People v. Weddle

• Decision Date: 18 December 1991
• Docket Number: No. G009966,G009966
• Citation: 1 Cal.App.4th 1190,2 Cal.Rptr.2d 714
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Terry Gregory WEDDLE, Defendant and Appellant.

Page 714

2 Cal.Rptr.2d 714

1 Cal.App.4th 1190

The PEOPLE, Plaintiff and Respondent, v. Terry Gregory WEDDLE, Defendant and Appellant.

No. G009966.

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

Dec. 18, 1991.

Review Denied March 18, 1992.

[1 Cal.App.4th 1192] Fern M. Laethem, State Public Defender, and Lisa McLeod, Deputy State Public Defender, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., and Robert M. Foster, Supervising Deputy Atty. Gen., for plaintiff and respondent.

OPINION

MOORE, Associate Justice.

Terry Gregory Weddle (defendant) was convicted after a jury trial of first degree murder, second degree burglary, and two counts of felony hit and run. In a bifurcated court trial, three prior terms of imprisonment were found to be true. He was sentenced to an indeterminate term of 25 years to life for the murder plus three consecutive one year terms for the priors. Sentence on the remaining counts was imposed and stayed. On appeal, defendant contends his punishment violates the proscriptions against cruel and unusual punishment found in both the federal and state constitutions.

I FACTS

On February 6, 1989, an employee of Mervyn's department store in Tustin saw defendant running from the men's department toward the exit, carrying an armful of clothes. He followed and watched as defendant threw the clothes into a green Datsun which was parked in a fire lane, blocking a wheelchair ramp and facing oncoming traffic with its engine running and its driver's door open.

During this time, Richard O'Rourke drove into the parking lot accompanied by his wife and son. After seeing defendant throw the clothes into the green Datsun, he instructed his wife to notify the store manager and then followed as defendant rapidly left the scene. O'Rourke chased defendant for approximately two and one-half miles through the streets of Tustin and Santa Ana, during which defendant reached speeds of 60 miles an hour and ran several stop signs and red lights.

After swerving into oncoming traffic several times, defendant ran another red light at the intersection of Chestnut and Grand Streets in Santa Ana. Juan Mora Diaz's car, which contained Diaz's son and his nephew, Pedro Rangel Armas, entered the intersection simultaneously on a green light. As O'Rourke followed and other witnesses watched, defendant collided with Diaz's vehicle while traveling at approximately 65 miles per hour. Armas was killed and Diaz and his son were injured. After the two cars came to rest, defendant ran away. One of the witnesses caught him, and asked why he was running away. He replied that someone was chasing him. Officers responding to the scene found the gear shift of defendant's car in reverse with its backup lights on.

II PROPORTIONALITY UNDER THE FEDERAL CONSTITUTION

In Harmelin v. Michigan (1991) 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836, the United States Supreme Court upheld a mandatory sentence of life imprisonment without parole for possession of more than 650 grams of cocaine. The court's five-to-four plurality opinion leads us to conclude that the length of a sentence of imprisonment is largely a matter of legislative prerogative, and cannot violate the Eighth Amendment in any but the rarest cases. ¹ (Id. at pp. ---- - ----, 111 S.Ct. at pp. 2702-2709 (conc. opn. of Kennedy, J.).)

In tracing the history of the cases which have dealt with the Eighth Amendment in the context of imprisonment, Justice Scalia cites Rummel v. Estelle (1980) 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, where a life sentence was imposed under a recidivist statute, for the proposition that Weems v. United States (1910) 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 is the only case where the court has applied the Eighth Amendment to the context of imprisonment. (Rummel v. Estelle, supra, 445 U.S. at p. 272, 100 S.Ct. at p. 1138.) A careful reading of the opinion indicates that Rummel considered Weems to involve punishment which was, unlike simple imprisonment, unusual and of a "unique nature," in citing it as the lone example of a successful proportionality challenge outside the context of capital punishment. (Rummel, supra, at p. 274, 100 S.Ct. at p. 1139.)

Weems, while not expressly overruled, is of no benefit to defendant here, as it was unique in its facts. The challenged statute from the then Philippine territory required a sentence of 12 to 20 years in chains at hard labor plus lifetime surveillance and disqualification from voting rights, all due to defendant's having made two false entries in a cash book. Though Weems could be interpreted as being consistent due to the particular modality of punishment prescribed, the better analysis is simply to treat it as an aberration, which is what Justice Scalia does in Harmelin and what the Supreme Court's majority did in Rummel. (Harmelin, supra, 501 U.S. at pp. ---- - ----, 111 S.Ct. at pp. 2700-2701.)

The Supreme Court had previously held that intercase proportionality review ² of sentences involving death draws no support from the Constitution. (McCleskey v. Kemp (1987) 481 U.S. 279, 306, 107 S.Ct. 1756, 1774, 95 L.Ed.2d 262; Pulley v. Harris (1984) 465 U.S. 37, 42-44, 50-51 and fn. 5, 104 S.Ct. 871, 875-876, 879-880 and fn. 5, 79 L.Ed.2d 29.) ³ Justice Scalia's lead opinion in Harmelin, supra, 501 U.S. 957, 111 S.Ct. 2680, states that intracase proportionality review of sentences not involving the death penalty is also not required under the federal Constitution. (Id. at pp ---- - ----, 111 S.Ct. at pp. 2701-2702.) ⁴ In contrast, Justice Kennedy's concurring opinion indicates that intracase proportionality may be required, but only in those exceptionally rare cases where the sentence is "grossly disproportionate." (Id. at pp. ---- - ----, 111 S.Ct. at pp. 2702-2705.) Curiously, the concurrence seems to indicate that intercase proportionality review may be required as well in such cases. (Id. at p. ----, 111 S.Ct. at p. 2707; compare Pulley v. Harris, supra, 465 U.S. at p. 50, 104 S.Ct. at p. 879.)

Accordingly, we find that comparative or intercase proportionality review is not required under the federal Constitution. To the extent that intracase review remains viable, we do not find this to be one of the rare cases where the sentence was "grossly disproportionate" to the crime. (See discussion III, infra.)

III PROPORTIONALITY UNDER THE STATE CONSTITUTION

If our state were only required to follow the mandate of the United States Supreme Court and its interpretation of federal Constitutional principles, our discussion might be over. In fact, this is in part what Proposition 115, attempted to do. It purported to amend article 1, section 24 of the California Constitution to require that certain enumerated criminal law rights, such as the prohibition against cruel or unusual punishment, be construed in a manner consistent with the federal Constitution. However, our Supreme Court, in Raven v. Deukmejian (1990) 52 Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077, determined that this provision constituted an invalid constitutional revision rather than an amendment, and struck it down. (Id. at p. 355, 276 Cal.Rptr. 326, 801 P.2d 1077.) ⁵ Therefore, defendant's request for proportionality review must also be governed by our own Constitution and case law, and is not precluded by Harmelin, supra, 501 U.S. 957, 111 S.Ct. 2680.

California cases, relying on federal cases interpreting the Eighth Amendment, have declined to find that comparative, intercase proportionality review is required under the state Constitution. ⁶ (People v. Cox (1991) 53 Cal.3d 618, 690, 280 Cal.Rptr. 692, 809 P.2d 351; People v. Kaurish (1990) 52 Cal.3d 648, 716, 276 Cal.Rptr. 788, 802 P.2d 278; People v. Poggi (1988) 45 Cal.3d 306, 348, 246 Cal.Rptr. 886, 753 P.2d 1082; People v. Rodriguez (1986) 42 Cal.3d 730, 777-779, 230 Cal.Rptr. 667, 726 P.2d 113.) As for intracase proportionality review, "Imposition of a sentence 'grossly disproportionate to the offense for which it was imposed' is a violation of the prohibition against cruel or unusual punishment under article 1, section 17, of the California Constitution." (People v. Kaurish, supra, 52 Cal.3d at p. 716, 276 Cal.Rptr. 788, 802 P.2d 278, quoting People v. Dillon (1983) 34 Cal.3d 441, 478, 194 Cal.Rptr. 390, 668 P.2d 697.) The issue here is whether a sentence of 25 years to life on the substantive offense of first degree murder under a felony-murder theory is disproportionate to the nature of the offense and to defendant's culpability in this case.

The review defendant asks us to undertake affects the separation of powers between the judicial and legislative branches. Findings of disproportionality have occurred with exquisite rarity in the case law. Because it is the Legislature which determines the appropriate penalty for criminal offenses, defendant must overcome a "considerable burden" in convincing us his sentence was disproportionate to his level of culpability. (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529, 212 Cal.Rptr. 605.) Here, the trial court refused to find that defendant's sentence was disproportionate. Like the trial court, we are authorized to consider proportionality based on the facts. (See People v. Leigh (1985) 168 Cal.App.3d 217, 223, 214 Cal.Rptr. 61; 3 Witkin & Epstein, Cal.Crim.Law (2d ed. 1989) Punishment for Crime, § 1336, pp. 1559-1560.)

Defendant relies on In re Lynch (1972) 8 Cal.3d 410, 424-427, 105 Cal.Rptr. 217, 503 P.2d 921 and People v. Dillon, supra, 34 Cal.3d at pp. 478-479, 194 Cal.Rptr. 390, 668 P.2d 697 in arguing his 25 year to life sentence for first degree murder was disproportionate to the nature of the offense and his individual culpability.

Lynch held an indeterminate sentence of one year to life for recidivists who commit indecent exposure under Penal Code section 314 was void as cruel or unusual punishment. Thoug...