People v. Mutch, Cr. 14182

CourtUnited States State Supreme Court (California)
Writing for the CourtMOSK; TOBRINER; SULLIVAN; BURKE; McCOMB; KAUS, J., participated. WRIGHT
Citation93 Cal.Rptr. 721,482 P.2d 633,4 Cal.3d 389
Docket NumberCr. 14182
Decision Date24 March 1971
Parties, 482 P.2d 633 The PEOPLE, Plaintiff and Respondent, v. Richard H. MUTCH, Defendant and Appellant.

Page 721

93 Cal.Rptr. 721
4 Cal.3d 389, 482 P.2d 633
The PEOPLE, Plaintiff and Respondent,
v.
Richard H. MUTCH, Defendant and Appellant.
Cr. 14182.
Supreme Court of California,
In Bank.
March 24, 1971.
Rehearing Denied April 22, 1971.

Page 722

[482 P.2d 634] [4 Cal.3d 392] Paul M. Posner, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Justice.

The principal question presented in this proceeding is whether a defendant whose conviction of the crime of kidnaping for the purpose of robbery in violation of Penal Code section 209 became final before our decision in People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, is entitled to post-conviction relief upon a showing that his conduct was not prohibited by the statute as we construed it in Daniels. 1

In 1966 defendant was convicted on two counts of kidnaping for the purpose of robbery (counts I and II) and two counts of robbery (counts III and IV). The jury found that the victims suffered bodily harm in the course of the kidnapings, and that the robberies were of the first degree. The court granted a 'motion for finding that injury to victim (on each kidnaping count) was insufficient,' and sentenced defendant to life imprisonment with possibility of parole on the kidnaping counts and to the terms prescribed by law on the robbery counts, the sentences to run concurrently with each other and with sentences in two other cases. The court further ordered that the sentences on the robbery counts be stayed pending appeal and until service of the kidnaping sentences, the stays then to become permanent.

Defendant appealed, and the judgment was affirmed by the Court of Appeal in an unpublished opinion in 1967. We denied a hearing, and in 1968 the United States Supreme Court denied certiorari.

[4 Cal.3d 393] On October 2, 1969, we filed our decision in People v. Daniels, supra, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225. On October 22 defendant petitioned the Court of Appeal for a recall of the remittitur or 'other appropriate relief,' summarizing the facts of the case and contending he was entitled to a redetermination of his appeal in the light of Daniels. The request was denied without opinion, and we granted a petition

Page 723

[482 P.2d 635] for hearing and transferred the application to this court.

For almost two decades prior to 1951, Penal Code section 209 defined aggravated kidnaping to include the act of every person who 'holds or detains' another 'to commit * * * robbery.' Under its terms, a robber could be convicted of such 'kidnaping' even though he did no more than hold his victim at gunpoint or compel him to make brief movements incidental to the commission of the robbery. (People v. Knowles (1950) 35 Cal.2d 175, 179--186, 217 P.2d 1.) In 1951 the Legislature amended section 209 by deleting the reference to detention for the purpose of robbery, substituting instead language which makes punishable every person who 'kidnaps or carries away' another to commit robbery. In People v. Chessman (1951) 38 Cal.2d 166, 192, 238 P.2d 1001, 1017, however, the court construed the words 'kidnaps or carries away' to mean the act of forcibly moving the victim any distance whatever, no matter how short or for what purpose, declaring that 'It is the fact, not the distance, of forcible removal which constitutes kidnaping in this state.' The Chessman construction was applied by this court in People v. Wein (1958) 50 Cal.2d 383, 399--400, 326 P.2d 457; People v. Monk (1961) 56 Cal.2d 288, 295, 14 Cal.Rptr. 633, 363 P.2d 865, and People v. Lara (1967) 67 Cal.2d 365, 395, 62 Cal.Rptr. 586, 432 P.2d 202.

Troubled by a growing disparity between the Chessman reading of section 209 and a 'current of common sense in the construction and application of statutes defining the crime of kidnaping' (71 Cal.2d at p. 1127, 80 Cal.Rptr. at p. 901, 459 P.2d at p. 229), we undertook in Daniels to determine the intent of the Legislature when it adopted the 1951 amendment to the statute. We began by characterizing the issue before us as 'whether the acts of defendants Daniels and Simmons, on the record in this case, constitute the kind of conduct proscribed by section 209.' (Id. at p. 1126, 80 Cal.Rptr. at p. 901, 459 P.2d at p. 229.) We turned for guidance of decisions of this court which have construed closely related statutory language. In Cotton v. Superior Court (1961) 56 Cal.2d 459, 465, 15 Cal.Rptr. 65, 364 P.2d 241, we held that brief movements 'incidental to' an assault or riot do not amount to the asportation necessary to support a kidnaping conviction; in Daniels we concluded by the same token that "the Legislature Could not reasonbly have intended that such incidental movement be a taking '* * * from one part of the county to another."' (Italics added; fn. omitted.) [4 Cal.3d 394] (71 Cal.2d at p. 1131, 80 Cal.Rptr. at p. 904, 459 P.2d at p. 232.) 2 And in People v. Jackson (1955) 44 Cal.2d 511, 517, 282 P.2d 898, 901, we held that minor injuries to the victims 'incidental to' forcible kidnaping are 'not of the nature contemplated by the Legislature' in prescribing the bodily harm element of the crime; we concluded likewise in Daniels that the incidental movements there shown 'are not of The scope intended by the Legislature in prescribing the asportation element of the same crime.' (Italics added; fn. omitted.) (71 Cal.2d at p. 1134, 80 Cal.Rptr. at p. 906, 459 P.2d at p. 234.)

Finally, we reviewed various authorities from our sister jurisdictions, and held that 'the rule of construction declared in People v. Chessman (1951) supra, 38 Cal.2d 166, 192, 238 P.2d 1001, 1017, i.e., that 'It is the fact, not the distance, of forcible removal which constitutes kidnaping in this state,' is no longer to be followed. Rather, we hold that The intent of the Legislature in amending Penal Code, section 209 in 1951 was to exclude from its reach not only 'standstill' robberies (e.g., People v. Knowles (1950) supra, 35 Cal.2d 175, 217 P.2d 1) but also those in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.' (Italics added.)

Page 724

[482 P.2d 636] (Id. at p. 1139, 80 Cal.Rptr. at p. 910, 459 P.2d at p. 238.)

The emphasized language makes it clear that the purpose of our decision in Daniels was not to 'redefine' the crime of kidnaping to commit robbery--under our tripartite system of government, that power is vested exclusively in the legislative branch--but simply to declare what the intent of the Legislature has been in this regard since the enactment of the 1951 amendment to section 209. Two important consequences flow from this circumstance. First, we need not embroil ourselves in the ancient dialectic between protagonists of the 'Blackstonian' and the 'Austinian' theories on the effect of a judicial decision which overrules another. (See, e.g., Linkletter v. Walker (1965) 381 U.S. 618, 622--625, 85 S.Ct. 1731, 14 L.Ed.2d 601.) In Daniels we did not overturn a judge-made rule of common law; rather, we recognized a statutory rule which the Legislature adopted in 1951 but to which courts had not previously given appropriate effect.

Secondly, and by the same token, we need not undertake the often-perilous task of applying to the facts of this case the test of 'retroactivity' developed in a wellknown series of decisions of the United States Supreme Court. In those cases the high court was primarily concerned with such matters as the control of improper police practices (Stovall v. Denno (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Johnson v. New Jersey [4 Cal.3d 395] (1966) 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882), the exclusion of tainted evidence (Desist v. United States (1969) 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248; Linkletter v. Walker (1965) supra, 381 U.S. 618, 85 S.Ct. 1731), and the reform of procedural rules affecting the reliability of the fact-finding process (e.g., Berger v. California (1969) 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508; Roberts v. Russell (1968) 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100; Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; Tehan v. United States ex rel. Shott (1966) 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453). By contrast, our decision in Daniels did not change any such evidentiary or procedural rules, less still penalize improper police practices; instead, it confirmed a substantive definition of crime duly promulgated by the Legislature. Moreover, in each of the just-cited cases the error reached constitutional proportions; in Daniels, however, we reversed the defendants' kidnaping convictions under Penal Code section 209 on the ground that when the statute is properly construed the evidence there introduced was insufficient to support the judgments. 3

Here, as in Daniels, the issue is 'whether the acts of (defendant), on the record in this case, constitute the kind of conduct proscribed by section 209.' From

Page 725

[482 P.2d 637] the foregoing analysis we conclude that a robber who suffered a post-1951 conviction of violating section 209 because he compelled his victim to perform movements which were 'merely incidental to the commission of the robbery and (did) not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself,' was convicted under a statute which did not prohibit his acts at the time he committed them. As the Court of Appeal correctly reasoned in a decision rendered shortly after Daniels, 'There, the Supreme Court stresses that its interpretation of section 209 is what the Legislature always [4 Cal.3d 396] intended that it should be. In this light, What...

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148 practice notes
  • People v. Dominguez, No. H022727.
    • United States
    • California Court of Appeals
    • December 14, 2004
    ...e.g., People v. Stanworth, supra, 11 Cal.3d 588, 114 Cal.Rptr. 250, 522 P.2d 1058 ... [25 feet from road to field]; People v. Mutch [1971] 4 Cal.3d 389, 397-399, 93 Cal. Rptr. 721, 482 P.2d 633 ... [30 to 40 feet from one room to another in business establishment]; People v. Williams [,] [s......
  • People v. Hoard, No. E030278.
    • United States
    • California Court of Appeals
    • November 7, 2002
    ...80 Cal.Rptr 897, 459 P.2d 225. 9. People v. Daniels, supra, 71 Cal.2d at page 1140, 80 Cal.Rptr. 897, 459 P.2d 225; People v. Mutch (1971) 4 Cal.3d 389, 398-399, 93 Cal.Rptr. 721, 482 P.2d 10. People v. Daniels, supra, 71 Cal.2d at page 1140, 80 Cal.Rptr. 897, 459 P.2d 225. 11. In re Earley......
  • Pryor v. Municipal Court
    • United States
    • United States State Supreme Court (California)
    • September 7, 1979
    ...to his conviction and if it appears that the statute as construed in this opinion did not prohibit his conduct. (People v. Mutch (1971) 4 Cal.3d 389, 396, 93 Cal.Rptr. 721, 482 P.2d 633, and cases there Since section 647, subdivision (a), is constitutional as construed, defendant is not ent......
  • People v. Garcia, Cr. 22799
    • United States
    • United States State Supreme Court (California)
    • August 6, 1984
    ...effect the policy intended from its inception, retroactive application is essential to accomplish that aim. (See People v. Mutch (1971) 4 Cal.3d 389, 395-396, 93 Cal.Rptr. 721, 482 P.2d 633.) If in addition, as in the present case, the decision represents the first authoritative constructio......
  • Request a trial to view additional results
148 cases
  • People v. Dominguez, No. H022727.
    • United States
    • California Court of Appeals
    • December 14, 2004
    ...e.g., People v. Stanworth, supra, 11 Cal.3d 588, 114 Cal.Rptr. 250, 522 P.2d 1058 ... [25 feet from road to field]; People v. Mutch [1971] 4 Cal.3d 389, 397-399, 93 Cal. Rptr. 721, 482 P.2d 633 ... [30 to 40 feet from one room to another in business establishment]; People v. Williams [,] [s......
  • People v. Hoard, No. E030278.
    • United States
    • California Court of Appeals
    • November 7, 2002
    ...80 Cal.Rptr 897, 459 P.2d 225. 9. People v. Daniels, supra, 71 Cal.2d at page 1140, 80 Cal.Rptr. 897, 459 P.2d 225; People v. Mutch (1971) 4 Cal.3d 389, 398-399, 93 Cal.Rptr. 721, 482 P.2d 10. People v. Daniels, supra, 71 Cal.2d at page 1140, 80 Cal.Rptr. 897, 459 P.2d 225. 11. In re Earley......
  • Pryor v. Municipal Court
    • United States
    • United States State Supreme Court (California)
    • September 7, 1979
    ...to his conviction and if it appears that the statute as construed in this opinion did not prohibit his conduct. (People v. Mutch (1971) 4 Cal.3d 389, 396, 93 Cal.Rptr. 721, 482 P.2d 633, and cases there Since section 647, subdivision (a), is constitutional as construed, defendant is not ent......
  • People v. Garcia, Cr. 22799
    • United States
    • United States State Supreme Court (California)
    • August 6, 1984
    ...effect the policy intended from its inception, retroactive application is essential to accomplish that aim. (See People v. Mutch (1971) 4 Cal.3d 389, 395-396, 93 Cal.Rptr. 721, 482 P.2d 633.) If in addition, as in the present case, the decision represents the first authoritative constructio......
  • Request a trial to view additional results

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