Grant, In re

• Decision Date: 07 September 1976
• Docket Number: Cr. 18847
• Citation: 553 P.2d 590,18 Cal.3d 1,132 Cal.Rptr. 430
• Court: California Supreme Court
• Parties: , 553 P.2d 590 In re Earl Westcott GRANT on Habeas Corpus.

Page 430

132 Cal.Rptr. 430

18 Cal.3d 1, 553 P.2d 590

In re Earl Westcott GRANT on Habeas Corpus.

Cr. 18847.

Supreme Court of California.

Sept. 7, 1976.

Earl Westcott Grant, in pro per., Allen R. Crown, Sacramento, under appointment by the Supreme Court, and Ernest L. Brown, Sacramento, under appointment by the Court of Appeal, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally, Marjory Winston Parker, Willard F. Jones and Paul H. Dobson, Deputy Attys. Gen., for respondent.

WRIGHT, Chief Justice.

Following a jury trial Earl Westcott Grant was convicted in 1973 of a violation of former Health and Safety Code section 11531 (sale of marijuana, now § 11360). ¹ He admitted, outside the presence of the jury, one prior conviction in 1964 for possession of marijuana (former § 11530) and another conviction in 1970 for sale of restricted dangerous drugs (former § 11912). He was sentenced to state prison for the term prescribed by law which, as a consequence of his admissions, was 10 years to life without possibility of parole for a period of not less than 10 years. Absent the provision of section 11531 precluding parole for a minimum of 10 years he would be eligible for parole after serving 40 months in prison. (Pen.Code, § 3049; see In re Foss (1974) 10 Cal.3d 910, 916, 112 Cal.Rptr. 649, 519 P.2d 1073.)

The judgment was affirmed on appeal in an unpublished opinion (People v. Grant (May 10, 1974) 4 Crim. 6090) and relief is now sought by petition for a writ of habeas corpus in response to which we have issued an order to show cause.

The issue before us today was not raised on appeal but is clearly cognizable on petition for habeas corpus since, as will be seen, petitioner alleges that he is detained under a sentence which violates fundamental constitutional rights (See Id., at pp. 916--917, 112 Cal.Rptr. 649, 519 P.2d 1073; In re Masching (1953) 41 Cal.2d 530, 532, 261 P.2d 251.)

Petitioner's sole contention is that the provision of former section 11351 which precludes parole consideration for a minimum of 10 years constitutes cruel or unusual punishment in violation of California constitutional proscriptions. We conclude that this contention has merit. ²

In response to petitioner's contention the People raise two related issues. They urge that even if it is assumed that the mandatory 10-year term without possibility of parole is invalid, petitioner should nevertheless be precluded from parole eligibility for five years as provided by former section 11531 for persons convicted of sale of marijuana with one prior narcotics conviction. In the alternative, if the provision precluding parole for five years is also unconstitutional, the People urge imposition of the provision of former section 11531 forestalling parole for a minimum of three years upon conviction of the same offense with no priors. Essentially the People suggest that contrary to our disposition in In re Foss, supra, 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073, we should rule that the general provisions of Penal Code section 3049 ³ do not determine petitioner's parole eligibility upon an invalidation of the provision of section 11531 which precludes parole consideration for 10 years.

Our treatment of the issues presented herein is governed in large part by our earlier holdings in In re Foss, supra, 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073 and In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921. Before applying the Lynch and Foss analyses to the issues now presented we pause to reaffirm our prior declaration "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 Foss, supra, 10 Cal.3d 910, 917, 112 Cal.Rptr. 649, 652, 519 P.2d 1073, 1076, citing In re Lynch, supra, 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 503 P.2d 921.) Such legislative authority is ultimately circumscribed inter alia by the constitutional prohibition against cruel or unusual punishment (see In re Foss, supra, 10 Cal.3d 910, 917, 112 Cal.Rptr. 649, 519 P.2d 1073, In re Lynch, supra, 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 503 P.2d 921) and it is the responsibility of the judiciary 'to condemn any violation of that prohibition.' (Id., at p. 414, 105 Cal.Rptr. at p. 219, 503 P.2d at 923.)

We held in Foss that a 10-year mandatory prison term prior to eligibility for parole for one convicted of sale of heroin with one prior conviction constitutes cruel or unusual punishment. ⁴ The provision which we overturned in Foss and that challenged herein are part of a statutory penalty scheme relating to recidivist narcotics offenses. Former section 11531 is typical of the Health and Safety Code penalty scheme which imposes graduated periods of parole ineligibility upon recidivist narcotics offenders. ⁵ It precludes con sideration for parole for a minimum of three years for sale of marijuana with no prior narcotics convictions, for a minimum of five years upon conviction of the same offense with one prior, and it precludes parole for a mandatory ten years in the case of offenders with two or more priors. Most of the recidivist provisions of the Health and Safety Code were enacted in 1961 as part of the same legislation. They prescribe mandatory minimum terms which preclude consideration for parole for enhanced periods of from two to ten years in the case of offenders with one prior narcotics conviction, and for graduated terms ranging from five to fifteen years for those with two or more priors.

In light of the multiplicity and similarity of recidivist provisions for enhanced minimum prison terms, piecemeal review of each such provision is counterproductive. Furthermore, because of the graduated penalty feature of these provisions, the invalidation of a particular provision precluding parole consideration based on multiple prior convictions may create the anomalous situation whereby offenders with only one prior conviction are subject by statute to longer terms before eligibility for parole than persons convicted of the same offense with two or more priors. We undertake, accordingly, to review the entire scheme of Health and Safety Code provisions precluding parole consideration for recidivist narcotics offenders.

We conclude that those provisions of the Health and Safety Code which preclude parole consideration for a minimum of five years or more for recidivist narcotics offenders constitute both cruel and unusual punishment in violation of California constitutional proscriptions. (People v. Foss, supra, 10 Cal.3d 910, 929, 112 Cal.Rptr. 649, 519 P.2d 1073.) ⁶

We have previously set forth a general description of the applicable constitutional limitation: "in California a punishment may violate article I, section 6 of the Constitution if . . . it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Foss, supra, 10 Cal.3d 910, 919, 112 Cal.Rptr. 649, 654, 519 P.2d 1073, 1078, citing In re Lynch, supra, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921.) In Foss and Lynch we elaborated three distinct techniques to aid in implementing the aforementioned standard.

'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. (Citations.)' (In re Foss, supra, 10 Cal.3d 910, 919, 112 Cal.Rptr. 649, 654, 519 P.2d 1073, 1078.) 'Relevant to this inquiry are . . . 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. . . . (A)lso relevant is a consideration of the penological purposes of the prescribed punishment.' (In re Foss, supra, 10 Cal.3d 910, 919--920, 112 Cal.Rptr. 649, 654, 519 P.2d 1073, 1078.)

To further this inquiry courts have relied on the facts of the crime in question, as well as the circumstances of the particular offender in order to illustrate the triviality of the offense and to demonstrate that the challenged punishment 'does not fit the criminal.' (In re Lynch, supra, 8 Cal.3d 410, 437, 438, 105 Cal.Rptr. 217, 503 P.2d 921; see also Weems v. United States (1910) 217 U.S. 349, 357--358, 366, 30 S.Ct. 544, 54 L.Ed. 793; O'Neil v. Vermont (1892) 144 U.S. 323, 337, 12 S.Ct. 693, 36 L.Ed. 450, Field, J. dissenting; In re Foss, supra, 10 Cal.3d 910, 918, 112 Cal.Rptr. 649, 519 P.2d 1073; People v. Lorentzen (1972) 387 Mich. 167, 194 N.W.2d 827, 828; State v. Ward (1970) 57 N.J. 75, 77, 270 A.2d 1.)

The second technique set forth in Lynch and Foss 'involves a comparison of the questioned punishment with punishments imposed within . . . (California) for offenses which may be deemed more serious than that for which the questioned punishment is imposed.' (In re Foss, supra, 10 Cal.3d 910, 920, 112 Cal.Rptr. 649, 654, 519 P.2d 1073, 1078.) The assumption underlying 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 vast majority of punishments set forth in our statutes . . . may . . . 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 Foss, supra, 10 Cal.3d 910, 920, 112 Cal.Rptr. 649, 654, 519 P.2d 1073, 1078, citing In re Lynch, supra, 8 Cal.3d 410, 426, 105 Cal.Rptr. 217, 503 P.2d 921.)

The third and final technique to be applied under Foss and...