ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner is in state custody pursuant to his conviction upon his plea of guilty to a charge of possession of heroin. The relevant facts are as. follows:

Petitioner pled guilty on January 31, 1963 in Los Angeles Superior Court to Count I of a three-count consolidated information (Nos. 265289 and 266130), and was convicted on this guilty plea of the crime of possession of the narcotic, heroin, in violation of California Health and Safety Code, § 11500. On February 21, 1963, criminal proceedings were suspended and a petition was filed in Department 95 of the Los Angeles County Superior Court pursuant to California Penal Code, § 6451, now Welfare & Institutions Code, § 3051. 1 On February *443 26, 1963, petitioner was adjudged to be a narcotic drug addict within the meaning of the said § 6451 of the Penal Code and was ordered committed to the State Director of Corrections for placement as provided by law, for a period of 10 years, except upon earlier discharge as provided for by law. Counts II and III of the consolidated information were dismissed.

On November 3, 1967, petitioner filed a petition for writ of habeas corpus in the Superior Court of Riverside County, alleging that his detention was illegal because the court which committed him had failed to follow the procedural requirements of Penal Code, § 6451. On November 29, 1967, the petition was granted and it was ordered that petitioner be discharged from commitment, and further that he be remanded to the custody of the Director of Corrections and returned to Department 116, Los Angeles Superior Court, for further proceedings on the consolidated information. On December 22, 1967, upon his prior guilty plea and conviction, petitioner was returned to imprisonment in the state prison for the term prescribed by law, not less than two and not more than ten years.

Petitioner contends:

After reviewing the Petition for Writ of Habeas Corpus, the Response, the Traverse, and the arguments and authorities set forth by the parties, this Court is fully advised in the premises and thus orders that the Petition for Writ of Habeas Corpus be denied for the following reasons:

1. Petitioner Has Failed to Exhaust State Remedies

The issues which petitioner presents in his petition for writ of habeas corpus have never been presented to the *444 California courts for determination. Petitioner did not appeal from, the judgment of conviction in consolidated Case Nos. 266130 and 265289. Nor has petitioner presented the issues raised here to any California court by way of petition for writ of habeas corpus.

The law is clear that before one may pursue a petition for writ of habeas corpus in the Federal Court he must exhaust those state remedies which remain open to him.

Although the instant case appears to come within the rule requiring exhaustion of state remedies, under present California law it is unclear whether “the applicant may still present those issues”. Rule 31(a), California Rules of Court, and the cases which support it evidence a trend toward liberalization of the traditionally inflexible jurisdictional rule, (“the time for filing a notice of appeal * * * shall not be extended”. Rule 45(c), Cal. Rules of Court). However, Witkin’s California Criminal Procedure § 700A (1967 Supp.) indicates that the recent eases require at least that the defendant communicate to his trial attorney his desire to appeal. Petitioner states that his reasons for not appealing were (1) he had pled guilty, and (2) “I am a layman; and no law books were avaible (sic) to me until now.”

Since it appears that the scope of the state' remedy''available at this time is possibly so narrow as to be inapplicable to petitioner, and that the possibility of state relief is so uncertain as to make resort to the state courts ineffective, this Court does not feel that defendant should be forced to exhaust his state remedies and so now considers the merits of petitioner’s contentions. Budd v. Rundle, 267 F.Supp. 49 (E.D.Penn.1967).

Before doing so, however, we note that the grounds asserted are so obviously without merit that this Court need not refer the matter to the state courts, but can deny the writ without affront to considerations of comity. Budd v. Rundle, supra, at p. 50 .

2. Petitioner Was Not Deprived of Due Process of Law Because of a Delay in Sentencing

Petitioner claims that the delay in sentencing occasioned by his commitment to the California Rehabilitation Center was a denial of due process. An examination of the applicable statutes shows that the California State Legislature clearly intended that criminal proceedings be suspended or adjourned after conviction but before sentencing where it appears that a defendant is addicted or in danger of becoming addicted to narcotics. Cal.Welf. & Inst.Code, §§ 3050-3053. 2 If commitment is found to be ad *445 visable after a hearing pursuant to Welfare and Institutions Code, § 3051, defendant is sent to a rehabilitation center. Upon discharge from the center, the criminal proceedings are reopened, and at that time the trial court has discretion to dismiss the criminal charges or sentence the defendant. Cal.Welf. & Inst. Code, *446 §§ 3053, 3200, 3201 3 ; People v. Salazar, 238 Cal.App.2d 474 , 47 Cal.Rptr. 894 (1965).

It ia clear that this procedure is1 based on a sound legislative purpose. California courts have approved this method *447 of deferring sentence on a criminal conviction in order to provide the defendant with immediate treatment. People v. Plaehn, 237 Cal.App.2d 398 , 35 Cal.Rptr. 872 (1965). The Plaehn case held that delay in sentencing occasioned by commitment under Penal Code, § 6451 (now Welf. & Inst. Code, § 3051) was not violative of Penal Code, § 1191, which provides that sentence must be pronounced 21 days after conviction in a criminal case. ....

3. Petitioner’s Commitment for Narcotic Addiction Followed by Imprisonment on his Guilty Plea and Narcotic Conviction is Not Unconstitutional Double Punishment.

Petitioner contends that his commitment for narcotic addiction was a criminal sentence, and thus the subsequent sentence by the Los Angeles County Superior Court constituted a double punishment for the same offense. The California Supreme Court has consistently held that no penal sanctions are involved in such a commitment for narcotics addiction. In People v. Reynoso, 64 Cal.2d 432 , 50 Cal.Rptr. 468 , 412 P.2d 812 (1966), the court stated:

The Reynoso case affirmed the earlier landmark California case which construed and analyzed the validity of the abovementioned California statutes. In Re DeLaO, 59 Cal.2d 128 , 28 Cal.Rptr. 489 , 378 P.2d 793 , 98 A.L.R.2d 705 (1963).

Should commitment pursuant to Welf. & Inst. Code, § 3051 be considered penal in nature, it is clear that the doctrine of Robinson v. California, 370 U.S. 660 , 82 S.Ct. 1417 , 8 L.Ed.2d 758 (1962) would require that the statute be declared unconstitutional. This Court is satisfied that the statutes in question are not unconstitutional on the ground that they permit double punishment.

4. Petitioner’s Commitment and Imprisonment Under the Abovementioned Statutes Does Not Constitute Cruel and Unusual Punishment.

Petitioner’s contention that bis commitment and confinement constituted cruel and unusual punishment is without merit. This, contention was considered and discarded In Re DeLaO, 59 Cal.2d 128 , 28 Cal.Rptr. 489 , 378 P.2d 793 (1963), as evidenced by the following statement:

While petitioner’s confinement is involuntary, it is devoid of penal characteristics. Although the treatment may be unwanted by the petitioner, it has been provided by the Legislature as a benefit to the petitioner and to society. Application of DeLaO, 223 F.Supp. 353 (S.D.Cal.1963)

For the foregoing reasons, and it appearing that an evidentiary hearing is not *448 required, this Court finds that petitioner is not entitled to relief.

Therefore, it is hereby ordered that the petition for writ of habeas corpus be, and the same is denied.

. Cal.Welf. & Inst.Code, § 3051

. Cal.Welf. & Inst.Code §§ 3050-3053

§ 3051 See Footnote 1, supra.

. Cal.Welf. & Inst.Code