Ruiz

Although I concur in the determination that the judgment be affirmed, I do not agree that, in those cases where a defendant stands convicted of a felony narcotics offense for at least the third time, a provision in the Health and Safety Code which precludes parole consideration for such person for a minimum of five years is so disproportionate that it “shocks the conscience and offends fundamental notions of human dignity” so as to constitute cruel or unusual punishment within the contemplation of our United States and California Constitutions. (In re Lynch (1972) 8 Cal.3d 410 [ 105 Cal.Rptr. 217 , 503 P.2d 921 ].) I am satisfied, however, that for reasons set forth by my colleague, Mr. Justice Bray, in his opinion, the Supreme Court decision in the case of In re Foss (1974) 10 Cal.3d 910 [ 112 Cal.Rptr. 649 , 519 P.2d 1073 ], requires that we so hold.

A petition for a rehearing was denied August 6, 1975.

Defendant appeals from judgment of the Lake County Superior Court, after jury verdict, of conviction of violation of Health and Safety Code section 11357.

Questions Presented

1) The first and second prior convictions were admissible.

2) Trial counsel was not incompetent.

3) The parole consideration limitation is unconstitutional.

Record

Defendant was charged by information with, and convicted by jury verdict of violation of section 11357 of the Health and Safety Code (possession of marijuana). He was also charged with, and admitted three prior convictions, the first two of which are hereinafter described. The third was a conviction in the San Diego County Superior Court (burglary). Inasmuch as no claim is made that the evidence does not support the verdict, it is unnecessary to discuss the evidence, other than to state that it amply supports the verdict.

1) The prior convictions.

*742 The first prior conviction was a violation of 21 United States Code section 174 '(transportation of heroin). The second was a violation of 18 United States Code section 545 (importation of marijuana).

At the time of the first conviction 21 United States Code section 174 provided…

Defendant appeals from judgment of the Lake County Superior Court, after jury verdict, of conviction of violation of Health and Safety Code section 11357.

1) The first and second prior convictions were admissible.

2) Trial counsel was not incompetent.

3) The parole consideration limitation is unconstitutional.

Defendant was charged by information with, and convicted by jury verdict of violation of section 11357 of the Health and Safety Code (possession of marijuana). He was also charged with, and admitted three prior convictions, the first two of which are hereinafter described. The third was a conviction in the San Diego County Superior Court (burglary). Inasmuch as no claim is made that the evidence does not support the verdict, it is unnecessary to discuss the evidence, other than to state that it amply supports the verdict.

The first prior conviction was a violation of 21 United States Code section 174 (transportation of heroin). The second was a violation of 18 United States Code section 545 (importation of marijuana).

(1) At the time of the first conviction 21 United States Code section 174 provided in part, "Whenever on trial for a violation of…