We have before us in this habeas corpus proceeding the question of whether the recidivist provision of Penal Code section 647a
On November 28, 1960, petitioner, Kenneth James Wells, was convicted of violating section 647a with a prior section 288 conviction, and was sentenced to state prison for the term prescribed by law. The judgment was entered upon a guilty plea and it specifically noted that the victims were under the age of 10.
From the preliminary hearing transcript it appears that the charge to which petitioner pled guilty arose out of the following circumstances. On October 31, 1960, around 8:30 p.m., two young girls were out trick-or-treating when petitioner offered them a ride. The girls got into petitioner's car; he promised them a dollar if they "didn't tell anybody;" he then drove about four blocks to a dark, dead-end street, stopped his car and said to the girls: "Let me see your panties." The girls thereupon jumped out of petitioner's car and ran away crying.
Following his conviction for the above-described offense, petitioner entered state prison and remained there until he was paroled sometime in 1970. In 1973 he returned to prison after he had served six months in the county jail for another offense. On August 28, 1974, the Adult Authority fixed his sentence for the section 647a offense at 20 years and granted him parole effective December 16, 1974. Petitioner remains on parole at the present time.
This contention lacks merit. Petitioner remains in constructive custody while he is on parole. (In re Sturm, 11 Cal.3d 258, 265 [113 Cal.Rptr. 361, 521 P.2d 97].) Moreover, under section 3020 the Adult Authority can, for good cause, redetermine petitioner's sentence at any time before his final discharge. (Lynch, supra, 8 Cal.3d at p. 417.) For this reason, among others, our Supreme Court stated in Lynch: "[W]hen a defendant under an indeterminate sentence challenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is whether the maximum term of imprisonment permitted by the statute punishing his offense exceeds the constitutional limit, regardless of whether a lesser term may be fixed in his particular case by the Adult Authority." (Id., at p. 419.) (Italics added; footnote omitted.)
As noted earlier, the question before us essentially is whether the fundamental holding of Lynch should be extended to the situation before us. There are two ways in which petitioner's situation can be distinguished from the situation in Lynch: first, there are important differences between the offenses at issue in these two cases. As we shall see, indecent exposure is a significantly less serious offense than child molestation. Second, the increased penalty imposed on petitioner was not the result of a repetition of the identical offense, as it was in Lynch. (Id., at pp. 413-414.) Instead, it was imposed because petitioner had previously committed a more serious sex offense — namely, a violation of section 288 (lewd and lascivious acts upon the person of a child under the age of 14) — and this prior offense itself carried a life-maximum term upon its first commission.
A. The Lynch Test
In Lynch our Supreme Court adopted disproportionality as the constitutional standard by which statutes imposing punishment are to be measured, and pointed to three techniques to be used in analyzing particular penalties to determine whether they are in fact disproportionate. (8 Cal.3d at p. 425 et seq.) This "three-prong test" requires us: (a) to consider the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society; (b) to compare the penalty at issue with the punishment this state prescribes for more serious offenses; and (c) to compare the penalty at issue with the punishment other jurisdictions prescribe for the identical offense.
B. The Nature of the Offense and/or the Offender
We begin by examining the seriousness of the offense defined by section 647a and comparing it with the seriousness of the offense at issue in Lynch.
"Annoying or molesting a child" does not appear to have been a separate common law crime and was not proscribed as such under the Penal Code of 1872. It was first added to the code in 1929, at which time a penalty of $500 or six months in the county jail was imposed on any person who "annoys or molests any school child."
Thus, we do not have quite the clear-cut pattern our Supreme Court pointed to in Lynch — namely, a low-key approach to the offense over a long period of time followed by a sudden, extraordinary jump in the penalty enacted in response to public outcry over one particular incident. Nevertheless, much the same thing happened here. Consequently, we think the penalty now before us may fairly be characterized as yet another product of the intense public concern over sex offenses that arose in this state a quarter of a century ago.
On the other hand, it is difficult to characterize child molestation as a mere embarassment or "social nuisance," as our Supreme Court found indecent exposure to be. (Lynch, supra, 8 Cal.3d at p. 430.) True, no physical aggression or contact occurred here — as would be the case, for instance, under section 288 which proscribes lewd and lascivious acts upon the person of a child under the age of 14. (See People v. Kingston, supra, 44 Cal. App.3d at p. 635.) But it certainly cannot be said that individuals who "annoy or molest" children do so primarily to shock or surprise them and have no desire for further contact with their victims; whereas this generally is the case with exhibitionists. (See Mohr, Turner & Jerry, Pedophilia and Exhibitionism (1964) p. 19.) More importantly, the child molester's victim necessarily is a young child who, presumably, is susceptible to far greater psychological damage than the adult victim of the exhibitionist.
Furthermore, at least some observers consider child molesters, in general, to be more dangerous, harder to rehabilitate, less able to understand or accept their problems, and more inclined to deny their guilt than the average felon is. (See generally, Duffy & Hirshberg, Sex and Crime (1965) pp. 119-121.)
For these reasons, we find it difficult to describe the life-maximum term as so disproportionate that it "shocks the conscience" and "offends fundamental notions of human dignity" (8 Cal.3d at p. 424) solely on the basis of the nature of the offense and/or the offender. True, the life-maximum term is quite harsh, but this is the punishment petitioner received for the commission of his first offense, violation of section 288, and it was the prior commission of that offense that made him subject to the identical punishment for the commission of the lesser offense of violation of section 647a. Furthermore, great deference is ordinarily paid to legislation designed to protect children, who all too frequently are helpless victims of sexual offenses. On this first prong of the Lynch test the case is at best extremely close. Therefore, we turn to the remaining two prongs.
C. A Comparison of the Penalty With the Punishment California Imposes for More Serious Offenses.
Petitioner's case is significantly strengthened by a comparison of the recidivist penalty section 647a imposes with punishments for other crimes in California which are undeniably of far greater seriousness. For example, here, as in Lynch, it is extremely difficult to believe that petitioner's most recent offense represents a greater threat to society than the crimes of voluntary manslaughter (§ 193, up to 15 years); assault with intent to commit murder (§ 217, 1-14 years); kidnaping (§ 208, 1-25 years); mayhem (§ 204, up to 14 years); assault with intent to commit mayhem or robbery (§ 220, 1-20 years); assault with caustic chemicals,
The same is true when we consider, as the Lynch court did, a number of crimes which, although somewhat more indirectly, can be extremely dangerous to life and limb, such as: arson (§ 447a, 2-20 years); burglary by torch or explosives (§ 464, 10-40 years); wrecking a vehicle of a common carrier, causing bodily harm (§ 219.1, 1-14 years); shooting at an inhabited dwelling (§ 246, 1-5 years, or up to 1 year in jail); poisoning food or drink with the intent to injure a human being (§ 347, 1-10 years); and drunk driving causing bodily injury (Veh. Code, § 23101, up to 5 years, or up to 1 year in jail).
Nor does proportionality appear if we consider only the laws regulating sexual activities, such as assault with intent to commit rape or sodomy (§ 220, 1-20 years); forcible abduction for purposes of defilement (§ 265, 2-14 years) or prostitution (§ 266a, up to 5 years and/or fine up to $1,000); purchasing or selling a woman for prostitution (§§ 266e and 266f, up to 5 years); and unlawful sexual intercourse (§§ 261.5, 264, up to 50 years, or up to 1 year in jail).
Likewise, if we look to statutes designed to protect children, we find it difficult to believe, for example, that petitioner's most recent offense presents a greater danger than the act of one who wilfully inflicts "unjustifiable physical pain" on a child "under circumstances or conditions likely to produce great bodily harm or death;" or who wilfully inflicts on a child "any cruel or inhuman corporal punishment or injury resulting in a traumatic condition." Yet, as the Lynch court noted (id., at p. 432), the penalty for either of such brutalities (§§ 273a and 273d, up to 10 years, or up to 1 year in jail) is far less than a life-maximum sentence. And if a major purpose of section 647a is to guard children against assaults upon their sensibilities, there is no possible justification for the great disparity between petitioner's punishment and the simple misdemeanor penalty attached by section 273g to the conduct of one who "in the presence of any child indulges in any degrading, lewd, immoral or vicious habits or practices."
Finally, and perhaps most tellingly, we may compare the section before us with other California statutes which prescribe enhanced punishment for recidivism. First, we note that in all but three of the
Second, we note that of all the statutes which increase the punishment in the case of a second offense, only section 647a and the statute at least partially struck down in Lynch compel the enormous single leap from an ordinary misdemeanor to a life-maximum felony. In each of the remaining statutes, as the court there stated: "there is a reasonable relationship between the punishments for the first and subsequent offenses. If the crime is of a minor nature, its enhanced penalty remains proportionately light; if the crime is more serious, its original penalty was proportionately heavy. The theory in each instance is that whatever the response appropriate to the factor of recidivism, the judgment of the Legislature as to the gravity of the act itself should remain relatively constant." (Id., at pp. 434-435; fns. omitted.) This view is firmly expressed in the recommendation of the American Bar Association Advisory Committee on Sentencing and Review that in structuring habitual offender legislation: "Any increased term which can be imposed because of prior criminality should be related in severity to the sentence otherwise provided for the new offense." (A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures (1967) p. 22, par. 3.3(a)(i).) (Italics added.) The committee further explained that when a sentence no longer bears any "reasonable relationship" to the event which triggered its possibility, "[t]he major thrust of the proceeding has shifted from the offense to the status of the offender. A proceeding which can result in ... a long sentence ought to assume the burden of depending initially and primarily on the criteria which justify it, rather than employ the vehicle of a relatively minor felony to approach the same end indirectly." (Id., at p. 139.) The views of this distinguished committee, which were quoted with approval in Lynch (8 Cal.3d at p. 435), are particularly important here because they indicate that the enhanced penalty imposed on petitioner ought to have borne a "reasonable relationship" to his present offense and not to his prior offense, which was far more serious than the present one. The anomaly of the punishment before us is that the escalation in the recidivist penalty is triggered by the commission of an offense much less serious than the prior one.
Thus, we conclude that here, as in Lynch, it is abundantly clear that the penalty for recidivism imposed on petitioner is disproportionate when compared with the punishment California prescribes for more serious offenses.
D. A Comparison of the Penalty With the Punishment Other Jurisdictions Impose for the Same Offense.
Petitioner's case is further strengthened by a comparison of the penalty prescribed by section 647a with the penalties prescribed under the penal codes of our 49 sister states and the District of Columbia. At the outset, it is interesting to note that our survey — the results of which are summarized in an appendix — uncovered few statutes that are directly comparable to California's. Section 647a punishes conduct that need not involve actual sexual contact with the child. Only six other jurisdictions have this type of statute.
It is also interesting to note that in the broad category of indecent sexual behavior (excluding rape) the statutes of only a very few jurisdictions contain recidivist provisions. The maximum punishment for a repeat offense is fifteen years in one state;
Finally, of even greater significance is the fact that of the six jurisdictions that have statutes directly comparable to California's,
We end our survey by comparing the treatment of the offense proscribed under section 647a with its treatment under the proposed California Criminal Code, which was recently re-introduced in the Legislature. (Sen. Bill No. 565, 1975 Reg. Sess.) Section 9402 of the new code would provide that any person who "sexually annoys" a minor is guilty of a "misdemeanor of the first degree," punishable by a county jail sentence not exceeding one year (§ 1303) and/or a fine not exceeding $1,000 (§ 1304, subd. (b)(1)). There is no provision for increasing the punishment upon a second or subsequent conviction, or upon its commission by one who had previously been convicted for sexually abusing a child (§ 9401) — the equivalent of present section 288. The proposed legislation, in short, would return California approximately to its posture during the pre-1947 period.
Thus, we conclude that the penalty prescribed by section 647a is clearly disproportionate under at least two of the three prongs of the Lynch test, and is arguably so under the remaining prong as well. In effect, what we have concluded is that California could rationally decide that its children are entitled to extraordinary protection and could constitutionally impose a severe penalty for all offenses directed at child victims — particularly those involving violence. But California has not done so. Instead, it has singled out one particular offense for a grossly disproportionate recidivist sanction — one that, moreover, is far out of line with the sanction imposed by other jurisdictions. Under these circumstances, we do not hesitate to hold that the life-maximum sentence provided for in section 647a "shocks the conscience" and "offends fundamental notions of human dignity" (8 Cal.3d at p. 424), and therefore constitutes cruel or unusual punishment.
The question of relief remains. Under Leaming v. Municipal Court, 12 Cal.3d 813 [117 Cal.Rptr. 657, 528 P.2d 745], the penalty for petitioner's offense now is the five-year maximum term of imprisonment provided for in section 18 of the Penal Code.
The writ is granted and petitioner is ordered discharged from custody.
Ford, P.J., and Allport, J., concurred.
Respondent's petition for a hearing by the Supreme Court was denied June 11, 1975. Clark, J., was of the opinion that the petition should be granted.
STATE STATUTE SENTENCE ATTEMPT a2D OFFENSE bALABAMA Ala. Code Tit. Felony __ 2 - 10 yrs. 14, § 326(2): Max. 5 yrs. Indecent Molestation of Child ALASKA Alaska Stat. 1-10 yrs. Not more than __ § 11.15.134: 1/2 max. for Lewd or offense Lascivious Acts (§ 11.05.020) Toward Children ARIZONA Ariz. Rev. 1 yr. to Not exceeding __ Stat. Ann. § life 1/2 max. for 13-653: Child the offense Molestation (§ 13-110) [involving touching] ARKANSAS Ark. Stat. Ann. Max. 6 nos __ Max. 5 yrs. § 41-1124: Annoying or Molesting Child COLORADO Colo. Rev. Class 5 __ __ Stat. Ann. § felony 1-5 18-3-408: yrs. (§ Sexual Assault 18-1-105) on Child CONNECTICUT Conn. Gen. Stats. Ann. § Class A __ __ 53a-80: Sexual Misdemeanor: Contact in 3d Max. 1 yr. Degree [child (§ 53a-36) age 14-16] § 53a-79: Class D Sexual Contact Felony: 1 - 5 in 2d Degree yrs. (§ [child age 53a-35) 11-14] § 53a-78: Class C Sexual Contact Felony: 1 - 10 in 1st Degree yrs. (§ [child under 53a-35) 11] DELAWARE Del. Code Ann. Class A __ __ Tit. 11, § 761: Misdemeanor: Sexual Assault Not more than 2 yrs. (§ 4206(a)) § 1341: Class B __ Lewdness Misdemeanor: Not more than 6 mos. (§ 4206(b)) DIST. OF D.C. Code Ann. Not more COLUMBIA § 22-1112(b): than 1 yr. __ __ Lewd, indecent for each or obscene acts offense before a Child FLORIDA Fla. Stat. Ann. Tit. 44 § Felony, 2d 1/2 the max. __ 800.04: degree Max. (§ 779.09) Indecent 15 yrs. (§ Assault upon 775.082) Child GEORGIA Ga. Code Ann. § 26-2019: 1 - 20 yrs. __ __ Child Molestation HAWAII Hawaii Rev. Laws Tit. 38 § Max 5 yrs. __ __ 768-31: at hard Indecent labor Assault upon Child under 12 IDAHO Idaho Code § 18-6607: Lewd Felony Not more than __ Conduct with Not more 1/2 max. Child under 16 than life (§ 18-306) [involving touching] ILLINOIS Ill. Rev. Stats. ch. 38, Class 1 Not more than __ § 11-4: felony 14 yrs. Indecent 4 - 20 yrs. __ Liberties with Class A Child § 11-5: misdemeanor Contributing to 6 mos. - 1 yr. Sexual Delinquency of Child INDIANA Ind. Ann. Stat. § 10-403: 1 - 5 yrs. __ __ Indecent [on child Assault on under 12, Child 2 - 21 yrs.] IOWA Iowa Code Tit. 35, § 725.2: Max. 3 yrs. __ __ Lascivious Acts with Child KANSAS Kan. Stat. Ann. § 21-3503: Class C Class E Indecent Felony Felony: 1 - 5 __ Liberties with 1 - 5 yrs. yrs. (§§ Child min. 20 yrs. 21-3301, max. (§ 21-4501) 21-4501) KENTUCKY Ky. Rev. Stat. § 510.110: Class D Class A Misd: __ Sexual Abuse in Felony Max. 12 mos. 1st deg. [child 1 - 5 yrs. (§ 506.010) under 12] (§ 532.060) § 510.120: Class A Class B Misd: Sexual Abuse in Misd: Max. Max. 90 days 2d Degree 12 mos. (§ 506.010) [child under (§ 532.090) 14] § 510.130: Class B Class B Misd: Sexual Abuse in Misd: Max. Max. 90 days 3d Degree 90 days (§ 506.010) [child under (§ 532.090) 16] LOUISIANA La. Rev. Stat. § 14.81: Max. 2 yrs. Not more than __ Indecent 1/2 max. for Behavior with offense Juveniles (Lewd (§ 14.27) & Lascivious Acts) MAINE Me. Rev. Stat. Ann. Tit. 17, § 195: Indecent 1 - 10 yrs. Not exceeding __ Liberties with hard labor 1/2 max. Child (§ 251) MARYLAND Md. Ann. Code [No sexual abuse statute other than rape.] MASSACHUSETTS Mass. Gen. Laws. ch. 272, Not more Not more than 2d offense - § 35A: than 5 yrs. 1 yr. not less than Unnatural & 5 yrs. Lascivious Acts with child ch. 265, § 13B: Not more Not more than 2d offense - Assault & than 5 yrs. 1 yr. life or for battery on any term of Child (Indecent) yrs. MICHIGAN Mich. Comp. Laws § 750.336: Felony Not Not more than __ Indecent more than 5 yrs. Liberties with 10 yrs. Child MINNESOTA Minn. Stat. § 609.296(2): Not more 90 days - 1/2 __ Indecent than 7 yrs. max. for Liberties with offense (§ Child 609.17 (4)(2)) MISSISSIPPI Miss. Code Ann. § 97-5-23: High Crime __ __ "Touching, 1 - 10 yrs. handling, etc., child for lustful purpose" (Lewd & Lascivious Acts) MISSOURI Mo. Rev. Stat. Tit. 38 § Max. 5 yrs. __ __ 563.160: Molesting Minor with Immoral Intent [including language] MONTANA Mont. Rev. Codes Ann. § Max. 20 yrs. __ __ 94-5-502(3): Sexual Assault on Child under 16 NEBRASKA Neb. Rev. Stat. 1 - 5 yrs. § 28-929: __ 5 - 10 yrs. Debauching Minor including Lewd Conduct with Child under 16 NEVADA Nev. Rev. Stat. § 207.260: Misdemeanor __ 1 - 6 yrs. Annoyance, Molestation of Minor NEW HAMPSHIRE N.H. Rev. Stat. Ann. § 645.1: Misdemeanor Lewdness & 1 yr. Indecent (§ 651.2) __ __ Exposure [unrestricted] NEW JERSEY N.J. Rev. Stat. § 2A:115-1: Misdemeanor __ __ Lewdness or Not more Indecency [not than 3 restricted to yrs. (§ children] 2A:85-7) § 2A:90-2: High __ Assault with Misdemeanor Intent to Not more Commit Carnal than 12 Abuse on a yrs. Female under 16 NEW MEXICO N.M. Stat. Ann. § 40A-9-9: 4th degree Misdemeanor __ Sexual Assault. felony Max. 1 yr. 1 - 5 yrs. NEW YORK N.Y. Penal Law § 245.00: Class B __ __ Public Lewdness misdemeanor [not Not more restricted] than 3 mos. NORTH N.C. Gen. Stat. Misdemeanor CAROLINA § 14-202.1: Max. 2 yrs. __ Felony: Taking Indecent (§ 14-3) Max. 10 yrs. Liberties with (§ 14-2) Children. NORTH DAKOTA N.D. Cent. Code § 12-30-11: Felony Not more than Not less Indecent 1 yr. - 15 1/2 max. for than 5 yrs. Liberties with yrs. offense. Child (§ 12-04-02) OHIO Ohio Rev. Code Ann. § 2907.04: 1 - 10 yrs. __ __ Indecent (Felonious Assault, Taking assault) Liberties with Child. OKLAHOMA Okla. Stat. Tit. 21 § 1123: Felony __ __ Lewd or 1 - 20 yrs. Indecent Proposals or Acts as to Child under 14. OREGON Ore. Rev. Stat. § 163.415: Class A Class B Misd. __ Sexual Abuse in Misdemeanor: 6 mos. 2d degree 1 yr. (§§ 161.405, (unrestricted) (§ 161.615) 161.615) § 163.425: Class C Class A Misd. Sexual Abuse in Felony Max. 1 yr. 1st Degree 5 yrs. (§§ 161.405, (child under 161.615) 12) PENNSYLVANIA Pa. Stat. Tit. 18 § 3125: Misd. 1st Corruption of degree Not __ Minors more than 5 yrs. § 3126: Misd. 2nd __ 1 day to life Indecent degree Not (Tit. 19, Assault [not more than 2 § 1166, restricted to yrs. children] § 5901: Open Misd. 3d __ Lewdness [not degree Not restricted to more than 1 children] yr. RHODE ISLAND R.I. Gen. Laws Ann. § 11-37-6: Max. 5 yrs. __ __ Indecent Assault on Child. SOUTH S.C. Code Ann. CAROLINA § 16-413.1: Misdemeanor __ __ Committing or Discretion Attempting Lewd of court. Act on Child under 14 SOUTH DAKOTA S.D. Compiled Laws Ann. § Max. 20 Not exceeding __ 22-22-7: yrs. 1/2 max. Indecent (§ 22-22-8) (§ 22-4-1) Molestation of Child [involving lewd or lascivious act on body of child] TENNESSEE Tenn. Code Ann. [No indecent assault, lewdness, or sexual abuse Stat. other than attempted rape of child] (§ 39-606) TEXAS Tex. Pen. Code Ann. § 21.10: Felony 2d Felony 3d Sexual Abuse of degree: degree: Child - with 2 - 20 yrs. 2 - 10 yrs. Deviate Sexual Conduct § 21.11: Felony 3d Class A Indecency with degree: misd.: not to Child - 2 - 10 yrs. exceed Involving 1 yr. Contact/Exposure UTAH Utah Code Ann. § 76-9-702: Class B __ __ Lewdness misdemeanor: [unrestricted] Not exceeding 6 mos. VERMONT Vt. Stat. Ann. Tit. 13, ch. 59 § 2602: Lewd or Felony: __ __ Lascivious 1 - 5 yrs. Conduct with Child VIRGINIA Va. Code Ann. § 18.1 - 215: 2 - 5 yrs. __ __ Taking Indecent Liberties with Children WASHINGTON Wash. Rev. Code § 9.79.080: Felony: Not more than Indecent Not more 1/2 Max. Liberties with than 20 yrs. Child § 9.79.130: Gross Not more than Solicitation of misdemeanor: 6 mos. __ Minor for Not more Immoral than 1 yr. Purposes § 9.79.120: Gross Not more than Lewdness misdemeanor: 6 mos. [unrestricted] Not more than 1 yr. WEST VIRGINIA W. Va. Code Ann. § 61-8-29: Misdemeanor __ Felony: Child Molesting Max. 1 1 - 5 yrs. [involving lewd or licentious touching] WISCONSIN Wis. Stat. Tit. 45 § 944.11: Max. 10 yrs. Not more than __ Indecent 1/2 max. for Liberties with the offense Child (§ 939.32) WYOMING Wyo. Stat. Ann. § 14-28: Felony __ Immoral Acts Max. 10 yrs. with Child [indecent liberties]
All sections referred to in this opinion are in the Penal Code unless otherwise noted.
Here, as in Lynch, petitioner does not contend that the indeterminate sentence law is invalid on its face or that an indeterminate sentence of any length whatever constitutes cruel or unusual punishment. (Id. at p. 415.)
Our Supreme Court did observe that the Legislature drastically increased the penalties under both sections 314 and 647a as part of the same 1952 legislation. (Stats. 1953, First Ex. Sess. 1952, ch. 23, §§ 4 and 5, pp. 381-382.)
The term pedophilia (child molesting) is used by psychiatrists to refer generally to sexual activity involving a sexually immature object. Obviously this term covers a wide range of criminal offenses reflecting varying degrees of social dangerousness. (See generally, Glueck, Pedophilia, in Sexual Behavior and the Law (Slovenko edit. 1965), pp. 539-562; Frisbie, Another Look at Sex Offenders in California (1969).)