Rptr. at p. 660, 519 P.2d at p. 1084.)

We shall now apply the required three-pronged analytical formula quoted hereinabove, as we must, to the portion of the statute here before us.

The Foss Court said that in enacting minimum periods of incarceration for repeated narcotic offenses, the Legislature should consider the particular circumstances of the offenses, such as the quantity of narcotics involved and whether the transactions were those of an addict to support his habit or were sales for profit made by commercial suppliers of heroin. (10 Cal.3d at p. 921, 112 Cal.Rptr. 649, 519 P.2d 1073.) Neither section 11500 or section 11350, its successor, makes such distinctions. The rationale of the Foss case in this regard applies with even greater force to the crime of simple possession of heroin, which is definitionally far less culpable than furnishing or selling heroin, or possessing for sale. Even though the five-year minimum incarceration under section 11500 is but one-half of the minimum condemned in Foss, the nature of the section 11500 offense is such that the Foss principle necessarily applies.

Applying the second prong of the Foss analysis, there are enough crimes in the Penal Code more serious than heroin possession which carry a shorter minimum eligible parole date (e. g., second degree murder—20 months, Pen.Code, §§ 213, 3049; first degree robbery—20 months, Pen.Code §§ 213, 3049; forcible rape—12 months, Pen.Code, §§ 264, 3049) to further suggest the constitutional excessiveness of the five-year minimum incarceration period of section 11500.

Application of the third prong of the Foss case is not persuasive; there are enough sister states with the same or greater minimum periods of imprisonment to suggest nothing more than an honest difference of legislative opinion on the subject. (See People v. Serna (1975) 44 Cal.App.3d 717, 722, 118 Cal.Rptr. 904.) Our decision does not rest upon this consideration.

Petitioner and the Attorney General take conflicting positions as to the applicability to the instant case of the decision in People v. Schueren (1973), 10 Cal.3d 553, 111 Cal.Rptr. 129, 516 P.2d 833. That case held that a maximum prison term in excess of 14 years was cruel and unusual punishment under circumstances where the defendant had been charged with assault with intent to commit murder (carrying a maximum term of 14 years) but had been found guilty of the lesser included offense of assault with a deadly weapon which subjected him to a maximum term of life. We have considered that case, but do not find it supportive of either the petitioner or the respondent. Our decision here is one which we deem to fall within the aegis of the Foss case alone.

We conclude, therefore, that the provision of Health and Safety Code section 11500 precluding a second offender from parole consideration for a period of five years, without statutory regard to the existence of such mitigating circumstances as possible addict status of the offender and the quantity of narcotics involved in the offense for which he was tried as well as in the prior offense, is cruel and unusual punishment in violation of article I, section 6, of the California Constitution. (See In re Foss, supra, 10 Cal.3d at p. 929, 112 Cal.Rptr. 649, 519 P.2d 1073.) In short, if a minimum ten-year incarceration for furnishing or selling heroin after a prior conviction of a felony drug offense is cruel and unusual punishment, a similar five-year minimum for simple possession with a similar prior is also cruel and unusual. This follows logically from the Foss holding.

Since the mandatory minimum features of section 11500 precluding the possibility of parole for the minimum terms are severable from the remainder of the statute, the five-to-twenty-year sentence under which petitioner is incarcerated remains valid. (Id. at p. 917, 112 Cal.Rptr. 649, 519 P.2d 1073; People v. Malloy (1974) 41 Cal.App.3d 944, 956, 116 Cal.Rptr. 592; People v. Murphy (1974) 42 Cal.App.3d 81, 89, 116 Cal.Rptr. 889.)

In view of the invalidity of the applicable parole restriction in section 11500 (now § 11350), the Adult Authority is directed to grant parole consideration to petitioner at such time as is otherwise appropriate under the laws of this state. Petitioner is not entitled to release, however, until such time as the Adult Authority duly determines that he is eligible for parole under the five-to-twenty-year term validly imposed under section 11500. The order to show cause is discharged and the writ of habeas corpus denied. (Cf. In re Griffin (1974) 39 Cal.App.3d 279, 284, 114 Cal.Rptr. 74; In re Foss, supra, 10 Cal.3d at p. 933, 112 Cal.Rptr. 649, 519 P.2d 1073.)

I concur in the result.

I do not believe, however, that a five-year minimum term of incarceration for a repeat felony narcotic offender is shocking to the conscience or to the moral sense of the public. Neither do I believe that it could be found to be out of proportion to the offense when tested against any rational standard that accords proper emphasis to the serious threat posed to our society by the abuse of illicit narcotics. Implied legislative recognition of that threat should be accorded judicial deference. In this case, however, we are not required to engage in the delicate task of examining legislative judgment in the light of recent judicial explications of constitutional principles bearing on the condignity of punishment. Far from an exercise of such cosmic proportion, our task here, as will be shown, is essentially mechanical, a mere formalism.

In 1961, the Legislature restructured the entire hierarchy of penalties for crimes involving illicit narcotics (Stats.1961, ch. 274, §§ 1-10, pp. 1301-1307). No more stringent punishment was prescribed than that exacted for violation by repeat narcotic offenders of Health and Safety Code section 11501,¹ since repealed and replaced by section 11352 without material change in the penalty provisions. (Stats.1972, ch. 1407, §§ 2, 3, pp. 2987, 3013.) Thus, section 11352 provides the standard or yard-stick against which the penalties imposed for related narcotic offenses less serious than that defined by section 11352 must be measured. As enacted, violation of section 11352 carries a prison term of five years to life with a mandatory three years imprisonment without possibility of parole for a first offender, and mandatory ten-year and fifteen-year periods without possibility of parole for second and third offenders respectively. In In re Foss (1974), 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073, the Supreme Court held the enhanced mandatory minimum periods of incarceration for recidivists unconstitutional as cruel and unusual punishment in violation of article I, section 6 of the California Constitution (In re Foss, supra, at p. 917, 112 Cal.Rptr. 649, 519 P.2d 1073).

The Supreme Court has since acknowledged that it was compelled to the Foss holding by its own analysis in In re Lynch (1972), 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921. (People v. Wingo (1975) 14 Cal.3d 169, 175, 121 Cal.Rptr. 97, 534 P.2d 1001.) So too, bound as we are by the Foss holding (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), we in turn are compelled to invalidate the mandatory minimum term of imprisonment for a second offender imposed by section 11500. With the depreciation of the standard (§ 11352) against which proportionality of punishment to offense must be gauged, an inevitable domino effect occurs throughout the hierarchy of cognate punishments. It is a truism that if a dollar is worth less today than yesterday, the value of a quarter is diminished proportionately. Thus it falls to us quite simply to reify the self-fulfilling prophecy of Foss.

As things presently stand, one serving a five year to life prison term for conviction of violation of section 11352 (or its predecessor, section 11501) without a prior narcotic conviction charged and proved, must serve at least thirty-six months in actual confinement in order to be eligible for parole. (Cf. Pen.Code § 3049, applicable generally to all cases for which special provision is not made, permitting parole upon expiration of one-third of the minimum term.) One so convicted whose minimum term has been enhanced to ten years by virtue of a prior narcotic conviction charged and proved is eligible for parole, by force of In re Foss, supra, in forty months. (Pen.Code, § 3049.) In contrast, one serving a five to twenty year prison term for conviction of violation of section 11500 (or its successor, section 11350), with a prior narcotic conviction charged and proved, must serve at least sixty months to be eligible for parole. The anomaly of requiring a greater minimum period of incarceration for simple possession of a narcotic by a second offender than is required for sale or furnishing of the same narcotic by a second offender is self-evident.

It remains only to mark the unexceptionable fact that possession is a less serious offense than sale of a narcotic in order to supply the final premise essential to a determination that the mandatory minimum term of incarceration imposed upon a second offender convicted of violation of section 11500 is unconstitutional. (Art. I, § 6, Cal.Const.)

FOOTNOTES

1.  All section references are to the Health and Safety Code unless otherwise indicated.

2.  The Lynch case held that a possible term of life imprisonment for a second offense of indecent exposure as provided by Penal Code sections 314 and 671, was cruel and unusual punishment and unconstitutional as violative of article I, section 6 of the California Constitution. (Cf. People v. Wingo (1975) 14 Cal.3d 169, 175-176, 121 Cal.Rptr. 97, 534 P.2d 1001; People v. Romo (1975) 14 Cal.3d 189, 193, 121 Cal.Rptr. 111, 534 P.2d 1015.)

1.  All section references hereinafter are to the Health and Safety Code unless otherwise specified.

REGAN, Associate Justice.

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