People v. Schueren

• Decision Date: 24 December 1973
• Docket Number: Cr. 16398
• Citation: 516 P.2d 833,10 Cal.3d 553,111 Cal.Rptr. 129
• Court: California Supreme Court
• Parties: , 516 P.2d 833 The PEOPLE, Plaintiff and Respondent, v. John Otto SCHUEREN, Defendant and Appellant.

Page 129

111 Cal.Rptr. 129

10 Cal.3d 553, 516 P.2d 833

The PEOPLE, Plaintiff and Respondent, v. John Otto SCHUEREN, Defendant and Appellant.

Cr. 16398.

Supreme Court of California In Bank.

Dec. 24, 1973.

Rehearing Denied Jan. 23, 1974.

Richard S. Buckley, Public Defender, James L. McCormick, Don R. Ellertson, David A. Sanders and Dennis A. Fischer, Deputy Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby and Edward A. Hinz, Jr., Chief Asst. Attys. Gen., William E. James, Asst. Atty. Gen., Frederick R. Millar, Jr., Robert F. Katz and Jeffrey L. Bear, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

An information was filed charging John Schueren in a cingle count with 'assault with a deadly weapon with intent to commit murder, a violation of Section 217, Penal Code, a felony, committed as follows: . . . Schueren . . . did . . . commit an assault with a deadly weapon upon Thomas Rutkowski . . . with the intent . . . to . . . murder . . . Rutkowski.' A jury found defendant guilty of assault with a deadly weapon (Pen.Code, § 245), ¹ 'a lesser and necessarily included offense,' and he was sentenced to prison for 'the term prescribed by law.' On this appeal from the judgment defendant's sole attack is upon the sentence. ² For the reasons hereinafter stated we have concluded that the judgment should be modified to limit the maximum term of imprisonment to not more than 14 years and that the judgment as so modified should be affirmed.

No claim is made, or properly could be, that the evidence is insufficient to support the conviction. The evidence discloses in brief that defendant stabbed Thomas Rutkowski several times with a knife during an altercation. One of the wounds penetrated Rutkowski's spleen, which was subsequently removed in surgery. Rutkowski had noticed that defendant was 'feeling high' shortly before the stabbing, and defendant testified that he had 'quite a bit' to drink that day. Defendant sought to establish that he acted in self defense.

The jury, as we have seen, found defendant guilty of assault with a deadly weapon (Pen.Code, § 245, subd. (a)), a crime necessarily included in that charged. ³ The penalty provided by Penal Code section 245, subdivision (a), for a violation of that subdivision is imprisonment in the state prison for six months to Life or a county jail term or fine; the penalty provided by Penal Code section 217 for a violation of that section is one to Sourteen years in prison. ⁴ Under the judgment, as it now reads, defendant is faced with the possibility of life in prison, whereas, according to defendant, had he been convicted of the crime charged his maximum term of imprisonment could not have exceeded 14 years.

Defendant argues that the proscription in section 6, article I, of the California Constitution against 'cruel or unusual punishment' precludes a sentence exceeding 14 years for a defendant charged with assault with intent to commit murder (Pen.Code, § 217) and convicted of assault with a deadly weapon (Pen.Code, § 245, subd. (a)) as a necessarily included offense. ⁵ The Attorney General argues to the contrary.

As a preliminary matter, it is necessary to consider a claim by the Attorney General that since defendant has not yet served 14 years and possibly may be released by the Adult Authority within that time, defendant's attack upon the sentence is premature. The Attorney General's claim cannot be upheld. The maximum term of a sentence affects the Adult Authority's fixing of an inmate's indefinite sentence. (See Neal v. State of California, 55 Cal.2d 11, 18, 9 Cal.Rptr. 607, 357 P.2d 839.) Moreover, a prisoner under a sentence with a maximum of life whose term has not yet been fixed by the Adult Authority is subject to at least one statutory provision that is inapplicable to a prisoner serving a lesser term. (See Pen.Code, § 4500 (assault with a deadly weapon with malice aforethought by a life prisoner); People v. Smith, 36 Cal.2d 444, 445, 224 P.2d 719.) Thus defendant's attack upon his sentence is not premature.

Another preliminary question is whether defendant is correct that assault with intent to commit murder is the offense charged. The Attorney General argues that the 'charge stated no single offense . . . but instead it stated a compound allegation of two offenses . . ..' In one count the prosecutor charged the elements of two kinds of aggravated assaults defined by two separate sections of the Penal Code, assault with intent to commit murder (Pen.Code, § 217) and assault with a deadly weapon (Pen.Code, § 245, subd. (a)). The pleading alleged that the act violated section 217 and made no reference to section 245. Penal Code sections 951 and 952, which specify the form and matters that must appear in an information, contain no requirement that the statute which the accused is charged with violating be designated by number, and even a reference to the wrong statute has been viewed of no consequence under the circumstances there appearing (e.g., People v. Siegel, 198 Cal.App.2d 676, 683--681, 18 Cal.Rptr. 268; People v. Jackson, 191 Cal.App.2d 296, 302--303, 12 Cal.Rptr. 748, cert. den. 368 U.S. 864, 82 S.Ct. 109, 7 L.Ed.2d 60; People v. Rivers, 188 Cal.App.2d 189, 195, 10 Cal.Rptr. 309.) However, the accusatory pleading 'might well' designate by number the statute allegedly violated, although 'the defect' in failing to do so may not be of substance. (In re Bramble, 31 Cal.2d 43, 51, 187 P.2d 411; compare People v. Severino, 122 Cal.App.2d 172, 179, 264 P.2d 656 (overruled on another issue in People v. Smith, 44 Cal.2d 77, 80--81, 279 P.2d 33) (wherein it is stated that there is no requirement the accusatory pleading name the statute allegedly violated).) Furthermore, reasonable doubts in determining the identity of the offense charged are to be resolved in the defendant's favor. (See In re Tartar, 52 Cal.2d 250, 256, 339 P.2d 553; In re Bramble, Supra.)

In the instant case resolving reasonable doubts in defendant's favor, it is clear that the crime charged is assault with intent to commit murder. ⁶ It may be noted that there is no doubt that the prosecutor regarded that offense as the crime charged since several of the instructions proposed by the prosecutor indicated that assault with intent to commit murder was the crime charged.

In support of his contention that the proscription against cruel or unusual punishment in our state Constitution precludes a sentence exceeding 14 years for a defendant charged with assault with intent to commit murder and convicted of assault with a deadly weapon as a necessarily included offense, defendant cites Hobbs v. State, 253 Ind. 195, 252 N.E.2d 498, 499 et seq.; Dembowski v. State, 251 Ind. 250, 240 N.E.2d 815, 816 et seq.; and Cannon v. Gladden, 203 Or. 629, 281 P.2d 233, 234 et seq. Those cases hold that sentence for a 'lesser' included offense that exceeds the sentence provided for the 'greater' offense constitutes cruel and unusual punishment under various constitutional provisions. (Hobbs v. State, Supra (sentence for entry to commit a felony that exceeded sentence for second degree burglary); Dembowski v. State, Supra (sentence for robbery that exceeded sentence for armed robbery); Cannon v. Gladden, Supra (sentence for assault with intent to commit rape that exceeded sentence for rape).) The cited cases reasoned that under those circumstances the penalty for the 'lesser' offense was unconstitutionally disproportionate to the crime. ⁷ Those cases, however, differ from the present one, since there one offense was included in the other evidently under a test based on the elements of the crime. Here assault with a deadly weapon (Pen.Code, § 245, subd. (a)) is not included in assault with intent to commit murder (Pen.Code, § 217) under that test, since the latter crime does not contain as an element the use of a deadly weapon. (People v. Ramos, 25 Cal.App.3d 529, 536--538, 101 Cal.Rptr. 230; see People v. Marshall, Supra, 48 Cal.2d 394, 403--404, 309 P.2d 456; People v. Robinson, 6 Cal.App.3d 448, 456, 86 Cal.Rptr. 56.) Rather assault with a deadly weapon (Pen.Code, § 245, subd. (a)) is included in the crime charged (Pen.Code, § 217) under a test based on the language of the accusatory pleading. (People v. Jennings, Supra, 22 Cal.App.3d 945, 948, fn. 2, 99 Cal.Rptr. 739; People v. Nichelson, Supra, 217 Cal.App.2d 273, 279, 31 Cal.Rptr. 750; see People v. Marshall, Supra.) In the instant situation the fact that the included offense carries a larger penalty than that for the crime charged is insufficient in itself to show that the penalty for the former is unconstitutionally disproportionate to the crime.

A 'disproportionate' test was adopted in In re Finley, 1 Cal.App. 198, 81 P. 1041, as the sole method of determining whether a penalty is 'unusual' within the meaning of article I, section 6, of the California Constitution. Finley declared (pp. 201--202, 81 P. p. 1042) that 'It is only when the punishment is out of all proportion to the offense, and is beyond question and Extraordinary penalty for a crime of Ordinary gravity, committed under ordinary circumstances, that courts may denounce it as Unusual.'

A 'disproportionate' test continues to be recognized as one method of determining whether a penalty violates article I, section 6. People v. Anderson, 6 Cal.3d 628, 654, 100 Cal.Rptr. 152, 493 P.2d 880, cert. den. 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344, indicated that 'an excessive or disproportionate punishment' may be 'unusual' within the meaning of that section, and In re Lynch, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 226, 503 P.2d 921, 930, concluded that 'a punishment may violate article I, section 6, of the Constitution if . . . it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'

It is evident from People v. Anderson, Supra, 6...