Rodriguez, In re

• Decision Date: 30 June 1975
• Docket Number: Cr. 18044
• Citation: 122 Cal.Rptr. 552,14 Cal.3d 639,537 P.2d 384
• Court: California Supreme Court
• Parties: , 537 P.2d 384 In re Rudolfo A. RODRIGUEZ, on Habeas Corpus.

Page 552

122 Cal.Rptr. 552

14 Cal.3d 639, 537 P.2d 384

In re Rudolfo A. RODRIGUEZ, on Habeas Corpus.

Cr. 18044.

Supreme Court of California,

In Bank.

June 30, 1975.

Rehearing Denied July 30, 1975.

Sidney M. Wolinsky, J. Anthony Kline, Gilbert T. Graham, San Francisco, Laurence R. Sperber, beverly Hills, Charles C. Marson and Joseph Remcho, San Francisco, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci and Michael Buzzell, Deputy Attys. Gen., for respondents.

WRIGHT, Chief Justice.

Petitioner, who has served 22 years of an indeterminate sentence of one year to life for violation of Penal Code section 288, ¹ seeks a writ of habeas corpus to obtain his release from prison. He contends that the statutory life maximum term is disproportionate to the offense and thus violates both the Eighth Amendment to the United States Constitution ² and article I, section 17 (formerly § 6) ³ of the California Constitution; that the 22 years he has served is likewise excessvie punishment; and that the Adult Authority (hereafter Authority) has abused its discretion both in failing to fix a lesser term than the statutory life maximum term and discharge him therefrom and in failing to grant him parole. As we shall explain below, we have concluded that the penalty provision of section 288 is not unconstitutional. We have also concluded, however, that the Authority has failed to properly interpret and administer the Indeterminate Sentence Law and that although petitioner is not necessarily entitled to be released on parole, he is, nonetheless, entitled to be discharged from his term.

The Background of Petitioner's Incarceration

In October 1952 petitioner pleaded guilty to violating section 288. Pursuant to the command of the Indeterminate Sentence Law, section 1168, ⁴ the court did not fix the punishment but sentenced petitioner to the term fixed by law, one year to life in the state prison. Although the circumstances of the offense involved no aggravating factors, ⁵ and petitioner's personal history reflected none of the characteristics associated with vicious criminality, ⁶ and even though his conduct in prison was exemplary for a period of many years, ⁷ he has never been released on parole. The Authority has never fixed his term at less than maximum and for 16 of the 22 years he has been imprisoned, petitioner has been held at San Quentin, a maximum security prison.

Petitioner's claims must be examined in light of the background described above and with an understanding of the Indeterminate Sentence Law, a statutory scheme which encompasses both the administrative framework for term-fixing and parole-granting and also those provisions of the various codes which establish prison terms as punishment for felonies. ⁸ Before undertaking this examination it should be emphasized that we do not here consider the wisdom of the indeterminate sentence philosophy, nor are we here concerned with whether the goals the Indeterminate Sentence Law sought to achieve have been or are capable of being achieved. These questions are properly matters of legislative, not judicial, attention. And we are not called upon here to re-examine our past holdings that the Indeterminate Sentence Law is constitutional. (In re Lee (1918) 177 Cal. 690, 171 P. 958.) Rather, we consider only the question of whether a single punishment provision within the Indeterminate Sentence Law scheme is constitutional (In re Lynch (1972) 8 Cal.3d 410, 414--415, 105 Cal.Rptr. 217, 503 P.2d 921), and, if so, whether in its administration of that provision the Authority has imposed constitutionally disproportionate punishment. (Cf. People v. Wingo (1975), Ante, 14 Cal.3d p. 169, 121 Cal.Rptr. 97, 534 P.2d 1001.)

The Indeterminate Sentence Law

As now constituted the administrative provisions of the Indeterminate Sentence Law provide that: 'Every person convicted of a public offense, for which imprisonment in any reformatory or state prison is now prescribed by law shall, unless such convicted person be placed on probation, a new trial granted, or the imposing of sentence suspended, be sentenced to be imprisoned in a state prison, but the court in imposing the sentence shall not fix the term or duration of the period of imprisonment.' (§ 1168.) Responsibility for determining the actual length of time within the statutory maxima and minima (§ 3023) ⁹ the convicted person is to serve in prison and/or on parole is vested in the Adult Authority (§ 5075) ¹⁰ which 'may deter mine and redetermine, after the actual commencement of imprisonment, what length of time, if any, such person shall be imprisoned' (§ 3020), ¹¹ and which has 'the power to allow prisoners imprisoned in the state prisons to go upon parole outside the prison walls and inclosures.' (§ 3040.)

Although the Indeterminate Sentence Law expressly permits the Authority to determine the matter of parole 'at any time after the actual commencement of . . . imprisonment' (§ 3041), it is silent, with few exceptions, ¹² as to the responsibility of the Authority to fix terms and does not expressly require that a term ever be fixed at less than maximum. A practice has evolved, however, in which customarily a term is fixed only in conjunction with a grant of parole. (Adult Authority Res. No. 275 (rev. Mar. 26, 1973) and Res. No. 184 (rev. Dec. 11, 1974); 2 Cal.Criminal Law Practice (Cont.Ed.Bar 1969) p. 567.) Thus a prisoner appears before a panel of the Authority for term-fixing only when his application for parole is considered, and as a general rule if he is denied parole no further consideration is given to the determination of his term.

When the Authority does grant a tentative parole date, the prisoner's term is fixed with the number of years to be served in prison and the number to be served on parole, if he is not sooner discharged, ¹³ designated. The Authority may, however, redetermine the term, and in the past it has routinely refixed terms at maximum upon suspension or revocation of parole (Adult Authority Res. No. 171 adopted Mar. 6, 1951), and has also done so when a parole date is rescinded. (See, e.g., In re Prewitt (1972) 8 Cal.3d 470, 472, 105 Cal.Rptr. 318, 503 P.2d 1326.) The term remains fixed at maximum until a new parole date is granted.

Records of the Department of Corrections and the Authority establish that petitioner is a prisoner for whom a term has never been fixed at less than maximum, apparently because he has not been deemed ready for parole. He differs, however, from most prisoners in that category because his lack of 'parole readiness' is not based on misconduct in prison, but because the Authority cannot predict his future behavior, and because he is believed to lack ability to care for himself and to conform to parole requirements except in a structured living situation with supervision.

Constitutionality of the Life Maximum Term for Violation of Section 288

Petitioner contends that a life term is disproportionate to the conduct proscribed by section 288, and therefore constitutes cruel and/or unusual punishment violative of the Eighth Amendment and article I, section 17. Suggesting that we apply the criteria developed in In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 958, and In re Foss (1974) 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073, he argues that the life maximum term is vulnerable when subjected to the three part analysis of Lynch. Thus, he urges us to hold the term excessive because it is (1) greater than the punishment imposed in this state for offenses which may be deemed more serious, (2) is greater than the punishment imposed in other jurisdictions for the same offense, and (3) because In his case the nature of the offense and of the offender do not warrant imposition of a life maximum term. It is in this last claim that the challenge to the penalty provision of the statute on its face fails, for section 288, unlike section 314 which we considered in Lynch, does not proscribe only a single mode of behavior which under no circumstances could justify a potential life term. To the contrary, section 288 encompasses a wide range of culpable behavior and a correspondingly wide range of punishment.

We recognized in Foss that the existence of gradations of culpability was an important factor in assessing the constitutionality of a punishment provision. 'Relevant to this inquiry are the facts of the crime in question, the nonviolent nature of the offense, and whether there are rational gradations of culpability that can be made on the basis of the injury to the victim or to society in general.' (In re Foss, supra, 10 Cal.3d 910, 919, 112 Cal.Rptr. 649, 654, 519 P.2d 1073, 1078.) Finding that there were such gradations of culpability among persons subject to the recidivist provisions of Health and Safety Code section 11501 (now § 11352), and that the absolute denial of parole eligibility to such persons for 10 years precluded recognition of those gradations of culpability, we held the parole ineligibility provision unconstitutional.

Section 288 does not suffer from the infirmities of the statutes considered in Lynch and Foss. Like the statute examined in People v. Wingo, supra, Ante, page 169, 121 Cal.Rptr. 97, 534 P.2d 1001, the offense described in section 288 encompasses conduct for which life might be a permissible punishment in some cases but excessive in others. Indeed, the section expressly provides that it includes 'any of the acts constituting other crimes provided for in part one of this code' when performed on a child under 14 for the purpose of arousing or gratifying sexual desires. Part one of the Penal Code encompasses the great majority of all violent crimes that may be committed against the person, including such serious and aggravated offenses as murder (§ 187), mayhem (§ 203), aggravated assaults and attempts to kill and commit other...