Johnson, In re

• Decision Date: 29 October 1970
• Docket Number: Cr. 13672
• Citation: 90 Cal.Rptr. 569,3 Cal.3d 404,475 P.2d 841
• Parties: , 475 P.2d 841 In re Troy JOHNSON on Habeas Corpus.
• Court: California Supreme Court

Page 569

90 Cal.Rptr. 569

3 Cal.3d 404, 475 P.2d 841

In re Troy JOHNSON on Habeas Corpus.

Cr. 13672.

Supreme Court of California,

In Bank.

Oct. 29, 1970.

Troy Johnson, in pro. per., and Marcus Vanderlaan, Sacramento, under appointment by the Supreme Court, for petitioner.

Thomas, C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and James T. McNally, Deputy Atty. Gen., for respondent.

PETERS, Justice.

Troy Johnson petitions for a writ of habeas corpus. He asserts the invalidity of his two concurrent 10-year minimum sentences, imposed in 1965 upon his conviction of two counts of selling marijuana with two priors. (Health & Saf.Code, § 11531.)

Petitioner was convicted in 1950 of a violation of the federal offense of acquiring marijuana without having paid the federal Marijuana Transfer Tax. (26 U.S.C. § 2593(a), now § 4744(a)(1).) Upon violating probation, he served six months in a federal correctional institution in Texas.

Petitioner was convicted in 1954 of possession of Marijuana (Health & Saf.Code, § 11500), and served five months in the Alameda County jail.

In November of 1965, and after waiving a jury, petitioner went to trial on two counts of sale of marijuana under an indictment supplemented to charge the two prior offenses described above. When the district attorney introduced evidence of the two priors during his case-in-chief, petitioner's attorney indicated that he had not previously seen the supplemental indictment charging the priors, and that he had not researched the question whether the federal offense could be treated as a prior.

The court indicated that counsel could research the matter and present any argument on the following day, at which time the district attorney cited People v. McLean, 56 Cal.2d 660, 16 Cal.Rptr. 347, 365 P.2d 403, for the proposition that the federal tax offense constituted a prior offense for purposes of Health and Safety Code section 11531. When the court invited petitioner's counsel to discuss the question, the latter replied: 'I haven't read the McLean case yet, Your Honor. My position was since I am the defense I was going to let them bring forward proof and rely on the lack of proof.'

After counsel argued at length the possibilities of conviction of mere possession and the sufficiency of the priors, the court found petitioner guilty of two counts of sale of marijuana, indicated an intention to make the sentences concurrent, and concluded that the federal offense constituted a 'good prior felony' while the later offense was '(n)ot a prior felony. It is a prior misdemeanor conviction.'

Apparently the trial judge relied on the fact that petitioner's five-month sentence rendered his 1954 conviction a misdemeanor. (Pen.Code, § 17.) When the district attorney indicated that the fact the offense carried a possible felony sentence rendered the offense a felony prior for purposes of Health and Safety Code section 11531 (Health & Saf.Code § 11533), the judge replied: 'That is up to the Adult Authority as long as I leave it in.' The judgment recites that petitioner was found guilty of two counts of sale of marijuana, and that he 'was previously convicted of a felony in the U.S. District Court and of a misdemeanor in Superior Court, Alameda County, California, both offenses involving Marijuana; * * *' The Court of Appeal affirmed the conviction, rejecting inter alia a contention that the 1954 offense did not qualify as a prior felony. We denied a hearing October 14, 1966.

Petitioner now urges: (1) The 1950 federal conviction must be voided in view of Leary v. United States (1969) 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57; (2) the trial judge's insistence that the 1954 offense was a misdemeanor should bind the Adult Authority because Health and Safety Code section 11718 unconstitutionally restricts the power of a trial judge to dismiss priors charged to augment sentence; (3) petitioner's 10-year sentence is unconstitutional in that it is cruel and unusual in its severity; (4) he was prejudiced by the introduction of the priors at his trial; and (5) he was denied the effective assistance of counsel in view of his appointed attorney's admissions of lack of preparation with regard to the 1950 prior.

(1) The 1950 Prior--Petitioner's 1950 conviction was for violation of a federal statute forbidding any person required to pay the federal Marijuana Transfer Tax (26 U.S.C. § 2590, now § 4741) 'to acquire or otherwise obtain any marijuana without having paid such tax' and providing that proof of possession coupled with a failure to produce an order form required of all transferors of marijuana (with some irrelevant exceptions) (26 U.S.C. § 2591, now § 4742) 'shall be presumptive evidence of guilt.' (26 U.S.C. § 2593(a), now § 4744(a).) Such a conviction constitutes a prior felony for purposes of the habitual narcotics offender statutes (People v. McLean, Supra, 56 Cal.2d 660, 665--666, 16 Cal.Rptr. 347, 365 P.2d 403), regardless of the sentence actually imposed (Health & Saf.Code, § 11533).

Leary v. United States, Supra, 395 U.S. 6, 89 S.Ct. 1532, held, inter alia, that a timely invocation of the privilege against self-incrimination constitutes a complete defense against a prosecution under section 4474(a) of title 26 of the United States Code. (Id., at pp. 12--29, 89 S.Ct. 1532.) Noting that Leary was required to have paid the tax at the time of securing the order form required by section 4742 (26 U.S.C. § 4741(b)), that he could have obtained the form only by identifying himself as a transferee of marijuana (and as one who had not paid the occupational tax imposed by sections 4751--4752), that if revealed this information would be conveyed to state and local law enforcement officials by virtue of section 4773, and that all states had laws making possession of marijuana illegal, the Supreme Court reasoned that the statutory scheme 'compelled petitioner to expose himself to a 'real and appreciable' risk of self-incrimination, within the meaning of our decisions in Marchetti, Grosso, and Haynes.' (395 U.S. at p. 16, 89 S.Ct. at p. 1537.)

Marchetti v. United States (1968) 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, held the Fifth Amendment a complete defense to a prosecution for failure to register and pay the occupational tax on wagers (26 U.S.C. §§ 4411--4412) in view of the availability of lists of wagering taxpayers to state and local prosecutors (Id., § 6107), in view of the statutory scheme's concern with a "selective group inherently suspect of criminal activities" (390 U.S. at p. 57, 88 S.Ct. at p. 707), and in view of the "real and appreciable" risk of self-incrimination inherent in compliance (Id., at p. 48, 88 S.Ct. 697).

Grosso v. United States (1968) 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, applied the Marchetti rationale to hold the Fifth Amendment a complete defense to a prosecution for nonpayment of the excise tax on proceeds from wagering. (26 U.S.C. § 4401.) Haynes v. United States (1968) 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, applied the same rationale to hold the Fifth Amendment a complete defense to a prosecution under the National Firearms Act for possession of an unregistered weapon. (26 U.S.C. §§ 5841, 5851.)

It is clear that petitioner could not now be convicted of the same offense for which he was convicted in 1950 (Leary v. United States, Supra, 395 U.S. 6, 89 S.Ct. 1532), ¹ and that petitioner may now challenge his sentence to the extent that it is augmented by an unconstitutional prior (In re Dabney, 71 A.C. 1, 4, 76 Cal.Rptr. 636, 452 P.2d 924; In re Woods, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913). The questions remaining are whether Leary applies retroactively to render the 1950 prior unconstitutional, ² and, if so, whether the fact the prior was entered on a plea of guilty affects petitioner's right to relief. ³

The retrospective effect of a law-making opinion is to be determined by "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." (Desist v. United States (1969) 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248, and cases cited; footnote omitted.) It is also clear that the factors of reliance and burden on the administration of justice are of significant relevance only when the question of retroactivity is a close one after the purpose of the new rule is considered. (Desist v. United States, Supra, 394 U.S. at p. 251, 89 S.Ct. 1030, 1033, and cases cited.)

When the United States Supreme Court's view of the importance of a new rule is borne in mind, that court's retroactivity decisions break down along consistent lines. Fully retroactive decisions are seen as vindicating a right which is essential to a reliable determination of whether an accused should suffer a penal sanction. Berger v. California (1969) 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508, gave fully retroactive effect to Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (a state cannot use preliminary hearing transcript of absent witness' testimony without showing good faith effort to secure his presence at trial), on the theory that precluding cross-examination of a potentially critical witness may have had a significant effect on the integrity of the fact finding process at trial. Roberts v. Russell (1968) 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, applied retroactively Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (the introduction of a jointly tried codefendant's extrajudicial statement implicating the defendant violates the confrontation clause), because a codefendant's admissions might lead to an unreliable determination of guilt or innocence when untested by cross-examination. Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, which forbade trusting the decision between...