PRINGLE, Chief Justice.
The defendant, John Douglas Lake, was convicted in June 1976 of aggravated robbery and aggravated robbery of drugs. Sections 18-4-302 and 18-4-303, C.R.S.1973. He was subsequently sentenced to life imprisonment under the provisions of the Colorado Habitual Criminal Statute. Section 16-13-101(2), C.R.S.1973. Defendant does not challenge his conviction for aggravated robbery. He contends here that his conviction for aggravated robbery of drugs is not supported by the evidence and that the habitual criminal statute was improperly applied. We affirm the decision of the trial court.
On April 12, 1976, a man entered the Redlands Drugstore in Grand Junction and made an inquiry regarding a prescription. The only person in the store was the owner, Robert W. Holmes, a registered pharmacist. After a brief discussion, the man pointed a gun at Holmes and demanded all of the "narcotic drugs" in the store. Holmes placed two trays of drugs in a green mesh bag handed him by the robber.
The man then demanded all of Holmes' cash and was given $56. Holmes was ordered to the back of the store where his hands were tied behind his back. He was instructed not to move. His assailant then backed out of the store and fled by motorcycle.
Defendant was arrested a few hours later in an area some two and a half miles from the store. The drugs taken in the robbery as well as various items of clothing were found in the vicinity. Holmes later identified the clothing as that worn by the robber; he also selected the defendant's picture from a photographic lineup and identified the defendant at trial.
Aggravated robbery of drugs is defined as follows:
An essential element of this crime is proof that the drug taken is, in fact, a narcotic drug. This element, as with every material element of a crime, must be proven beyond a reasonable doubt. Defendant contends that, in the absence of some sort of independent chemical analysis, the proof presented in this case falls short of this standard. We disagree.
At the trial, the drugs allegedly stolen in the robbery were introduced through the testimony of the victim. Holmes testified that he had his own letter code and that those exhibits which carried either his code or the code of the person from whom he bought the pharmacy were evidence to him that they were from his store. Over objection, Holmes then indicated what drug was contained in certain bottles and packages, randomly selected by the prosecutor. The basis for this testimony was Holmes' experience in dispensing drugs and his interpretation of the labels affixed to the containers. The prosecution introduced no evidence of any chemical analysis performed with respect to these exhibits.
We cannot accept defendant's argument that chemical testing is necessary in all cases in order to prove that the items taken were in fact narcotic drugs. While the better practice would have been to subject the evidence to chemical analysis, the proof presented in this case was sufficient to submit the case to the jury. The victim of the crime, a qualified pharmacist, testified as to the items taken from the store, his system of labeling and identifying the substances in question, and the meaning of specific labels found on various exhibits. He also identified as narcotics the substances within the various containers based on his knowledge of the labels, the contents, and his experience as a pharmacist. From this evidence, the jury could conclude that the substances in question were in fact narcotic drugs.
Defendant next challenges his sentencing pursuant to the so-called "big" habitual criminal statute:
The three prior "felony" convictions which the trial court relied upon in invoking this statute were "larceny from a motor vehicle" (section 40-5-11(2), C.R.S. '53), "fictitious check" (C.R.S.1963, 40-6-8) and "sexual assault on a child" (1971 Perm.Supp., C.R.S.1963, 40-3-408). This last conviction was obtained as the result of a plea bargain arising from a charge of statutory rape.
Defendant asserts three distinct constitutional infirmities in the application of the habitual criminal statute to him. We shall consider each challenge separately.
At the time the defendant entered his plea of guilty to sexual assault on a child, the statute read:
The "other person" in this case was fifteen years old at the time of the commission of the offense.
Before directing our attention to the merits of defendant's argument, we must address a preliminary question raised by the People concerning the jurisdiction of the courts to "review" a conviction once it has become final. It is true that once a conviction has become final, the trial court has no jurisdiction to review the sentence imposed with respect to that particular conviction. See, section 18-1-410(1)(f), C.R.S.1973, as amended, and People v. Arellano, 185 Colo. 280, 524 P.2d 305 (1974). However, when that final conviction becomes the basis for imposition of a life sentence pursuant to the provisions of the habitual criminal statute, this court has jurisdiction to determine whether that conviction may validly be considered under the terms of the recidivist statute.
Acting within this narrow jurisdictional limit, we hold that defendant's conviction was properly considered as a predicate felony for purposes of the habitual criminal statute. The error in defendant's equal protection analysis is in his interpretation of the postconviction relief statute. Contrary to defendant's assertion, the postconviction relief statute is not directed toward conferring any benefit associated with a change in law of the nature in question here. Rather, in People v. Marlott, Colo., 552 P.2d 491 (1976), we discussed the scope of the postconviction relief statute in the following terms:
In the case at bar, certain elements of the crime of sexual assault on a child were changed by the legislature in 1975. The crime of sexual assault on a child was not abolished. While the penalties changed, comparison is difficult.
We note that this reading of the postconviction relief statute is consistent with the intent of the legislature when it drafted the habitual criminal statute. The language of the habitual criminal statute indicates that it embraces every felony whether committed here or in a foreign state. As this court said in Burns v. People, 148 Colo. 245, 365 P.2d 698 (1961):
A clear implication of the statutory language is that the time as well as the place of commission of the crime should determine its status as a felony. See, State v. Darrah, 76 N.M. 671, 417 P.2d 805 (1966).
Recently the New York Court of Appeals had an opportunity to consider the constitutionality of an habitual criminal statute which permitted consideration of felony convictions from foreign states despite the fact that the same acts would not constitute felonies in New York. The court there stated:
Cf., Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974). (Supreme Court upheld against an equal protection challenge a provision of the Narcotic Addict Rehabilitation Act, 18 U.S.C. §§ 4251-4255, which excludes from rehabilitation commitment addicts with two or more prior felony convictions.)
This language is equally applicable in the context of this case. The legislature has rationally determined that an individual who has previously elected to violate the criminal standards, then present, in the society in which he was found should be treated as an habitual offender.
As we interpret the habitual criminal statute and the postconviction relief statute, there is no inherent conflict. In this light, defendant's equal protection argument must fail.
Defendant next argues that use of his twelve-year old conviction for larceny from a motor vehicle in his habitual criminal proceeding violates equal protection since the same conviction, being more than ten years old, could not be used against him in a so-called "little" habitual criminal proceeding. See, section 16-13-101(1), C.R.S.1973 (1976 Supp.). We do not agree.
The purpose of the habitual criminal statute is to punish more severely those who show a propensity toward repeated criminal
The legislative classification attacked by defendant is reasonable in light of the purpose to be attained and, thus, does not run afoul of equal protection principles.
Finally, defendant asserts that his life sentence under the habitual criminal statute is so excessive as to constitute cruel and unusual punishment in violation of the Eighth Amendment. This court has previously considered Eighth Amendment challenges to application of the habitual criminal statute and has consistently rejected them:
The mere fact that the penalty imposed is harsh, does not mean that it constitutes cruel and unusual punishment. State v. Gibson, 16 Wn.App. 119, 553 P.2d 131 (1976). Assessing all the relevant facts of this case, we cannot conclude that defendant's life sentence is so excessive as to violate Eighth Amendment principles related to cruel and unusual punishment.
The judgment of the district court is affirmed.
CARRIGAN, J., does not participate.