People v. IsittPeople v. Isitt
PUGLIA, P.J.
Defendant Ralph W. Isitt, plead guilty to kidnaping for robbery with bodily harm (
On appeal, defendant challenges the constitutionality of the term of imprisonment — life without possibility of parole — imposed for kidnaping for robbery with bodily harm, contending that it constitutes cruel and unusual punishment (
I.
Recently this court had occasion to consider a constitutional attack upon the punishment for violation of
The statutory penalty for violation of
(1) An element of the crime of kidnap for robbery is the specific intent to rob. (People v. Laursen (1972) 8 Cal.3d 192 [104 Cal. Rptr. 425, 501 P.2d 1145]; People v. Smith (1963) 223 Cal. App.2d 225, 232 [35 Cal. Rptr. 719].) That crime, however, is not committed unless the intent is formed before the kidnap commences (People v. Tribble (1971) 4 Cal.3d 826, 829 [94 Cal. Rptr. 613, 484 P.2d 589]) and the asportation is undertaken with that intent and purpose in mind (People v. Thornton (1974) 11 Cal.3d 738, 769-770 [114 Cal. Rptr. 467, 523 P.2d 267]).
(2) To constitute a kidnap for robbery, the asportation of the victim must be accomplished by force or threat of force. The use of fraud or deceit to induce the movement is insufficient. (People v. Stephenson (1974) 10 Cal.3d 652, 659-660 [111 Cal. Rptr. 556, 517 P.2d 820]; People v. Rhoden (1972) 6 Cal.3d 519, 527-528 [99 Cal. Rptr. 751, 492 P.2d 1143].) A fortiori, movement of the victim with his consent does not constitute kidnaping (People v. Rhoden, supra, at p. 526; People v. Mayberry (1975) 15 Cal.3d 143, 153-154 [125 Cal. Rptr. 745, 542 P.2d 1337]). Furthermore, the defendant‘s reasonable good faith belief that the victim has voluntarily consented to accompany him constitutes a complete defense to the charge of kidnaping. (People v. Mayberry, supra, 15 Cal.3d at p. 155.)
(3) Moreover, the crime of kidnap for robbery is not committed where the movement of the victim is only incidental to the commission of the underlying crime of robbery. To constitute the crime of kidnap for robbery the movement of the victim must be such as to increase substantially the risk of harm to the victim over and above that necessarily present in the crime of robbery itself. (People v. Daniels (1969) 71 Cal.2d 1119, 1139-1140 [80 Cal. Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677].) A slight increase in the risk of harm will not suffice. (People v. Cleveland (1972) 27 Cal. App.3d 820, 825 [104 Cal. Rptr. 161].) Movement incidental to the robbery within the premises in which the
As can be seen, the crime of kidnap for robbery does not embrace a broad spectrum of unlawful conduct. Even so, within the offense as narrowly defined, rational gradations of culpability can be made based on the amount of harm to the victim. (See In re Foss, supra, 10 Cal.3d at p. 919.) They have been supplied by the Legislature. The statute provides differing penalties escalated in proportion to the degree of harm inflicted upon the victim. (4)
The bodily harm which evokes parole ineligibility must be more than mere trivial harm. (People v. Jackson (1955) 44 Cal.2d 511, 517 [282 P.2d 898]; People v. Gilbert (1965) 63 Cal.2d 690, 711 [47 Cal. Rptr. 909, 408 P.2d 365].) It must amount to substantial bodily injury (People v. Daniels, supra, 71 Cal.2d at pp. 1133-1134) attributable to other than the force necessary to accomplish a forceable asportation (People v. Reed (1969) 270 Cal. App.2d 37, 49 [75 Cal. Rptr. 430]). If not directly inflicted by the kidnaper, it must be the proximate result — the reasonably foreseeable consequence — of defendant‘s intentional acts. (People v. Monk (1961) 56 Cal.2d 288, 296 [14 Cal. Rptr. 633, 363 P.2d 865]; People v. Dacy (1970) 5 Cal. App.3d 216, 220-221 [85 Cal. Rptr. 57]; People v. Reed, supra, 270 Cal. App.2d at pp. 48-50.)3
In In re Maston, supra, 33 Cal. App.3d 559, we held that life imprisonment without parole for kidnap-robbery with bodily harm was not excessive when tested against the first of the three criteria of proportionality comprising the Lynch formula, i.e., the nature of the offense and/or the offender with particular regard to the degree of danger both present to society. The rationale for our holding rested upon a recognition that kidnaping is one of the most serious of all crimes and has latterly assumed particularly reprehensible forms (People v. Daniels, supra, 71 Cal.2d at p. 1135); that kidnaping for robbery is a deliberate if not a coldly planned offense by definition involving great risk of bodily harm; that substantial bodily harm is required to call forth the penalty of life without parole; and that the latter penalty represents a rational legislative effort to minimize a real social danger (Maston, supra, 33 Cal. App.3d at pp. 563-564).
(5) The selection of the proper penalty for a criminal offense is a legislative function “involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; ...” (In re Lynch, supra, 8 Cal.3d at p. 423.) “The Legislature is thus accorded the broadest discretion possible in enacting penal statutes and in specifying punishment for crime, but the final judgment as to whether the punishment it decrees exceeds constitutional limits is a judicial function.” (People v. Anderson (1972) 6 Cal.3d 628, 640 [100 Cal. Rptr. 152, 493 P.2d 880].) However, the resulting legislative judgment commands the respect of the courts unless its unconstitutionality “`clearly, positively, and unmistakably appears.‘” (People v. Wingo, supra, 14 Cal.3d at p. 174.)
(6) Included among the relevant policy factors that the Legislature may consider in prescribing punishment for crime are the several objectives of punishment (see People v. Anderson, supra, 6 Cal.3d at pp. 651-652). So too, in determining whether a punishment is disproportionate
Considering the penological and social objectives of the challenged punishment in the light of the evil to which that punishment is directed, we cannot say that the penalty of life imprisonment without parole is clearly, positively or unmistakably disproportionate to the offense of kidnaping for robbery with bodily harm.
In treating with the second Lynch criterion, we held in Maston that life without parole for kidnap-robbery with bodily harm was not constitutionally excessive by comparison to the penalties assessed by California for its most serious offenses. “Despite anomalies in the structure of surrounding laws, the penalty is not disproportionate by the standards of internal California comparisons” because it “serves a rationally conceived penal purpose.” (In re Maston, supra, 33 Cal. App.3d at p. 565.)
The third Lynch criterion involves interstate comparisons of the challenged California penalty with that imposed in other jurisdictions for similar conduct. When Maston was decided in 1973, seven states in addition to California provided for life without parole as punishment for aggravated kidnaping. At present, six states (Arizona, Iowa, Louisiana, Nevada, Tennessee, West Virginia) in addition to California provide a penalty of life imprisonment without parole for aggravated kidnaping. Yet we are not compelled constitutionally to conform “our Penal Code to the `majority rule’ or the least common denominator of penalties nationwide.” (People v. Wingo, supra, 14 Cal.3d at p. 179.) Since the challenged penalty has a judicially acknowledged rational purpose (People v. Laursen, supra, 8 Cal.3d at pp. 198, 201-202; In re Maston, supra, 33 Cal. App.3d at p. 563), it would constitute an act of judicial wilfulness to invalidate the penalty on the basis that the superior wisdom resides with the legislative bodies of foreign sovereignties rather than the elected representatives of the people of California.
Disposing of defendant‘s equal protection argument, we again rely on Maston. There we held that “[defendant‘s] charge of a denial of equal protection disappears with the recognition of a rational basis for the
II.
(8) Defendant claims that the punishment of life imprisonment without parole is unconstitutional because it serves no penal purpose more effectively than would be served by that punishment as mitigated by the application thereto of
The invocation of
Here, the trial judge declined to exercise his discretion “based upon every appearance that this man has made before me, upon the entire file regarding his appearances.” The trial court also properly considered the potential effect of
The trial court found that there were no “extenuating circumstances for the application of
Other contentions of error at the sentencing are patently without merit and do not require discussion.
The judgment is modified by striking therefrom the
The judgment is further modified by staying service of the sentences imposed for robbery and assault to rob during service of the sentence for kidnap-robbery, said stay to become final upon completion of the sentence of imprisonment imposed under the judgment of conviction for kidnap-robbery and satisfaction of the state‘s presently defined remedies against defendant thereunder. The trial court is directed to prepare a certified amended abstract of judgment incorporating the foregoing
As modified, the judgment is affirmed.
Friedman, J., and Evans, J., concurred.
Appellant‘s petition for a hearing by the Supreme Court was denied March 31, 1976. Tobriner, J., and Mosk, J., were of the opinion that the petition should be granted.