People v. Zimmerman

• Decision Date: 24 May 1984
• Docket Number: Cr. 21858
• Citation: 202 Cal.Rptr. 826,36 Cal.3d 154,680 P.2d 776
• Court: California Supreme Court
• Parties: , 680 P.2d 776 The PEOPLE, Plaintiff and Respondent, v. John William ZIMMERMAN, Defendant and Appellant.

Page 826

202 Cal.Rptr. 826

36 Cal.3d 154, 680 P.2d 776

The PEOPLE, Plaintiff and Respondent, v. John William ZIMMERMAN, Defendant and Appellant.

Cr. 21858.

Supreme Court of California,

In Bank.

May 24, 1984.

Rehearing Denied July 12, 1984.

Dennis L. Cava, Beverly Hills, Karl Henry, Los Angeles, for defendant and appellant.

Norman H. Sokolow, Howard J. Schwab, Deputy Attys. Gen., Los Angeles, for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment convicting him of two counts of burglary, rape, and two counts of first degree murder with special circumstances, and sentencing him on the latter to life imprisonment without possibility of parole.

Because defendant does not challenge the sufficiency of the evidence, we shall not dwell on the unpleasant facts of this case. It is enough for present purposes to note that the jury found defendant guilty of burglarizing two homes, forcibly raping a preteenage girl in one of those homes, and brutally murdering both the girl and her brother. Each victim was bound and gagged while alive, and killed by multiple hammer blows on the head and multiple stab wounds in the neck.

The jury found the murders to be of first degree, and found true the charge of two special circumstances accompanying each murder count: i.e., that with intent to cause death defendant personally aided or committed the fatal acts and (1) the murder was willful, deliberate and premeditated and was committed during a forcible rape, and (2) defendant was convicted in this trial of more than one murder. (Former Pen.Code, § 190.2, subds. (c)(3)(iii) and (c)(5).) The jury could not reach unanimity on the question of punishment for the murders, however, and the trial court therefore imposed a sentence of life imprisonment without possibility of parole.

In so ruling the court acted in obedience to a statute which provided that "If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and impose a punishment of confinement in state prison for life without possibility of parole." (Former Pen.Code, § 190.4, subd. (b), 2d par.) ¹ Defendant contends the quoted statute violated the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution. He expressly disavows any attack on the penalty of life imprisonment without possibility of parole, conceding it is "per se a valid sentence." Rather, he complains only of the fact that the statute made that sentence mandatory when the jury could not agree on punishment; by so providing, he argues, the statute did not permit the sentencing authority to consider evidence of mitigating circumstances, and did not furnish specific guidelines (see, e.g., Pen.Code, § 190.3, 6th par.) for determining whether life imprisonment without possibility of parole was the appropriate penalty in the particular case.

These are the very defects, of course, that the United States Supreme Court found in the North Carolina statute making the death penalty mandatory in all cases of first degree murder (Woodson v. North Carolina (1976) 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; see also Roberts v. Louisiana (1976) 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974), and that we found in an earlier California statute making the death penalty mandatory in all cases of first degree murder with special circumstances (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101). Defendant contends the holding of those decisions is equally applicable when the mandatory penalty is life imprisonment without possibility of parole.

The contention is refuted on the face of Woodson, the lead case of the group. There the plurality opinion recognized the "prevailing practice" of individualizing the sentencing process by taking account of the circumstances of the offense and the character of the offender, but observed that the practice "reflects simply enlightened policy rather than a constitutional imperative" (428 U.S. at p. 304, 96 S.Ct. at p. 2991). The opinion did hold, of course, that the Eighth Amendment requires such individualized sentencing in capital cases (ibid.), but it carefully explained that "this conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." (Id. at p. 305, 96 S.Ct. at p. 2991; accord, Rummel v. Estelle (1980) 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382.)

Because the penalty of life imprisonment without possibility of parole is "a sentence of imprisonment, however long," it is expressly exempted from the constitutional requirement of individualized sentencing in capital cases. Defendant concedes this point, but asserts that life without parole is itself "qualitatively different" from any other sentence of imprisonment. He argues that persons so punished lose all hope of release and suffer great mental anguish, and he speculates that some may even prefer death.

We do not underestimate the gravity of the penalty in question: it is, and is intended to be, the heaviest penalty short of death. Yet it remains fundamentally different from death in the one respect so often emphasized in Eighth Amendment jurisprudence: time and again the high court opinions reason that capital punishment is "final" and "irrevocable" in the obvious sense that after it is carried out there is no possibility of rehabilitation, clemency, or belated relief because of factual mistake or change in the law. (See, e.g., Furman v. Georgia (1972) 408 U.S. 238, 289-290, 92 S.Ct. 2726, 2752, 33 L.Ed.2d 346 [conc. opn. of Brennan, J.]; id. at p. 306, 92 S.Ct. at p. 2760 [conc. opn. of Stewart, J.]; Gregg v. Georgia (1976) 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 [plur. opn.].) Thus in Lockett v. Ohio (1978) 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, the court observed that "A variety of flexible techniques--probation, parole, work furloughs, to name a few--and various postconviction remedies may be available to modify an initial sentence of confinement in noncapital cases," and premised the Eighth Amendment requirement of individualized capital sentencing on the evident unavailability of such "corrective or modifying mechanisms" with regard to an executed death penalty. In language particularly relevant here, the court further noted (id. 438 U.S. 605 at fn. 13, 98 S.Ct. 2965 at fn. 13) that "Sentencing in noncapital cases presents no comparable problems. We emphasize that in dealing with standards for imposition of the death sentence we intimate no view regarding the authority of a State or of the Congress to fix mandatory, minimum sentences for noncapital crimes."

The law of this state provides "corrective or modifying mechanisms" for individualizing, when appropriate, a potential punishment of life imprisonment without possibility of parole. To begin with, after the jury returns a verdict imposing that penalty the trial court may exercise its power under Penal Code section 1385 to dismiss the special circumstance findings in order to make the defendant eligible for parole. (People v. Williams (1981) 30 Cal.3d 470, 489, 179 Cal.Rptr. 443, 637 P.2d 1029.) The wise use of this power, we explained, "will promote the administration of justice by ensuring that persons are sentenced based on the particular facts of the offense and all the circumstances. It enables the punishment to fit the crime as well as the perpetrator." (Ibid.) ²

Secondly, if the defendant is nevertheless sentenced to life imprisonment without possibility of parole the Governor may exercise the power of executive clemency to commute the sentence, for example to life imprisonment with possibility of parole. (Cal. Const., art. V, § 8.) ³ Implementing the constitutional provision, the Legislature has enacted a statutory scheme that authorizes the Board of Prison Terms to recommend to the Governor the names of all persons whose sentences should be commuted "on account of good conduct, or unusual term of sentence, or any other cause which, in their opinion, should entitle the prisoner to a ... commutation of sentence." (Pen.Code, § 4801; see also Cal.Admin.Code, tit. 15, § 2815 et seq.) Every prisoner whose punishment is thus commuted to life imprisonment with possibility of parole is entitled, of course, to be considered for release as if he had originally been sentenced to such imprisonment. (See Pen.Code, § 3040 et seq.) As we concluded in Williams (at p. 489, fn. 10, of 30 Cal.3d, 179 Cal.Rptr. 443, 637 P.2d 1029), this does not mean that for practical purposes there is "no such penalty" as life without possibility of parole; it means only that persons so sentenced do not necessarily "remain in prison for the rest of their lives." (People v. Matthews (1979) 98 Cal.App.3d 453, 458, 161 Cal.Rptr. 101.) Thus although defendant's sentence herein purports to deny him all possibility of parole, there is in fact "no insurmountable barrier against mitigation of the sentence if the time should come when the sentence appears to have served its purpose." (Id. at p. 459, 161 Cal.Rptr. 101; accord, People v. Noble (1981) 126 Cal.App.3d 1011, 179 Cal.Rptr. 302.)

Defendant argues in effect that the foregoing constitutional and statutory provisions do not work: he claims that a sentence of life without parole is "practically" irreversible and that such a prisoner has no "realistic" chance for eventual release. The only evidence he offers in support is the fact that in the decade from 1969 to 1979 the Governor commuted the sentences of only four persons from terms...