People v. Dillon

RICHARDSON, J., Concurring and Dissenting.

I fully concur with the majority insofar as it (1) affirms defendant’s conviction of attempted robbery, and (2) sustains the constitutionality of the first degree felony-murder rule. (Pen. Code, § 189.)

I respectfully dissent, however, from the majority’s conclusions that, as applied to defendant, the penalty of life imprisonment with possibility of parole constitutes cruel or unusual punishment under the California Constitution (art. I, § 17), and that accordingly the judgment must be modified to reduce the offense to second degree murder. In my view, modification of the judgment in reliance on the cruel or unusual punishment clause constitutes an unwarranted invasion both of the powers of the Legislature to define crimes and prescribe punishments, and of the Governor to exercise clemency and commute sentences.

We have long insisted that “appellate courts do not have the power to modify a sentence or reduce the punishment therein imposed absent error in the proceedings. [Citation.]” (People v. Giminez (1975) 14 Cal.3d 68, 72 [ 120 Cal.Rptr. 577 , 534 P.2d 65 ]; see People v. Odle (1951) 37 Cal.2d 52, 57 [ 230 P.2d 345 ].) Use of such a power by the appellate courts would constitute an exercise of “clemency powers similar to those vested in the governor . . . and raise serious constitutional questions relating to the separation of powers.” (Odle, at p. 58.) And although a truly disproportionate sentence may constitute “error” which would invoke our limited power to vacate or reduce a sentence (see People v. Frierson (1979) 25 Cal.3d 142, 182-183 [ 158 Cal.Rptr. 281 , 599 P.2d 587 ]), nevertheless, as I will explain, this defendant’s sentence of life with possibility of parole cannot reasonably be deemed disproportionate to his offense of first degree murder.

We have defined “cruel or unusual punishment” under the state Constitution as one which is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424 [ 105 Cal.Rptr. 217 , 503 P.2d 921 ], fn. omitted.) The punishment here, as the majority itself acknowledges, is an enhanced base term of only 20 years in prison for the murder which he committed. (Ante, p. 487, fn. 37.) Moreover, he may well be released on parole at a much earlier date if the Board of Prison Terms *500 finds sufficient circumstances in mitigation (Cal. Admin. Code, tit. 15, § 2284), or if defendant earns available postconviction credits (id., § 2290). It is conceivable that defendant could be paroled after serving only seven years in prison. (Pen. Code, § 3046.) Can it reasonably be said that a term probably ranging from 7 to 20 years in prison is “cruel or unusual punishment” for the first degree murder of which he was convicted? Emphatically not.

The sovereign people of this state have provided in their Constitution that “The death penalty . . . shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments . . . .” (Cal. Const., art. I, § 27, italics added.) But for his age (17) at the time of his offenses, defendant herein could have been charged with the death penalty or with life imprisonment without parole. (See Pen. Code, § 190.5; People v. Davis (1981) 29 Cal.3d 814 [ 176 Cal.Rptr. 521 , 633 P.2d 186 ].) If the infliction of the death penalty cannot be deemed cruel or unusual punishment under the state Constitution, how can a substantially lesser penalty be so characterized?

The majority stresses defendant’s youth, his immaturity, his lack of a prior criminal record, and the asserted fact that “The shooting in this case was a response to a suddenly developing situation . . . .” (Ante, p. 488.) Each of these factors properly may be considered by the Board of Prison Terms in determining defendant’s parole date. (Cal. Admin. Code, tit. 15, §§ 2281, 2284.) They do not, however, assist us one whit in measuring the constitutional propriety of a “life” sentence for first degree murder.

The majority’s mild characterization of the killing as a mere benign “response to a suddenly developing situation” finds little support in the record, this is the way I read this record: Defendant had previously attempted to invade the marijuana plantation for the purpose of seizing some of the contraband. He met armed resistance by the owners and was forced to retreat. He thereupon carefully planned his second foray. He was going to “get even.” He and a friend each planned to recruit three other friends. They chose the month of October because the marijuana would be ready for harvesting. Defendant told the gang to arm themselves, saying that he would bring his .410 and .22 rifles but that he needed ammunition. He rejected one proposal to start a diversionary fire, telling one companion that they should “just go up there. If the guy came out, we would just hold him up, hit him over the head or something. Tie him to a tree.”

The time of the departure and place and time of assembly of the crew were agreed upon. Defendant prepared a map. Six of the persons, one of them armed with a shotgun, rendezvoused and obtained shotgun shells, pa *501 per bags to be used as masks or containers, and diagonal pliers for nipping the marijuana buds. Then, by prearrangement, they met defendant and still another person, making a party of eight. Defendant had a .22 rifle and was handed some ammunition. Two of the others carried shotguns, another grabbed a baseball bat, still another had brought wire cutters and a pocket knife. Defendant also carried some rope to be used either in tying up the marijuana or one of their intended victims. The young men tore up some old sheets and fashioned them into masks, obtained sticks to fight off the dogs, and then, with the use of the map, reviewed final plans for the raid. At this point defendant loaded his rifle. He was not hunting rabbits!

The men split into either three or four separate groups for their final approach to the marijuana field from different directions. Defendant and three other companions heard someone coming up a trail. Two of the party hid. Defendant either remained standing or, having crouched, then stood, and as the victim emerged from the bushes, defendant fired at him point blank at a distance of 10 to 30 feet. The victim did not point his gun at defendant and no words were exchanged. Defendant’s rifle required that its trigger be pressed separately each time a bullet was fired. A subsequent autopsy of the victim’s body revealed that nine bullets had found their mark. Defendant knew exactly what he was doing. He had carefully prepared for this ultimate culmination of his lethal plans.

There was nothing unplanned about this killing; indeed, under the circumstances recited above, an armed confrontation with tragic consequences appeared almost inevitable. The felony-murder rule, specifying that any homicide occurring during the perpetration or attempted perpetration of a robbery is first degree murder, clearly was designed to foreclose any argument regarding the actor’s lack of premeditation or planning. Yet it is precisely such an argument that the majority accepts when it agrees to reduce defendant’s sentence to second degree murder.

None of the disproportionality cases cited and relied on by the majority is apposite here. In re Lynch, supra, 8 Cal.3d 410 , held excessive an indeterminate life-maximum sentence for a second offense of indecent exposure. In re Foss (1974) 10 Cal.3d 910, 917-929 [ 112 Cal.Rptr. 649 , 519 P.2d 1073 ], and In re Grant (1976) 18 Cal.3d 1, 5-18 [ 132 Cal.Rptr. 430 , 553 P.2d 590 ], struck down legislation barring recidivist drug offenders from parole consideration for 10 years. In re Rodriguez (1975) 14 Cal.3d 639, 653-656 [ 122 Cal.Rptr. 552 , 537 P.2d 384 ], mandated the release of a nonviolent child molester who had been imprisoned for 22 years. None of these cases, which involved relatively minor offenses, supports a challenge to a probable 7- to 20-year “life” sentence for a first degree murder.

*502 In Enmund v. Florida (1982) 458 U.S. 782 [ 73 L.Ed.2d 1140 , 102 S.Ct. 3368 ], the high court held that the death penalty was a disproportionate punishment as applied to an accomplice to a robbery and murder who had neither killed nor intended to kill the victim. As the high court stated, “Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the state treated them alike .... This was impermissible under the Eighth Amendment. ” (P. 798 [ 73 L.Ed.2d at p. 1152 , 102 S.Ct. at p. 3377 ].) In the present case, of course, the record discloses that defendant both personally and intentionally shot and killed his victim. No accomplice was involved. Thus, Enmund certainly is no authority for the majority’s holding that defendant cannot be subjected to a “life” sentence for first degree murder.

As Enmund explains, a defendant’s punishment should be “tailored to his personal responsibility and moral guilt.” ( 458 U.S. at p. 801 [ 73 L.Ed.2d at p. 1154 , 102 S.Ct. at p. 3378 ].) Defendant was personally responsible for, and morally guilty of, a homicide committed in the attempted perpetration of a robbery. Although defendant, had he been a year older, could have been sentenced to death or life imprisonment without parole, by reason of his youth he received a far less severe sentence. A probable 7- to 20-year “life” sentence is very modest penal treatment for a deliberate killing. Any further clemency should rest with the Governor.

I would affirm the judgment in its entirety.