In Re Earley

MOSK, J.

I dissent, essentially for the reasons discussed at length in my concurring and dissenting opinion in People v. Thornton (1974) 11 Cal.3d 738, 770 [ 114 Cal.Rptr. 467 , 523 P.2d 267 ]. It is obvious that no purpose would be served by reiterating those views in any detail at the present time. Clearly the Thornton majority are still in the saddle, and are still determined to ride roughshod over-the intent of the Legislature expressed in Penal Code section 209, explained by us in People v. Daniels (1969) 71 Cal.2d 1119 [ 80 Cal.Rptr. 897 , 459 P.2d 225 , 43 A.L.R.3d 677 ], and confirmed by the recent "enactment of Penal'Code section 190.2, subdivision (b)(3)(ii) (ante, p. 127, fn. 4). Yet because the majority’s misapplication of the Daniels rule is even more flagrant here than in Thornton,. I am compelled to express some additional thoughts in response.

*134 At the outset I cannot refrain from observing that while we had no choice but to take the Thornton case because it came to us by automatic appeal, the present wound is self-inflicted. Worse, it constitutes an unnecessary waste of our limited judicial resources. Let us look briefly at the record.

On November 17, 1967, judgment was entered in the Alameda Superior Court convicting defendant on one count of first degree robbery and one count of kidnaping for the purpose of robbery. On February 23, 1973, however, Judge E. Warren McGuire of the Marin Superior Court, acting on defendant’s petition for habeas corpus, found that defendant’s conduct did not constitute a violation of section 209 as construed in Daniels . He therefore filed an order vacating the kidnaping conviction on that ground (see, e.g., In re Crumpton (1973) 9 Cal.3d 463 [ 106 Cal.Rptr. 770 , 507 P.2d 74 ]) and remanding defendant to the Alameda Superior Court for a redetermination of the sentence to be imposed on the robbery conviction.

It may well be asked why the case did not quietly end at that point. Inasmuch as the original trial predated Daniels , defendant had been convicted of kidnaping on erroneous “Chessman instructions.” At the time of Judge McGuire’s order, defendant had already served more than six years in prison on that conviction. Even after the conviction was vacated, defendant remained subject to a sentence for first degree robbery. And no new principle of law was in issue—only the application of settled rules to particular facts. In these circumstances it would seem the state’s time and resources could have been far better spent than by relitigating the entire case in the appellate courts.

Whatever their motive, however, the People did appeal. Their first effort was singularly unsuccessful: in a brief, unpublished opinion authored by Presiding Justice Draper, the Court of Appeal unanimously affirmed the order vacating defendant’s kidnaping conviction. Again the matter could well have been dropped without a trace of harm to the citizenry of California.

But the People insisted on “fighting the case all the way to the Supreme Court,” and managed to persuade four justices to vote for a hearing. Thus in the course of its appellate travails the case has now been twice orally argued, and the courts have been called upon to study briefs totaling over 140 pages. What has been the result of all this effort?

*135 Although the majority purport to discuss certain rules of law, no new principles are in fact declared. In part 2 of their opinion {ante, pp. 126-129) the majority reject the People’s totally untenable argument that if the movement of the victim is more than merely incidental to the robbery, a conviction under section 209 will survive a Daniels challenge even if there is no showing of a substantial increase in the risk of harm. But the unsoundness of this contention was clear from the face of Daniels , and as the majority recognize (ante, pp. 127-128), has been reiterated in both Thornton opinions, in Crumpton , in at least two decisions of the Court of Appeal, and in the relevant CALJIC instruction.

The remainder of the majority opinion is simply a misapplication of the Daniels principles to the facts of this case. It is not surprising, for example, the majority hold (ante, pp. 129-131) that defendant’s movement of the victim for 10 to . 13 city blocks was an asportation “into another part of the same county.” (Pen. Code, § 207.) Since in Thornton the majority in effect defined that distance as a minimum of only one city block (see my dissent at p. 777 of 11 Cal.3d), the result is foreordained in this and all other cases subsequent to Thornton . The sensitive inquiry envisaged by Daniels into whether the movement was criminologically significant (see 71 Cal.2d at p. 1138 ) seems to have been abandoned in favor of the crude and arbitrary rule of “one block, one conviction.”

Equally predictable is the majority’s holding (ante, pp. 131-133) that the movement caused a substantial increase in the risk of harm to the victim. Faced with the embarrassing circumstance that the “gun” used by defendant was in fact only a cigarette lighter, the majority fall back on defendant’s driving habits. They rely principally on an analogy to their affirmance of Thornton’s conviction of kidnaping Eileen S. (11 Cal.3d at pp. 767-768.) In that instance the defendant drove the victim’s car while steering with one hand and holding the victim with his other arm around her neck. The Thornton majority found a substantial increase in the risk of harm in the combination of asportation plus “forcible control” of the victim. (Id. at p. 768.) The present majority repeat this language and attempt to identify the “dangers” allegedly created by such “forcible control” in the case at bar. (Ante, pp. 131-133.)

Two such “dangers” are proposed. First, it is emphasized that defendant was driving at night while (1) wearing sunglasses and (2) holding the cigarette lighter in one hand, and that “it may be inferred” his attention was divided between such driving and watching his victim. These circumstances, say the majority, gave rise to the “danger” that an *136 automobile accident might occur. As I explained in my dissent in Thornton. ( 11 Cal.3d at p. 778 ), “This scenario might have come true, of course; even the most careful driver is daily exposed to the possibility of accident and injury. But in the case before us the question is whether there was a substantial risk, within the meaning of Daniels , that such a result would actually occur.”

When we examine the record in this connection we find no evidence whatever of the tint of defendant’s sunglasses, or of how “dark” it really is in Oakland at 10 minutes to 5 on a July morning. 1 Nor is there any showing that defendant steered the car with one hand throughout the asportation, or when necessary was incapable of grasping the wheel with both hands even while holding the simulated gun; in that regard, reason tells us there is a significant difference between simply driving with one hand and driving with one hand but with the other forcibly restraining a kidnaping victim by the neck.

Even more speculative is the majority’s second proposed “danger,” Le., tha^the victim “might attempt to escape from the moving car or be pushed therefrom by Earley.” (Ante, p. 132.) What possible basis in the record is there for these flights of fancy? There is not the remotest indication that Mr. Schopfer ever entertained the notion of leaping, Douglas Fairbanks-like, from the moving vehicle: he is a nightshift worker at the Oakland airport, not a celebrated movie stuntman. It is also highly unlikely that defendant would have “pushed” Mr. Schopfer out of the car before the robbery, as the sole purpose of the asportation was to relieve him of his valuables. Nor is there the slightest evidence suggesting that after the robbery defendant was inclined to forcibly eject his victim and speed away with the vehicle; on the contrary, he not only left Mr. Schopfer in command of his car but placed the ignition keys on a nearby street corner exactly as he had said he would do.

On the present record it is no answer to say, as do the majority (ibid.), that “The fact that these dangers did not materialize does not, of course, mean that the risk of harm was not increased. (People v. Milan, 9 Cal.3d 185, 193 [ 107 Cal.Rptr. 68 , 507 P.2d 956 ].)” The logical flaw in this argument is that disproving the negative does not prove the positive: whether or not the hypothesized dangers ever “materialized,” there must still have been a factual basis for believing they were real. It is this factual basis which is entirely lacking in the majority’s speculations.

*137 The point may be illustrated in two ways. First, by contrasting the present record with the facts of the very case cited by the majority: in Milan the defendant commandeered a taxicab with a loaded gun. He first held his gun against the back of the head of a trainee riding in the front passenger seat. The driver intentionally ran a stop sign in án attempt to attract the attention of the police. The defendant shot a hole through the windshield, shifted his gun to the back of the driver’s head, and told the latter that the next bullet would be for him and to “stop looking for stop signs, and if a police vehicle shows up, you’re dead.” The driver nevertheless continued to try to capture police attention by committing additional traffic violations, including going through two or three more stop signs, speeding, and running a red light. In such circumstances the chances that a traffic accident might occur or the kidnaping victims be shot were obviously very high; the dangers were real and pressing, not conjured up by an appellate court in the quiet of its chambers at some later date. In the case at bar no such highly dangerous risk-creating events ever took place.

Second, an argument ad absurdum may perhaps persuade where reason fails. In my Thornton dissent ( 11 Cal.3d at p. 782 ) I surmised that the majority would- draw the line at affirming a conviction under section 209 of a would-be robber who rendered his victim unconscious or securely bound and gagged him before driving the minimum required distance. I assumed that because in such a case the robber could give his undivided attention to driving and the victim could not jump from the moving car, the majority would find no substantial increase in the risk of harm. Here at last, I thought, was a case in which legislative intent would be respected and the defendant would be convicted of robbery and simple kidnaping only. I now see that I underestimated the majority’s fertile imagination. When the suggested case reaches this court—and one day it will—the majority will find it possible to affirm on the theory, here enshrined, that the defendant might nevertheless have “pushed” his bound or unconscious victim out of the vehicle at some point during the trip. If that prospect is not deemed sufficiently grave to justify a life sentence, the majority are apparently prepared to invent some hitherto undreamed of “danger” allegedly created by the asportation—perhaps that an earthquake might occur in the next block and the car be swallowed up in a yawning chasm, or that a tornado might sweep the street and hurl the vehicle into yet another part of the county. And if it be objected that these are somewhat fanciful fears the majority will once again be able to say, “The fact that these dangers did not materialize does not, of course, mean that the risk of harm was not increased.”

*138 What is left of the Daniels rule after today’s decision? Although the ratio decidendi of Daniels was that “when the statute [i.e., § 209] is properly construed the evidence there introduced was insufficient to support the judgments” (People v. Mutch (1971) 4 Cal.3d 389, 395 [ 93 Cal.Rptr. 721 , 482 P.2d 633 ]), that act of statutory construction served the important purpose of saving the offense of aggravated kidnaping from a charge of unconstitutional disproportionality. Under the subsequently declared rule of In re Lynch (1972) 8 Cal.3d 410, 424 [ 105 Cal.Rptr. 217 , 503 P.2d 921 ], “a punishment may violate article I, section 6 [now § 17], of the Constitution if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (Fn. omitted.) An inevitable corollary of that rule (see id. at p. 426) is that when the Legislature prescribes penalties of vastly different severity for two genetically comparable acts, the more drastic punishment will be constitutionally suspect unless it is limited to conduct which is proportionately more dangerous to society. (Compare Pen. Code, § 241 [simple assault, fine up to $500 and/or jail up to 6 months] with Pen. Code, § 217 [assault with intent to commit murder, 1 to 14 years in prison].)

In footnote 10 of their opinión the majority recite the statutory provisions for punishment of simple kidnaping and kidnaping for robbery. Let there be no mistake about the immense practical differences between these penalties. The sentence of a defendant convicted of simple kidnaping may be fixed at as little as 12 months; and if a longer sentence is imposed, he may nevertheless be paroled after that same 12-month period. (Pen. Code, §§ 208, 3049.) 2 On the other hand, a defendant convicted of kidnaping for the purpose of robbery must be sentenced to death or life imprisonment without possibility of parole if the victim dies or is harmed; and if, as here, the victim suffers no injury whatever, the defendant must still be given a life sentence. (Pen. Code, § 209.) It is true in that case he will be entitled to parole. But he will not even be eligible for parole consideration until he has served at least seven years in prison (Pen. Code, § 3046), and in practice such parole is not ordinarily granted for approximately the first ten years. 3

*139 There is, moreover, a still more important consequence which is widely misunderstood by the public and the bar alike. The “life” term imposed for aggravated kidnaping is far different from the “five to life” term imposed for first degree robbery and a number of other offenses: the latter is a theoretical life maximum, but the former is an actual life minimum. Thus the robber will not only be released on parole far sooner than the kidnaper, 4 but his total term—served both in and out of prison—may be as little as 5 years and usually is less than 10 years. In stark contrast, if and when a defendant convicted of violating section 209 is finally released on parole he will remain on parole for the rest of his life. 5 No matter how mitigating the circumstances of his offense, no matter how complete his rehabilitation and how exemplary his behavior after release, he has no right ever again to be a free man.

This disparity in the kidnaping penalties furnishes the yardstick by "which to judge how “substantial” must be the increase in risk of harm in order to support a conviction under section 209: the increase, I submit, must be proportionate to the difference in penalties. If it is not, there is no justification for convicting the defendant of aggravated rather than simple kidnaping. And in that event, the punishment inflicted will be unconstitutionally disproportionate to his conduct within the meaning of Lynch .

The majority impliedly recognize this relationship. (Ante, pp. 128-129.) In fact, however, they pay it no more than lip service. When the majority pass from general statehients of principles to application of those principles to the case at bar, a very different rule emerges: in reviewing the record the majority conclude (ante, p. 132), “it is clear that the movements increased to some extent the risk of harm beyond that inherent in the commission of the crime of robbery itself.” (Italics added.) The emphasized language, of course, totally undermines the principle of constitutional proportionality: any forcible movement of the kidnaping victim conceivably increases the risk of harm “to some extent.” If such a minimal showing is all the majority now require to affirm a conviction under section 209, the “current of common sense” which flowed through our Daniels decision ( 71 Cal.2d at p. 1127 ) has indeed been reversed.

*140 The majority tell us (ante, pp. 130-131) that insofar as People v. Timmons (1971) 4 Cal.3d 411 [ 93 Cal.Rptr. 736 , 482 P.2d 648 ], held a five-block movement to be merely incidental to a robbery, it was “impliedly overruled” by Thornton . Are we to expect that in the next aggravated kidnaping case to reach this court the majority will announce—mirabile dictu—that insofar as Daniels required a truly substantial increase in the risk of harm to support the conviction it was “impliedly overruled” by the case at bar? I can draw no other conclusion, despite the clear approval of the Daniels concept expressed by the Legislature. (Pen. Code, § 190.2, subd. (b)(3)(ii).)

At the close of my Thornton dissent ( 11 Cal.3d at p. 783 ) I expressed the sincere hope that the majority’s decision would be “no more than a passing aberration unfortunately confirming the old adage that hard cases make bad law.” For Thornton was a “hard case”: the defendant had all the earmarks of a vicious and depraved “sex fiend,” and the majority were evidently prepared to go to any lengths to insure that he not “walk the streets” again. But the matter now before us is not a similar “hard case.” The probation report reveals that Wayne Earley is a product of the Oakland black ghetto, a shattered home, and total parental neglect. He was only 20 years old at the time of the crime. He was unarmed, and Mr. Schopfer suffered no physical injury or indignity whatever. The entire event cannot have taken more than 15 minutes, and when it was over Mr. Schopfer had lost only $8 and his watch. When Mr. Schopfer asked for the return of his car keys, defendant promised to leave them on the curb at the next corner, and he kept his promise. He was arrested in the same neighborhood a few days later, and offered no resistance.

Yet for this conduct defendant has now served more than seven years in state prison. He has already spent far longer behind bars than the average defendant convicted of such truly violent crimes as second degree murder, manslaughter, assault with intent to commit murder, and forcible rape. 6 Even his eventual release on parole is problematical, as the trial judge has recommended to the Adult Authority, in a statement filed pursuant to Penal Code section 1203.01, that defendant “serve out his life sentence without parole.” In these circumstances the order of Marin Superior Court Judge McGuire vacating the kidnaping conviction and remanding defendant for resentencing on the robbery conviction is *141 not only legally sound, it is humane. I am at a loss to understand why the majority are not content to let that order stand. Even easy cases, it now appears, can make bad law. And when they do, it is all the more inexcusable.

Tobriner, J., concurred.

Respondent’s petition for a rehearing was denied June 4, 1975. Tobriner, J., and Mosk, J., were of the opinion that the petition should be granted.

"Darkness,” 1 note, is defined in Vehicle Code section 280 as ending “one-half hour before sunrise” (italics added).

In practice, of course, paroles are not ordinarily granted immediately upon expiration of the minimum date. In the case of simple kidnaping, a statistical survey by the Department of Corrections dated February 26, 1974, discloses that in 1973 the median time served before first parole by males convicted of this offense was 42.5 months.

The survey cited in the preceding footnote reveals that in 1970, the most recent date for which significant figures are available, the median time served before first parole by males convicted of violating section 209 was 111 months.

The survey cited in footnote 2, ante, shows that in 1973 the median time served before the first parole by males convicted of first degree robbery was only 36 months.

Unless, of course, he is returned to prison for violation or his sentence is commuted by act of executive clemency.

The survey cited in footnote 2, ante, states that in 1973 the median time served by males before first parole for the above-listed crimes ranged from 36 to 54 months.