People v. Madden
| Decision Date | 30 October 1979 |
| Docket Number | Cr. 3372 |
| Citation | 98 Cal.App.3d 249,159 Cal.Rptr. 381 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Bernice MADDEN et al., Defendants and Appellants. |
Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Deputy Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and Edmund D. McMurray, Deputy Attys. Gen., for plaintiff and respondent.
Bernice Madden and Levi Williams Appeal from judgments of conviction against each of them after a joint trial. Ms. Madden was charged in the information filed against her as follows:
Count I sale of heroin, November 3, 1976 (Health & Saf.Code, § 11352, subd. (a)), one-half ounce or more (Pen.Code, § 1203.07, subd. (a)(2)).
Count II possession of heroin for sale (Health & Saf.Code, § 11351, subd. (a)), one-half ounce or more (Pen.Code, § 1203.07, subd. (a)(1)).
Count III sale of heroin, October 27, 1976.
The first two counts charged the same offenses against Mr. Williams. Count IV charged defendant Williams only with being a felon in possession of a pistol (Pen.Code, § 12021).
Defendants waived jury and the case was tried to the court. The parties stipulated the amount of heroin in the balloons (count III) was .4 grams and in a prophylactic (count I) was 49.6 grams.
The court found Madden guilty of counts I and III, not guilty of count II, and found to be true the Penal Code section 1203.07, subdivision (a)(2) allegation in count I.
The court found Williams guilty of count I and found to be true the Penal Code section 1203.07, subdivision (a)(2) allegation in count I. He was found not guilty of count II. He was found guilty of count IV.
Each defendant was sentenced to prison. Each filed timely notice of appeal.
I. Each of the appellants contends that the mandatory prohibition of probation required by Penal Code section 1203.07, subdivision (a)(2) constitutes cruel and unusual punishment.
II. Appellant Madden also contends the trial court abused its discretion in finding her unfit for commitment to the California Rehabilitation Center (hereinafter sometimes CRC).
October 27, 1976, an informant, Glen Massingill, was searched by officers, fitted with a transmitter and given $168, $18 of which was to be used to purchase two balloons of heroin from appellant Madden, and $150 of which was to pay a debt Massingill owed to Madden. Massingill drove to Madden's residence followed by officers. He paid off his debt and purchased two balloons of heroin, which he later delivered to the officers.
November 2, 1976, Massingill returned to the Madden residence and talked with Madden and Williams about purchasing a half ounce of heroin. The appellants and Massingill agreed that the price should be $500 for the half ounce, and that the transaction would take place the next day.
On November 3, Massingill and his car were searched and he was given $500 to make the purchase. Massingill drove to appellant's residence, followed by officers who were monitoring the events. Massingill told Madden he had the money and wanted the half ounce of heroin. After Williams arrived, the appellants added Massingill's $500 to other money brought by Williams. Madden and Williams wanted an ounce and a half for themselves and were still short of sufficient money to buy two ounces.
Williams armed himself with a pistol and left with Madden. They were to buy two ounces of heroin. Madden left Massingill with some balloons of heroin which she told him to sell "to anybody who came to the door" if Massingill knew them.
When Madden and Williams returned, they were arrested and deputies found four balloons and a foil-wrapped prophylactic containing brown powder in Madden's clothing and another prophylactic of brown powder in her mouth. The total weight of heroin was approximately 50 grams.
Madden admitted to purchasing almost two ounces of heroin on November 3, stating that some was for Massingill and the rest was for herself. She also admitted she was an addict and a heavy user of heroin. Her physical condition was said to be "not good." On the day of appellants' arrest, Madden's arms showed the signs of heavy heroin use collapsed veins, scarring, fresh, open wounds and scab wounds. Madden contends her habit cost up to $500 per day when the money was available. This high cost was said to be due to the fact that she had to "skin pop, so therefore I have to use twice as much drug as I ordinarily would." Madden testified that when she first began using heroin in 1973 she stole to support her habit. As her habit became more expensive, she began to sell some of the heroin that she bought to keep herself supplied.
Williams did not testify.
I. THE MANDATORY PROHIBITION OF PROBATION REQUIRED BY PENAL CODE SECTION 11203.07, SUBDIVISION (a)(2) DOES NOT CONSTITUTE CRUEL OR UNUSUAL PUNISHMENT.
Cruel and/or unusual punishment is forbidden by the Eighth Amendment to the Constitution of the United States and by article I, section 17 of the Constitution of the State of California. California Penal Code section 1203.07 provides that:
In In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, the California Supreme Court recognized that a penalty which was not inherently cruel or unusual would nonetheless violate the cruel or unusual punishment clause if it were sufficiently disproportionate to the crime for which it was inflicted (Id., at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921). The court outlined three techniques to be used in determining whether a particular penalty for a particular offense constitutes disproportionate punishment: (1) consideration of the nature of the offense and/or the offender with particular regard to the degree of danger both present to society; (2) comparison of the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious; (3) comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision (Id., at pp. 425-427, 105 Cal.Rptr. 217, 503 P.2d 921).
Respondent argues that Lynch should not be applied to this case because appellants are testing the legislative ban on probation for sale of one-half ounce or more of heroin, not the severity of their punishment. The lack of ability to grant probation creates a mandatory minimum sentence. Such a mandatory minimum sentence would be cruel and unusual if so disproportionate that it shocks the conscience and offends fundamental notions of human dignity. (Lynch, Supra, 8 Cal.3d at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921.) We therefore apply the criteria of Lynch.
While the offense is nonviolent, it is "a serious and deadly offense against society" (People v. Serna (1975) 44 Cal.App.3d 717, 720, 118 Cal.Rptr. 904, 906). The Serna Court observed that (Ibid.) Thus, although the crime of selling heroin does not involve direct violence to another person, the Legislature could reasonably conclude that it is one of the most serious offenses, leading indirectly to death, illness, and other crimes which may involve violence. As stated in the American Bar Association Standards for Criminal Justice, Standards Relating to Probation:
(Id., (Approved Draft 1970) std. 1.1(a), emphasis added.)
In conformance with the American Bar Association Standards and the language of Serna, the Legislature has said the sale of one-half ounce or more of heroin is a most serious offense.
Also relevant to this examination of the offense and offender are the following factors: the facts of the crime in question; the penological purposes of the prescribed punishment; and finally, whether there are rational gradations of culpability which can be drawn on the basis of the degree of injury to the victim or to society in general (In re Foss (1974) 10 Cal.3d 910, 919-920, 112 Cal.Rptr. 649, 519 P.2d 1073). Appellants argue that the statute fails to make a logical gradation of culpability based on the injury to the victim or to society. The Legislature did delineate a point at which the sale of heroin becomes sufficiently serious to warrant denying probation: the sale of one-half ounce or more of a substance containing heroin. Appellants argue that the statute is defective in that it links the availability of probation to the weight of the substance containing heroin, not the weight of the heroin itself. Appellants argue that this gives an unwarranted advantage to those major suppliers of heroin who deal only in concentrated or "pure" heroin, while the small man who sells "cut" heroin on the street bears the brunt of this section. This means that the large dealer selling pure heroin can sell as much as 30 times the amount of heroin...
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...These crimes nevertheless may be considered " 'serious and deadly offense[s] against society.' " (People v. Madden (1979) 98 Cal.App.3d 249, 255, 159 Cal.Rptr. 381.) Madden, which involves the sale of heroin, notes that the recipients of heroin are endangered by its use, its sale gives rise......
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