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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles C. WINGO, Defendant and Appellant.

Cr. 23985.

Decided: April 30, 1974

Richard S. Buckley, Public Defender, and Charles A. Gessler, Deputy Public Defender, for defendant-appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim.Div., S. Clark Moore, Asst. Atty. Gen., Russell Iungerich and Cynthia S. Waldman, Deputy Attys.Gen., for plaintiff-respondent.

For Opinion on Hearing see, 121 Cal.Rptr. 97, 534 P.2d 1001.

Appellant was accused in Count I of murder (Pen.Code, § 187) and in Count II of assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)).  He was acquitted on the murder charge, convicted on the forceable assault charge and sentenced to state prison.   On appeal from the judgment he raises these issues:  “I Does a sentence of [six months] to life for the offense of assault by means of force likely to create great bodily injury violate the prohibition of the California Constitution against cruel or unusual punishment?   II Does the punishment of [six months] to life for the offense of assault by means of force likely to create great bodily injury violate the Eighth and Fourteenth Amendments to the United States Constitution prohibiting cruel and unusual punishments?”

The prosecution arose from an assault that occurred during daylight hours in Pershing Square, Los Angeles.   The victim, William Love, about 72 years old, “aged and thin,” walked with a cane.   Appellant, seated on a park bench as Love approached, arose to meet the victim, knocked him down, kicked him three or more times, one kick striking the victim's head and the other his upper body, walked away, swore at Love, then ran back and kicked him again.   One witness testified appellant stomped upon the victim.   A younger man intervened and drove appellant off.   The officer who transported him to the police station testified appellant was screaming and said, “Yes, I kicked his ass, and I don't think I kicked it well enough.”

Love died in a Los Angeles hospital nine days later.   A deputy medical examiner for Los Angeles County testified that her autopsy disclosed facial injuries and a fracture of the left thigh bone.   Death, she said, was caused by a heart attack, precipitated in her opinion by the injuries.   On redirect examination she could not say that the heart attack would not have occurred had the victim not been injured.

Appellant was sentenced to imprisonment in the state prison for the term prescribed by law—in this instance six months to life (Pen.Code, § 245, subd. (a)).

Appellant argues that the punishment does not fit the crime, that the maximum penalty of life imprisonment for forceable assault likely to produce great bodily injury is disproportionate to the crime and constitutes cruel or unusual punishment.   He points out that certain crimes which he characterizes as more serious (e.g., manslaughter, assault with intent to commit murder, mayhem, assault by caustic chemicals, attempted poisoning) carry maximum terms ranging from ten to fifteen years.   He also notes that the maximum penalty for forceable etc. assault is more severe in California than in other jurisdictions.

 The tests for determining whether punishment for a particular crime is “cruel or unusual” are delineated in In re Lynch, 8 Cal.3d 410, 425–429, 105 Cal.Rptr. 217, 503 P.2d 921;  In re Maston, 33 Cal.App.3d 559, 562, 109 Cal.Rptr. 164, and People v. Morgan, 36 Cal.App.3d 444, 448, 111 Cal.Rptr. 548.   Relevant items are:  (1) the nature of the crime and the criminal, and the degree of danger each presents to society;  (2) comparison of the punishment with punishments in the same jurisdiction for other crimes considered more dangerous;  (3) comparison of the punishment with punishments for similar crimes in other jurisdictions having similar constitutional provisions.

 Applying these tests we find that the crime involved—an unprovoked attack without mitigating circumstances on an aged and infirm victim—represents a sufficient danger to society to justify imposition of the maximum statutory punishment.   Brutal assault with malevolent intent is a serious crime, and those who commit such crimes present a serious challenge to public order.   The Legislature in its efforts to suppress such crimes is entitled to make available to the courts maximum sanctions for imposition in aggravated cases.   While the criminal conduct proscribed by section 245, subdivision (a) may be considered a lesser evil and a lesser danger to society than other criminal conduct that carries a lesser maximum punishment, for example, assault with intent to commit murder (Pen.Code, § 217), reasonable men may and do differ sharply on the relative degrees of evil and social danger attached to particular crimes, and a mathematical exactitude in balancing malevolence of crime against severity of punishment is not required.   Assessment of the comparative evil and comparative danger attached to diverse forms of antisocial conduct remains a uniquely legislative function with whose performance this court may interfere only in instances of gross and indefensible miscalculation.   With respect to the crime charged at bench, the Legislature may have felt that forceable etc. assault under aggravated circumstances was capable of presenting such a grave threat to public order and security that its commission should carry maximum liability for effective deterrence.  (People v. Jennings, 22 Cal.App.3d 945, 950, 99 Cal.Rptr. 739.)   Yet we need not theorize on legislative motive in establishing its differential tariff of punishments for different crimes.   For our purposes it is sufficient to observe that forceable etc. assault is a major crime for whose commission major punishment may be prescribed.

 Appellant points out that maximum punishment for forceable etc. assault in other jurisdictions is less severe than the maximum authorized in California.   This fact does not render the California punishment unconstitutional.   While comparison of the maximum punishment for a particular crime with that provided elsewhere for similar crimes is one of the tests in Lynch for determining whether punishment is cruel or unusual, the tests do not furnish absolute rules but merely delineate appropriate guidelines.  (In re Jones, 35 Cal.App.3d 531, 541, 110 Cal.Rptr. 765.)   California is not required to enact its criminal code or base its penal policy on any particular model used in other states, and the Legislature in specifying punishment for crime possesses broad general discretion to adopt (1) a policy of indeterminate sentences, (2) a policy of determinate sentences, or (3) a policy involving some reasonable combination of the two.   Its enactments must be upheld unless they appear clearly, positively, and unmistakably unconstitutional.  (People v. Morgan, 36 Cal.App.3d 444, 449–450, 111 Cal.Rptr. 548.)   The fact that for a comparable crime Delaware has a maximum punishment of 20 years, New York 15 years, New Hampshire 7 years, and Utah 5 years, does not render the California maximum punishment of life imprisonment unconstitutional.   Appellant's interpretation of cruel or unusual punishment seems to contemplate consensus punishment, under which the punishment for a particular crime that is the most severe among the various states is proscribed as “unusual” while any punishment in excess of average punishment is proscribed as “cruel.”   In our view comparison of the punishment provided for a particular crime with that adopted in other jurisdictions, while a useful and instructive subject of investigation for a legislative committee engaged in revision of the Penal Code, is of value to a court only in determining the basic classification of the crime as major or minor crime, for which, respectively, major or minor punishment may be constitutionally imposed.   From reading appellant's compilation of comparable punishments in other states it is readily apparent that forceable etc. assault is considered nationally a most serious crime.   For the commission of this crime, California's maximum permissible punishment of life imprisonment is not disparate.

The decision in People v. Schueren, 10 Cal.3d 553, 111 Cal.Rptr. 129, 516 P.2d 833, does not compel a different result.   In that case defendant was charged with assault with a deadly weapon with intent to commit murder (Pen.Code, § 217, maximum imprisonment, 14 years) and after a trial was convicted of the necessarily included offense of forceable etc. assault (Pen.Code, § 245, subd. (a), maximum imprisonment, life).   The court held that imposition of the maximum penalty authorized by section 245, subdivision (a) constituted “unusual” punishment because it penalized appellant for having defended himself against the charge of murderous assault under section 217.  (Pp. 560–561, 111 Cal.Rptr. 129, 516 P.2d 833.)

 The case at bench differs from Schueren in three important respects:  (1) it does not involve conviction for a necessarily included offense carrying a greater punishment than the crime charged;  (2) defendant was not penalized for standing trial, since both charges against him, Count I (murder) and Count II (forceable etc. assault) carried a maximum punishment of life imprisonment;  (3) defendant was accused in separate counts of murder (Pen.Code, § 187) and forceable etc. assault (Pen.Code, § 245, subd. (a)) and could have been convicted on both counts and sentenced on the count carrying the greater punishment.   Such a procedure was specifically approved in Schueren, where the court said, “[T]he People are still free to charge violations of sections 217 and 245 in separate counts.”  (P. 561, 111 Cal.Rptr. p. 136, 516 P.2d p. 840.)

The judgment is affirmed.

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