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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Paul SMITH, Defendant and Appellant.

Cr. 24999.

Decided: October 28, 1974

William E. Brugman, Torrance, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Roger W. Boren, Deputy Attys. Gen., for plaintiff and respondent.

In this appeal from a judgment of conviction of grand theft-person in violation of Penal Code sections 486 and 487, subdivision 2, with a sentence to state prison, appellant contends that the imposition of a state prison term for the taking of property of a value of less than $200 from the person of another violates the United States and California constitutional proscriptions against cruel and unusual punishment. Appellant contends also that the trial judge was influenced by bias in imposing the sentence. Concluding that the contentions lack merit, we affirm the judgment.

Having been caught in the act of stealing $22.40 and a bus pass from the person of Mrs. Rose Celona, appellant was charged with grand theft-person. On September 29, 1971, he entered into a Mosley submission of the matter on the transcript of his preliminary hearing and was found guilty of the charge. The matter was continued to October 20, 1971, for sentencing and appellant was allowed to remain at liberty on bail. He failed to appear. A bench warrant issued. Appellant was returned to the trial court on December 17, 1973. After considering a supplemental probation report, the court permitted appellant to explain his failure to appear for sentencing as originally ordered. Appellant stated that he had gone to Alabama to attend his grandfather's funeral and lacked finances to return for sentencing. Appellant's explanation foundered upon his admission of data in the supplemental probation report indicating that he had not remained in Alabama while a fugitive but had traveled to New York, Connecticut, and to San Francisco. The trial court sentenced appellant to state prison for the term prescribed by law with credit for 45 days served in county jail while awaiting trial and sentence.

Appellant's contention of bias of the trial judge influencing the sentence imposed is not supported by the record. The record does reveal that the judge considered appellant's failure to appear for sentencing in determining an appropriate punishment, as well as appellant's patently false explanation. Those factors, however, were proper items of consideration in determining the sentence since they bore upon appellant's receptivity to rehabilitation.

Appellant's contention that a state prison sentence imposed by the interaction of Penal Code sections 487, subdivision 2, and 489 is cruel and unusual, is one that has apparently not previously been considered by a reviewing court. We conclude that the contention lacks merit.

Penal Code section 487 defines as grand theft, larceny of property worth $200 or more (subd. 1), and larceny from the person of another (subd. 2). Other sections of the Penal Code define grand theft as larceny of specifically described classes of property.1 Penal Code section 488 states that all classes of theft not defined as grand theft are petty theft. Grand theft is punishable by imprisonment in the county jail for not more than one year or in the state prison for not more than 10 years. (Pen.Code, s 489.) First offense petty theft is punishable by imprisonment in the county jail for not more than six months. (Pen.Code. s 490.) Second offense petty theft or petty theft committed by a person who has served a term of imprisonment for a felony is punishable by a state prison sentence of one to five years. (Pen.Code ss 666, subd. 3; 667.) Thus, a first offense theft of property of a value of less than $200 not from the person is punishable by a county jail sentence of not less than six months while a theft of similar property from the person is subject to a maximum punishment of a state prison sentence of 10 years. Granted there is a lack of symmetry in the punishment scheme, it is not of constitutional dimension when tested by the standards of In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921.

Lynch requires that the constitutionality of a statute imposing an indeterminate sentence be tested by the maximum possible term prescribed. (8 Cal.3d at p. 419, 105 Cal.Rptr. 217, 503 P.2d 921.) If that maximum term ‘is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity,’ it violates the constitutional proscription. (8 Cal.3d at p. 424, 105 Cal.Rptr. at p. 226, 503 P.2d at p. 930.) ‘Whether a particular punishment is disproportionate to the offense is, of course, a question of degree . . .. The judiciary . . .should not interfere in (the legislative) process (of prescribing penalties for criminal offenses) unless a statute prescribes a penalty ‘out of all proportion to the offense’ . . ..' (8 Cal.3d at pp. 423—424, 105 Cal.Rptr. at 226, 503 P.2d at 930.) Proportionality is to be tested by ‘the nature of the offense and/or the offender’ (8 Cal.3d at p. 425, 105 Cal.Rptr. at 226, 503 P.2d at 930), the violent or nonviolent nature of the crime (8 Cal.3d at p. 425, 105 Cal.Rptr. 217, 503 P.2d 921), the presence or absence of aggravating circumstances (8 Cal.3d at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921), comparison of the penalty ‘with the punishments prescribed in the Same jurisdiction for Different offenses' (8 Cal.3d at p. 426, 105 Cal.Rptr. at 227, 503 P.2d at 931), and ‘comparison of the challenged penalty with the punishments prescribed for the Same offense in Other jurisdictions . . .’ (8 Cal.3d at p. 427, 105 Cal.Rptr. at 228, 503 P.2d at 932).

Here the nature of the offense committed by appellant is materially more serious than typical petty theft. Where the theft is from the person, the possibility of violence and harm to the victim is greatly increased over that present, for example, in shoplifting. The nature of the offender in the case at bench also justifies a severe penalty. The probation report indicates that a prior five year sentence for grand larceny was unsuccessful in rehabilitation and appellant's flight while on bail awaiting sentence, together with his patently false explanation to the trial court, indicated the need for stringent measures. If appellant had been charged only with petty theft, his prior felony conviction and sentence would have exposed him to a five year prison term. (Pen.Code, s 667.) The maximum punishment for grand theft is one of the lighter possible maximums imposed by the California statutory scheme.2 Our research indicates that approximately twenty-nine states treat theft from the person more strictly than larceny in general. Of those, four impose a maximum potential sentence greater than that permitted in California,3 fourteen permit the same maximum sentence as California,4 and eleven permit only a shorter sentence.5 California's maximum sentence for theft from the person is thus not grossly out of proportion with sentences for a similar crime in other jurisdictions.

In sum, application of the tests of comparability given us by Lynch leads to the conclusion that the penalty here imposed is not so disproportionate that the judiciary should interfere with the Legislature's primary responsibility and discretion in fixing the maximum permissible punishment for crime. Were we to interfere in the case at bench, which involves one of the shorter maximum terms permitted by the California statutory scheme of indeterminate sentences for felonies, we would in effect invalidate the whole of the indeterminate sentence structure. Our Supreme Court, when faced with the issue in Lynch, rejected that drastic step. We may safely assume that the action should not be taken.

The judgment is affirmed.


1.  See e.g., Penal Code sections 487a (livestock), 487d (gold dust, amalgam and quicksilver), 487g (dogs).

2.  The following table is illustrative:C1OffenseC2PunishmentC3Pen.Code Sec. First degree murderLife imprisonment/death190Kidnapping (aggravated)Life without parole209Second degree murder5 years to life190First degree robbery5 years to life213Rape3 years to life264Second degree robbery1 year to life213Assault (deadly weapon)6 months to life245Kidnapping (simple)1 to 25 years208Assault with intent to commit robbery, etc.1 to 20 years220Assault to commit other felony6 months to 15 years221, 18bManslaughter6 months to 15 years193, 18bAssault with intent to commit murder1 to 14 years217Assault with caustic chemicals1 to 14 years244Mayhem6 months to 14 years204, 18bAssault (simple)6 months241Battery (simple)6 months243Burglary—first degree5 years to life461Burglary—second degree1 to 15 years461

3.  Idaho1 to 14 yearsIdaho Code, §§ 18-4604, 18-4606Utah1 to 15 yearsUtah Code, §§ 76-3-203, 76-6-412Virginia1 to 20 yearsCode of Va., § 18.1-100Washington15 yearsRevised Code of Washington, § 9.54.090

4.  Alabama1 to 10 years14 Code of Ala. 331Arizona1 to 10 yearsCrim.Code Ariz. §§ 13-663, 13-671Illinois1 to 10 years38 Ill.Ann.Stats. §§ 16-1(a), (e)(2), 1005-8-1(b)(4)Indiana1 to 10 yearsInd.Code, §§ 35-17-5-3(a), 35-17-5- 12 (3)Michigan10 yearsMich.Comp.Laws Ann. § 750.357Nevada1 to 10 yearsNev.Rev.Stats. § 205.270North Carolina10 yearsN.C.Stats. §§ 14-2, 14-72(b)(1)North Dakota10 yearsN.D. Century Code §§ 12-40-03, 12-40-04Rhode Island1 to 10 yearsGen.L. of R.I. § 11-41-7South Carolina3 mos.-10 yrs.Code of Laws of S.C. §§ 16-352, 17-552South Dakota10 yearsS.D. Compiled Laws §§ 22-37-2, 22-37-3Tennessee3 to 10 yearsTenn.Code Ann. § 39-4206Texas2 to 10 yearsVernon's Ann.Tex.Pen.Code §§ 12.34, 31.03Vermont10 years13 Vt.Stats.Ann. § 2503

5.  Alaska1 to 5 yearsAlaska Stats. § 11.15.250Colorado1 to 5 yearsColo.Crim.Code §§ 40-1-105, 40-4-401(5)Connecticut1 to 5 yearsConn.Stats. §§ 53a-35, 53a-123Maine6 years17 Me.Rev.Stats.Ann. §§ 2101,Massachusetts2 1/2 to 5 yrs.Mass.Gen.L.Ann. ch. 266 § 25Minnestoa5 yearsMinn.Stats.Ann.§ 609-52Nebraska1 to 7 yearsRev.Stats.Neb § 28-505New Jersey1 to 7 yearsN.J.Stats.Ann. §§ 2A:85-6, 2A:119-1New York4 yearsMcKinney's Cons.Laws of N.Y., Penal Law §§ 70.00, 155.30Oklahoma5 yearsOkla.Stats.Ann. Tit. 21, §§ 1704, 1705Wisconsin5 yearsWis.Stats.Ann. § 943.20

THOMPSON, Associate Justice.

WOOD, P.J., and LILLIE, J., concur.

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