*1 Dist., Div. One. Nov. No. 18000. First 1980.] [Crim. PEOPLE, Respondent, Plaintiff and
THE al., et LEONARD SCHOENFELD
JAMES and Appellants.
Defendants
Counsel Merrill, Armstrong,
Merrill, L. Mark L. & Edward Gagen, Thiessen R. Fisher Defendants and John Herbert W. Yanowitz *4 Appellants. Philibosian, General, Chief H. Robert
George Attorney Deukmejian, O’Brien, Attorney General, Edward P. Assistant Assistant Attorney Helfman, T. and M. General, John Stan Murphy Deraid E. Granberg, General, Plaintiff Respondent. Deputy Attorneys for Opinion
RACANELLI, years ago peace quiet P. J. Just over four the of disappearance was shattered by the small rural of Chowchilla community disappearance busload of local school children. News
of a state, soon the entire and bewilderment stunned the of people bus discovered in when the school gave way to consternation empty The suspense without a of its hours of dry passengers. creek bed trace of agony silent feelings on amid dragged growing apprehension. ended, mercifully, following evening families and friends victims’ driver, when, result the heroic efforts of bus as a imprisonment. Following their underground from youngsters emerged safely arrest, pretrial indictment and after extensive defendants’ kidnaping counts guilty separate each defendant proceedings, pled (Pen. Code, 209) and received concurrent sentences for ransom § counts, three of óf each count. In life on imprisonment a determination harm” resulting victims were found to have suffered “bodily Defendants’ claim of reversible principal of parole ineligibility. we those Since determine findings. error focuses on the validity law, need not invalid as matter of we are challenged findings based remaining challenge reach merits defendants’ constitutional Instead, we hearings. for further grounds request related imprisonment strike the invalid but affirm the sentences of life properly findings suggested each defendant imposed rendering on the" unnecessary remand for further and the revival of proceedings likely painful but now faded childhood memories.1 Background
Procedural On August the Grand of Madera Jury returned an County indictment against dеfendants James Schoenfeld, Leonard Richard Allen
Schoenfeld and Woods, Frederick Newhall each of them charging ransom) with 27 counts of violation of Penal Code section 209 (kidnap and 18 counts of violation of Penal Code section 211 (robbery).
Five of the for ransom kidnaping counts further that the alleged victims therein harm,” “suffered (victim wit: Count one Frank Edward Jr.); (victim
Ray, count three Brown); Jennifer (victim count five Jodi (victim Heffington); count seven Rebecca Reynolds); count eight (victim Hoff). Van Cindy
On September 1976, the indictment was amended to clarify charging ¿negations consistent robbery with the substantive language *5 of the statute. A series of pretrial motions (including successful motion trial
changing venue to the Alameda), of County and attendant review petitions, thereafter followed.2 25, 1977,
On July pursuant to earlier discussions plea between the defense, and prosecution defendants were permitted withdraw their not guilty pleas to enter guilty pleas tо all of the 27 kidnaping and.
counts while reserving right contest the disputed allegations of harm in a bifurcated before the proceeding court without a jury. imposed offenses, 1 Atthe time of the required Penal Code section 669 that the sentence multiple on merge convictions concurrently any' and run prescribed punishment imprisonment of life “whether with or possibility parole,...” without of (Cf. 672, 272, In re Ward Cal.Rptr. 400], 414 P.2d cert. [51 147, den. 385 238].) U.S. L.Ed.2d 87 S.Ct. proceedings 2 Those 1) sealing orders included: records public, of from the October 19, 1976; order, 2) 22, 1976; pretrial 3) order, discovery change October of venue 5, 1976; 4) order, 1976;. 6, change 5) November of counsel December motion of second venue, 4, 1977; change February 6) pursuant dismissal motion to Penal Code section 995, 23, 1977; 7) February postindictment preliminary hearing, motion for February 23, 1977;. 8) 1538.5, suppression pursuant motion to Penal Code section April denied 26, 1977; 9) venue, 8, 1977, requesting change writ of mandate denied June 1 Civ. 41387; 10) motion, 8, writ requesting suppression of mandate closed denied June 1977, 41501, 6, 1977, 1 Civ. Supreme hearing California July Court denied 1 Civ. 41386. presented matters, evidence a number of preliminary conclusion of
Upon harm. On December the issue of bodily sides on by both victims named kidnap decision that the 1977, announced its court but that harm” three, “bodily and seven had suffered five counts February had not. On eight in counts one victims named challenges included which proceedings sentencing conviction following post for penalty constitutionality augmented directed to each sentencing judgment the court kidnaping, pronounced aggravated 27 counts of each imprisonment term of life on to a defendant three, five and as to counts parole without possibility but kidnaping The Offender seven, Youthful concurrently. to be served sentences only. Richard Schoenfeld as to defendant Act3 was invoked expressly final judgment from the appeal filed a motion of timely All defendants imposed. оf conviction and sentences
Statement Facts undisputed relevant and following essentially The record discloses mass kidnaping began The unprecedented facts: events underlying 15, 1976, the outskirts the small p.m. July at on on approximately the defendants acting of Chowchilla when community California bus, its youthful Union School abducted concert ambushed Dairyland them to a Livermore and driver and occupants ultimately transported previously some 16 hours in a imprisoned site where were quarry they episode van. ended about nightmarish buried furniture escaped p.m. successfully on 16 when the July kidnaped youngsters courageous as the result of the efforts of from the van underground driver, Jr., children. aided two of the older Ray, bus Frank Edward earlier, hatched several months The bizarre ransom kidnaping plot,4 *6 to their homes the bus the children returning was executed as school a van forced to a white stop by from a summer school session was defendаnts, wearing At of the one parked roadway. point across and, mask, into at ordered gun point, a view nylon stocking jumped man his the armed and the bus door. Ray open Immediately, Mr. and pas it its entered the bus and commandeered companion masked 1202b, Code, (former existing repealed Pen. of the act provisions § 3 Under then Schoenfeld, 1977), §274, who July eff. defendant Richard by Stats. ch. offenses, years received age of 23 at the time of commission was under the application concurrently. Neither the of 6 on each count minimum sentence months appeal. eligibility issue in this defendant’s thereunder an the statute nor sentencing proceedings, as from the actual 4 Asnear we can determine the record produce upon a plan to a movie film based conspiracy evolved from an earlier sengers dry slough green to a area about one mile distant where a van parked. Upon by was the arrival оf the white van driven defendant hostages passenger Woods, the were transferred into the two vans. camouflaging bus, After the abandoned defendant Richard Schoenfeld green drove the van while defendant Woods drove the white van to the quarry site; Livermore defendant James Schoenfeld followed in a third spare Ray approximately including children, or van. Mr. and 15 of the green Jennifer, Rebecca, van, the victims Jodi and were loaded into the military police prisoner transport a former dren were vehicle.5The rest of the chil placed in the white van.6 green in the overcrowded remained captives the young
Mr. Ray transit. About 3:30 food, stops during convenience water or van without Livermore, near their destination arrived at they the next morning California: enterprise a business & Quarry, California Rock Gravel After a long delay father. defendant Woods’ owned and operated by (due first activate furniture to the need to van the overcrowded Schoenfeld the arrival of James and to await system van’s ventilation children were food), finally and the unloaded Ray with a Mr. supply transferred to the and, tent-like canopy, under cover of a connecting cut in the roof of the van a hole through buried furniture previously and, flashlight profictional with the aid of a entered the van first van. Mr. Ray elaborately plan apparently was kidnaping. mass contrived motivated success, objective frequently overpowering independent an drive to achieve financial social emphasized during years. young the defendants’ adolescent Two of the men deeply restore and relocate an historic were indebted as the result of unsuccessful efforts to peninsula any mansion. None of the defendants had a criminal record of wholly consequence. plot Uncontroverted evidence disclosed that the out of charaсter lifelong judgmental represented pattern unreality. a delusional The details of 1) kidnap plan Dairyland arbitrarily reveal school area was selected because that: enough during away quarry anticipated it would be far from the site intensive area”; 2) $5 surrounding paid by search of the “100 mile the million ransom was to be state; 3) simply guarded ground the furniture van was buried instead of above mainly recovery required In plan participants. because the ransom all three the event attention, demanded, paid any required the ransom was not as of the children medical plot immediately was to abort and released. the victims measuring eight passenger compartment, three-quarter 5 Theenclosed or load length, three-quarter feet in height, five and one-half feet in width and three and feet in independent system consisting was ventilated air of two air an ventilators housing powered by and two exhaust fans motors encasеd in a duct on the roof. The enclosed *7 compartment nearly space, thus contained a total of 200 cubic feet of air or an average space per person. system air of to 13 cubic feet The ventilation had an 11-1/2 operating capacity per of 358 cubic feet of air minute. parties specific concerning 6 The make no description reference to the record the of van,
the presumably white passengers. Apparently, because none of the victims named were the three Dodge passenger vehicles were similar model vans.
678 by they by defendants, vided assisted the children as descended ladder descent, into the van. Before their defendants obtained the name and age together personal ostensibly most, of each child with a item from purposes kidnaping.7 of later verification of the fivegallon mattresses, 10 In blankets and addition to a number of several suрply water, van contained a small of the underground containers the children informing After potato chips.8 of foodstuffs and dry hours, the defendants sealed van for 24 to 48 they would remain in the in turn which was the roof a steel over the hole opening by placing plate was batteries; of rectangular piece plywood weighted by heavy down 2-foot of dirt. then the and covered with a placed assembly layer over in good The van had been acquired relatively Fruehauf model furniture It measured the November. previous condition defendant Woods during by 8 feet in providing feet feet wide and thus long, height, 6-3/4 1,470 of cubic feet of air space cubic feet air approximately space space per feet of floor per approximately square occupant 6-1/2 walls; flexible holes been cut in the van of person. lengths Three had connecting hose, diameter, these ribbed four inches in ran from two of hоles intake and fans several twelve-volt electric powered by exhaust the wells van to Crude had been cut in fender batteries.9 holes transport serve as of air within the primitive temperature toilets. Estimates varied; a number of the witnesses testified underground vans operating warm; were of them indicated that the temperatures very many Mr. temperatures. cool ventilating produced systems actually as the Ray testified that the in the van was same temperature green Expert ambient air indicated temperature. testimony temperatures on the in of 62 to a question from a low Fahrenheit day ranged degrees of in in Madera and a similar of 54 to 87 high degrees 98 degrees range confinement, aggravated As a result Livermore. of close conditions of children, forced of by frightened incontinence confused breathing befouled and humid air both vans caused some labored on the part many of youngsters. served taking pеrsonal property these items it was the several Apparently, prosecutor’s upon the charges ultimately which were dismissed robbery for the
as basis motion. children; consumed of the food was inspection 8 A that almost all later disclosed however, gallons remained. drinking water over system capable producing cubic feet of battery-powered 9 The ventilation change every 25 exhaust per or a total volume minutes. intake and air minute air 18th, July period in excess of the operate fans continued to until about 8:15 a.m. defendants. previously hours tests conducted determined trial *8 After hours of concern whether their desperate would return captors to release them Mr. contrived a safely, plan Ray escape: together with the aid of two of the mattresses were teenaged stacked youngsters, van; a to the the together forming platform roof of after considerable plywood exertion, Mr. and one of the succeeded in the Ray boys removing victims, and steel lids All entrance hole. covering driver, assisted youngest again indomitable then scrambled by through Aside from minor cuts and opening safety. bruises and below, insubstantial transient injuries described none of victims sustained a significant physical or corporeal injury.
Findings Bodily Harm It was the harm was sustained prosecution theory by named victims as a result of certain minor and heat exhaustion injuries underground due to the oppressive conditions which existed in the and transport vans. sustained Mr. slight injuries by Ray during (minor cuts) effort escape and Van Hoff the ladder finger Cynthia during knee) descent were found to be (scraped insubstantial and trivial. exiting a
Additionally, toe abrasion sustained Rebecca in the by course of van underground was as a skin diagnosed superficial injury. Medical examination of the victims after shortly their disclosed escape no gross evidence of somatic injuries of nature. significant Expert testimony of the heat support exhaustion theory injury rejected by the trier of fact as conjectural any force. lacking probative
Jodi Heffington, bleeds, who was age to nose susceptible testified that her nose bled after briefly being Jennifer accidentally bumped by in the van transport and again while in the spontaneously underground van. She also of nausea and complained stomach while in upset both Jennifer, nine, vans.- age experienced and stomach distress fainting spell, Rebecca,
while in both nine, vans. testified to a age similar fainting spell stomachache in both vans as well as a spontaneous nosebleed her during confinement. underground Defense medical evidence
attributed the fainting experiences to the children’s understandable
anxiety rather apprehension exhaustion. In the than heat Herman, opinion Dr. whose the trial court found testimony “more impressive,” conditions оf acute as shown anxiety evidence could harm, never cause either and the injury of stomach distress symptoms and nausea were the result of hormonal secretions frequently induced an emotional state of fright or anxiety.
680 the accepted testimony guileless
The trial court expressly fainted and 1) experienced Jennifer had and found that youngsters, vans; 2) sustained nosebleed and in both Jodi had stomachaches vans; 3) Rebecca had also fainted in both and that stomachache while underground in both and a nosebleed in and a stomachache vans experienced the conditions of confinement which summarizing van. In (overcrowding, “temperature contributed to the victims’ hostile environment excretions, “breathing odor of bodily foul problems,” cave-in) difficulties” fear of a the trial court reasoned that total and suffering. terror,. “an of . . . .causes experience constituted ordeal [which]. what is . . . And to me is this statute all about.” suffering nosebleeds, and cоurt concluded the stomachaches substantiated fainting finally of that sustained.” suffering “the tremendous amount was state of the trial court found that the' Based that evidence victims (Jodi, three, Rebecca) and had suffered in counts five and seven Jennifer (Mr. but the victims in counts one and eight harm that bodily and had not. Ray Cynthia)
Contentions possibility without of life imprisonment the sentence challenge Defendants 2) 1) that evidence insufficient of on parole grounds both contravenes imprisonment of mandatory penalty perpetual unusual, cruel and constitutional provisions proscribing federal and state unusual, and as applied herein. generally and cruel or punishment error to denial relating additional claims reversible Defendants raise (Ballard (1966) Cal.2d 159 v. Court 64 Superior of a motion Ballard post-indictment 838, 302, 1416]), refusal of A.L.R.3d P.2d Cal.Rptr. [49 of emotional admission evidence preliminary hearing we hereafter our explain, For reasons which anxiety. harm and appeal. contentions dispositive resolution of two these findings claim is that harm Defendants’ central are unsupported by which invoke the automatically aggravated penalty requires that the test on recognizing appeal substantial evidence. While the evidence be to the fact finder’s evaluation of that due deference accorded (1974) witnesses Thornton credibility 467, 738, 267], 523 P.2d cert. den. Cal.Rptr. U.S. [114 393, 1118], overruled on other grounds L.Ed.2d 95 S.Ct. [43 fn. 12 Cal.Rptr. Flannel it is that the evidence 1]), argued underlying 603 P.2d strenuously had suf- three of the kidnaped factual determinations that youngsters fered harm is insufficient as a matter of law. Subsumed in defendants’ contention is the insistent claim that the'physical injuries *10 unsubstantial, harm suffered were forms simply of transitory bodily distress insufficient rise to the level of harm contemplated by in order Legislature the extreme automatically trigger of penalty perpetual While imprisonment. defendants concede candidly rеcord is with replete evidence of mental harm in the form of fear and it is anxiety, contended that the vigorously evidence of temporary bodily discomfort sustained the three their youngsters during confinement does not amount to substantial bodily within the injury of the meaning enhancement as proviso interpreted by courts.
The People with ardor equal counter that of harm findings indisputably based infliction of “unnecessary suffering terror” are valid.
I
Although the competing claims are framed in terms of conventional
standards of
review
judicial
to the
relating
of
sufficiency
evidence
(see
supporting
critical findings
Jackson v.
(1979)
Virginia
substantial evidence question of law those which analysis,10 have considered the enhancement provision have consistently viewed the issue whether the nature of the undisputed constitutes injury bodily harm 1, 10 Seefor example People (1980) 1, v. Green 27 Cal.3d Cal.Rptr. 59-62 [164 P.2d felony murder insufficient as a support finding 468] [evidence matter law to robbery special circumstance]; (1978) 562, People v. Caudillo 21 Cal.3d 587-589 859, Cal.Rptr. [insubstantial, 580 P.2d transitory injuries [146 not within the 274] statutory meaning “great bodily injury”]; compare People (1980) but v. Thompson 303, 289, 27 Cal.3d 321-325 Cal.Rptr. [finding 611 P.2d special [165 883] circumstance unsupported by substantial evidence]. (See
within the of section 209 as a matter of law. purely e.g. meaning 736, (1971) 411, 4 Cal.3d Cal.Rptr. Timmons [93 1119, (1969) P.2d v. Daniels 71 Cal.2d Cal. 648]; People [80 43 A.L.R.3d v. Jackson 677]; People 459 P.2d Rptr. P.2d 898].) statutory we must construе relevant our analysis,
In undertaking intent” understanding legislative to our best language “according Daniels, 1119, 1128) and in a manner consistent to effectuate attempting construction principles sound *11 import with the “ordinary in accordance intent legislative such Court ex rel. v. Younger Superior employed....” (People language 122, 30, 1322].) 544 P.2d Cal.Rptr. 40 (1976) 16 Cal.3d [127 statute, doubt as to reasonable Moreover, any criminal in construing of a defendant. (People resolved in favor must be its intended meaning (1964) Cal.2d Caudillo, 562, 576; Zerbe 60 In re 21 Cal.3d supra, v. 182, 840].) 10 A.L.R.3d 286, 388 P.2d 666, Cal.Rptr. 668 [36 amendments, anyone 209 provided section to recent Prior convicted or “shall robbery either ransom for kidnaping of the crime such act suffers any to person subjected in which any death in cases suffer for prison in the state death, by imprisonment be punished or shall subjected in which any person in cases of parole life without possibility harm, by imprisonment shall be punished act suffers bodily to any such in cases pоssibility parole life with the state for prison in harm.”11 death or bodily suffers where no such person 50 years ago added amendment nearly enhancement penalty Law Lindbergh sanctioning after the so-called federal was patterned victim had been when the kidnaping except the death for penalty any Jackson, 511, 515; (See 44 Cal.2d v. supra, liberated unharmed. People Need Statute—A Aggravated Kidnaping see also Enright, California’s (1967) 285.) Enacted in response 4 San L.Rev. Diego Revision for an “epidemic nationally publicized kidnapings” the public outcry following 559, (In (1973) Cal.Rptr. 562 Cal.App.3d re Maston [109 220), ini- (1936) 24 the 1933 amendment Comment Cal.L.Rev. 164]; sentencing by enacting determinate law of the 1976 part as a was amended 11 Thissection imprisonment robbery kidnapings to life limiting for (b) punishment subdivision 1139, 136.5, 1976, 5099.) p. A later ch. (Added by Stats. possibility parole. § possibility retaining penalty of life without while penalty the death deleted amendment kidnaping “suffers any act of ransom subjected to person parole where for 1977; 1262, 11, 15, Aug. see also p. eff. (Stats. ch. bodily harm.” § death or Code, 190.2.) Pen. § construed the courts in convictions tially broadly upholding (1950) without evidence of v. Knowles 35 Cal.2d asportation (People formed the intent to extort or 1]); P.2d where kidnaper [217 (1947) Brown rob during kidnaping (People movement of the 929]; P.2d and where the brief “room room”
[176 victims was incidental to the robberies without substantially increasing merely (1958)
the risk
harm.
v. Wein
remained unchecked until 1951 amendment virtually requiring criminal and the landmark Court decision asportation Supreme v. Daniels (infra) interpreting [71 1119] amended statute to exclude incidental movements no substantial involving
increase the risk of harm to the victim from the reach (See enhanced In re penalty Dennis robbery kidnapings. 50, 57, Yet, 60-61 Cal.App.3d Cal.Rptr. 267].) as both the trial provided
court and counsel has never readily acknowledge, Legislature *12 a definition for the standard statutory life mandating permanent Thus, imprisonment.12 within the factual any meaningful interpretation context herein must be derived a through careful of the relevant scrutiny
decisions. In the first case to reported consider the of the death validity penalty imposed of upon convictions the court relied aggravated kidnapings, a upon tort definition of in harm battery as defining bodily “any touching of the person of another his will with against force in an physical intentional, manner, hostile and or aggravated of such force projecting Tanner, 279, his against person.” 297.) v. 3 In (People Cal.2d supra, Tanner, the residential involving of an and robbery-kidnaping attorney his the court family, upheld of harm where Mr. Bodkin findings bodily Bodkin, was tortured fire and Mrs. her son and a by servant were first three-by imprisoned windоwless, for an extended period in a unventilated five-foot closet and then in left another room bound hand and foot with and ropes wires.
The Tanner definition of harm was the bodily applied routinely by robbery-kid courts for two decades in enhanced in upholding penalties provided 12022.7, Legislature example, Penal Code section where the has Compare,for 12 “great injury” significant bodily physical or substantial specific a definition [a warranting three-year penalty enhancement. injury] 684 v. assaults Britton seriously (People which involved
napings
aggravated
1,
3
P.2d
and other
and sexual assaults.
494]),
physical
6 Cal.2d
Brown,
559-560;
555,
Cal.2d
v.
v.
supra,
People
(People
Chessman,
Jackson, supra,
185.)
166,
But, in
v.
People
finding
bodily
court invalidated a
of
harm on
Cal.2d
the
where
only
for ransom
evidence
kidnaping
defendants’ conviction of
wrists
having
to the victim
his
bound
chains
injury
consisted
and
minor skin abrasions.
causing
circulatory impairment
some
“One
of the Jackson court is instructive:
construction
reasoning
was
of a
intent to
legislative
adopt
statute
based
assumption
an
in
those words in the context of
action
the traditional meaning given
Tanner,
suffered serious harm. supra, [victims Britton, wire, v. suffocated]; with tortured and nearly People bound with wire and one of them struck Cal.2d bound [victims [citations] Brown, on the head]; People [citations] [victim Chessman, Cal. defendant]; and struck forcibly raped 166, 185 violation of section 288a of rape 2d [citations] [forcible present . its to the facts of the application the Penal Tested in Code].).. [I]
case, whethеr definition in questionable it seriously case the Legislature distinguishing Tanner states intention of between and cases in which no harm kidnaping injury *13 If may imposed has resulted. the more serious be when penalty victim present record, is of nature similar to that shown the only the injury every an incident which almost concededly necessarily the the of enhancement of purpose penalty forcible neither kidnaping, nor the deterring kidnaper the heinous crime the intention for more there contrary, his victim is subserved. On the if killing from or injuring in every almost sufficient to warrant necessarily bodily kidnaping be injury the well kidnaper more serious imposition might the penalty, be to the that course him would kill victim reason the better for Jackson, of identification.” v. supra, minimize the probability 516-517.) 44 Cal.2d at pp. harm, later, of bodily substantially
Ten
Tanner definition
years
court, was
v.
expressly repudiated
People
undermined
Jackson
690,
909,
365],
408 P.2d
(1965)
Cal.Rptr.
Gilbert
[47
1178,
(1967)
other
Tanner definition of it, victim suffered kidnaping case and the cases following Tanner (Id. 711; added.) at italics doubt as to Any serious bodily injury." p. put the Tanner definition13 was to rest a few remaining vitality Daniels, later in the benchmark decision
years People supra, Cal.2d Chessman-Wein on the fact rejecting rigid emphasis (id. 1129) of movement rather than the distance involved at in favor p.
of the more rule of construction “standstill” robberies excluding enlightened substantially
and those incidental movement involving only without the risk of harm to the victim from increasing robbery liability under the statute. In an aggravated kidnaping drawing to decisions analogy essential harm”
construing equally component “bodily despite silence, intervening period legislative the court reaffirmed its in Jackson that a trivial or holding insubstantial was not within injury
the legislative contemplation the more serious providing since ‘“neither the penalty purpose enhancement... for the more heinous crime nor the intention of deterring kidnaper from killing or (Id. injuring 1133.) his victim is subserved.’” at Moreover, p. as the (fn. 7, 1133), *14 (10th ed.) [Judge p. presided Cal. Criminal Law 214 Fricke over the Tanner trial].) harm,’ part: 14 FormerCALJIC No. 655 stated in ‘“Bodily relevant as that term is instruction, used' in bodily injury this means damage body substantial or to the of a person kidnaping by who is the victim of such application physical force above kidnaping.” and in necessarily addition to the force which is involved in the commission of such (See (1979 rev.) now deleting CALJIC No. 9.22 [Italics added.] emphasized parts retaining but otherwise substantially language the same as former 655.) CALJIC No. 686 and deterrence of enhancement dual legislative purposes
mote the Jackson, 511, 517), it reflects doctrinal but also 44 Cal.2d v. supra, in decisional law the parallel developments consistency in the requiring asportation the crime of robbery-kidnaping related to thе risk of which increases markedly movement form of a substantial in the underlying involved necessarily harm to the victim beyond Daniels, 1138-1140; 1119, In re 71 Cal.2d v. robbery. (People supra, 881, 534 P.2d 122, (1975) Cal.Rptr. 14 Cal.3d 129-130 Earley [120 Timmons, 411; v. 4 Cal.3d People v. supra, see also People 721]: 721, This 633].) 482 P.2d (1971) Cal.Rptr. 4 389 Mutch [93 harmproducing quantum both the nature modern standard defining Sales, (Auto Inc. precedent Equity force establishes binding 321, 369 P.2d (1962) Cal.Rptr. 450 57 Cal.2d v. Court Superior [20 courts of review. intermediate consistently applied by which has been 937]) (1977) 267 Cal. (See 74 Cal.App.3d v. Soto e.g., People [141 unsubstantial]; handcuffed trivial and from Rptr. [injuries being 343] 23, (1976) 29 Cal.Rptr. [beating, 55 Cal.App.3d v. Isitt People [127 279] injury]; victim substantial bodily constituted kicking shooting required]; Dennis, harm” 46 at 57 Cal.App.3d p. In re supra, [“substantial (1972) 820, 27 830 Cal. Cal.App.3d v. Cleveland People [104 v. “serious injuries”]; People of victim constituted Rptr. [shooting 161] 216, knee (1970) 226 Cal.App.3d Cal.Rptr. Dacy [85 57] [lacerated harm].) 20- stitches constituted bodily requiring rule, the have that the recognized
In courts Jackson applying the victim has endured enhancement invoked whenever provision properly unnecessarily substantial or physical injury or sustained caused as a kidnaper proximately inflicted gratuitously (See intentional acts. kidnaper’s People foreseeable consequence Isitt, 23, 29; (1961) v. Monk v. see also Cal.App.3d People supra, 288, 633, v. 865]; People Frogge 363 P.2d Cal.Rptr. [14 117-119 Cal.App.2d Cal.Rptr. [physical injuries 517] [75 result of escape
sustained in victims’ foreseeable attempted 5 Cal.App.3d defendants’ threatened violence]; People Dacy, supra, Reed, 216, 221; 48-50 Cal.App.2d injuries People [victims’ a foreseeable result of inflicted rescue efforts during police (1964) 231 Cal.App.2d defendant’s but cf. v. Baker actions]; leaping A.L.R.3d sustained [injury Cal.Rptr. 1046] defendant].) the result of a act gratuitous from truck not hijacked However, restraint or confinement circumstance of physical isolated as incident being necessarily of the victim has been viewed traditionally a sepa- than a demonstration of to the forcible itself rather kidnaping *15 Soto, (See e.g., harm. act of rate and gratuitous locker during in a foot confined 267, 276-277 Cal.App.3d [victim kidnaping].) of than the crime crimes more serious there are few dispute,
Without Maston, supra, (In re of ransom. purpose for the base forcible kidnaping of 559, 563.) kidnaping purposes And every 33 Cal.App.3d and ultimate clandestine movement will involve some necessarily ransom But while such egregious victim. of the abducted concealment restraint, it is the introduction form of physical involves some necessarily conduct the physical harm or injury—not substantial (Id. 563.) at p. penalty. triggers augmented restraint—which aches, distresses, of stomach consisting transient physical None of the bodily injuries. to serious or substantial amounted fainting, nose bleeds related to the conditions sustained injuries The minor physical force physical of the applicatiоn and were not the result confinement kidnaping. instant effecting defendants that involved by beyond harm accidental such kicking, foreseeable probably Aside from the the result of victims in common was not sustained all of the by as was their the victims infliction of force the intentional or gratuitous as well. abductors, reached the trial judge a conclusion of the movement the nature kidnaping in every Unquestionably, fear, anxiety degrees will produce varying itself usually confinement victims, demonstrated. here vividly in the as discomfort personal set of circumstances Indeed, terrifying difficult to a more imagine it is of a bus herein; at gunpoint the mass abduction those depicted than of discomfort children, prolonged periods forced to endure of school load van; transfer dead-of-night their in the crowded transportation and circumstances under conditions even longer period van for an underground the most even among and fear to arouse anxiety calculated that the combined could doubt person stouthearted. No rational stoic and circumstances, together difficult and trying effect of such confinement, of dark hours long during the level of fear generated victims—especially youngest—to cause all the imprisoned would findings in the emotional harm implied mental suffering undergo great with the amorphous which have grappled But as the cases below. teaches, something contexts of factual in a variety harm”
concept “bodily harm, psychological or mental or trauma more than emotional confinement, restraint and of involuntary with all forms associated typically penalty mandatory the harsher to justify order required *16 which under certain conditions even anomalous results.15 may produce Maston, (See 6.) In re at 564-565 and fn. supra, Cal.App.3d pp. it that no distinction exists in human is debatable Though meaningful terms between trauma-inflicted as pain suffering opposed distress, mental and emotional the latter is not fright-induced anxiety application a substantial due to the equivalent bodily injury functional in of a force involved physical beyond necessarily mechanically in compounded forcible restraint itself. The trial court its error level or kind of equating statutory objective any herein, it But as discussed more reasonable “suffering.”16 appears eminently involve some kidnapings degree suffering to conclude that all If, insofar as mental distress or emotional harm is manifested. relatively (with contend, as the such evidence alone or without minor sufficient, then forcible physical symptoms) conceptually every augmented restraint and confinement would be to the automatically subject without the essential of substantial penalty showing bodily injury. Such an unreasonable result would defeat dual totally purpose penalty harm to the victim and an added preventing рhysical providing Jackson, for the more abhorrent criminal conduct. (People recognized 517.) Even the discredited Tanner definition p. Cal.2d at supra, the fundamental distinction between or physical Tanner, as to mental.17 suffering opposed supra, Moreover, 279.) in the announced standard to the applying peculiar (one conditions of therein of the circumstances relied imprisonment harm), in the court related the upon finding bodily explicitly concept in application harm to the nonconsensual force an “physical intentional, (Id. 297.) at p. hostile and manner.” aggravated
The issue is to exact a legislative seeking greater not the wisdom Maston, (In re penalty prevent order harm physical 559, 563), but whether minor and unsubstantial Cal.App.3d physical presented during presentencing hearing 15 Statistical evidence disclosed that based upon expectancy projections, 22-year-old life male sentenced to imprisonment life parole period nearly greater without would serve a of time 5 times than the median years) degree term conviction of first murder. (10-1/4 conjunction statutory phrase bodily 16 Thewords “suffer” or “suffers” in with the is, course, synonymous subjected harm used as a transitive verb with “endure” or “be (Webster’s Diet.) New to.” Third Internat. currently employed defining Essentially “bodily” similar definitions are to include relating body,” “physical, corporeal... to the and the noun form of “harm” to include (Webster’s Diet.) “physical damage injury.” Third New or mental Internat. [or] *17 of emotional degree a significant distresses, associated concededly legislative intended with the harm consistent bodily constitute suffering, far broader meaning a intended the Legislature had Certainly purpose. any to include in order words used the from understood commonly
than Legislature Since to declare. so harm, freely empowered it was form of concept explicate оr otherwise expand modify, to has neglected its in Jackson given interpretations following harm” “bodily correctly interpretations that such to conclude it is reasonable progeny, Caudillo, 21 (Cf. supra, v. People intention. the legislative reflect 578.)18 p. at Cal.3d Legislature their will for that never substitute may
Courts However, within our it is province in construction. guise statutory to construe the statutory language and remains our solemn duty reasonably purpose in a to effectuate legislative manner calculated in to avoid absurd or unjust and deterrence and order enhancement results. Daniels, 1130, 1139; Cal.2d at see also pp. v. 71 supra, Caudillo, 575; 21 v. p. Cal.3d at Keeler Superior 481, 617, 619, (1970) 2 470 P.2d Cal.Rptr. Court Cal.3d [87 420].) A.L.R.3d
In out the conclusion is that the duty, inescapable carrying evidence of the not harm within injuries bodily sustained does constitute of Penal Code section as a matter of law. meaning Accordingly, the sentences of life without not imprisonment possibility parole may stand.
II Postindictment Preliminary Hearing trial
Defendants make the additional claim that the court’s denial error. The claim is postindictment hearing constituted preliminary postindictment preliminary In the new rule groundless. announcing requiring the California Court hearing upon timely request, Supreme declared its those cases where expressly prospective application only (Hawkins yet plea. Superior indicted defendant had not entered a rhetorically engage suggested by parties in 18 Wedecline to semantical exercise “great quantify “bodily harm” attempting to the distinction between 575-581, (supra, pp. passim), in the injury” as discussed Caudillo context of unrelated case, concerning the Caudillo any In discussion harm enhancement statutes. dictum, merely not under section 209 stare decisis. (1978)
Court 435, 916].) 586 P.2d Cal.Rptr. [150 Hawkins, Since all of the defendants entered before none pleas long were entitled to Hawkins relief and the motion was denied. propеrly (Cf. Sherwood v. Court Superior
Cal.Rptr. 593 P.2d 862].) In herein, view of the disposition we have reached it is unnecessary consider defendants’ constitutional remaining or other claims challenges *18 of error.
The of judgment conviction modified by striking findings harm and bodily determination of parole to counts ineligibility relating three, seven; modified, five and as so of conviction and judgments eqch them, sentences of life and imprisonment, are affirmed.
NEWSOM, ably expressed J. I concur in the views so in Justice add, Racanelli’s opinion. I would like if to only by way emphasis, my view of why conclusion we reach is the one under only possible circumstances.
The central question before us is one of law. It is a question easily Reynolds, framed. Were the Brown, to the victims injuries and Heffington harm” “bodily within Penal Code section justifying imposition on two defendants of the of life without In penalty parole? passing upon not, we question are as the dissent suggests, reweighing
evidence or in fashion any fact; invading province of the trier of rather, whether, we are assessing the facts accepting the trier found to true, be that evidence as a legal proposition establishes the physical injuries
required for the of life impositon without parole. These have been injuries detail; described elsewhere consist of they (caused a nosebleed the victim a kick by child), from another fainting spells, nausea and stomachache.1 emotional distress surrounding victims, inflicted on the obviously more
immeasurably painful than these damaging physical injuries has, course, (because injuries, the Legislature so) has decreed it to be nothing whatever to do with the determination of whether “bodily injury”
occurred, it although was obviously, mistakenly, pivotal 1 Abrasions of the knee and hand not to constitute by judge were found the trial “bodily harm.” my respected the trial judge both reached in the conclusions point intended us to had If Legislature dissenting colleague.2 whеther in determining damage distress and psychic consider emotional so. So occurred, should—say can and possibly it could—it harm factors in consider such decline far, absolutely it has not. I therefore this of course fully recognizing I say harm question. weighing distress be so atrocious may emotional that the infliction of mental or mere infliction of minor than penalties as to deserve far more severe physical injury. finding without parole, of life imposition
The statute permitting significant unaccompanied by trauma mental and emotional function, It is no of our part to be written. remains then injury, physical crime, atrocious with this confronted out of abhorrence when acting As for what it is. plainly the law should be our notion of what substitute warned, “It is the province century judge ninteenth great *19 statutes, the unwritten. written from to the law expound only—the Judge courts,... and existing of. . .predecessors . .from the decisions advantage best, for the in his opinion, what is not to speculate [and] the Community.”3 out, reasons are, pragmatic sound points There as Justice Racanelli without- parole the life permit has chosen not to why Legislature harm occurs. physical sentence where no independent significant Jackson, Daniels, 1119; 2d v. supra, 71 Cal. People an incentive 511.) provide was to purpose Cal.2d Manifestly principal such on the inflicting injury for the to refrain kidnapper from in the circumstances have been vindicated victim—a which to purpose appears this case.4 warranted, are unquestionably sentences of life imprisonment The strike the imposi- as a matter of law to but I that we are agree required distinction—“suffering” great judge—a jurist respect experience 2 With for the learned trial Code, (Pen. 209) is not what the statute is “all about.” issue § repeat—is “bodily as —to whether substantial evidence of harm” used in Penal Code (cf. (1969) by Supreme section and defined our Cоurt v. Daniels Cal.Rptr. 677]; People (1955) 459 P.2d A.L.R.3d Jackson [80 case, 898]), may beyond be found in the evidence of this P.2d a reasonable doubt. Bacon Eng.Rep. 359. As Coleridge 3 Chief Egerton Justice v. Brownlow LVI.) declare, (Essays succinctly more puts it: “We to not make laws.” are judge’s probable 4 That from appears this was found to be so the trial court things have those sentencing, ending following
statement at “... observation: to the tendency indifferent simply completely kidnappers to indicate that the were not welfare of the children.” as parole clearly contrary life without possibility tion of expression. legislative respectfully opinions my
ELKINGTON, J. I dissent from the es- colleagues. teemed whether, law, Our limited function is to determine as matter children were harm” kidnaped “subjected evidence that “insubstantial.” have found it to be My colleagues was “substantial” or “insubstantial.”
The critical evidence is uncontroverted. and terrified school children on their home in a
Many young way were, school bus under threat of death or bodily injury by shooting, forced defendants on a hot San summer afternoon Joaquin Valley into a small van with about three and a half feet of tightly packed headroom, and then into a of a darkened pit and buried discarded consisting
furniture van. What we have as described variously, aptly, “nightmarish episode,” “terror” “agony,”* “fright,” “anxiety,” children continued young for 28 hours. A medical witness opined overcrowding, the ordeal exacerbated by “temperature problems” and difficulties,” excreta,
“breathing foul odor of and fear of body death. impending *20 course, result, torment, and
During as a direct of this some of the children, nine and eight, years ten suffered abdominal age, pains, nausea, nose spontaneous and bleeding, fainting spells.
The trial court was persuaded beyond reasonable doubt that children had suffered harm under Penal Code section 209. My reasons, not, conclude as a matter colleagues of law that did for they significant other that there among things, was “no evidence” of gross that “trivial or injuries, insubstantial was not within injury legislative contemplation for the more providing serious penalty,” that “such harm as was sustained all of the victims in by common was not the result of the intentional or infliction gratuitous of force victims... “agony” * The is ascribed to the children’s “families and friends” but the term will
reasonably apply greater suffering force to the of the children. their or kicked that, punched had defendants agree I think all would abdomens, bloody noses thus causing their faces or victims in young suffered trauma, would have pains they or other such abdominal Code 209. intended Penal section by harm as reasonably such inflicting mind the argument
My rejects injury, threat of death or bodily indirectly foreseeable injuries evidence, crimes defendants’ as here shown by under circumstances authority or other legal am I able find were somehow Nor mitigated. an such
suрportive argument. judgment I to be the errorless perceive I affirm in its what entirety would the superior court. Court denied hearing by Supreme Respondent’s petition Richardson, J., that the opinion petition was of the 1981. January granted. should be Daniels notes opinion the rule distilled p. from the Jackson holding has since been incorporated into a judicially approved (See standard instruction.14 jury v. Reed People Cal.App.2d 37, 48-49 430].) Cal.Rptr. In the Tanner summary, definition of harm has long since been repudiated replaced by more enlightened Jackson 1) rule which requires a substantial or serious to the injury body victim, 2) kidnaped force, of a by application 3) physical beyond Dennis, (See involved in the necessarily forcible In re kidnaping. supra, Caudillo, 50, 57; 46 Cal.App.3d see also 10.) 580 at fn. Not does only such contemporary definition pro interpreted merely questioned 13 Somecommentators have Jackson to have but not Witkin, Crimes, 328; (See p. overruled the Tanner definition. Cal. Fricke & § Alarcon,