64 Cal. 2d 70 | Cal. | 1966
Bay J. Carlson is presently confined at the California Conservation Center at Susanville, serving a sentence for violation of section 11500 of the Health and Safety Code (possession of narcotics), with a prior conviction, upon a plea of guilty, for violation of section 11721 of the Health and Safety Code, a misdemeanor.
Carlson has served in excess of ten years, the maximum sentence which could have been imposed absent the prior misdemeanor conviction. (Health & Saf. Code, § 11712; repealed Stats. 1959, ch. 1112, p. 3193.) He seeks release by writ of habeas corpus on the ground that “the prior misdemeanor conviction of section 11721, Health and Safety Code is of no effect on the present sentence since the United States Supreme Court in the case of Robinson v. California (1962) 370 U.S. 660 [82 S.Ct. 1417, 8 L.Ed.2d 758], held section 11721 Health and Safety Code unconstitutional. ...”
It first appears that petitioner has misconstrued the holding of Robinson v. California, supra, 370 U.S. 660. The United States Supreme Court there held that section 11721 of the Health and Safety Code
In re Becerra, supra, involved the precise issue at bar. There defendant had pleaded guilty to a complaint charging in the conjunctive violation of section 11721 in that he “did wilfully and unlawfully use and be addicted to the unlawful use of narcotics.” (Italics added.) Upon subsequent conviction of violation of section 11500, he received the augmented sentence prescribed by section 11712. After the Robinson decision he sought discharge by habeas corpus. The District Court of Appeal denied his application: “Since he was convicted not alone of narcotics addiction but of narcotics use as well, the prior conviction is not affected by Robinson v. California.” (In re Becerra, supra, at p. 747.)
Unfortunately, the record in the instant ease is not so complete as that in Becerra: the complaint alleging petitioner’s violation of section 11721, to which he pleaded guilty, is not before us. Petitioner did not include his copy of the complaint with his petition, and respondent was unable to include a copy in his return for the reason that this complaint, together with many other misdemeanor complaints, was destroyed by order of the presiding judge pursuant to section 1428b of the Penal Code. The docket was not so destroyed, but the only information which it provides as to the content of the complaint is that defendant was charged with committing ‘1 a misdemeanor, to-wit: Violation of Section 11721 Health & Safety Code.” The lower court record therefore gives us little aid as to the question whether use and addiction, or solely addiction, was charged.
Petitioner offers two sworn statements in support of his position. The first, found in his petition, is that he suffered “conviction by plea of guilty to a misdemeanor, to-wit violation of section 11721 Health and Safety Code (Addiction).” This is at best an equivocal allegation that the complaint charged only addiction.
The second statement is found in a separately filed declaration, and reads in relevant part as follows: “That on April 30, 1953, your declarant was arrested , by the Los Angeles police for having marks on his arm and was charged with a violation of section 11721 of the Health and Safety Code. After due proceedings had your declarant entered a plea of guilty to the charge being of the belief that the charge was addiction by reason of the marks on his arm. If the arrest report was available it should show that declarant was arrested by reason of the marks and for no other cause.” The certified copy of the arrest report refutes this statement. It shows in substance that petitioner and four other men were apprehended in the act of administering heroin to themselves, that petitioner at the time of the arrest had blood running from one of the several needle marks on his arm, and that petitioner then and there “stated he had only taken a few drops of heroin out of the eye dropper when officers arrived.”
The presumption of regularity which attached to a judgment collaterally attacked (see Johnson v. Zerbst, 304 U.S. 458, 468 [58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357] ; In re Bell, supra, 19 Cal.2d 488, 500) places upon a petitioner the burden of proving that his conviction was based not upon the constitutional hut upon the unconstitutional provisions of the statute under which he was convicted. (See In re Bell, supra, at pp. 501, 504.) In attempting to sustain this burden he is not confined to the evidence presented at trial but may have resort to “any necessary additional evidence hearing on the infringement” of his rights. (In re Bell, supra, 19 Cal.2d 488, 501.)
Petitioner has failed to present evidence sufficient to sustain this burden, and his petition must therefore be denied. This determination is made in spite of our awareness that the destruction of the court copy of the complaint herein by order of the presiding judge (Pen. Code, § 1428b) has limited
The order to show cause is discharged, and the petition for the writ of habeas corpus is denied.
Petitioner’s application for a rehearing was denied March 2, 1966. Mosk, J., was of the opinion that the petition should be granted.
In the version of section 11721 with which the United. States Supreme Court was concerned in Bobinson, the relevant language was as follows: “No person shall use, or be under the influence of, or be addicted to the use of narcoties. . . .” (Stats. 1957, ch. 1064, p. 2343.) The relevant language at the time of petitioner’s misdemeanor conviction, May 13, 1953, was as follows: “No person shall unlawfully use or be addicted to the unlawful use of narcotics.” (Stats. 1953, ch. 1770, p, 3528.)
In 1963 the section was amended to delete the invalid portion and to read in relevant part as follows: “No person shall use, or be under the influence of narcotics. ...” (Stats. 1963, ch. 913, p. 2162.)
Petitioner has not produced the copy of the complaint provided to him at the 1952 proceedings.