People v. Arredondo

Decision Date13 November 1975
Docket NumberCr. 2181
Citation52 Cal.App.3d 973,125 Cal.Rptr. 419
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Armando ARREDONDO, Defendant and Appellant.
OPINION

FRANSON, Associate Justice.

Appeal from a judgment of conviction of violation of Penal Code section 261.5, unlawful sexual intercourse with a female under the age of 18 years. Tulare County Superior Court. Leonard M. Ginsburg, Judge. Reversed and remanded with directions.

STATEMENT OF THE CASE

Appellant, 19 years of age, was convicted by a jury of having sexual intercourse with a girl 15 years of age in violation of Penal Code section 261.5. The jury, pursuant to Penal Code section 264, recommended that appellant be punished by imprisonment in the state prison. After referring the matter to the probation office for a report and recommendation as to appellant's suitability for probation the trial court sentenced appellant to prison.

Appellant makes two basic contentions: first, that Penal Code section 264 is unconstitutional insofar as it allows the jury to fix the punishment for a violation of section 261.5, and second, that the jury was improperly instructed as to the extent of its duty in fixing the punishment under Penal Code section 264. Both contentions are without merit. We reverse the judgment, however, because the record does not reflect that the trial court considered the report of the probation officer before passing on probation and sentencing as required by Penal Code section 1203 and because the trial court apparently believed it was bound by the jury's recommendation that appellant be punished by imprisonment in the state prison.

STATEMENT OF FACTS

At 10:30 p.m. on June 30, 1974, Donna, 15 years old, was sitting in the back of her father's pickup which was parked near her house. Appellant and four other boys arrived in appellant's pickup. The boys asked Donna to go cruising. She refused at first but acquiesced when asked persistently. Instead of cruising appellant drove Donna and the others on Road 132 to a reservoir. Donna asked where they were going and one of the boys said, 'You will see when we get there.'

At the reservoir, Donna declined an invitation to go 'skinny-dipping.' She and one of the four boys sat and talked in the back of the pickup while appellant and the other boys walked a short distance away. Upon their return to the pickup, appellant began kissing and making other sexually-oriented contact with Donna. Donna resisted and started to walk home. Appellant and one of the boys caught up with her, and they removed her jeans and underpants. One of the boys then had sexual intercourse with Donna. She did not resist because appellant had told her that if she didn't keep quiet, he was going to knock her out. When the first boy finished, appellant had sexual intercourse with Donna. Subsequently, the other boys, with one exception, had sexual intercourse with Donna. Donna was frightened and crying the entire time.

After appellant and the others were finished, Donna got dressed. Appellant and the others gave her a ride home. When Donna's mother came home, Donna was hysterical.

At about 1:30 a.m. Dr. John Wong examined Donna at the Tulare County Hospital and confirmed that she had had intercourse shortly before the examination.

DISCUSSION

Appellant first contends that the untrammeled discretion vested in the jury by Penal Code section 264 1 to fix the punishment for unlawful sexual intercourse as imprisonment either in the state prison or the county jail is a denial of due process. The contention must fail.

The punishment provisions of Penal Code section 264 have been held constitutional. (People v. Brown (1973) 35 Cal.App.3d 317, 324, 325, 110 Cal.Rptr. 854; People v. Wilson (1971) 20 Cal.App.3d 507, 510--511, 97 Cal.Rptr. 774.) These holdings are based on the United States Supreme Court's decision in McGautha v. California (1971) 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 that legislative or judicially articulated standards for the jury's guidance on the issue of punishment in capital cases are not essential to due process. The assumption is that juries 'will act with due regard for the consequences of their decisions.' (See McGautha v. California, supra, 402 U.S. at p. 209, 91 S.Ct. at p. 1467; see also In re Anderson (1968) 69 Cal.2d 613, 621--628, 73 Cal.Rptr. 21, 447 P.2d 117.) While the death penalty provisions of former Penal Code section 190.1 were held to violate the Eighth Amendment prohibition against cruel and unusual punishment (Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346) and the California constitutional prohibition against cruel or unusual punishment (People v. Anderson (1972) 6 Cal.3d 628, 633, 100 Cal.Rptr. 152, 493 P.2d 880), the due process holding of McGautha has not been overruled.

Appellant's contention that Penal Code section 264 denies him equal protection of the law is also without merit. As stated in the context of a Penal Code section 476a violation (providing for punishment in the county jail or state prison at the discretion of the trial judge):

'The legislative practice of vesting in trial courts or juries discretion in fixing punishments, within certain limits, is quite general, and not new. Since every person charged with the offense has the same chance for leniency as well as the same possibility of receiving the maximum sentence, there is nothing discriminatory in the statute.' (In re Rosencrantz (1931) 211 Cal. 749, 751, 297 P. 15, 16.)

Because the statute does not on its face establish classifications appellant must show that his sentence to state prison resulted from arbitrary and discriminatory application of the statute. (Snowden v. Hughes (1944) 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497; see also People v. Gray (1967) 254 Cal.App.2d 256, 268, 63 Cal.Rptr. 211.) Appellant has made no factual showing of intentional discriminatory application of the statute.

Appellant next contends that he was denied equal protection and due process by the giving of CALJIC No. 10.14 2 because the jury was not informed that its recommendation would be binding on the trial court. He asserts that this omission was further compounded by the trial court's re-instruction to the jury that the penalties, if any, would be fixed by the court after the verdict. 3 Specifically, appellant argues that his chances for leniency were diminished because the jury, not knowing that its 'recommendation' for penalty under section 264 would bind the trial court, did not give the question of punishment the same careful consideration it would have given if it had been properly instructed on the subject.

While appellant objected to the giving of CALJIC No. 10.14 as unconstitutionally vague for lack of clearly defined standards and as an infringement of the court's function to determine penalty he did not request any clarification of the extent of the jury's duty in fixing punishment under Penal Code section 264, nor did he voice any objection to the re-instruction. Normally, a defendant is held to waive the right to appeal alleged errors by failing to make an appropriate objection in the trial court; however, an appellate court may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected. (Pen.Code, §§ 1259, 1469.) The cases equate 'substantial rights' with reversible error, i.e., did the error result in a miscarriage of justice? (Cal.Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

Whether the jury was properly instructed on the extent of its responsibility for determining the punishment for violating section 261.5--and if not, whether the error prejudiced appellant--in the final analysis depends upon whether the trial court is bound by the jury's recommendation or is free to consider a more lenient sentence by way of probation. If the jury's 'recommendation' meant that the court in fact should send the defendant to jail or place him in the state prison as the jury determined, then the re-instruction that the penalty 'would be fixed by the court' was error and arguably prejudicial to appellant. On the other hand, if the trial court had the power to grant leniency to appellant by placing him on probation in spite of the jury's recommendation, then the re-instruction was essentially a proper statement of the law, and appellant suffered no prejudice.

Several cases have spoken of the consequences of a jury's recommendation for punishment under Penal Code section 264. In People v. Pantages (1931) 212 Cal. 237, 297 P. 890, the defendant was convicted of the rape of a female under the age of 18 years. An instruction was given to the jury which provided that whether the victim of the alleged assault had consented to the act or resisted the attack upon her was wholly immaterial. The court said that this instruction raised the question as to whether under section 264, in determining the punishment, the jury had the right to consider the circumstances surrounding the commission of the rape. In holding that the circumstances had to be considered, the court likened the exercise of discretion under section 264 to the 'discretion' given to a jury under then Penal Code section 190 to determine whether a person guilty of first degree murder should suffer death or confinement for life in the state prison. It held that in a rape case, like a capital case, the jury's 'recommendation' as to the place where the defendant should be imprisoned 'is an essential, inseparable part of the verdict and as such is conclusive and binding upon the trial court as far as pronouncement by it of the...

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