People v. Miller
| Decision Date | 15 May 1992 |
| Docket Number | E010483,Nos. E009493,s. E009493 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Appellant, v. Donald Alan MILLER, et al., Defendants and Respondents. In re Donald Alan MILLER on Habeas Corpus. |
As permitted by Penal Code section 1506, 1 the People appeal from an order of the superior court granting the petition of defendants Donald Alan Miller and Leroy Freeman for a writ of habeas corpus. The order directed that defendants be resentenced to terms of imprisonment of 15 years to life. The People contend that the original sentences of 25 years to life were valid under section 182.
In addition, Miller has filed an in propria persona petition for writ of habeas corpus in this court in which he urges that his conviction should be reversed on the grounds of (1) ineffective assistance of appellate counsel; (2) newly discovered evidence; and (3) retroactively applicable authority. We consider his petition concurrently with the appeal solely to determine whether an order to show cause should issue.
Defendants were charged in an amended information with conspiracy to commit murder (§§ 182, 187) and other counts. The information alleged seven overt acts and alleged the conspiracy ran from December 20, 1978, through January 4, 1979. In April 1980 a jury found defendants guilty of conspiracy to commit murder and found all seven overt acts to be true. The jury was unable to reach a verdict on the remaining counts, a mistrial was declared, and the remaining counts were dismissed.
Both defendants were sentenced to 25 years to life in prison.
Defendants appealed their convictions and filed petitions for writ of habeas corpus. This court denied the petitions and issued an unpublished opinion in the appeal affirming the convictions and sentences of both defendants. In July 1982, defendants filed petitions for hearing and for writ of habeas corpus in the California Supreme Court. Those petitions were denied, as was a later petition for writ of habeas corpus in federal court.
On October 4, 1990, defendants filed new petitions for writ of habeas corpus in the Superior Court of the County of Riverside. The petitions alleged that defendants' sentences of 25 years to life were invalid under section 1157. Defendants argued they received the sentences appropriate for conspiracy to commit first degree murder, but the jury verdict had failed to specify the degree of the crime. The court issued an order to show cause, and the People filed a return. The court granted the petitions as to both defendants and reduced their sentences to 15 years to life.
Review of Invalid Sentence. The People concede that a sentence in excess of the court's jurisdiction may be reviewed on habeas corpus. A writ of habeas corpus (In re Estrada (1965) 63 Cal.2d 740, 750, 48 Cal.Rptr. 172, 408 P.2d 948.) When the question raised in a petition for writ of habeas corpus (In re Ward (1966) 64 Cal.2d 672, 675, 51 Cal.Rptr. 272, 414 P.2d 400 [20-year delay]; see also In re Huffman (1986) 42 Cal.3d 552, 555, 229 Cal.Rptr. 789, 724 P.2d 475.)
This is because a defendant's delay in raising the issue of excessive sentencing "work[s] primarily to his own disadvantage." (In re Bartlett (1971) 15 Cal.App.3d 176, 186, 93 Cal.Rptr. 96.) Thus, "It is difficult to conceive where the rights of the People have been harmed by [the defendant's] lack of diligence--unless they intend to sue him for the reasonable cost of his room and board during that time." (Ibid.)
Section 1157. Defendants contend their sentences were invalid under section 1157. That section states, Section 1157 establishes " 'a rule to which there is to be no exception.' " (People v. McDonald (1984) 37 Cal.3d 351, 382, 208 Cal.Rptr. 236, 690 P.2d 709.) The rule applies whenever the jury fails to specify the degree of the crime on the verdict form. (Ibid.) Defendants argue that because the jury did not specify the degree of the crime they conspired to commit, their crime was deemed under section 1157 to be conspiracy to commit second degree murder.
The People respond that section 1157 does not apply here, because the crime of conspiracy is not divided into degrees. Instead, section 182 directly addresses the jury's failure to distinguish among the degrees to the crime which was the object of the conspiracy. Section 182, subdivision (a) states, "When [persons] conspire to commit any ... felony [other than a crime against the person of certain public officials], they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony. If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit Defendants rely on People v. Horn (1974) 12 Cal.3d 290, 115 Cal.Rptr. 516, 524 P.2d 1300 and People v. Alexander (1983) 140 Cal.App.3d 647, 189 Cal.Rptr. 906 2 to support their argument that section 1157 governs this case. Neither Horn nor Alexander is on point. Neither case dealt with section 1157 at all, and the error found in each case was instructional error.
the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree."
In Horn, the defendant was convicted of conspiracy to commit first degree murder. The court noted that to comply with section 182, "the trier of fact must determine the identity of the conspired felony, and if that felony is divided into degrees, the degree of the felony." (Horn, supra, 12 Cal.3d at p. 295, 115 Cal.Rptr. 516, 524 P.2d 1300.) The court held that under the facts, the trial court erred in failing to instruct the jury on the lesser included offense of conspiracy to commit voluntary manslaughter. In Horn, the court disagreed with the Attorney General's argument that "conspiracy is a crime without degrees or lesser included offenses, ..." (Id., at p. 296, 115 Cal.Rptr. 516, 524 P.2d 1300.) However, the court focused on lesser included offenses to conspiracy to commit first degree murder, and never explicitly stated that such lesser included offenses constitute degrees of the crime of conspiracy.
In Alexander, the defendant was convicted of conspiracy to commit first degree murder. The appellate court found error in the trial court's failure to instruct the jury on the elements of first degree murder and on the lesser included offense of conspiracy to commit second degree murder, which was supported by the evidence. The trial court compounded the error by erroneously instructing the jury on implied malice. (Alexander, supra, 140 Cal.App.3d at p. 666, 189 Cal.Rptr. 906.) The appellate court reduced the sentence to that for conspiracy to commit second degree murder. The court stated, "Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, ..." (Ibid., emphasis added.)
The concept of degrees applies to the offenses which were the object of the conspiracy, not to the conspiracy itself. (See § 182.) The Alexander court's reference to degrees appears to be merely imprecise language, not a holding that conspiracy itself is divided into degrees. Neither Horn nor Alexander supports defendants' argument that their sentences were invalid under section 1157.
In an analogous context, courts have determined that the crime of attempted murder (§§ 664, 187) is not divided into degrees. (People v. Douglas (1990) 220 Cal.App.3d 544, 548-550, 269 Cal.Rptr. 579; see also, People v. Cooper (1991) 53 Cal.3d 771, 832, 281 Cal.Rptr. 90, 809 P.2d 865; People v. Macias (1982) 137 Cal.App.3d 465, 187 Cal.Rptr. 100; People v. Wein (1977) 69 Cal.App.3d 79, 137 Cal.Rptr. 814.) In Douglas, the court held that because attempted murder was not " 'a crime which is distinguished into degrees' ", section 1157, by its terms, did not apply. (Douglas, supra, 220 Cal.App.3d at p. 550, 269 Cal.Rptr. 579.)
The reasoning of the Douglas court applies to the situation before us. A conspiracy is an agreement, the design and object of which is to do an unlawful act, accompanied by an overt act to effect the In this case, the court acted according to statutory mandate and sentenced defendants under section 182. 3 The punishment was valid and therefore was not subject to revision in the petition for writ of habeas corpus.
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