*1 9, 1975.] In Bank. No. 17942. May [Crim. PEOPLE, v. Plaintiff and
THE Respondent, WINGO,
CHARLES C. Defendant Appellant.
Counsel Defender, Richard S. Gessler, Public and A. Charles Buckley, Deputy Defender, Public for Defendant and Appellant. J. General, Winkler,
Evelle Jack R. Chief Assistant Younger, Attorney General, Moore, S. General, Clark Assistant Attorney Russell Attorney Waldman, General, and S. Iungerich Cynthia Deputy Attorneys Plaintiff and Respondent.
Opinion MOSK, J. Defendant was in count I with murder (Pen. charged and II 187) in count with assault means of § force likely produce Code, 245, subd. case (Pen. (a)). § The was submitted great bodily injury on to the trial court Defendant transcript preliminary hearing. count, was on the was murder found of the assault acquitted guilty and sentenced to for the term law. He from prison prescribed by appeals is cruel judgment, contending imposed punishment I, unusual of article violation section the California Constitut ion,1 and the and Fourteenth to the Amendments United States Eighth I, I, (former 6) Article art. “Cruel or provides: unusual not be inflicted or excessive fines imposed.” must be we conclude For stated Constitution.2 the reasons judgment affirmed.
I The was assault The facts are upon perpetrated essentially undisputed. Love, man, old, who thin” walked an and one William years “aged hours, and consisted It in a with a cane. occurred during park, daylight after had defendant to the head and kicks victim’s body upper repeated A intervened and the victim to first knocked ground. bystander an was thereafter arrested and defendant terminated the beating, the scene." While officer who being transported happened upon ass, scream, “Yes, I his kicked was heard to station defendant police I kicked I don’t think it well enough.” The cause of nine later.
Love died in a Los days Angeles hospital included in the assault sustained death was a heart attack. injuries bone. of the left and a fracture facial bruises and lacerations thigh whether there unable declare with Medical was certainty testimony attack. between such heart was causal injuries relationship *5 245, 245(a)), Penal Code subdivision section (a) section (hereinafter who an assault inter alia: commits upon provides “Every person or instrument or means of another with a any deadly weapon by person of force is injury by imprison- to. likely produce great bodily punishable life, in six to or in a ment the state months county jail prison fine not five thousand dollars one or exceeding year, by exceeding ,”3 noted, . . As fine both such ($5,000), imprisonment. term defendant to state “for the sentenced prescribed prison was is to contention is that the law.” His sole disproportionate thus cruel or unusual. his offense and is unconstitutionally to the merits of it reach unnecessary 2Because of the herein we find disposition defendant’s federal claim. constitutional In its first 1872 amendment. frequent 3The section was enacted in and has undergone weapon, and the use of deadly form the offense intent specific original required $5,000. An 1873-1874 than of than a fine of not more not more two and/or years penalty means of any “or by and added the phrase, amendment deleted intent provision in An of imprisonment alternative great penalty force to likely bodily injury.” produce of period A 1921 increased maximum was also amendment county jail provided. (b) to assaults on 1961 added relating to 10 subdivision was years. imprisonment (b) officers, under was second subdivision and in 1965 the for a offense police increased to five penalty six in 1970 the alternative felony penalty life. years Finally present (a) (b). subdivisions made to first offenses under both months life was applicable At the outset we note that the of section felony penalty provisions are 245(a) Code, 1168, the indeterminate sentence law. (Pen. part §§ 3020-3025.) Under this the trial court “does not system specify length sentences the defendant for the term imprisonment simply Code, law.’ (Pen. It is the Adult an ‘prescribed by Authority, administrative Code, within the of Corrections (Pen. agency Department 5001, which 5075-5082), §§ thereafter determines within limits statutory of the term the defendant will to serve. length actually required 410, (Pen. 3020-3025.)” re (In §§ Cal.3d (1972) [105 217, 503 P.2d Thus the case of a conviction under Cal.Rptr. the Adult 245(a) fix the term of confinement at Authority may between the minimum of six months and the any point statutory maximum of life.
As another matter we observe that the statute under preliminary discussion two distinct of offenses: assault with a proscribes (1) categories and (2) assault means of force deadly weapon, likely produce great seen, harm. As will be within these bodily included an categories broad behavior, a fact of which extremely spectrum culpable was Legislature wide undoubtedly cognizant enacting equally for violation of the section. range penalties we the considerable Finally burden a defendant pause emphasize must overcome as cruel or unusual.4 The challenging doctrine of entrenched in the law separation powers firmly California, and a court should not encroach on matters which are lightly in the domain of the uniquely foremost Legislature. Perhaps these are the definition of crime and the among determination of v. Bauer Cal.3d (1969) punishment. (People 461 P.2d A.L.R.3d v. 1398]; Knowles People *6 181 P.2d 1].) While these functions are [217 intrinsically legislative circumscribed I, 17, constitutional limits of article the section the of enactments will not be “unless their unconstitu validity questioned and re tionality clearly, (In positively, unmistakably appears.” Lynch 415, 8 (1972) Cal.3d at from In re M. 70 Dennis (1969) supra, p. quoting 444, 1, Cal.2d 453 450 P.2d With these fundamental Cal.Rptr. [75 considerations in mind we to the of merits defendant’s case. proceed 444, (1973) 4See v. (armed 447-450 People Morgan Cal.App.3d Cal.Rptr. [111 548] 531, (1973) In re robbery), (sale Jones 533-542 of Cal.App.3d Cal.Rptr. [110 765] marijuana), People (1973) Cal.App.3d Cal.Rptr. v. Brown 325-328 [110 854] (unlawful intercourse), (1973) sexual and In re Maston 561-566 Cal.App.3d [109 harm), with Cal.Rptr. all of which the (kidnap-robbeiy bodily upheld challenged 164] the contention that it was cruel or penalty against unusual under Lynch. II Defendant relies on our his contention Lynch support holding of cruel or unusual. In that the section are 245(a) provisions penalty we struck down the of Penal Code section 314 which Lynch provision “for second-offense indecent not by imprisonment punished exposure - less than one the year.” assessing validity potential life-maximum term in case we (1) that analysis: employed three-part offender, “the nature of the offense and/or the particular regard (id the 425); of both at (2) degree danger present society” p. of “the with the comparison challenged penalty prescribed punishments test, which, the same for the same must jurisdiction different offenses (id be deemed more at and “a 426); serious” (3) p. comparison with the the same challenged punishments prescribed penalty offense in other an identical or similar constitutional having jurisdictions at concluded that the We (Id p. provision.” between the crime of second-offense indecent disproportion exposure the so life as to shock was penalty potential great imprisonment conscience, the void recidivist declared the accordingly provision section 314.5
In In re Foss
proceeding were at bar. There we concerned distinction between the case Lynch of life was ever with whether maximum term imprisonment The crime of second-offense indecent exposure. permissible behavior, held no mode of and we that under statute a single proscribed life maximum. that behavior circumstances could By potential justify contrast, to determine the in the instant case we are called upon statute wide which range culpable constitutionality prohibits Thus, conduct, unlike with a wide correspondingly range punishment. here which we are concerned with a maximum Lynch, might in others. some circumstances but excessive permissible
A The We with the first test. offenses proscribed begin serious, violence are 245(a) committed great frequently to the victim. (See, sometimes resulting painful, permanent, injury 44]; 3 478 P.2d re Downs Cal.3d 694 (1970) e.g., Cal.Rptr. [91 355 31 284]; v. Martinez (1973) Cal.Rptr. People People Cal.App.3d [107 16 If our were v. 196 focus 805].) (1971) Cal.Rptr. Lively Cal.App.3d [93 confined to this of behavior there could be no but that type question of a to was to society sufficiently high justify imposition degree danger statute severe sentence. But the breadth of challenged encompasses more this At one end of the than narrow offenses. considerably range from there conduct spectrum indistinguishable premeditated virtually murder, while at is a mere to the other there injure attempt seriously which intent futile. lacks and is any specific completely defendant, A
An to this serve illustrate heavily disparity. example intoxicated, In the when a breaks out a barroom. present fight fists, strikes victim with excitement he out at an intended his fray of his misses his because faculties completely target.7 impaired use of hands or fists alone has been held sufficient a conviction support means force assault likely great bodily injury. produce {People v. 865]; v. (1968) Chavez People Cal.Rptr. [73 Cal.App.2d Moreover, since (1961) White Cal.Rptr. Cal.App.2d [15 harm, that the on it is immaterial statute focuses force likely produce v. (Cf. (1971) in no harm whatever. Wells force resulted actually People v. Samuels 191]; Cal.App.3d People that he lacked the present ability 7Of course if the were so intoxicated defendant no assault. aggravated “commit a there could be no assault and a fortiori violent injury,” (Pen. *8 177 501, 513 And since the offense is a Cal.App.2d Cal.Rptr. [58 crime, not intent the defendant’s intoxication could be consi general factor, course, nor, dered it v. a of could be a defense. mitigating (People 172, 3 479 372]; Rocha Cal.3d 896-897 P.2d (1971) Cal.Rptr. [92 1 v. Hood 452-459 462 P.2d (1969) People Cal.Rptr. [82 370].)8 could,
Thus a errant an intoxicated defendant under single swing by statute, of the result conviction of an offense language carrying life maximum. It is that no true such case has been to potential brought attention, our but the nonetheless remains.9 possibility Accordingly, of violation of examining degree danger society through presented section we 245(a) must be such mindful entire of inclusive range conduct. case, course,
In the instant of we are faced with circumstances entirely at variance with the Here a vicious foregoing hypothetical. particularly victim, attack took aon in substantial place, relatively helpless resulting intoxication, There was no evidence no indication of lack injury. intent. Yet this serves to the wide specific variety simply emphasize behavior included under the umbrella of section We thus 245(a). conclude that determination created any danger society violations section in aH turn must instances on the facts 245(a) peculiar of the individual case. further, it 8Pursuing hypothetical is ironic to note if example the defendant
had succeeded in his actually the victim diminished killing would capacity preclude Code, conviction of múrder or of assault with intent to (Pen. commit murder § 217 to[1 14 and the years]), would be a proper judgment conviction of the crime of manslaughter. (Pen. 193 15 [imprisonment exceeding years].) 9There have been cases end of scale lesser of conduct approaching closely 245(a). under (1969) 59], v. 271 754 People Lopez Cal.App.2d Cal.Rptr. [77 defendant was arrested for possession marijuana and attempting escape swung officers, belt (b) at the coin-changer his A conviction under subdivision missing target. (See section 245 was (1967) sustained. also v. Samuels 250 Cal.App.2d People supra, 245(a) 513 conviction based on administered to victim in beating willing [section film; sadomasochistic defendant claimed were cosmetically apparent injuries induced, assault, was judgment affirmed because “An like other aggravated any assault, be committed without the infliction of v. any physical injury”]; People (1961) 195 White in the v. [single eye]; Cal.App.2d punch People [15 665] (1940) Mitchell P.2d reached over heads of two Cal.App.2d [104 545] [defendant victim, or three and hit bottle]; who had been people beer original aggressor, People v. (1950) 95 Pullins P.2d finger “chewed” victim Cal.App.2d [214 [defendant 436] “bent”]; it become v. Score P.2d causing People Cal.App.2d [120 62] fist, him, struck victim with then his fell on accidentally breaking leg]; [defendant People v. (1956) 147 P.2d four Hahn hit on head times with Cal.App.2d [victim 192] can].) beer empty
178
B offense test a The second challenged comparison requires If after this examination more serious. those which must be deemed with than the less found more serious crimes there severely punished “are. (8 is to that extent offense suspect.” challenged penalty question, Cal.3d however, in classification. there
Here difficulty appears again, 245(a), wide of conduct Because of the by proscribed range of violent the most brutal of that offense involve instance type nlay given If such a case were the Penal Code. to interdicted behavior by equal any to find another a court would be hard a benchmark used as pressed on firmer But here we are “more serious.” that could be deemed offense of the conduct than the determination danger degree ground number of a considerable since there are section 245(a), proscribed is a or demonstrable intent in which either injury crimes specific necessary ingredient. serious” we find “more this as our many comparison
Using point Thus for for is crimes which a lesser penalty prescribed. for with intent to commit is to 15 assault (§ 193) years; manslaughter up 1 25 for 1 14 for to (§ 208), murder to (§ 217), years; years; kidnaping to 14 for assault with intent to commit 204), (§ rape, years; mayhem up 1 with to 20 for assault 220), or (§ years; mayhem, robbery sodomy, 14 1 to 244), chemicals with intent to (§ caustic years; injure disfigure in the for on a officer or fireman battery engaged performance peace for torch or duties 1 to 10 243), his (§ explosives years; burglary a vehicle of a common carrier 10 40 for (§ 464), to wrecking years; for harm 1 to 14 at an 219.1), intent to cause (§ years; shooting bodily for food or drink with inhabited to (§ 246), years; poisoning dwelling 1 to 10 for drunk to a human (§ 347), the intent being years; injure for 23101), (Veh. years; up causing bodily injury driving 266a), abduction for (§ forcible years; up purposes prostitution harm or death wilful to a child bodily produce great cruelty likely in a wilful wife or child (| 273a), resulting beating years; to 10 273d), traumatic condition (§ years. up Yet it than exhaustive. is illustrative rather list foregoing more demand that the offenses described culpabili- evident considerably se This does section 245(a). than of those embraced per ty many statute unconstitutionally a conclusion challenged compel excessive, exactitude in since we have never mathematical required to crime. But it is further indication that fitting punishment *10 unusual, with like results from under consideration is and if combined tests, in the other result of impermissible may finding Lynch disproportion.
C Under the third test the sentence examined Lynch light in other for the As same offense. with the penalties imposed jurisdictions will, tests this is not if mechanical the results previous inquiry warrant, an additional for the constitutionali- provide ground suspecting of the ty penalty. challenged
Nor are we concerned here with our Code Penal conforming rule” or least common denominator of nation- “majority penalties wide. In the vast cases majority penalties imposed are and there those Legislature just equitable. Occasionally appear “isolated excessive “in enacted penalties” response transitory public emotion” that were condemned in But in (8 426.) Lynch. p. main our codes served as have a model the nation rather than a mere mirror of the laws other and we have no inclination to jurisdictions, reverse that arbitrarily process.
Yet when there between a chal appears significant disproportion states, and for the same crime our sister lenged penalty imposed be In deemed it should was found that suspect. Lynch only two states life-maximum sentences for second-offense exhibi permitted tionists, while the overwhelming majority disposed problem by short term and/or a 436.) small fine. Cal.3d at In Foss we (8 jail p. determined that a number states a minimum although imposed offense, term for heroin sale with a narcotics four 10-year only prior consideration for that of time. Cal.3d at precluded (10 parole length each we case held the indicative of evidence comparative the excess of the California term.
Here we are with similar data. With the sole presented exception Arizona, no term for a life the offense assault jurisdiction imposes with a Columbia states the District deadly weapon. Forty-six , that the offense is with a terms of -provide punishable years, usually maximum of 5 two or and never in excess of 21. The years remaining states do With 245(a). to have a similar to section statute appear harm, to assault means of force likely great
regard produce bodily statute, a term of that 7 states have no assault we find impose felony less, a term of 10 a term of 6 to 7 years, years, years give provide various terms to and and 8 including years.10 impose up It follows that criteria delineated by application of section The sentence is 245(a) penalty provision suspect. potentially in terms of within California disproportionate imposed offenses, more serious actually disproportionate respect *11 in other assessed for the same offense. penalties jurisdictions seen, The first test thus becomes as we have yet dispositive; of factual contexts offenses section under myriad comprising punishable an of nature 245(a) precludes priori appraisal precise to conclude there can crime. we are that Accordingly impelled circumstances, undefined, be as when of a life-maximum yet imposition sentence for violation of section would constitute cruel or unusual 245(a) punishment.11
III
A statute valid on its face
may
unconstitutionally
applied.
356,
220, 227-228,
(1886)
Wo
v.
118 U.S.
373-374
L.Ed.
(Yick
Hopkins
[30
605,
Brock
Court
6 S.Ct.
v.
12 Cal.2d
610
P.2d
(1939)
1064];
Superior
[86
10The
scale of
new California Criminal Code would establish
proposed
sliding
nonintoxicated,
intent,
with a maximum
15
penalties,
of
up
years
specific
officer)
of
(or upon
assaults with a
aggravated
deadly
person
peace
weapon
suba,
820, 315,
(§§
(c).)
in serious
The American Law
resulting
harm.
bodily
Institute’s-
1969)
Model Penal Code
of 10
Official Draft
would set a maximum penalty
(Proposed
above,
211.1,
(§§
6.06.)
As
to 1970 the
years
assault.”
noted
“aggravated
prior
maximum
more in line with
245(a)
under section
was 10
and thus was
penalty
years,
3, ante.)
(Fn.
nationwide.
accepted penalties
(1972)
739],
22
945
does not
11The case
v. Jennings
Cal.Rptr.
People
Cal.App.3d
[99
a different conclusion. There it was held that the
section
provision
compel
245(a)
penalty
was not unconstitutional
as violative of
clause of the
the equal protection
Amendment,
convicted of this offense receives a
Fourteenth
a defendant
although
with intent to
than one convicted of the more serious crime
assault
greater penalty
Code,
217;
However,
(Pen.
commit murder.
1 to 14
it does not
that the
appear
§
years.)
court
with the
that the
cruel or unusual
was
claim
statute
presented
prescribed
Jennings
I,
17.
violation
article
section
(1886)
2
In a case decided
nine
Ex
70 Cal.
P.
decades
Mitchell
nearly
ago,
parte
[11
488],
245
issue was
considered and the court concluded that section
present
briefly
decided,
I,
was not
of former article
section 6. At the time Mitchell was
violative
however,
(See
two
fn.
the maximum term of
for this offense was
years.
imprisonment
ante.)
v.
&
San
805];
(1947)
Wade
Francisco
City County
Cal.App.2d
P.2d
338-339
cf. Furman v.
Defendant asserts there be occasions likewise where *12 of because the lack of of the individual offender a life- culpability sentence an would be unconstitutional application maximum. contention, above, the is
245(a). reasons meritorious. given However, we refuse to further assertion that the defendant’s accept in therefore its we void Rather assume the is provision entirety. intended that the statute be and we Legislature constitutionally applied, thus the as that the Adult interpret penalty provision presupposing terms, would fix within the which are not Authority statutory range, offender.13 individual of the disproportionate culpability examined; If this to seems a superficially interpretation contrary major said, in we There “when a defendant under an proposition Lynch. indeterminate as sentence that sentence cruel or unusual challenges , Constitution, in the violation of California the test is 245(a), 12The information was a of sections thus actually composite making 245(a) the section offense included under the of the necessarily language accusatory (10 Cal.3d 559.) at pleading. p. stated, 13The to “The People point in Schueren in which we are still language People (10 free to violations of 217 and 245 counts.” Cal.3d charge sections in at p. separate count, offense If the can be in it is constitutionally that a charged urged separate fortiori it can in a count. We herein charged said from single agree. derogates Nothing above, the the to convict As under section 245. discussed our power People charge sole concern is the to unconstitutional factual application provision penalty which are instances to merit a sentence. life-maximum sufficiently egregious statute the the maximum term whether by permitted imprisonment limit, constitutional his offense exceeds the regardless punishing Adult in his case the a lesser be fixed whether term by particular it is of the Adult Cal.3d at Here the 419;) (8 ability very Authority.” p. the the to set lesser term which validity Authority preserves challenged penalty. is a fundamental between
Yet as discussed above there difference case, of the “offense” defined and the instant the nature namely, If a the statute narrowly single, Legislature. proscribes mode of is in consider delineated behavior—as Lynch—it appropriate to the maximum in look ing constitutionality only penalty order to whether circumstances the crime would determine under any But inconclusive when this justify punishment. analytic proves conduct, to a since statute a broad applied regulating variety definition there no “offense” measure the subject single against this, maxi context a consideration penalty. only Accordingly fruitless, our whether mum is as sole alternative a determination leaving of the individual offense the actual is excessive. light imposed convicted
We who legally recognize traditionally “[o]ne than has vested of his at less no determination sentence right maximum” re (In Schoengarth Moreover, an 425 P.2d defendant under indeterminate “a at term first no his sentence fixed
sentence has ‘vested have right’ ‘or other less than Adult any prescribed by Authority period ” Cal.3d, maximum 417 of sentence statute.’ (Lynch, provided *13 637, 279].) from 27 Cal.2d 641 P.2d “It In re Cowen (1946) quoting [166 effect has that sentence been held the indeterminate uniformly legal 690, 693 177 a sentence for the term” re Cal. (In (1918) maximum Lee P. to of the Adult the ameliorative 958]), only power subject [171 692-693;. Pen. to set lesser term. (Id. Authority pp. 3020-3025.) §§ abstract, be
But these valid in the must when propositions, qualified the maximum term as such a case a is challenged disproportionate. defendant has an that his term be undeniable “vested right” insuring fixed his Thus a unconstitu- offense. sentence be may proportionately Adult has fixed a term excessive either because the Authority tionally or, circumstances, no offense in some because disproportionate term whatever set. A to fix his term be as has been failure may just term, since “It is violative of a defendant’s as an actual excessive right fundamental the indeterminate sentence law that such sentence every is for fix the maximum unless and until the acts to a shorter Authority term. the case The act as and Authority may just validly by considering then to reduce the term as an order it.... by reducing declining entering is, course, This of law of the same whether we are principle dealing a maximum term life or re (In a maximum term Mills years.” 483, 646, 55 Cal.2d P.2d “In the (1961) 15].) case Cal.Rptr. [12 a life merits term convict who the does not believe a lesser Authority does, term it act from refraining fixing may, customarily by simply his term at a he a life Since statute by span years. already serving term there is no occasion for the re-declare the fact.” Authority v. Harmon P.2d (People [4 We therefore hold when that a defendant convicted under a a wide conduct statute as encompassing challenges range cruel or unusual must await review an imposing punishment, judicial initial determination the Adult term in Authority proper individual case. When the term is fixed a court can then analyze of the statute If the as either constitutionality Authority, applied. discretion, omission the exercise of its fails or within declines term, reasonable time to set conduct will be measured particular maximum. criteria will continue to be against statutory test—i.e., under first the nature of the offense employed, analysis and/or the offender—will turn on the facts circumstances of the individual case.
Habeas is the to an available remedy petitioner corpus aggrieved set, after his fix term has been or if the fails to the term Adult Authority within a reasonable time. 10 Cal.3d re Foss (In (1974) supra, 916-917; In re 41 Cal.2d P.2d 251].)14Any Masching(1953) his term will bear the burden as petitioner challenging disproportionate excessive, his which if sentence is demonstrating challenge, merit, devoid of We denial. this of by summary regard disposed an often inconclusive procedure preferable analysis statute-by-statute of the Penal Code of Lynch.15 in.light *14 said herein 14Nothing should be to in genuine taken a a prohibit petitioner situation from a as cruel or challenging penalty unusual on direct But this appeal. is available it is
remedy if shown the only that statute a narrow subject encompasses of behavior which range under no circumstances could the constitutionally support given penalty. 15There are wide a of offenses in the Penal life presently Code variety carrying maxima, Code, (Pen. 190) in from collusion ranging murder to culpability corrupt § Code, 100; bidders or (Pen. the of state not less suppliers by superintendent printing the to not had
In the case the Adult has Authority opportunity present determine, the sentence defendant in the of this maximum light opinion, whether defendant’s term it is to decide should serve.16 Thus premature set, when such a term is be to his offense. would Only disproportionate term, fix a or within time decides to if the a reasonable Authority if the to determine defendant utilize habeas remedy corpus may is excessive under the facts and circumstances the crime he convicted. which stands is
The affirmed. judgment Tobriner, Sullivan, J., J., J., and concurred. C. Wright, CLARK, J. but dissent from I concur judgment, affirming fix the must and the Adult irrevocably Authority promptly holding under a statute maximum term of a committed “encompassing prisoner the maximum sentence a The wide conduct.” possibility range be so to law for such an offense may disproportionate provided cruel or unusual offender as constitute culpability particular be for should not used as judicial legislation pretext punishment to enter sentence law. the indeterminate By refusing radically altering tain claim until he has served the term defendant’s admittedly propor his free be from tionate to his this court could protect culpability, right with the cruel or unusual without unduly interfering punishment of the indeterminate sentence law. administration irrevocable sentence law once indeterminate provided early, to more term but such are recent clearly contrary fixing, requirements intent. As enacted expressions legislative originally 1168 of Penal Code that authority provided governing “[t]he . . . shall or in which such be confined reformatoiy prison person behavior, than it two Some broad seems clear that years). may proscribe ranges interests of will best served the Adult efficiency Authority judicial by allowing make an for the individual offense before initial determination proper penalty 211, 216, 100, 110, 182, 190, 209, 210, (See is Pen. judicial §§ considered. challenge 12022, 12022.5, 12303.2, 288a, 288b, 454, 461, 644, 647a, 217.1, 264, 264.1, 286, 288, 12303.3; 12308, 12309.) In there numerous Health and Code and Safety addition are life offenses. Veterans Code sections maxima Military designated prescribing that we are somehow 16The dissents when overreact grossly they express apprehension we cannot law. We have declared merely sentence altering evaluate indeterminate determined, or unusual until sentence whether cruel time, so. Nothing until the fails or declines do Adult after a reasonable Authority, (See Adult Authority. contained in vested law the our affects the discretion opinion 749, 498 re P.2d In Minnis *15 of the minimum term of determine after the expiration imprisonment... time, shall be confined . . . what if such (Stats. length any, person 1917, 527, to section 1168 added 1, ch. A 1929 665.) amendment that § p. term of the state board so fixed imprisonment prison “[t]he directors, shall increased or diminished not thereafter said board or for allowance forfeiture reason whatsoever any except ‘good [the 1929, 872, 1, time’ ch. (Stats. 1930.) § p. credits].”
However, in 1935 to another amendment broadened the convicted board’s to refix terms. “In case person undergoing power any infraction of the rules sentence in of the State commits any any prisons board, and while outside working regulations prison escapes such the under the surveillance Board Prison prison guards, prison Directors order theretofore made revoke the may determining any length such and make a new time convicted shall be imprisoned, person order such of time not the maximum exceeding determining length which he was convicted ....” law the offense provided 1935, 603, (Stats. 1, ch. the same amendment the 1700.) p. that the board “shall” fix a term after the requirement expiration minimum term was deleted substituted. the and permissive “may” 1941, section 1168 was rewritten and various of
Finally, its Those distributed elsewhere in the Penal Code. provisions governing 3021. The of terms became sections 3020 amendment fixing board, limitation, without to “determine power gave apparent must serve on his sentence or and redetermine” time prisoner 106, 13, (Stats. sentences. ch. §§ law has evolved over the past
Thus indeterminate sentence was entitled to an from in which a half-century program prisoner early, term, into one in which irrevocable his maximum fixing prisoner of his sentence has “no vested less the determination at than right maximum,” be refixed at the and in which his term once fixed may re maximum for (In cause time. Schoengarth statutory any There are indications 425 P.2d soon reverse this branches of appropriate government trend, it is our to do so. province
McComb, J., concurred. RICHARDSON, J. I in Justice Clark’s concurring join dissenting and add opinion, only following: *16 insofar it concludes that as
I concur the majority opinion readily constitutional on its face. (a), Code section subdivision is Penal seem excessive a term life would maximum imprisonment Although section such a term be certain offenders under as applied Furthermore, I believe it fair as to others. wholly justified applied will a of the reason conclude that availability parole, only rarely serve an section sentenced under unduly prolonged actually person term. however, with the holding, unsup
I majority’s disagree, respectfully under that whenever a sentenced authority, person ported by prior or cruel as his indefinite sentence constituting challenges must, time within reasonable Adult a unusual the Authority punishment, risk reversal thereafter, else fix the term” of confinement “proper (Ante, 183.) conviction on cruel unusual the p. punishment grounds. the Adult unless irrevocably Under the Authority majority’s opinion, for each a maximum term imprisonment prisoner definite fixes Law, will Indeterminate the courts Sentence the sentenced under life (i.e., term is the maximum the actual statutory presume will the constitutionality in the instant case) “analyze imprisonment of the statute” accordingly. view, the two short (in my paragraphs opinion) majority Law, for in order to avoid alter the Indeterminate Sentence
substantially is case cruel and that an indeterminate sentence ruling particular P.2d unusual in In re (as Lynch, its will to forfeit Adult 921]), term-fixing Authority compelled terms set terms for discretion and individual maximum every prisoner, I see no which cannot thereafter be increased escape authority. is heart of the which the conclusion that from flexibility sentence indeterminate destroyed. system thereby in the effect The this change major majority justify attempt term is on the initial of the maximum law that an required fixing ground as of the statute that “a can so court then analyze constitutionality fact, noted (Ante, ignore properly majority applied.” Law has Clark, Indeterminate Sentence Justice that the operated and, its the absence fashion since constitutional despite inception constitutional has withstood innumerable initial challenges. term-fixing, Further, in this majority’s directly contrary holding regard *17 Penal Code contained in command very Legislature’s express statutory or hereafter section 3020: “In the case of all heretofore persons sentenced under the code of Section 1168 of this provisions [indetermi- redetermine, nate the Adult determine and sentencing], Authority may if time, after the actual commencement what length imprisonment, such shall be ...(Italics added.) any, person imprisoned of this contradict the unanimous Finally, majority flatly expression court in In re 66 Cal.2d 425 P.2d Schoengarth, Cal.Rptr. [57 wherein it 200], described the of Penal Code section legislative import 3020 in the clear and “The Adult words: following unambiguous statute, has exclusive fix of time a Authority, by jurisdiction length must serve within the limits of an indeterminate sentence. prisoner One who is to the convicted has no vested [Citation.] legally right determination his sentence less than maximum [citations], and hence redetermine such sentences as authority conditions ‘may require (Italics added.) [citations].”
I see no basis in or reason on which to reconcile the majority logic 3020 or the either with the clear Code Penal opinion language recent unanimous Nor of this court in relatively expression Schoengarth. fix are there a reasons the Adult must any compelling why Authority maximum term so that courts can the constitution- prisoner’s “analyze” above, the term. As I have will in ality most cases suggested prisoner be released from confinement well within the penalties range under the “cruel and unusual permitted punishment” provisions federal and state Constitutions. rare cases which a In those relatively limits, is confined those the habeas prisoner beyond remedy corpus Sturm, available secure his release. In re 11 Cal.3d (See 361, 521 I P.2d see no intrinsic constitutional impairment in the system.
There are social, valid and demonstrable very penal, psychologi- cal reasons for in the Indeterminate Sentence Law. We are changes advised that the has the law under close and indeed Legislature study, the Adult has Authority already implemented administratively doubt, reform in its is, no plan major application. present system Nonetheless, view, ripe major changes procedure. my should come from far better hands appropriate changes legislative alternatives, to evaluate considera- equipped weigh conflicting policy tions, and to conceived of reform. The develop carefully plan system has been times. The subjected judicial microscope many, many are from, neither nor should result changes compelled by, they any “constitutional” infirmities concealed revealed. previously recently
McComb, J., concurred. Clark, for a was denied June 1975. Respondent’s petition rehearing J., Richardson, J., should be were of that.the petition opinion *18 granted.