In re Montenegro

In 1959, petitioner pleaded guilty to possession of heroin (Health & Saf. Code, § 11500) and admitted a prior misdemeanor conviction under the then “drug addict statute” (Health & Saf. Code, § 11721). He was sentenced to the term prescribed by law. Under the statute in effect in 1959, this prior conviction increased his maximum term from 10 years to 20 years. Petitioner asserts that his 1957 conviction was under that portion of section 11721 which has since been held unconstitutional. Thus, he says, the augmenta- . tion of his sentence is improper. Even if his maximum term is but 10 years, it will not expire until late 1969, and he would not be entitled to present discharge from prison. But *517 habeas corpus is a proper means to obtain a declaration of his maximum term (Witkin, Cal. Criminal Procedure (1963) p. 780, § 808a). We issued an order to show cause, and appointed counsel for petitioner.

The statute under which he was convicted in 1957 (Health & Saf. Code, §11721; Stats. 1955, ch. 1381, pp. 2475-2476) provided: “No person shall unlawfully use or be addicted to the use of narcotics. No person shall be under the influence of narcotics,” except when administered under…