People v. Superior Court (Kim)

• Decision Date: 30 November 1993
• Docket Number: No. G014181,G014181
• Citation: 20 Cal.App.4th 936,25 Cal.Rptr.2d 38
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Kirn Young KIM, Real Party in Interest.

Page 38

25 Cal.Rptr.2d 38

20 Cal.App.4th 936

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent Kirn Young KIM, Real Party in Interest.

No. G014181.

Court of Appeal, Fourth District, Division 3, California.

Nov. 30, 1993.

[20 Cal.App.4th 937] Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., John D. Conley, Asst. Dist. Atty., Richard King, Christopher J. Evans and Gregg L. Prickett, Deputy Dist. Attys., for petitioner.

No appearance for respondent.

Stokke & Riddet, Allan H. Stokke and William J. Kopeny, Santa Ana, under appointment by the Court of Appeal, for real party in interest.

OPINION

SILLS, Presiding Justice.

We are faced here with an interesting paradox. It is well established a capital offense is one which carries the maximum possible penalty of death. It is also well established a person under the age of 18 years cannot, by law, be punished with the death penalty. Petitioner asks us to hold that Kim--a minor--faces a capital offense because, although he cannot, by law, be punished with the death penalty, the offense with which he is charged carries that maximum penalty. Acknowledging the test for determining a capital offense is to focus on the maximum penalty, without regard to an individual defendant's actual penalty, we grant the request. Accordingly, we hold Kim is not entitled to the setting of bail, and reverse the trial court's order setting bail in his case.

FACTS

Real party in interest, Kirn Young Kim, was 16 at the time of the crime, found unfit to be treated as a juvenile, and was charged as an adult with murder and a special circumstance allegation of lying in wait. The trial court conducted a bail hearing in which the transcript of the grand jury proceeding leading to the indictment in this case was read and considered. The court found "the facts are evident and the presumption is great [that Kim committed the offense]," ¹ but also found the case was not a capital one because "the entire statutory scheme [including] Penal Code section 190.5 precludes the death penalty for a minor...." Respondent court continued, however, to determine whether there was "a substantial likelihood that [Kim] would engage in great bodily harm to others" so as to deny bail under article I, section 12, subdivision (b) of the California Constitution. Finding the crime itself was "horrible[,] ... as aggravated as a crime can be of a single victim," the court found Kim's role in the crime that of "a minor player." He was not present at the murder and did not participate in the actual beating and death. The court ruled Kim did not "present[ ] a substantial likelihood of danger to the community," and, thus, bail was not prohibited by the constitutional provisions. Bail was set at $750,000 with a condition that Kim and his parents surrender their passports.

Petitioner brought the matter to our attention in their original petition for alternative writ, which we denied without an explanation on April 29, 1993. (See Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1271-1274, 258 Cal.Rptr. 66 [extraordinary writs should not be utilized as a means to second-guess trial courts or to unnecessarily delay and obstruct the process].) The Supreme Court granted the People's consequent petition for review on May 27, 1993, staying the order setting bail and transferring the matter to us with orders to vacate our previous denial and issue an alternative writ.

DISCUSSION

The district attorney argues article I, section 12, subdivision (a) (see ante, fn. 1) and Penal Code section 1270.5 ² prohibit the setting of bail for Kim because he is charged with a special circumstance murder. The prosecution contends Kim is ineligible for bail, focusing on the maximum statutory penalty of death which the charge against him carries if he was not a juvenile. (See In re Freeman (1980) 102 Cal.App.3d 838, 840, 162 Cal.Rptr. 423.) In other words, "[i]t is the statutory availability of the [death] penalty which renders the crime charged a capital offense" (In re Bright (1993) 13 Cal.App.4th 1664, 1670, 17 Cal.Rptr.2d 105), and special circumstance murder statutorily carries the availability of the death penalty.

Article I, section 12 of the California Constitution provides that bail is a constitutional right to all except a person charged with a capital crime if "the facts are evident or the presumption great." In a related statute, Penal Code section 1270.5 prohibits bail to a "defendant charged with an offense punishable with death ... when proof of his or her guilt is evident or the presumption thereof great...." Our task in the present proceeding is to decide if Kim is charged with a capital offense. If he is not, he has a constitutional right to bail.

As we stated in Maniscalco v. Superior Court (People) (1993) 19 Cal.App.4th 60, 61-62, 23 Cal.Rptr.2d 322, the right to bail depends on a defendant's not having been charged with a "capital crime." ³ Kim is unquestionably charged with a capital crime because he faces first degree murder with a special circumstance allegation. But he asserts the issue is not so easily resolved in his situation because he, personally, cannot statutorily receive that punishment.

The federal courts, when faced with an analogous predicament--when is a capital defendant a capital defendant for purposes of benefits and when is he one for purposes of liabilities--solved the problem by examining the underlying substance of the benefit or liability. Essentially, they ascertained the reason for the benefit or liability, and then inquired whether the reason applied in the particular case before the court. (Maniscalco, supra, 19 Cal.App.4th at p. 62, 23 Cal.Rptr.2d 322.)

The present case requires us to confront a similar problem. Kim is charged with special circumstance murder--a charge which carries the possibility of a death penalty--but he, individually, cannot by law receive that punishment. Kim requested bail, and bail was set, over the objection of the prosecution primarily because of the statutory prohibition against the death penalty's application to anyone of Kim's age.

The court attempted to harmonize three, apparently conflicting, legal provisions in its order. First, there was Sand v. Superior Court (1983) 34 Cal.3d 567, 194 Cal.Rptr. 480, 668 P.2d 787, which held Sand was not entitled to certain ancillary benefits available to "capital defendants" because the prosecution was no longer requesting the death penalty in his specific case. On the other hand, In re Freeman (1980) 102 Cal.App.3d 838, 162 Cal.Rptr. 423 and In re Bright (1993) 13 Cal.App.4th 1664, 17 Cal.Rptr.2d 105 ⁴ each held that the maximum possible penalty on the actual charge--irrespective of the status of the defendant--was the determining factor in ascertaining a "capital crime" for entitlement to bail under California Constitution article I, section 12. (See fn. 1, ante ). Finally, Penal Code section 190.5, subdivisions (a) and (b) ⁵ prohibit anyone between the ages of 16 and 18 receiving the death penalty. The trial court emphasized the Freeman rationale pivoted on whether the offense carried the possibility of the death penalty by law. It then noted that Kim, by law, could not receive the death penalty. Thus, the Freeman and Bright analysis was distinguishable from Kim's situation, and the court applied the rationale of Sand as the only alternative which was, in the trial court's opinion, consistent with the legislative scheme behind Penal Code section 190.5. Sand was charged with special circumstance murder, but had received a promise from the prosecution that it would not pursue the death penalty. He also wanted certain statutory benefits accorded to only capital defendants. But this reduction in the penalty facing him was important; the problem of ancillary services required a focus on the complexity of a trial with an actual death penalty possibility as compared to one which included only the guilt phase. (See Sand, supra, 34 Cal.3d at pp. 573-575, 194 Cal.Rptr. 480, 668 P.2d 787.) Therefore, without the actual potential of the death penalty, Sand did not qualify for the special privileges--and their incumbent special funding--of Penal Code section 978.9. ⁶

As we stated in Maniscalco, the federal approach to questions involving capital cases "reflects the true state of California law as well. The core reason for denying bail to defendants charged with capital crimes relates directly to the gravity of the crime, and has no necessary relationship to the complexity of the defendant's 'case.' (See People v. Anderson (1972) 6 Cal.3d 628, 657, fn. 45, 100 Cal.Rptr. 152, 493 P.2d 880.) On the other hand, the reason for extra investigators and experts does bear directly on [the complexity of] a defendant's 'case.' (See Sand v. Superior Court, supra, 34 Cal.3d 567, 194 Cal.Rptr. 480, 668 P.2d 787.)" (Maniscalco, supra, 19 Cal.App.4th at pp. 62-63, 23 Cal.Rptr.2d 322.) Moreover, Sand explicitly rejected its application to the right to bail. (Sand, supra, 34 Cal.3d at p. 574, 194 Cal.Rptr. 480, 668 P.2d 787.)

We once again narrow our attention to the differences between a "capital crime or offense" and a "capital case." As the federal cases wrestling with the same difficult problem have found, there is "a principled distinction between the concepts of capital case and capital crime." (Maniscalco, supra, 19 Cal.App.4th at p. 66, 23 Cal.Rptr.2d 322.) Capital crimes, by definition, are of a most "intensely serious nature...." (Id. at p. 69, 23 Cal.Rptr.2d 322.) That seriousness alone is the deciding factor between capital crimes and all others. (Ibid.) "Some crimes are so horrifying that the defendant simply cannot be allowed bail for the protection of the public. [p] By contrast, the focus of Sand was on the complexity of the case, and the actual mechanics of 'preparation' for guilt and penalty phases. In essence, the [Sand ] court questioned why a defendant...