Wells, In re

• Decision Date: 28 March 1975
• Docket Number: Cr. 26286
• Court: California Court of Appeals Court of Appeals
• Parties: In re Kenneth James WELLS on habeas corpus.

Page 23

121 Cal.Rptr. 23

46 Cal.App.3d 592

In re Kenneth James WELLS on habeas corpus.

Cr. 26286.

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

March 28, 1975.

Hearing Denied June 11, 1975.

[46 Cal.App.3d 593] F. Elaine Easley, Los Angeles, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Donald F. Roeschke, Deputy Attys. Gen., for respondent Superior Court.

COBEY, Associate Justice.

We have before us in this habeas corpus proceeding the question of whether the recidivist provision of Penal Code section 647a ¹ (child molestation) violates the cruel or unusual punishment clause of the California Constitution. (Cal.Const. art. I, § 6.) This section states that every person who 'annoys or molests' ² a child under the age of 18 is guilty of a simple misdemeanor and can be punished by no more than a six-month jail sentence or a $500 fine. For a second or subsequent offense, however, or upon proof of a prior conviction under section 288 (lewd and lascivious acts upon the person of a child under the age of 14), section 647a prescribes an indeterminate prison term of one year to life. ³ In other words, here, as in In re Lynch, the statute requires the 'enormous leap' from an ordinary misdemeanor to a life-maximum felony either for the repetition of the offense or for its commission by one who has previously committed a more serious sex offense--namely, a violation of section 288. ⁴ (8 Cal.3d at p. 434, 105 Cal.Rptr. 217, 503 P.2d 921.)

In Lynch our Supreme Court held that the identical leap required under the indecent exposure statute for repetition of that offense constituted cruel or unusual punishment. The court, however, expressly reserved opinion on the question before us, ⁵ and we must decide whether the fundamental holding of that case should now be extended to petitioner's situation. For reasons hereafter stated, we conclude that the Lynch holding should be so extended, and that petitioner is entitled to be released from parole.

FACTS

On November 28, 1960, petitioner, Kenneth James Wells, was convicted of violating section 647a with a prior section 288 conviction, and was sentenced to state prison for the term prescribed by law. The judgment was entered upon a guilty plea and it specifically noted that the victims were under the age of 10.

From the preliminary hearing transcript it appears that the charge to which petitioner pled guilty arose out of the following circumstances. On October 31, 1960, around 8:30 p.m., two young girls were out trick-or-treating when petitioner offered them a ride. The girls got into petitioner's car; he promised them a dollar if they 'didn't tell anybody;' he then drove about four blocks to a dark, dead-end street, stopped his car and said to the girls: 'Let me see your panties.' The girls thereupon jumped out of petitioner's car and ran away crying.

Following his conviction for the above-described offense, petitioner entered state prison and remained there until he was paroled sometime in 1970. In 1973 he returned to prison after he had served six months in the county jail for another offense. On August 28, 1974, the Adult Authority fixed his sentence for the section 647a offense at 20 years and granted him parole effective December 16, 1974. Petitioner remains on parole at the present time.

DISCUSSION

Standing

The Attorney General contends that petitioner is precluded from attacking the punishment prescribed by section 647a because he has had his sentence fixed at 20 years and is no longer incarcerated.

This contention lacks merit. Petitioner remains in constructive custody while he is on parole. (In re Sturm, 11 Cal.3d 258, 265, 113 Cal.Rptr. 361, 521 P.2d 97.) Moreover, under section 3020 the Adult Authority can, for good cause, redetermine petitioner's sentence at any time before his final discharge. (Lynch, supra, 8 Cal.3d at p. 417, 105 Cal.Rptr. 217, 503 P.2d 921.) For this reason, among others, our Supreme Court stated in Lynch: '(W)hen a defendant under an indeterminate sentence challenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is whether the maximum term of imprisonment permitted by the statute punishing his offense exceeds the constitutional limit, Regardless of whether a lesser term may be fixed in his particular case by the Adult Authority.' (id., at p. 419, 105 cal.rptr. at p. 222, 503 P.2d at p. 926.) (emphasis added; footnote omitted.)

Merits

As noted earlier, the question before us essentially is whether the fundamental holding of Lynch should be extended to the situation before us. There are two ways in which petitioner's situation can be distinguished from the situation in Lynch: First, there are important differences between the offenses at issue in these two cases. As we shall see, indecent exposure is a significantly less serious offense than child molestation. Second, the increased penalty imposed on petitioner, was not the result of a repetition of the identical offense, as it was in Lynch. (Id., at pp. 413--414, 105 Cal.Rptr. 217, 503 P.2d 926.) Instead, it was imposed because petitioner had previously committed a more serious sex offense--namely, a violation of section 288 (lewd and lascivious acts upon the person of a child under the age of 14)--and this prior offense itself carried a life-maximum term upon its first commission. ⁶

Nevertheless, for reasons hereafter stated, we conclude that Lynch should be extended to reduce the penalty imposed by the recidivist portion of section 647a.

A. The Lynch Test.

In Lynch our Supreme Court adopted disproportionality as the constitutional standard by which statutes imposing punishment are to be measured, and pointed to three techniques to be used in analyzing particular penalties to determine whether they are in fact disproportionate. (8 Cal.3d at pp. 425, et seq., 105 Cal.Rptr. 217, 503 P.2d 921.) This 'three-prong test' requires us: (a) to consider the nature of the offense and/or the offender with particular regard to the degree of danger both present to society; (b) to compare the penalty at issue with the punishment this state prescribes for more serious offenses; and (c) to compare the penalty at issue with the punishment other jurisdictions prescribe for the identical offense.

B. The Nature of the Offense and/or the Offender.

We begin by examining the seriousness of the offense defined by section 647a and comparing it with the seriousness of the offense at issue in Lynch.

'Annoying or molesting a child' does not appear to have been a separate common law crime and was not proscribed as such under the Penal Code of 1872. It was first added to the Code in 1929, at which time a penalty of $500 or six months in the county jail was imposed on any person who 'annoys or molests any school child.' ⁷ In 1947, this section was modified and subdivided, the class of victims was expanded to include all children, ⁸ and a recidivist provision was added to the section. Under the latter provision, a term of imprisonment 'not exceeding five years' was imposed for second or subsequent offenses. ⁹ In 1949, the notorious Stroble incident ¹⁰ and the public outcry that it engendered led then-Governor Earl Warren to proclaim the First Extraordinary Session of 1949 to enact stricter legislation to curb sex offenders. One result of that session was the extension of the recidivist provision enacted two years earlier to include first offenders, like petitioner, with prior convictions under section 288. ¹¹ Similarly, the McCracken incident ¹² led Governor Warren three years later to convene the First Extraordinary Session of 1952, which resulted in the enactment of the life-maximum terms for recidivists under the indecent exposure statute and under the statute now before us. ¹³ (See generally Recent Decisions, 6 Loyola L.Rev. 416, 422--423.)

Thus, we do not have quite the clear-cut pattern our Supreme Court pointed to in Lynch--namely, a low-key approach to the offense over a long period of time followed by a sudden, extraordinary jump in the penalty enacted in response to public outcry over one particular incident. Nevertheless, much the same thing happened here. Consequently, we think the penalty now before us may fairly be characterized as yet another product of the intense public concern over sex offenses that arose in this state a quarter of a century ago.

On the other hand, it is difficult to characterize child molestation as a mere embarassment or 'social nuisance,' as our Supreme Court found indecent exposure to be. (Lynch, supra, 8 Cal.3d at p. 430, 105 Cal.Rptr. 217, 503 P.2d 921.) True, no physical aggression or contact occurred here--as would be the case, for instance, under section 288 which proscribes lewd and lascivious acts Upon the person of a child under the age of 14. (See People v. Kingston, Supra, 44 Cal.App.3d at p. 635, 118 Cal.Rptr. 896.) But it certainly cannot be said that individuals who 'annoy or molest' children do so primarily to shock or surprise them and have no desire for further contact with their victims; whereas this generally is the case with exhibitionists. (See Mohr, Turner & Jerry, Pedophilia and Exhibitionism (1964), p. 19.) More importantly, the child molester's victim necessarily is a young child who, presumably, is susceptible to far greater psychological damage than the adult victim of the exhibitionist. ¹⁴

Furthermore, at least some observers consider child molesters, in general, to be more dangerous, harder to rehabilitate, less able to understand or accept their problems, and more inclined to deny their guilt than the average felon is. (See generally, C. Duffy & A. Hirshberg, Sex and Crime (1965), pp. 119--121.) ¹⁵ And in the case of the 647a offender with a prior section 288 conviction, like petitioner, there necessarily has been some past tendency to do more than merely 'annoy or molest'...