Jones, In re

• Decision Date: 21 November 1973
• Docket Number: Cr. 11925
• Citation: 35 Cal.App.3d 531,110 Cal.Rptr. 765
• Court: California Court of Appeals Court of Appeals
• Parties: In re Dorian C. JONES on habeas corpus.

Page 765

110 Cal.Rptr. 765

35 Cal.App.3d 531

In re Dorian C. JONES on habeas corpus.

Cr. 11925.

Court of Appeal, First District, Division 3, California.

Nov. 21, 1973.

Hearing Denied Jan. 31, 1974.

Arthur Leinwohl, Los Altos, for petitioner.

Evelle J. Younger, Atty. Gen., of Cal., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Writs Section, Derald E. Granberg, John C. Davis, Deputy Attys. Gen., San Francisco, for respondent.

CALDECOTT, Associate Justice.

The petitioner is now imprisoned in Soleadad State Prison following a conviction on pleas of guilty to two counts of violation of Health and Safety Code section 11531, ¹ sale of marijuana. The only issue presented by this petition for habeas corpus is whether the imposition of a sentence of five years to life in this case constitutes cruel or unusual punishment.

This question has been presented to courts of appeal of California in numerous cases and as stated in People v. Sheridan (1969), 271 Cal.App.2d 429, 431, 76 Cal.Rptr. 655, 656: '. . . statutes dealing with marijuana have repeatedly withstood attacks concerning their constitutionality, including claims that the statutes violate the due process and equal protection clauses and that the punishments prescribed are cruel and unusual. (See People v. Oatis, 264 Cal.App.2d 324, 70 Cal.Rptr. 524; People v. Cuellar, 262 Cal.App.2d 766, 68 Cal.Rptr. 846; People v. Aguiar, 257 Cal.App.2d 597, 65 Cal.Rptr. 171; People v. Keller, 245 Cal.App.2d 711, 54 Cal.Rptr. 154. . . .'

1] As stated in People v. Cuellar (1968), Supra, 262 Cal.App.2d 766, 769--770, 68 Cal.Rptr. 846, 848: '. . . the Legislature is now holding hearings concerning the punishment for the possession of, use of, and trafficking in marijuana. This is where the matter of proper penalty should be determined, since this court is in no position to hold hearings and take evidence bearing on the controversial question of the effect marijuana has upon the individual and upon society.'

The only California Supreme Court case we have been able to find that concerns the sentencing of defendant convicted of selling marijuana is People v. Benford (1959), 53 Cal.2d 1, 345 P.2d 928. The court in Benford stated at pages 15--16, 345 P.2d at page 938: 'The punishment to which this defendant has been sentenced is imprisonment from 10 years to life, for section 11713 ² of the Health and Safety Code prescribes that punishment for 'Any person convicted under this division for . . . furnishing . . . any narcotic' where he 'has been previously convicted of any offense described in this division' and the previous conviction is 'found to be true by the court.' This punishment seems very harsh for a defendant who, without benefit or profit to himself, furnished the comparatively small amount of marijuana obtained by this defendant at the request of and for the officer, and who had suffered a conviction for possession of marijuana seven years before. . . . However, as the trial judge aptly stated when he imposed sentence, 'until the legislature sees fit, or the People of the State of California see fit, to change the laws, it is my duty as a judge and under my oath to follow the laws as the People of the State of California have made them. " ³

The cases cited above were all decided before In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 and People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 193 P.2d 880 and emphasize it is the function of the legislative branch, not the courts, to prescribe punishments. Lynch and Anderson have modified this rule.

2] In Lynch the court stated at 8 Cal.3d at pages 414--415, 105 Cal.Rptr. at page 219, 503 P.2d at page 923: 'We recognize 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. (People v. Bauer (1969), 1 Cal.3d 368, 375, 82 Cal.Rptr. 357, 461 P.2d 637, 37 A.L.R.3d 1398; People v. Knowles (1950), 35 Cal.2d 175, 181, 217 P.2d 1; People v. Tanner (1935), 3 Cal.2d 279, 298, 44 P.2d 324.)

'3] Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment, adopted by the people of this state as an integral part of our Declaration of Rights. It is the difficult but imperative task of the judicial branch, as coequal guardian of the Constitution, to condemn any violation of that prohibition. As we concluded in People v. Anderson (1972), 6 Cal.3d 628, 640, 100 Cal.Rptr. 152, 493 P.2d 880, 888, 'The Legislature is thus accorded the broadest discretion possible in enacting penal statutes and in specifying punishment for crime, but the final judgment as to whether the punishment it decrees exceeds constitutional limits is a judicial function.' (Citations omitted.)

'We add that the determination of whether a legislatively prescribed punishment is constitutionally excessive is not a duty which the courts eagerly assume or lightly discharge. Here, as in other contexts, "mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears." In re M. (1969), 70 Cal.2d 444, 453, 75 Cal.Rptr. 1, 6, 450 P.2d 296, 301, and cases cited.'

'Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty 'out of all proportion to the offense' (Robinson v. California (1962), supra, 370 U.S. 660, 676 (82 S.Ct. 1417, 1425,) 8 L.Ed.2d 758, 768 (concurring opinion of Douglas, J.); In re Finley (1905), supra, 1 Cal.App. 198, 202, 81 P. 1041, 1042), i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.' (In re Lynch, supra, at 8 Cal.3d pp. 423--424, 105 Cal.Rptr. p. 226, 503 P.2d p. 930.)

'We conclude 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.' (In re Lynch, supra, at p. 424, 105 Cal.Rptr. at p. 227, 503 P.2d at p. 930.)

In In re Lynch, Supra, the court pointed out certain techniques used in administering the above rule. First, the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. Second, a comparison of the challenged penalty with punishments prescribed in the same jurisdiction for different offenses which must be deemed more serious. Third a comparison of the challenged penalty with the punishment prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision.

4] As a defendant under an indeterminate sentence is in effect sentenced to the maximum term provided by law, the constitutional validity of the sentence must be judged by that maximum. (In re Lynch, supra, at p. 419, 105 Cal.Rptr. 217, 503 P.2d 921.) Health and Safety Code section 11531 prescribes punishment for a first offense violation of imprisonment in the state prison for a period of five years to life. Thus, for present purposes we can deem this petitioner to be serving a sentence of life imprisonment. ⁴

I

A consideration of the first technique raises the question of whether or not marijuana is a danger to society. The biological and psycho-pharmacology effects of marijuana have been a subject of myth and speculation. Various studies and reports have attempted to analyze the problem but with little success. One of the difficulties encountered was the fact that as the use of marijuana was illegal there was no standardization of pharmacological potency and the amount of active drug, tetra-hydro-cannabinol (THC), actually consumed by a user was not known. Apparently the active drug was not isolated in pure form until 1964 and even today a method of determining the THC blood concentrate has not been developed. Without knowing the amount of drug consumed at a given time or the cumulative amount consumed over a period of years a scientific determination of its effect was difficult. Very little American data exists on the duration of marijuana use. Practically no data exists which demonstrates the extent that persons who initiated marijuana use some 20 to 40 years ago have continued its use. The majority of the youthful users and many of the adults have used the drug less than 10 years and probably less than five years. The appellate courts are not in a position to hold hearings and take evidence on the question of the effect of marijuana on an individual or on society. If, however, the facts are clear we then must be guided by them. If there is a conflict in the evidence or more study is necessary to reach a meaningful conclusion then it is not for the courts to say that the Legislature's determination of the penalty is wrong as a matter of law. The question thus presented relates to the danger of marijuana to the individual and society.

Petitioner has cited and relies heavily on the recent report of the National Commission on Marihuana and Drug Abuse, ⁵ which petitioner states is viewed by many authorities as the most comprehensive study on the subject. In 1970 the United States Congress established the Commission on Marihuana and Drug Abuse. In March 1972, the commission filed...