People v. Wingo

• Citation: 534 P.2d 1001,121 Cal.Rptr. 97,14 Cal.3d 169
• Decision Date: 09 May 1975
• Docket Number: Cr. 17942
• Court: United States State Supreme Court (California)
• Parties: , 534 P.2d 1001 The PEOPLE, Plaintiff and Respondent, v. Charles C. WINGO, Defendant and Appellant. In Bank

Page 97

121 Cal.Rptr. 97

14 Cal.3d 169, 534 P.2d 1001

The PEOPLE, Plaintiff and Respondent, v. Charles C. WINGO, Defendant and Appellant.

Cr. 17942.

Supreme Court of California,

In Bank.

May 9, 1975.

Rehearing Denied June 4, 1975.

Richard S. Buckley, Public Defender, and Charles A. Gessler, Deputy Public Defender, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Russell Iungerich and Cynthia S. Waldman, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant was charged in count I with murder (Pen.Code, § 187) and in count II with assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)). The case was submitted to the trial court on the transcript of the preliminary hearing. Defendant was acquitted on the murder count, but was found guilty of the assault and sentenced to prison for the term prescribed by law. He appeals from the judgment, contending that the punishment imposed is cruel or unusual in violation of article I, section 17, of the California Constitution, ¹ and the Eighth and Fourteenth Amendments to the United States Constitution. ² For the reasons stated we conclude the judgment must be affirmed.

I

The facts are essentially undisputed. The assault was perpetrated upon one William Love, an 'aged and thin' man, 72 years old, who walked with a cane. It occurred in a park, during daylight hours, and consisted of repeated kicks to the victim's head and upper body after defendant had first knocked the victim to the ground. A bystander intervened and terminated the beating, and defendant was thereafter arrested by an officer who happened upon the scene. While being transported to the police station defendant was heard to scream, 'Yes, I kicked his ass, and I don't think I kicked it well enough.'

Love died in a Los Angeles hospital nine days later. The cause of death was a heart attack. The injuries sustained in the assault included facial bruises and lacerations and a fracture of the left thigh bone. Medical testimony was unable to declare with certainty whether there was a causal relationship between such injuries and the heart attack.

Penal Code section 245, subdivision (a) (hereinafter section 245(a)), provides inter alia: 'Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the state prison for six months to life, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars ($5,000), or by both such fine and imprisonment. . . .' ³ As noted, defendant was sentenced to state prison 'for the term prescribed by law.' His sole contention is that the punishment is disproportionate to his offense and thus is unconstitutionally cruel or unusual.

At the outset we note that the felony penalty provisions of section 245(a) are part of the indeterminate sentence law. (Pen.Code, §§ 1168, 3020--3025). Under this system the trial court 'does not specify the length of imprisonment but simply sentences the defendant for the term 'prescribed by law.' (Pen.Code, § 1168.) It is the Adult Authority, an administrative agency within the Department of Corrections (Pen.Code, §§ 5001, 5075--5082), which thereafter determines within statutory limits the length of the term the defendant will actually be required to serve. (Pen.Code, §§ 3020--3025.)' (In re Lynch (1972) 8 Cal.3d 410, 415, 105 Cal.Rptr. 217, 220, 503 P.2d 921, 924.) Thus in the case of a conviction under section 245(a) the Adult Authority may fix the term of confinement at any point between the statutory minimum of six months and the maximum of life.

As another preliminary matter we observe that the statute under discussion proscribes two distinct categories of offenses: (1) assault with a deadly weapon, and (2) assault by means of force likely to produce great bodily harm. As will be seen, within these categories is included an extremely broad spectrum of culpable behavior, a fact of which the Legislature was undoubtedly cognizant in enacting the equally wide range of penalties for violation of the section.

Finally we pause to emphasize the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. ⁴ The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. (People v. Bauer (1969) 1 Cal.3d 368, 375, 82 Cal.Rptr. 357, 461 P.2d 637; People v. Knowles (1950) 35 Cal.2d 175, 181, 217 P.2d 1.) While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned 'unless there unconstitutionality clearly, positively and unmistakably appears.' (In re Lynch (1972) supra, 8 Cal.3d at p. 415, 105 Cal.Rptr. at p. 219, 503 P.2d at p. 923, quoting from In re Dennis M. (1969) 70 Cal.2d 444, 453, 75 Cal.Rptr. 1, 450 P.2d 296.) With these fundamental considerations in mind we proceed to the merits of defendant's case.

II

Defendant relies on our holding in Lynch to support his contention that the penalty provisions of section 245(a) are cruel or unusual. In Lynch we struck down the provision of Penal Code section 314 which punished second-offense indecent exposure by imprisonment 'for not less than one year.' In assessing the validity of the potential life-maximum term in that case we employed a three-part analysis: (1) 'the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society' (Id. at p. 425, 105 Cal.Rptr. at p. 227, 503 P.2d at p. 931); (2) a comparison of 'the challenged penalty with the punishments prescribed in the Same jurisdiction for Different offenses which, by the same test, must be deemed more serious' (Id. at p. 426, 105 Cal.Rptr. at p. 227, 503 P.2d at p. 931); and (3) 'a comparison of the challenged penalty with the punishments prescribed for the Same offense in Other jurisdictions having an identical or similar constitutional provision.' (Id. at p. 427, 105 Cal.Rptr. at p. 228, 503 P.2d at p. 932.) We concluded that the disproportion between the crime of second-offense indecent exposure and the penalty of potential life imprisonment was so great as to shock the conscience, and accordingly declared void the recidivist provision of section 314. ⁵

In In re Foss (1974) 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073, we were compelled by the Lynch analysis to invalidate the penalty provisions of Health and Safety Code section 11352 (formerly § 11501). These provisions precluded parole consideration for certain narcotics recidivists for 10 years in the case of a second offender, and 15 years for a third offender. We determined that such a penalty, imposed 'without regard to the existence of such possible mitigating circumstances as the addict status of the offender, the quantity of narcotics involved, the nature of the purchaser, or the purposes of the sale, is in violation of (former) article I, section 6, of the California Constitution.' (Id. at p. 929, 112 Cal.Rptr. at p. 661, 519 P.2d at p. 1097.) ⁶

Similarly, defendant here asserts that the penalty provisions of section 245(a) cannot withstand application of the Lynch criteria. Before proceeding to that analysis, however, we must point out a fundamental distinction between Lynch and the case at bar. There we were concerned with whether the maximum term of life imprisonment was ever permissible for the crime of second-offense indecent exposure. The statute proscribed a single mode of behavior, and we held that under no circumstances could that behavior justify a potential life maximum. By contrast, in the instant case we are called upon to determine the constitutionality of a statute which prohibits a wide range of culpable conduct, with a correspondingly wide range of punishment. Thus, unlike Lynch, we are here concerned with a maximum penalty which might be permissible in some circumstances but excessive in others.

A

We begin with the first Lynch test. The offenses proscribed by section 245(a) are serious, frequently committed with great violence and resulting in painful, sometimes permanent, injury to the victim. (See, e.g., In re Downs (1970) 3 Cal.3d 694, 91 Cal.Rptr. 612, 478 P.2d 44; People v. Martinez (1973) 31 Cal.App.3d 355, 107 Cal.Rptr. 284; People v. Lovely (1971) 16 Cal.App.3d 196, 93 Cal.Rptr. 805.) If our focus were confined to this type of behavior there could be no question but that the degree of danger to society was sufficiently high to justify imposition of a severe sentence. But the breadth of the challenged statute encompasses considerably more than this narrow range of offenses. At one end of the spectrum there is conduct virtually indistinguishable from premeditated murder, while at the other there is a mere attempt to seriously injure which lacks any specific intent and is completely futile.

An example may serve to illustrate this disparity. A defendant, heavily intoxicated, is present when a fight breaks out in a barroom. In the excitement of the fray he strikes out at an intended victim with his fists, but because of his impaired faculties completely misses his target. ⁷ The use of hands or fist alone has been held sufficient to support a conviction of assault by means of force likely to produce great bodily injury. (People v. Chavez (1968) 268 Cal.App.2d 381, 384, 73 Cal.Rptr. 865; People v. White (1961) 195 Cal.App.2d 389, 15 Cal.Rptr. 665.) Moreover, since the statute focuses on force Likely to produce harm, it is immaterial that the force actually resulted in no harm whatever. (Cf. People v. Wells (1971) 14 Cal.App.3d 348, 358, 92...