In Re Jones

35 Cal. App. 3d 531, 110 Cal. Rptr. 765, 1973 Cal. App. LEXIS 731

• Court: California Court of Appeal
• Decided: November 21, 1973
• Docket: Crim. 11925
• Status: Published

Opinions

Opinion

CALDECOTT, J.

The petitioner is now imprisoned in Soledad 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]: . . 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] . . . .)”

As stated in People v. Cuellar (1968) supra, 262 Cal.App.2d 766, 769-770: “. . . 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 a 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: “The punishment to which this defendant has been sentenced is imprisonment from 10 years to life, for section 11713² 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, 493 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.

In Lynch the court stated at pages 414-415: “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].)

“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], ‘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 Dennis M. (1969) 70 Cal.2d 444, 453 [75 Cal.Rptr. 1, 450 P.2d 296], 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 [8 L.Ed.2d 758, 768, 82 S.Ct. 1417] (concurring opinion of Douglas, J.); In re Finley (1905) supra, 1 Cal.App. 198, 202 [81 P. 1041]), i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.” (In re Lynch, supra, at pp. 423-424.)

“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.)

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 samé 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.

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.) 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 5 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 its first report.⁶ As stated in the report, “Congress created the Commission on Marihuana and Drug Abuse to separate fact from fiction, reality from myth, and to achieve a balanced judgment on the marihuana issue.” According to the report, marijuana when used in low or moderate doses⁷ produces minimal acute physiological effects. There is an effect on cardiac rhythm, a fine tremor and ataxia, but these effects are not permanent. The report also cites many serious problems that can arise from the use of marijuana.

Genetic and Birth Defects

Much concern about possible effects on the unborn generation has arisen because of the marijuana use by persons in the reproductive years. Presentiy, most studies are preliminary. The commission’s report cites three cases of birth defects in man in the offspring of parents who had used marijuana and LSD. The report concludes, however, that “a causal relationship cannot be attributed to marihuana or anything else.”⁸

Marijuana has been implicated as a teratogen in animals by several groups at high doses. One study showed reduced fertility in rats impregnated after being fed a diet containing marijuana extract for many months. Pregnant mice inflicted with cannabis resin caused stunted, but not malformed offspring. A second experience using rats produced a high frequency of malformed progeny. Another investigation demonstrated congenital malformations in fetal hamsters and rabbits after large multiple doses of cannabis extract. Studies with radioactive labeled THC indicated that it did cross the placenta in high concentrations early in gestation during the developmental labile phase.

Psychosis

The commission’s report cites a number of studies, both foreign and U.S., on the relationship of psychosis and marijuana use. The report points out that the findings of the foreign studies are often questionable due to lack of controls, biased sampling and poor data collection and failure to account for variables, such as nutrition, living standard, cultural factors and socio-economic status. These studies, for what they are worth, do show a definite relationship between marijuana use and psychosis. Some of the studies apparently are reliable. According to the commission’s report the Indian Hemp Commission performed a thorough and objective investigation of the question. The commission examined all admissions to Indian mental hospitals for one year. They found that cannabis use was a factor in from 7 percent to 13 percent of all cases of both acute and chronic psychosis. A study in Nigeria showed that 14 percent of the psychiatric admissions used cannabis. Toxic psychosis accounted for one-half of these and cannabis was felt to aggravate underlying schizophrenia. Several statistical studies in other countries including Jamaica, Colombia, Algeria, Panama and Tunisia support this type of data.

The commission’s report states: “Experience in the U.S. and Western Europe has not involved a level of marihuana use comparable to the ¿above-mentioned countries. Consequently, the associated chronic psychotic disturbances have not been seen.” The commission does cite reports that show “acute psychotic episodes with clear-cut onset during the marihuana intoxication.” Most symptoms cleared within a few days, although several had prolonged illnesses. A few cases of marijuana psychosis that were reported recovered very slowly after extensive psychotherapy. “However, the high incidence of schizophrenia and borderline states described in these patients and their families may indicate that marihuana use merely aggravated or precipitated an underlying psychosis in these individuals.” Several other reports indicate an aggravation of schizophrenic condition by the use of marijuana. Several authors have reported acute toxic psychosis following marijuana use by soldiers in Vietnam. Again there were indications of underlying personality disorders.

A questionnaire study of 2,700 psychiatrists, psychologists, internists and general practitioners in the Los Angeles area reported 1,887 “adverse reactions” to marijuana in an 18-month period. “Adverse reactions” was not defined by the authors of the survey. Those reports ranged from mildly unpleasant parental objections to use to severe anxiety or acute psychosis.

In summary, the evidence seems clear that the use of marijuana will aggravate or precipitate an underlying psychosis. The amount of drug consumed to activate this reaction is not defined by the studies. In the normal, stable, well-integrated person marijuana apparently will not produce a psychosis.

Amotivational Syndrome

Another type of possible mental deterioration or subtle personality and behavioral changes associated with heavy long-termed cannabis use, is the amotivational syndrome. Its most extreme form depicts a loss of interest in virtually all activities other than cannabis use. “Recently the term has been used to describe the behavior of numbers of young Americans who are for a variety of reasons dropping out of school, refusing to prepare themselves for traditional adult roles and smoking marihuana.

“This type of social maladjustment is not comparable in magnitude to that described in other cultures. However, the individual may lose the desire to work, to compete, to face challenges. Old interests and concerns are lost and the individual’s life becomes centered around his compulsive drug use. In addition, the" individual may ignore personal hygiene, experience loss of sex drive and avoid social interaction. (Mirin et al, 1970; Smith, 1968).

“West (1970) and McGlothlin and West (1968) have described a clinical syndrome as a result of observations of regular marihuana users for four years. Their clinical impressions are that these individuals show subtle changes in personality over time which might represent an organic syndrome. These include diminished drive, lessened ambition, decreased motivation, apathy, shortened attention span, loss of effectiveness, introversion, magical thinking, derealization and depersonalization, decreased capacity to carry out complex plans or prepare realistically for the future, a peculiar fragmentation in flow of thought, and a progressive loss of insight.

“Another psychiatrist, Powelson (1971), has also concluded on the basis of over five years clinical experience with drug users at the University of California, Berkeley, that the effects of marihuana are cumulative. He feels that after a period of prolonged use a disorder of thinking characterized by a lack of coherence and a pathological thinking process results. . . .

“Kornhaber (1971) believes that at least twice-daily marihuana use for a year, in a 13-to-18 year-old population, has a deleterious effect upon the developing adolescent. The intoxicated state facilitates a regression from logical-mathematical thought processes to a more primitive conceptual mode of fantasy and magical thinking and impairs learning ability and judgment by decreasing attention and concentration. Thus, the developing youth turns away from reality toward fantasy and from structure and activity to passive dependency.”

From the report of the commission there is clear and definite evidence that marijuana is a dangerous drug particularly when used by persons with pre-existing borderline personalities or psychotic disorders, by young people in their formative years and perhaps by women of child-bearing potential.

The courts should not interfere in the setting of punishment unless a statute prescribes a penalty so out of proportion to the offense as to violate the prohibition against cruel and unusual punishment. “ ‘ “[Mjere 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 Lynch, supra, pp. 414-415, quoting from In re Dennis M., 70 Cal.2d 444, 453 [75 Cal.Rptr. 1, 450 P.2d 296].)

With the dangers that can be involved in the use of marijuana, we cannot say that the penalty prescribed in this case, though harsh and severe, is out of proportion to the offense.

The gravity of the offense involved in the present case is readily distinguishable from indecent exposure, the offense involved in In re Lynch. The court in Lynch pointed out that “[cjlinical studies ‘support and confirm the traditional legal provisions which have treated this behaviour as a social nuisance, as disorderly conduct rather than an offence [szc] causing personal injury.’ ” (Lynch, supra, at p. 430, quoting from Gigeroff, Mohr, and Turner, Sex Offenders on Probation: The Exhibitionist (1968) 32 Fed. Prob. (No. 3) 17, 21.)

“ ‘The vast majority of exhibitionists are relatively harmless offenders; mostly they are public nuisances and sources of embarrassment.’ ” (Lynch, supra, at p. 430, quoting from Report of Karl M. Bowman, Medical Superintendent of the Langley Porter Clinic, in 2 Assem. J. (1951 Reg. Sess.) p. 2847.)

“Finally, although indecent exposure is not a ‘victimless’ crime, any harm it may cause appears to be minimal at most.” (Lynch, supra, at p. 431.)

Lynch also considers as relevant in determining the reasonableness of the sentence the defendant’s individual personality and history. The court cited the Michigan case of People v. Lorentzen, 387 Mich. 167 [194 N.W.2d 827], in which a young defendant living with his parents, employed at General Motors, who had no prior criminal connections was given a mandatory minimum sentence of 20 years for selling marijuana.

In the present case the sentence was not a mandatory sentence of life imprisonment imposed without consideration of the individual defendant. A probation report of 11 pages had been prepared which included, in addition to the report of the probation officer, a letter from the petitioner and a letter from the chief of police. There was also before the court a declaration by petitioner’s psychiatrist. The report was read and considered by the court. From the petitioner’s statement to the probation officer, it appears that the petitioner at the time of arrest was 24 years old, had been married and divorced, was living with a friend in Los Altos, had used marijuana and LSD, the latter of which he had used on approximately 50 occasions, and had tried numerous other drugs. He listed his occupation as service station attendant. Petitioner states he did not sell marijuana for profit.

The chief of police in a letter to the probation officer states a known addict was overdosed at petitioner’s residence and committed to Agnew State Hospital. Petitioner has been seen in the last two years in company of users and has been mentioned as a dealer. Petitioner could deal in kilo quantities and was also dealing in LSD. Seventeen tablets of LSD were found in his apartment at the time of his arrest. Petitioner was dealing to a large group of people in their late teens to early 20’s. Petitioner was considered to be a major supplier of marijuana in the city. The above information taken from the probation report shows there was an individual consideration of petitioner and his background. It is questionable that the trial judge believed the petitioner was a small retailer or sold marijuana without profit.

II

The second technique used by the courts is to compare the challenged penalty with the punishments prescribed fin the same jurisdiction for a different offense which by the same test must be deemed more serious. If more serious crimes are punished less severely, then the challenged penalty is to that extent suspect. In the present case, as pointed out by petitioner, there are a number of serious crimes punishable by fife imprisonment, i.e., murder, first degree; murder, second degree (Pen. Code, § 190); kidnaping for ransom or robbery (Pen. Code, § 209); robbery (Pen. Code, § 213, § 213, subd. 1, § 213, subd. 2); assault with a deadly weapon (Pen. Code, § 245, subd. (a), § 245, subd. (b); rape (Pen. Code, § 264); and burglary if bodily harm is inflicted (Pen. Code, § 461). All other crimes have a lesser penalty. The criteria here is the danger involved in marijuana use. Most of the offenses listed above are more serious crimes than marijuana use or sale, although some of them, assault with a deadly weapon, can be less serious and in fact involve no injury or harm to the victim. The Attorney General concedes, and we agree, that this technique weighs in the petitioner’s favor. From our reading of Lynch, however, we do not believe the techniques were intended as absolute rules but were offered as guides to be used in testing the validity of a penalty.

IH

The third technique discussed in Lynch is a comparison of punishments in other jurisdictions. Of the 50 states, 14 prescribe penalties for sale of marijuana of 20 years or more and six states prescribe life imprisonment. Of the four states bordering Mexico, three of the four prescribe fife. According to the commission’s report, 75 percent to 90 percent of the marijuana in the United Sates comes from Mexico and the greatest problem exists in those states closest to Mexico. The availability of marijuana is greatest in these border states as shown by the low price and the number of marijuana-connected arrests. The current price for a kilo of marijuana is $150 to $200 in the borderline states, while it is $225 to $275 in most other areas of the country according to the commission’s report. Also, marijuana arrests are highest in these states, California alone accounting for approximately 25 percent of all these arrests in the United States. Where a problem exists in a state, the Legislature logically will take such steps as are available to alleviate it and it is reasonable that a more severe penalty would be levied in these critical areas on the persons responsible for the problem.

The petition is denied.

Draper, P. J., concurred.

1 Section 11531 has now been renumbered as 11360.

2 This section was later incorporated into section 11531.

3 As Benford involved punishment for a second offense, not a first offense, as in the present case, we do not feel that the rule of Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937], holding that courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction is applicable here.

4 Actually section 11531 provides for a minimum prison term “of not less than three years.”

5 Public Law 91-513 91st Congress, H.R. 18583.

6 “Marahuana: A Signal of Misunderstanding. The Technical Papers of the First Report of the National Commission on Marihuana and Drug Abuse. March 1972.”

7 The commission’s report does not define “low to moderate doses.”

8 In several places in the report the statement is made that the conclusions reached in certain of the studies had no causal relationship to marijuana or that there might be other explanations for the results found. The commission’s position differing from that of the studies, would at the most, merely create a conflict in the evidence and not authorize the courts to Substitute their determination of the penalty for that of the Legislature.