Lynch, In re

• Citation: 8 Cal.3d 410,503 P.2d 921,105 Cal.Rptr. 217
• Decision Date: 04 December 1972
• Docket Number: Cr. 16232,16237
• Court: California Supreme Court
• Parties: , 503 P.2d 921 In re John LYNCH on Habeas Corpus. In Bank

Page 217

105 Cal.Rptr. 217

8 Cal.3d 410, 503 P.2d 921

In re John LYNCH on Habeas Corpus.

Cr. 16232, 16237.

Supreme Court of California,

In Bank.

Dec. 4, 1972.

Rehearing Denied Jan. 3, 1973.

John Lynch, in pro. per., and Ezra Hendon, Berkeley, under appointment by the Supreme Court, for petitioner.

Howard J. Berman, Oakland and Morton P. Cohen, School of Law, Wayne State University, Detroit, Mich., as amici curiae on behalf of petitioner.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Daniel J. Kremer, Edward W. Bergholdt and A. Wells Petersen, Deputy Attys. Gen., for respondent.

MOSK, Justice.

One who commits an act of indecent exposure in California is guilty of a simple misdemeanor and can be punished by no more than a brief jail sentence or a small fine. ¹ If he commits the identical act a second time, however, the law declares him guilty of a felony and inflicts on him a punishment of imprisonment in the state prison for the indeterminate period of one year to life. ² We adjudicate here the question whether the aggravated penalty for second-offense indecent exposure provided by Penal Code section 314 violates the prohibition of the California Constitution against cruel or unusual punishments. (Cal.Const., art. I, § 6.) We conclude that the penalty offends the Constitution in the respect charged, and petitioner is therefore entitled to relief.

The issue is presented by John Lynch, a state prison inmate. In 1958 he was convicted of misdemeanor indecent exposure in violation of former Penal Code section 311, the predecessor of section 314. For this offense he spent two years on probation. In 1967 he was again convicted of indecent exposure. The court ruled he was not a mentally disordered sex offender, denied probation, and sentenced him to prison for the indeterminate term provided by section 314 in the case of a second offense. The conviction was affirmed on appeal, and petitioner thereafter filed two applications for habeas corpus in this court: in Crim. No 16232 he levels various constitutional challenges to the power of the Adult Authority to continue holding him under the 1967 conviction, while in Crim. No. 16237 he attacks the validity of the 1958 conviction. We consolidated the applications, issued an order to show cause, and appointed counsel.

I

We inquire, first, whether petitioner's indeterminate sentence under the 1967 conviction constitutes cruel or unusual punishment within the meaning of the California Constitution. We approach this issue with full awareness of and respect for the distinct roles of the Legislature and the courts in such an undertaking. We recognize that in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone. (People v. Bauer (1969) 1 Cal.3d 368, 375, 82 Cal.Rptr. 357, 461 P.2d 637; People v. Knowles (1950) 35 Cal.2d 175, 181, 217 P.2d 1; People v. Tanner (1935) 3 Cal.2d 279, 298, 44 P.2d 324.)

Yet legislative authority remains ultimately circumscribed by the constitutional provision forbidding the infliction of cruel or unusual punishment, adopted by the people of this state as an integral part of our Declaration of Rights. It is the difficult but imperative task of the judicial branch, as coequal guardian of the Constitution, to condemn any violation of that prohibition. As we concluded in People v. Anderson (1972) 6 Cal.3d 628, 640, 100 Cal.Rptr. 152, 160, 493 P.2d 880, 888, 'The Legislature is thus accorded the broadest discretion possible in enacting penal statutes and in specifying punishment for crime, but the final judgment as to whether the punishment it decrees exceeds constitutional limits is a judicial function.' (Accord, Furman v. Georgia (1972) 408 U.S. 238, 269, 92 S.Ct. 2726, 33 L.Ed.2d 346 (opinion of Brennan, J.); Trop v. Dulles (1958) 356 U.S. 86, 103--104, 78 S.Ct. 590, 2 L.Ed.2d 630 (plurality opinion of Warren, C.J.); Weems v. United States (1910) 217 U.S. 349, 378--379, 30 S.Ct. 544, 54 L.Ed. 793.)

We add that the determination of whether a legislatively prescribed punishment is constitutionally excessive is not a duty which the courts eagerly assume or lightly discharge. Here, as in other contexts, "mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears." (In re Dennis M. (1969) 70 Cal.2d 444, 453, 75 Cal.Rptr. 1, 6, 450 P.2d 296, 301, and cases cited.) When such a showing is made, however, we must forthrightly meet our responsibility 'to ensure that the promise of the Declaration of Rights is a reality to the individual.' (People v. Anderson (1972) supra, 6 Cal.3d 628, 640, 100 Cal.Rptr. 152, 160, 493 P.2d 880, 888.) As our Chief Justice recently explained, 'By observing this cautious, often burdensome and sometimes unpopular procedure, the courts can often prevent the will of the majority from unfairly interfering with the rights of individuals who, even when acting as a group, may be unable to protect themselves through the political process. In this way, judicial review assures a government under the laws.' (Wright, The Role of the Judiciary: From Marbury to Anderson (1972) 60 Cal.L.Rev. 1262, 1268.)

At the outset we emphasize that petitioner does not contend the indeterminate sentence law is invalid on its face or that an indeterminate sentence of any length whatever constitutes cruel or unusual punishment. Such a contention has already been rejected. (People v. Wade (1968) 266 Cal.App.2d 918, 927--929, 72 Cal.Rptr. 538.) His position, rather, is that the constitutional prohibition is violated by the particular indeterminate sentence imposed on him pursuant to Penal Code section 314. We begin, therefore, by determining what in fact is the 'sentence' in this case to be measured against the constitutional yardstick.

The operating features of the California indeterminate sentence law are well known, and need only be summarized here. Under this system ³ the Legislature prescribes both the minimum and the maximum terms for each offense punishable by imprisonment in the state prison. Upon conviction of such an offense, and if neither a new trial nor probation is granted, the trial court does not specify the length of imprisonment but simply sentences the defendant for the term 'prescribed by law.' (Pen.Code, § 1168.) It is the Adult Authority, an administrative agency within the Department of Corrections (Pen.Code, §§ 5001, 5075--5082), which thereafter determines within statutory limits the length of the term the defendant will actually be required to serve. (Pen.Code, §§ 3020--3025.)

Three considerations impel us to the conclusion that a defendant under an indeterminate sentence has in effect been sentenced to the maximum term provided by law, and that the constitutional validity of the sentence must be judged by that maximum.

First, the theory of the indeterminate sentence law in California is that it permits the Shortening of a defendant's sentence upon a showing of rehabilitation. This has not always been the reason invoked elsewhere for indeterminate sentence laws. When they first came into use--in certain countries of continental Europe in the 18th and 19th centuries--their purpose was the contrary, i.e., to permit the Lengthening of sentences for the preventive detention of dangerous unrehabilitated criminals who had served their original terms. By the middle of the 19th century, however, such laws had generally disappeared. And when the indeterminate sentence system was revived by American prison reformers in the latter part of the century, its purpose was wholly ameliorative. The goal of its proponents was to individualize the rehabilitation process, and to use the power to shorten sentences as an incentive to reformation. (Sellin, Indeterminate Sentence, in 4 Encyc.Soc.Sci. pp. 650--651.)

California firmly adheres to the latter theory, as this court announced shortly after our first indeterminate sentence law was enacted. (Stat.1917, ch. 527, p. 665.) In the leading case of In re Lee (1918) 177 Cal. 690, 692, 171 p. 958, 959, we undertook 'to consider the nature and purposes of the indeterminate sentence law. It is generally recognized by the courts and by modern penologists that the purpose of the indeterminate sentence law, like other modern laws in relation to the administration of the criminal law, is To mitigate the punishment which would otherwise be imposed upon the offender. These laws place emphasis upon the reformation of the offender. They seek to make the punishment fit the criminal rather than the crime. They endeavor to put before the prisoner great incentive to well-doing in order that his will to do well should be strengthened and confirmed by the habit of well-doing.' (Italics added.) ⁴

The relevance of this theory to our present inquiry is clear: if the purpose of the indeterminate sentence law is thus to mitigate a punishment which 'would otherwise be imposed,' the greater punishment must itself be one which it is within the power of the Legislature to decree. Accordingly, it is the maximum term prescribed by the statute--not a lesser period thereafter fixed as an 'incentive to well-doing'--which must survive constitutional scrutiny.

Our second reason for reaching this conclusion is derived from the actual operation of the indeterminate sentence program: Penal Code section 3020 empowers the Adult Authority not only to 'determine' the lesser term a defendant will be allowed to serve as an incentive to reformation, but also to 'redetermine' that term when appropriate to do so. Pursuant to this power the Adult Authority may, for good cause (In re McLain (1960) 55 Cal.2d 78, 87, 9 Cal.Rptr. 824, 357 P.2d 1080) and at any time prior to a...