Serna

Jose Tapia and Tomas Rico Serna pleaded guilty to sale of heroin. (Health & Saf. Code, § 11352.) They appeal the judgments, contending their sentences (imprisonment for five years to life with ineligibility for parole for three years) constitute cruel or unusual punishment within the meaning of the California Constitution, article I, section 6.

The preliminary hearing disclosed that on 13 March 1973, police informant Martinez, who had purchased heroin at Tapia’s house five or six times before, telephoned Tapia to see if he could come over. Tapia told him to come alone. When Martinez arrived, Tapia signaled through a front window for him to go to the backdoor. There he found Tapia and Serna waiting. Martinez handed $25 to Tapia and got back a balloon from Serna containing 1.8 grams of heroin. A subsequent search of Tapia and his house uncovered marijuana, amphetamines, and an additional quantity of heroin. On Tapia’s and Serna’s plea of guilty to sale of heroin, charges of possession of marijuana and of amphetamines were dropped, as was the allegation that Serna had been previously convicted of a federal narcotics offense.

In re Lynch, 8 Cal.3d 410, 425-429 [ 105…