Foss, In re

• Decision Date: 14 March 1974
• Docket Number: Cr. 16690
• Citation: 10 Cal.3d 910,519 P.2d 1073,112 Cal.Rptr. 649
• Court: California Supreme Court
• Parties: , 519 P.2d 1073 In re Robert Nathan FOSS on Habeas Corpus.

Page 649

112 Cal.Rptr. 649

10 Cal.3d 910, 519 P.2d 1073

In re Robert Nathan FOSS on Habeas Corpus.

Cr. 16690.

Supreme Court of California In Bank.

March 14, 1974.

Ezra Hendon, Berkeley, under appointment by the Supreme Court, for petitioner.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Charles P. Just, Roger E. Venturi and Willard F. Jones, Deputy Attys. Gen., for respondent.

BURKE, Justice.

Robert Nathan Foss was convicted following a jury trial in the Humboldt County Superior Court of five counts of furnishing heroin in violation of Health and Safety Code section 11501 (now § 11352). ¹ Outside the presence of the jury, petitioner admitted a prior conviction for possession of heroin in violation of Health and Safety Code section 11500 (now § 11350). His prior conviction occurred in November 1957, fourteen years before the current charges. That conviction, however, caused petitioner to be sentenced under section 11501 to state prison for a term of ten years to life, without possibility of parole for a period of not less than ten years. Absent the provision of section 11501 precluding parole for ten years, petitioner would be eligible for parole consideration after serving one-third of his minimum sentence. (Pen.Code, § 3049.)

The judgment was affirmed on appeal in an unpublished opinion (People v. Foss, 1 Crim. 10134), and no petition for hearing was filed. We took this case to consider petitioner's contention that the provisions precluding parole consideration for the mandatory minimum term contained in section 11501 constitute cruel or unusual punishment in violation of article I, section 6, of the California Constitution. ² Although the issue was raised and rejected on appeal, the question is cognizable on habeas corpus because petitioner alleges that he is being detained under a sentence which violates his fundamental constitutional rights. (In re Masching, 41 Cal.2d 530, 532, 261 P.2d 251.)

We have concluded that the provisions of section 11501 and its successor, section 11352, precluding parole consideration of a repeat offender for a minimum of ten years, constitute both cruel and unusual punishment under article I, section 6, of our Constitution. Since the mandatory minimum feature of section 11501 precluding the possibility of parole for the minimum term is severable from the remainder of the statute, however, the ten year to life sentence under which petitioner is incarcerated remains valid. ³

I

We note at the outset 'that in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone.' (In re Lynch, 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 219, 503 P.2d 921, 923.) This legislative power is limited, however, by the terms of article I, section 6, of the California Constitution. As we stated in People v. Anderson, 6 Cal.3d 628, 640, 100 Cal.Rptr. 152, 160, 493 P.2d 880, 888, 'The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority. It is the function of the court to examine legislative acts in light of such constitutional mandates to ensure that the promise of the Declaration of Rights is a reality to the individual. (Bixby v. Pierno (1971) 4 Cal.3d 130, 141, 93 Cal.Rptr. 234, 481 P.2d 242 . . ..) Were it otherwise, the Legislature would ever be the sole judge of the permissible means and extent of punishment and article I, section 6, of the Constitution would be superfluous.'

We proceed, therefore, to fulfill our constitutional obligation to inquire whether the sentence imposed upon petitioner pursuant to Health and Safety Code section 11501 violates his rights under article I, section 6, of the Constitution.

Petitioner contends through his appointed counsel that the mandatory minimum feature of Health and Safety Code section 11501 which precludes parole consideration for a minimum of ten years is 'cruel, as applied to him, because it is grossly disproportionate to the offense he committed, and is unusual when compared with California sentencing procedure and with the law of other jurisdictions.' Petitioner, through counsel, expressly disavows any contention that the ten year to life term set forth in section 11501 is cruel or unusual and limits his attack to the provision precluding parole consideration for a minimum period of ten years.

As noted above, petitioner was convicted of five counts of selling or furnishing heroin. The record shows that on five separate occasions petitioner furnished heroin to Leroy Holmes, a former supplier for petitioner, who had agreed to assist the police after having been arrested for selling sugar in lieu of heroin. On each such occasion, petitioner went with Holmes to secure the narcotic from petitioner's current supplier. Petitioner testified that initially he refused to acquire heroin for Holmes but reluctantly agreed to do so because Holmes was going through pain from 'withdrawals.' Petitioner's version was corroborated by the testimony of his wife who was present in petitioner's home when he was approached by Holmes. Holmes testified that petitioner readily agreed to furnish him with heroin but Holmes admitted that he was addicted to heroin and suffering from withdrawal when he approached petitioner. Petitioner's testimony that he was also addicted to heroin and suffering from withdrawal at the time of the sales to Holmes is uncontradicted in the record. It is also uncontradicted that the sole consideration received by petitioner for furnishing heroin to Holmes was enough of the narcotic for a single fix on three of the five occasions on which the transactions occurred. Petitioner testified further that he had never sold heroin for 'profit' and stated on cross-examination by the prosecution that he had not furnished heroin to anyone prior to the transactions with Holmes. ⁴

The inquiry into the provision prohibiting parole consideration for a minimum of ten years begins with this court's recent holding in In re Lynch, Supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, that a term of life imprisonment for a second offense of indecedent exposure (Pen.Code, §§ 314, 671), violated article I, section 6, of our Constitution. We concluded (p. 419, 105 Cal.Rptr. p. 222, 503 P.2d p. 926) that 'when a defendant under an indeterminate sentence shallenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is whether the maximum term of imprisonment permitted by the statute punishing his offense exceeds the constitutional limit, regardless of whether a lesser term may be fixed in his particular case by the Adult Authority.'

The fact that a defendant imprisoned under an indeterminate sentence might be released by the Adult Authority prior to the expiration of the maximum term prescribed by law does not, therefore, affect the question whether that term constitutes cruel or unusual punishment. In the instant case, however, because of the provision prohibiting parole consideration for the minimum period of ten years prescribed by section 11501, there is no possibility that petitioner will be released during the first ten years of his incarceration. Although we were concerned with the maximum term in Lynch, we thus made it clear that where a minimum sentence is found to violate article I, section 6, of the Constitution, the 'defendant will be entitled to relief without regard to the constitutionality vel non of the maximum.' (In re Lynch, Supra, 8 Cal.3d 410, 419, fn. 9, 105 Cal.Rptr. 217, 222, 503 P.2d 921, 926.) Petitioner's contention that the provision prohibiting parole consideration for the minimum period of ten years is both cruel and unusual can therefore be considered without regard to the constitutional validity of the life maximum term. Furthermore, since it is solely the provision precluding parole consideration for the minimum term that is challenged by petitioner, we need not consider at this time whether the maximum term of life imprisonment imposed by section 11501, or its successor section 11352, is cruel or unusual punishment.

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...