In re Carlson

PEEK, J. Bay J. Carlson is presently confined at the California Conservation Center at Susanville, serving a sentence for violation of section 11500 of the Health and Safety Code (possession of narcotics), with a prior conviction, upon a plea of guilty, for violation of section 11721 of the Health and Safety Code, a misdemeanor.

Carlson has served in excess of ten years, the maximum sentence which could have been imposed absent the prior misdemeanor conviction. (Health & Saf. Code, § 11712; repealed Stats. 1959, ch. 1112, p. 3193.) He seeks release by writ of habeas corpus on the ground that “the prior misdemeanor conviction of section 11721, Health and Safety Code is of no effect on the present sentence since the United States Supreme Court in the case of Robinson v. California (1962) 370 U.S. 660 [82 S.Ct. 1417, 8 L.Ed.2d 758], held section 11721 Health and Safety Code unconstitutional. ...”

It first appears that petitioner has misconstrued the holding of Robinson v. California, supra, 370 U.S. 660. The United States Supreme Court there held that section 11721 of the Health and Safety Code1 inflicted a cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments insofar as it purported to constitute the status of narcotics addiction a crime. (See In re Becerra, 218 Cal.App.2d 746 [32 Cal.Rptr. 910].) That conviction was had after the judge had instructed the jury that violation of the statute Avould occur if they found either that the defendant had used narcotics in Los Angeles County, or that defendant’s “status” or “chronic condition” was that of being “addicted to the use of narcotics.” The United States Supreme Court, though recognizing that a conviction for use of narcotics would have no constitutional infirmity, reversed because the alternative nature of the trial court’s instructions made it impossible to know whether the verdict was based on this proper ground, or on the constitutionally invalid ground of addiction.2 (Robinson v. California, supra, at p. 665.)

[73]If the sole sufficient ground for petitioner’s section 11721 conviction was the unconstitutional portion of that statute, or if, as in Robinson, that portion was a possible alternate sole sufficient ground, then the writ which he seeks should issue. (See In re Newbern, 53 Cal.2d 786, 792 [3 Cal.Rptr. 364, 350 P.2d 116].) On the other hand, the writ should not issue if that conviction had, as a sufficient ground, something other than the illicit portion of the statute. (In re Bell, 19 Cal.2d 488, 498-499 [122 P.2d 22].) Although section 11721 lacks an express severability clause, the usual standards of severability are clearly met in that the constitutional portions of the statute “can be separated from the unconstitutional part without destroying the statutory scheme or purpose.” (People v. McCaughan, 49 Cal.2d 409, 416 [317 P.2d 974].) Further, section 11721 was held severable by necessary implication in In re Becerra, supra, 218 Cal.App.2d 746.