Defendant was charged in count I with murder (Pen. Code, § 187) and in count II with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)). The case was submitted to the trial court on the transcript of the preliminary hearing. Defendant was acquitted on the murder count, but was found guilty of the assault and sentenced to prison for the term prescribed by law. He appeals from the judgment, contending that the punishment imposed is cruel or unusual in violation of article I, section 17, of the California Constitution,
The facts are essentially undisputed. The assault was perpetrated upon one William Love, an "aged and thin" man, 72 years old, who walked with a cane. It occurred in a park, during daylight hours, and consisted of repeated kicks to the victim's head and upper body after defendant had first knocked the victim to the ground. A bystander intervened and terminated the beating, and defendant was thereafter arrested by an officer who happened upon the scene. While being transported to the police station defendant was heard to scream, "Yes, I kicked his ass, and I don't think I kicked it well enough."
Love died in a Los Angeles hospital nine days later. The cause of death was a heart attack. The injuries sustained in the assault included facial bruises and lacerations and a fracture of the left thigh bone. Medical testimony was unable to declare with certainty whether there was a causal relationship between such injuries and the heart attack.
Penal Code section 245, subdivision (a) (hereinafter section 245(a)), provides inter alia: "Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the state prison for six months to life, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars ($5,000), or by both such fine and imprisonment...."
As another preliminary matter we observe that the statute under discussion proscribes two distinct categories of offenses: (1) assault with a deadly weapon, and (2) assault by means of force likely to produce great bodily harm. As will be seen, within these categories is included an extremely broad spectrum of culpable behavior, a fact of which the Legislature was undoubtedly cognizant in enacting the equally wide range of penalties for violation of the section.
Finally we pause to emphasize the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual.
Defendant relies on our holding in Lynch to support his contention that the penalty provisions of section 245(a) are cruel or unusual. In Lynch we struck down the provision of Penal Code section 314 which punished second-offense indecent exposure by imprisonment "for not less than one year."
In In re Foss (1974) 10 Cal.3d 910 [112 Cal.Rptr. 649, 519 P.2d 1073], we were compelled by the Lynch analysis to invalidate the penalty provisions of Health and Safety Code section 11352 (formerly § 11501). These provisions precluded parole consideration for certain narcotics recidivists for 10 years in the case of a second offender, and 15 years for a third offender. We determined that such a penalty, imposed "without regard to the existence of such possible mitigating circumstances as the addict status of the offender, the quantity of narcotics involved, the nature of the purchaser, or the purposes of the sale, is in violation of [former] article I, section 6 of the California Constitution." (Id. at p. 929.)
Similarly, defendant here asserts that the penalty provisions of section 245(a) cannot withstand application of the Lynch criteria. Before
We begin with the first Lynch test. The offenses proscribed by section 245(a) are serious, frequently committed with great violence and resulting in painful, sometimes permanent, injury to the victim. (See, e.g., In re Downs (1970) 3 Cal.3d 694 [91 Cal.Rptr. 612, 478 P.2d 44]; People v. Martinez (1973) 31 Cal.App.3d 355 [107 Cal.Rptr. 284]; People v. Lovely (1971) 16 Cal.App.3d 196 [93 Cal.Rptr. 805].) If our focus were confined to this type of behavior there could be no question but that the degree of danger to society was sufficiently high to justify imposition of a severe sentence. But the breadth of the challenged statute encompasses considerably more than this narrow range of offenses. At one end of the spectrum there is conduct virtually indistinguishable from premeditated murder, while at the other there is a mere attempt to seriously injure which lacks any specific intent and is completely futile.
An example may serve to illustrate this disparity. A defendant, heavily intoxicated, is present when a fight breaks out in a barroom. In the excitement of the fray he strikes out at an intended victim with his fists, but because of his impaired faculties completely misses his target.
Thus a single errant swing by an intoxicated defendant could, under the language of the statute, result in conviction of an offense carrying a potential life maximum. It is true that no such case has been brought to our attention, but the possibility nonetheless remains.
In the instant case, of course, we are faced with circumstances entirely at variance with the foregoing hypothetical. Here a particularly vicious attack took place, on a relatively helpless victim, resulting in substantial injury. There was no evidence of intoxication, and no indication of lack of specific intent. Yet this simply serves to emphasize the wide variety of behavior included under the umbrella of section 245(a). We thus conclude that any determination of the danger to society created by violations of section 245(a) must in all instances turn on the peculiar facts of the individual case.
The second Lynch test requires a comparison of the challenged offense with those which must be deemed more serious. If after this examination there "are found more serious crimes punished less severely than the offense in question, the challenged penalty is to that extent suspect." (8 Cal.3d at p. 426.)
Here again, however, there appears a difficulty in classification. Because of the wide range of conduct proscribed by section 245(a), a given instance of that offense may involve the most brutal type of violent behavior equal to any interdicted by the Penal Code. If such a case were used as a benchmark a court would be hard pressed to find another offense that could be deemed "more serious." But here we are on firmer ground than in the determination of the degree of danger of the conduct proscribed by section 245(a), since there are a considerable number of crimes in which either specific intent or demonstrable injury is a necessary ingredient.
Using this as our point of comparison we find many "more serious" crimes for which a lesser penalty is prescribed. Thus the punishment for manslaughter (§ 193) is up to 15 years; for assault with intent to commit murder (§ 217), 1 to 14 years; for kidnaping (§ 208), 1 to 25 years; for mayhem (§ 204), up to 14 years; for assault with intent to commit rape, sodomy, mayhem, or robbery (§ 220), 1 to 20 years; for assault with caustic chemicals with intent to injure or disfigure (§ 244), 1 to 14 years; for battery on a peace officer or fireman engaged in the performance of his duties (§ 243), 1 to 10 years; for burglary by torch or explosives (§ 464), 10 to 40 years; for wrecking a vehicle of a common carrier with intent to cause bodily harm (§ 219.1), 1 to 14 years; for shooting at an inhabited dwelling (§ 246), 1 to 5 years; for poisoning food or drink with the intent to injure a human being (§ 347), 1 to 10 years; for drunk driving causing bodily injury (Veh. Code, § 23101), up to 5 years; for forcible abduction for purposes of prostitution (§ 266a), up to 5 years; for wilful cruelty to a child likely to produce great bodily harm or death (§ 273a), 1 to 10 years; for wilful wife or child beating resulting in a traumatic condition (§ 273d), up to 10 years.
The foregoing list is illustrative rather than exhaustive. Yet it is evident that the offenses described demand considerably more culpability than many of those embraced by section 245(a). This does not per se compel a conclusion that the challenged statute is unconstitutionally
Under the third Lynch test the sentence is examined in light of penalties imposed in other jurisdictions for the same offense. As with the previous tests this inquiry is not mechanical but will, if the results warrant, provide an additional ground for suspecting the constitutionality of the challenged penalty.
Nor are we concerned here with conforming our Penal Code to the "majority rule" or the least common denominator of penalties nationwide. In the vast majority of cases the penalties imposed by the Legislature are just and equitable. Occasionally there may appear those "isolated excessive penalties" enacted "in response to transitory public emotion" that were condemned in Lynch. (8 Cal.3d at p. 426.) But in the main our codes have served as a model for the nation rather than a mere mirror of the laws of other jurisdictions, and we have no inclination to arbitrarily reverse that process.
Yet when there appears a significant disproportion between a challenged penalty and that imposed for the same crime by our sister states, the penalty should be deemed suspect. In Lynch it was found that only two states permitted life-maximum sentences for second-offense exhibitionists, while the overwhelming majority disposed of the problem by a short jail term and/or a small fine. (8 Cal.3d at p. 436.) In Foss we determined that although a number of states imposed a minimum 10-year term for heroin sale with a prior narcotics offense, only four precluded parole consideration for that length of time. (10 Cal.3d at p. 928.) In each case we held the comparative evidence to be indicative of the excess of the California term.
Here we are presented with similar data. With the sole exception of Arizona, no jurisdiction imposes a life term for the offense of assault with a deadly weapon. Forty-six states and the District of Columbia provide that the offense is punishable in terms of years, usually with a maximum of 5 or 10 years and never in excess of 21. The remaining two states do not appear to have a statute similar to section 245(a). With
It follows that by application of the criteria delineated in Lynch the penalty provision of section 245(a) is suspect. The sentence is potentially disproportionate in terms of punishment imposed within California for more serious offenses, and actually disproportionate with respect to penalties assessed in other jurisdictions for the same offense.
The first Lynch test thus becomes dispositive; yet as we have seen, the myriad of factual contexts comprising offenses punishable under section 245(a) precludes an a priori appraisal of the precise nature of the crime.
If superficially examined, this interpretation seems contrary to a major proposition in Lynch. There we said, "when a defendant under an indeterminate sentence challenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is
Yet as discussed above there is a fundamental difference between Lynch and the instant case, namely, the nature of the "offense" defined by the Legislature.
But these propositions, valid in the abstract, must be qualified when the maximum term is challenged as disproportionate. In such a case a defendant has an undeniable "vested right" in insuring that his term be fixed proportionately to his offense. Thus a sentence may be unconstitutionally excessive either because the Adult Authority has fixed a term disproportionate to the offense or, in some circumstances, because no term whatever has been set. A failure to fix his term may be just as violative of a defendant's right as an actual excessive term, since "It is
The judgment is affirmed.
Wright, C.J., Tobriner, J., and Sullivan, J., concurred.
I concur in affirming the judgment, but dissent from holding the Adult Authority must promptly and irrevocably fix the maximum term of a prisoner committed under a statute "encompassing a wide range of conduct." The possibility the maximum sentence provided by law for such an offense may be so disproportionate to the culpability of a particular offender as to constitute cruel or unusual punishment should not be used as a pretext for judicial legislation radically altering the indeterminate sentence law. By refusing to entertain defendant's claim until he has served the term admittedly proportionate to his culpability, this court could protect his right to be free from cruel or unusual punishment without unduly interfering with the administration of the indeterminate sentence law.
The indeterminate sentence law once provided for early, irrevocable term fixing, but such requirements are clearly contrary to more recent expressions of legislative intent. As originally enacted in 1917, section 1168 of the Penal Code provided that "[t]he governing authority of the reformatory or prison in which such person may be confined ... shall
However, in 1935 another amendment to section 1168 broadened the board's power to refix terms. "In case any convicted person undergoing sentence in any of the State prisons commits any infraction of the rules and regulations of the prison board, or escapes while working outside such prison under the surveillance of prison guards, the Board of Prison Directors may revoke any order theretofore made determining the length of time such convicted person shall be imprisoned, and make a new order determining such length of time not exceeding the maximum penalty provided by law for the offense for which he was convicted...." (Stats. 1935, ch. 603, § 1, p. 1700.) In the same amendment the requirement that the board "shall" fix a term after the expiration of the minimum term was deleted and the permissive "may" substituted.
Finally, in 1941, section 1168 was rewritten and various of its provisions distributed elsewhere in the Penal Code. Those governing the fixing of terms became sections 3020 and 3021. The 1941 amendment gave to the board, without apparent limitation, the power to "determine and redetermine" the time a prisoner must serve on his sentence or sentences. (Stats. 1941, ch. 106, §§ 13, 15, p. 1083.)
Thus the indeterminate sentence law has evolved over the past half-century from a program in which a prisoner was entitled to an early, irrevocable fixing of his maximum term, into one in which the prisoner has "no vested right to the determination of his sentence at less than maximum," and in which his term once fixed may be refixed at the statutory maximum for cause at any time. (In re Schoengarth (1967) 66 Cal.2d 295, 302 [57 Cal.Rptr. 600, 425 P.2d 200].) There are indications that the appropriate branches of government may soon reverse this trend, but it is not our province to do so.
McComb, J., concurred.
I join in Justice Clark's concurring and dissenting opinion, and add only the following:
I respectfully disagree, however, with the majority's holding, unsupported by prior authority, that whenever a person sentenced under section 245 challenges his indefinite sentence as constituting cruel or unusual punishment, the Adult Authority must, within a reasonable time thereafter, fix the "proper term" of confinement or else risk reversal of the conviction on cruel and unusual punishment grounds. (Ante, p. 183.) Under the majority's opinion, unless the Adult Authority irrevocably fixes a definite maximum term of imprisonment for each prisoner sentenced under the Indeterminate Sentence Law, the courts will presume that the actual term is the statutory maximum (i.e., life imprisonment in the instant case) and will "analyze the constitutionality of the statute" accordingly.
In my view, the majority (in two short paragraphs of the opinion) substantially alter the Indeterminate Sentence Law, for in order to avoid a ruling that an indeterminate sentence in a particular case is cruel and unusual (as in In re Lynch, 8 Cal.3d 410, 419 [105 Cal.Rptr. 217, 503 P.2d 921]), the Adult Authority will be compelled to forfeit its term-fixing discretion and set individual maximum terms for every prisoner, terms which cannot thereafter be increased by the authority. I see no escape from the conclusion that the flexibility which is the heart of the indeterminate sentence system is thereby destroyed.
The majority attempt to justify this major change in the effect of the law on the ground that an initial fixing of the maximum term is required so that "a court can then analyze the constitutionality of the statute as applied." (Ante, p. 183.) The majority ignore the fact, properly noted by Justice Clark, that the Indeterminate Sentence Law has operated in a constitutional fashion since its inception and, despite the absence of initial term-fixing, has withstood innumerable constitutional challenges.
Finally, the majority flatly contradict the unanimous expression of this court in In re Schoengarth, 66 Cal.2d 295, 302 [57 Cal.Rptr. 600, 425 P.2d 200], wherein it described the legislative import of Penal Code section 3020 in the following clear and unambiguous words: "The Adult Authority, by statute, has exclusive jurisdiction to fix the length of time a prisoner must serve within the limits of an indeterminate sentence. [Citation.] One who is legally convicted has no vested right to the determination of his sentence at less than maximum [citations], and hence the authority `may redetermine such sentences as conditions require' [citations]." (Italics added.)
I see no basis in logic or reason on which to reconcile the majority opinion either with the clear language of Penal Code section 3020 or the relatively recent unanimous expression of this court in Schoengarth. Nor are there any compelling reasons why the Adult Authority must fix a prisoner's maximum term so that courts can "analyze" the constitutionality of the term. As I have suggested above, in most cases a prisoner will be released from confinement well within the range of penalties permitted under the "cruel and unusual punishment" provisions of the federal and state Constitutions. In those relatively rare cases in which a prisoner is confined beyond those limits, the habeas corpus remedy is available to secure his release. (See In re Sturm, 11 Cal.3d 258, 269 [113 Cal.Rptr. 361, 521 P.2d 97].) I see no intrinsic constitutional impairment in the system.
There are very valid and demonstrable social, penal, and psychological reasons for changes in the Indeterminate Sentence Law. We are advised that the Legislature has the law under close study, and indeed that the Adult Authority already has implemented administratively a plan for major reform in its application. The present system is, no doubt, ripe for major changes in procedure. Nonetheless, in my view, the appropriate changes should come from legislative hands far better equipped to evaluate alternatives, to weigh conflicting policy considerations,
McComb, J., concurred.
Respondent's petition for a rehearing was denied June 4, 1975. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.
In a case decided nearly nine decades ago, Ex parte Mitchell (1886) 70 Cal. 1, 2 [11 P. 488], the present issue was briefly considered and the court concluded that section 245 was not violative of former article I, section 6. At the time Mitchell was decided, however, the maximum term of imprisonment for this offense was two years. (See fn. 3, ante.)