*1 Dist., 12723. Div. Two. July No. First 1975.] [Crim. PEOPLE, v.
THE Plaintiff and Respondent, RUIZ, VALDEZ Defendant and
RAFAEL Appellant.
Counsel Henner, the Court of. E. under Appeal,
Martin appointment *3 Defendant Appellant. Winkler, Assistant General, Chief R. Jack J.
Evelle Attorney Younger, General, O’Brien, General, P. Assistant Attorney Edward Attorney General, for L. Ina Gloria F. DeHart and Attorneys Gyemant, Deputy Plaintiff Respondent.
Opinion the Lake of BRAY, County from J.* judgment Defendant appeals verdict, violation of Health Court, conviction of after jury Superior 11357. Code section Safety Questions Presented admissible. convictions were The first and second
1) prior Trial counsel not 2) incompetent. limitation is unconstitutional. The
3)
Record with, and convicted information by Defendant was jury charged the Health and 11357 of verdict of violation section with, three and admitted He was also charged (possession marijuana). The described. convictions, of which are hereinafter the first two prior Court a in the San third was conviction County Superior Diego not does the evidence no claim is made that Inasmuch as (burglary). evidence, than other verdict, discuss it unnecessary support it the verdict. state amply supports convictions.1 prior under assignment sitting Court of Justice of the Presiding Appeal *Retired the Judicial Council. Chairman of references so the conviction (burglary) the third 1Defendant does not challenge prior stated, convictions, first and second refer to the unless otherwise hereinafter to prior convictions. The first conviction a violation 21 United States Code of heroin). The second a was violation of 174'(transportation United States Code section (importation marijuana).
At the time of the first conviction 21 United States Code section
“Whenever on
trial for
violation of this section
provided
part,
the defendant
is shown to have or to have had
of the narcotic
possession
shall be deemed sufficient evidence to authorize
drug,
possession
conviction unless the defendant
satisfac
explains
possession
tion of the
Defendant contends
v.
that because in
United
jury.”
Leary
States
The decision in is not to the statute with which we Leary applicable are concerned in the first conviction.
The court in whether the denied Leary, determining presumption due the standard “that criminal petitioner process, applied statutory be must as ‘irrational’ or and hence presumption regarded ‘arbitrary,’ unconstitutional, it unless can at least be said with substantial assurance that the fact is more than to flow not from the presumed likely proved fact on it States, which is made to v. United 395 (Leary depend.” supra, 6U.S. at 57 L.Ed.2d at 82].) p. [23 p. stated,
The court “We therefore must consider in detail whether the available evidence the conclusion that the supports ‘knowledge’ part 176a § is constitutional under the standard established presumption is, . . . that whether it can be said with substantial assurance that one in of marihuana is more than not to know that his
possession likely States, marihuana was v. United illegally imported.” (Leary supra, U.S. 6 at 45-46 L.Ed.2d 57 at After 87].) pp. considering [23 p. concluded, available short, evidence the court “In it would more be no as a even as much we to that than were majority say speculation States, United v. marihuana.” ‘knew’ the source of their (Leary possessors 91].) at L.Ed.2d at p. p. [23 supra, which unconstitutional that
The court found
part
presumption
that
related to a defendant’s
marijuana
illegally
knowledge
However,
in 21
that the court considered
presumption
imported.
which defendant
in the
Code section 174
(the
United States
conclusion was indicated in
call for a different
attacks)
instant case
might
whatever about
. . we intimate no
a footnote
“.
stating:
opinion
narcotics,
to ‘hard’
which
continued
validity
relating
presumption
will
in 21 U.S.C.
174. As
§
sustained in Yee Hem and is now found
that
176a
our
the §
‘knowledge’ presumption
appear,
holding
into the available
rests
a detailed
unconstitutional
entirely upon
inquiry
facts
the state of mind of marihuana users.
facts
about
regarding
v.
different.”
United
‘hard’ narcotics
well be
(Leary
may
significantly
States,
L.Ed. 57 at
The Yee Hem
87].)
And, U.S. 398 L.Ed.2d v. 396 (1970) in Turner United States [24 to a writ of certiorari Court 90 S.Ct. the 642], granted Supreme whether the the decision reconsider presumption light Leary 174 was 21 United States Code section constitutionally authorized by of heroin. In Turner one when possession permissible applied a of 21 United States was violation against petitioner charges section facilitating by knowingly receiving, concealing, that the heroin of heroin while and concealment knowing transportation At trial into the United States. had been imported unlawfully a of the seizure of evidence containing presented package government which had been. under front seat of the car in heroin from petitioner Np of the heroin was by evidence origin possessed presented accord with instructed in and he did not The testify. jury petitioner, from 174 that it could infer 21 United States Code section petitioner’s heroin had that he knew that the of the heroin possession unexplained was convicted. The been unlawfully imported. petitioner stated; Court affirmed the conviction and .“. . the section, inference authorized has although frequently challenged, been in this Court and in countless cases the district courts and upheld courts these cases appeals, implicitly prevailing reflecting judicial view that heroin is not made in this but rather is from country imported . . . abroad. This view is other official sources.” (Turner, supported [H] at further, 409-410 L.Ed.2d at The court said 620].) pp. supra, p. [24 “ States, ‘Common sense’ v. United at tells us that those (Leary supra, who traffic in heroin will become aware that the inevitably product they deal in is a unless studied which smuggled, they practice ignorance are not entitled.” (Turner, L.Ed.2d at 624].) they p. p. [24 It is clear under Turner decision that contention as defendant’s to the first conviction must fail. regards presumption applicable prior
Defendant’s attack on the second conviction as not an prior being offense, the minimum elements of which meet the California definition of a narcotics offense defined in division 10 of the Health comparable Code, without merit. Defendant relies Safety wholly People upon v. as 131], Murgia Cal.App.2d authority, Cal.Rptr. Code, asserts that his own conviction of 18 United States prior the same offense discussed in Murgia. The cited case is of no aid defendant. Therein the information defendant with the conviction of a federal offense charged Murgia “of Narcotics, the crime of The court found that no Smuggling felony.” offense was defined in 10 of division the Health and comparable *6 Code statute, because within the of the federal 18 “smuggling” meaning 545, United States Code section referred to of the act a defendant fraud, and concealment or customs and surreptitiously avoiding into the United States. In the term introducing goods Murgia only was considered and the court turned to the “smuggling” obviously definition of that term contained in first of the federal paragraph However, statute. in the instant case the amended information charged defendant Ruiz with of The offense marijuana.” “importation described the second of 18 United Code section 545 States paragraph as; “Whoever or or into the fraudulently knowingly imports brings States, law, receives, conceals, United merchandise or any contrary sells, or in manner concealment, facilitates the buys, any transportation, Or sale of such merchandise after the same to have importation, knowing been or into the United law—. .” States . imported brought contrary Such an offense if committed in this state a violation of would be clearly
745 Code.2 of the Health in division 10 Safety 11531 contained section an offense Therefore, was admissible as conviction comparable prior Code. 10 of the Health and in division to one contained Safety Trial 2) counsel. that he should of of counsel is
Defendant’s only charge incompetency 6, States, 395 U.S. of v. United have the effect Leary explored to those not similar that the second was should have known prior merit, so shown, has As we have neither in California. point punishable not with dereliction in defense counsel cannot be urging charged unfounded contentions. limitation is unconstitutional.
3) parole 11357 of the that the in section Defendant contends provision was which defendant Health and Code section under (the Safety of convicted of to the effect that a convicted) possession person violations convicted twice of narcotic who has been marijuana previously convictions, for shall not be as shown in defendant’s eligible prior as cruel five is unconstitutional years constituting parole period and unusual punishment. 649, relies In re Foss Cal.3d
Defendant on Cal.Rptr. section which held that the former 1073], P.2d of the Health 11357) (now possibility § prohibiting conviction of a defendant with a for 10 years I, Constitution, article under California unconstitutional the defendant In that case cruel and unusual punishment. proscribing He heroin. admitted was convicted counts of of five being furnishing the current convicted some before possession charges heroin. out
In the court Foss purpose (p. pointed “to indeterminate sentence California mitigate provisions *7 offender.” The which would otherwise be imposed upon punishment State, into this who 11531 reads in person transports, imports 2Section part: “Every State, sells, furnishes, into this administers or or offers to away, transport, import gives sell, furnish, administer, or to into this State transport or away, attempts import or give five to from years in state prison shall be by imprisonment any marijuana punished sentence, or on or on parole, of upon completion life and shall not be release eligible has been Section 11531 than three years.” until he has served not less other basis any section 11360. by replaced court then from In re Lee 177 Cal. 692-693 quoted “ P. ‘These laws the reformation of the offender. place emphasis upon 958]: seek to make the fit the criminal rather than They the crime. punishment endeavor before the incentive in They put prisoner great well-doing order that his will to do well should be and confirmed strengthened by the habit of Instead of to break the will of the offender well-doing. trying submissive, and make him is to will to do his strengthen purpose ” and lessen his to do right temptation wrong.’ The Foss court then stated: “These are principles especially applicable in the case of a addict with whom the drug dependent period incarceration can be used to lessen the potentially psychological exerted him the substance. physiological compulsion upon addicting thwarted, however, ideals These are of section lofty provision Thus, consideration for a minimum of 10 precluding parole years. even the offender have suffered a second conviction because though may addiction, of his once he has been able overcome or that addiction show a real of rehabilitation and of able to remain free promise being further narcotic he not be tried under but usage may parole supervision must still in remain until the of the prison expiration mandatory 10-year This serves as an towards on the period. hardly impetus ‘well-doing’ part Foss, of the re at (In 923-924.) prisoner.” supra, pp.
The court refers to the recommendations of President’s Commis- sion on Law Enforcement and Administration of Justice against sentences, minimum and to the imposition mandatory general opinion on and criminal corrections to effect that the experts penology goal offenders with maximum can best effectiveness be rehabilitating reached with short sentences of less than five years’ imprisonment.
The court at some reviews the California laws length providing that, limitations on consideration and “it states also parole appears in for second offenders section 11501 question provided by is unusual in its when with severity compared punishments imposed crimes, California of more serious second upon perpetrators including (In Foss, offenders.” re 925.) 928-929) court p. (pp. considers the matter of limitations other parole jurisdictions concludes that from consideration for 10 preclusion an offender with a conviction is imposed upon unusually drug severe and in violation California Constitution.
747 8 Cal.3d that in In re In the court stated Foss Lynch (p. 217, it ascertained three 410, 503 P.2d had 921], 420-424 Cal.Rptr. is whether a used in distinct determining punishment techniques test in that to the offense and that determining applied disproportionate in for for contained limitation consideration the parole 10-year an “The first such involves 11501 was unconstitutional. technique offender, offense the with of the nature of the and/or examination to (In to both the the society.” danger present regard degree particular Foss, In was the instant case defendant re 919.) initially supra, p. 23102 of the Vehicle Code for of section arrested a violation (driving or while under the influence of alcohol alcohol drugs). Subsequently in His 17.58 were found his possession. marijuana grams to the convictions occurred present years respectively prior nature of the offense in Foss “the 920), conviction. As said (p. the are do not warrant the offender with which we concerned imposition for a consideration term which absolutely precludes parole prison five the in case at bench of minimum the years. Although period” 10 in while it was for here is minimum term consideration parole Foss, there, heroin, more the of narcotic was much dangerous type there can be no than and if as Foss indicates is marijuana society there for the offense absolute minimum consideration date parole committed, in reasons it must be held that for same reasonably given date here. Foss there should be no minimum In re described in second Lynch, analysis
“Applying
prong
410, 426-427,
8 Cal.3d
it
that
also
supra,
appears
provision
question
is unusual in its
second offenders
section 11501
severity
provided
when
with
in California upon perpetra-
compared
punishments imposed
Foss,
crimes,
re
(In
tors of more serious
second offenders.”
including
is well
We the court’s statement in Foss paraphrase (p. substituting section 11357 for section 11501 therein stated: “In we have summary, concluded that the provision of section [11357] precluding parole consideration for minimum a period [5] years imposed upon an conviction, offender awith without to the existence prior drug regard circumstances as the addict status possible mitigating offender, involved, of narcotics of the nature quantity [or] I, 6, ... is in violation of article section of the California purchaser Constitution.” case,
It well be that in this in view of defendant’s may veiy priors his record shown in the as of the Bureau of Criminal Identification report behavior, and his board Investigation past parole parole may determine that defendant does not admission to for a justify parole future, time in the but the restriction of that absolute considerably long for five consideration is violative of defendant’s constitutional years rights. Foss, 11501,
In to section the defendant was sentenced to state pursuant for term 10 to life. of the statute prison years validity Upholding for such Court said “The 919): providing punishment (p. fact that a defendant under an indeterminate sentence imprisoned might be released the Adult Authority expiration not, therefore, maximum term law does affect the prescribed question whether term constitutes cruel or unusual punishment.”
Likewise, for the same reason defendant’s sentence in the case bench 11357 of under section from five to life is unconstitution- not years al.
The of 11357 of the Health and precluding consideration for defendant for a minimum of five is invalid parole years I, under article section California Constitution and is therefore set aside. Adult is directed to Authority grant parole defendant at such time as is otherwise under laws appropriate release, however, state. Defendant not entitled until such time as the Adult that he is under the determines Authority duly eligible five to life 11357. validly imposed by *10 is affirmed. judgment J.,P. concurred. Taylor, Although I that in the determination
ROUSE, concur judgment J a stands that, defendant affirmed, I in those cases where do not be agree time, third for at least narcotics offense convicted a felony which in the Health precludes parole is so of five for a minimum for such person and offends “shocks conscience it fundamental disproportionate cruel or unusual so as constitute notions of human punish- dignity” California States and of our United ment within contemplation re Cal.3d (In (1972) Constitutions. Cal.Rptr. Lynch [105 satisfied, forth however, that for reasons set I by my P.2d am 921].) decision Court his Mr. Justice Bray, colleague, opinion, 649, 519 P.2d of In re Cal.3d case Foss Cal.Rptr. that we so hold. 1073], requires 6, 1975. denied
A for a rehearing August petition