PEOPLE v. THOMAS

Reset A A Font size: Print

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Dennis Leon THOMAS, Defendant and Appellant.

Cr. 6042.

Decided: September 18, 1974

Guy K. Claire and Don Parris, Los Angeles, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and Jon F. Farrell, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Defendant appeals from his conviction of the crime of assault with a deadly weapon (Pen.Code, § 245(a)). The facts are these:

At 12:45 a. m. on September 23, 1971, James VanderBie, bartender, was closing up the Little Heidelberg bar in Newport Beach. He had shut the doors early, it having been a slow night. Sitting at opposite ends of the bar were VanderBie's girlfriend, Linda Porter, and James Dugan, the establishment's day bartender. VanderBie was washing glasses behind the bar; Ms. Porter was nursing a glass of wine; Dugan was getting drunk on beer.

Defendant and two companions named Frazier and Garrison now walked in, breaking the spell of this peaceful scene. Defendant approached the center of the bar and ordered a beer. VanderBie replied: ‘I'm sorry, we're closed. You may get a drink, if you want a drink, down the street.’ Escalating the conflict of wills, defendant slammed his fist down on the bar and demanded: ‘Give me a g ‘I'm sorry, I'm closed. You can go down the street and get a beer.’

At this point defendant broke off negotiations, shouted to his friends, ‘I got my eyes on him, you guys watch her [Ms. Porter],’ and hit VanderBie on the chin hard enough to snap his head back. VanderBie, tossing aside the kid gloves as readily as defendant had, yelled, ‘You son of a bitch, you're mine now!’ and moved around the bar to throw defendant out. Unintimidated by the disparity in size—VanderBie is 6 feet 4 inches tall, and then weighed well over 200 pounds, while defendant is a man of only ordinary dimensions—defendant gamely headed down to the end of the bar to break lances with the bartender. The combat was short and unequal. Defendant delivered a couple of ineffectual blows to VanderBie, who then kneed him in the groin, turned him sideways and half picked him up preparatory to running him out of the Heidelberg. VanderBie was just getting a firm grip on defendant's face when defendant bethought himself of his fishing knife. This he managed to remove from its sheath and press against VanderBie's stomach. Feeling the pressure, VanderBie reached down; feeling the knife, he reacted instantly and violently, gouging his finger into defendant's eye while grabbing defendant tightly by the hair with his free hand.

With the issue in doubt between defendant and VanderBie, one of defendant's friends came to his rescue. Garrison (who had up to this point been occupied with battering Ms. Porter and keeping her from escaping) grabbed an ornamental rifle (apparently a wall decoration) and hammered VanderBie over the head with it twice, knocking him out. Since the inebriated Dugan had previously suffered a fractured skull and multiple stab wounds at the hands of a pool cue-wielding Frazier, Garrison's action terminated the brawl decisively in the interlopers' favor. All three then fled.

Just before this, the now unattended Ms. Porter had run out of the Heidelberg and down the alley outside to the Stag Bar to get help. As she returned, with a man from the Stag Bar, she noticed that a big blue car (later identified as a light blue 1963 Lincoln four-door sedan) which had been parked in the alley when she left the Heidelberg was no longer there. While the badly wounded Dugan and VanderBie were given medical attention, investigating officers of the Newport Beach Police Department dispatched a description of the suspected escape vehicle to patrolling police units.

At about 2 a. m., Sergeant Calnon of the Costa Mesa Police Department observed the described vehicle moving down a Costa Mesa street. He called for back-up assistance and started following the car. The suspect car almost at once pulled into a driveway. Sergeant Calnon also stopped. The three occupants of the Lincoln—who were in fact defendant and his friends—exited their car and started to walk away. Calnon asked them to stop. Two of them then began to run, at which point the officer drew his weapon and ordered them to halt. Defendant froze in his tracks, but Frazier and Garrison fled into a nearby house, where they were subsequently captured. A police reinforcement, Officer Stoneback, took custody of defendant. Officer Stoneback found the bloodstained rifle lying in plain view on the rear floorboard of the car. Officer Veach, who had also responded to Sergeant Calnon's call for assistance, searched defendant and found a bloody knife in a sheath strapped to his waist.

On March 14, 1972, the district attorney of Orange County filed a three-count information against defendant, Garrison and Frazier. Count I charged defendant with assault with a deadly weapon on VanderBie (Pen.Code, § 245(a)). Count II charged all three with committing the same crime against Dugan. Defendant was not named in Count III. The information also asserted that defendant and his codefendants used a firearm in the perpetration of these offenses. Finally, it alleged that defendant had suffered a prior conviction for the felony of transporting a stolen motor vehicle in foreign commerce (18 U.S.C.A., § 2312).

Defendant pled not guilty to all charges. He denied the prior conviction.1

After numerous delays, the case proceeded to trial on January 8, 1973. The use of a firearm allegation was stricken on motion of the People. The jury returned its verdicts on January 11. It found defendant guilty as charged in Count I (the assault on VanderBie), but acquitted him on Count II (the assault on Dugan).

On May 4, 1973, defendant was sentenced to state prison for the term prescribed by law, six months to life (Pen.Code, § 245(a)). He filed a timely notice of appeal on May 17, 1973.

SUFFICIENCY OF THE EVIDENCE

Defendant contends that the evidence is insufficient to support his conviction of assaulting VanderBie with a deadly weapon. A thorough review of the record persuades us that this objection is not well taken.

Defendant's argument boils down to this: The main prosecution witness, VanderBie, was not a strong witness; he in fact contradicted himself in his version of what course events took in the scuffle with defendant; and the jury could not lawfully be permitted to believe his version of the story instead of defendant's.

Defendant testified at trial that he pulled his knife on VanderBie only as a measure of self-defense. He contended that VanderBie gouged him in the eye first, to the accompaniment of a highly credible threat to ‘tear your eye out of your head.’ Faced with this, defendant felt that the only way to prevent grievous bodily harm to himself was to inflict it on VanderBie as fast as he could. As corroboration, defendant pointed to the testimony of Ms. Porter. She told the jury that, and instant before she heard defendant, in the grip of VanderBie, emit a loud scream, she saw him trying to slug VanderBie with both hands, neither of which apparently held a knife. Defendant says that this lends weight to his claim that first vanderBie gouged him—causing him to yell in pain—and only then did he draw a knife to protect himself.

VanderBie, of course, told a different story. This was the one the jury believed, and which is incorporated into the statement of facts given earlier in this opinion. Despite defendant's challenge, it is our view that the familiar substantial evidence test (People v. Bynum, 4 Cal.3d 589, 94 Cal.Rptr. 241, 483 P.2d 1193; People v. Reilly, 3 Cal.3d 421, 90 Cal.Rptr. 417, 475 P.2d 649; People v. Mosher, 1 Cal.3d 379, 461 P.2d 659), requires that it remain the adjudicated view of what took place in the fight at the Little Heidelberg. Defendant's claim that VanderBie's version should be discounted on appeal because it was contradicted at trial does not hold water. Conflicts in the evidence are matters reserved for the trier of fact to resolve once and for all, and not for appellate courts to tamper with on the ground that the jury could reasonably have believed one witness rather than another, or placed a different interpretation upon the evidence. (Evid.Code, § 312(b); People v. Reilly, supra, 3 Cal.3d 421, 90 Cal.Rptr. 417, 475 P.2d 649; People v. Hillery, 62 Cal.2d 692, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Robillard, 55 Cal.2d 88, 10 Cal.Rptr. 167, 358 P.2d 295; People v. Lyons, 47 Cal.2d 311, 303 P.2d 329; People v. Huston, 21 Cal.2d 690, 134 P.2d 758.)

Defendant argues, however, that, besides being contradicted by other witnesses, VanderBie's testimony was simply unworthy of belief because it was self-contradictory and, therefore, insufficient as a matter of law to support the verdict. In part he bases this claim on the assertion that VanderBie gave a different version of his story—one that put the gouge before, or simultaneously with, the stab—at the preliminary hearing. However, defendant has failed to place before us the record of that proceeding. It is beyond or power to consider matter outside the record merely on the strength of the representations contained in counsel's briefs. This contention must therefore fail. (People v. Merriam, 66 Cal.2d 390, 58 Cal.Rptr. 1, 426 P.2d 161; People v. Hernandez, 150 Cal.App.2d 398, 309 P.2d 969.)

Defendant claims, however, that VanderBie contradicted himself on an occasion which did find its way into the record. It is true that there was testimony to the effect that VanderBie had told one of the investigating officers at the Little Heidelberg that he had been stabbed only after he had poked defendant in the eye. This was permissible impeachment by prior inconsistent statement (Evid.Code, § 1235), but it cannot be said that it rendered unbelievable the story that VanderBie finally gave and stuck to at trial. Whether it was to be believed that VanderBie had made the self-contradictory earlier statement, and whether it or the version he gave at trial was the truth, were credibility questions for the jury, and their verdict cannot be overturned merely because they decided these issues against the defendant. Absent a showing that a witness who was believed by a jury testified to a physical impossibility, or offered testimony false on its face, his evidence must stand on appeal. (People v. Huston, supra, 21 Cal.2d 690, 134 P.2d 758; Lucas v. Southern Pacific Co., 19 Cal.App.3d 124, 96 Cal.Rptr. 356; People v. Brown, 6 Cal.App.3d 619, 86 Cal.Rptr. 149; Fraher v. Superior Court, 272 Cal.App.2d 155, 77 Cal.Rptr. 366; People v. Jones, 268 Cal.App.2d 161, 73 Cal.Rptr. 727; People v. Flores, 267 Cal.App.2d 452, 73 Cal.Rptr. 118; People v. Nazaroff, 266 Cal.App.2d 229, 72 Cal.Rptr. 58; People v. Swanson, 204 Cal.App.2d 169, 22 Cal.Rptr. 178.) Therefore, defendant's challenge to the sufficiency of the evidence against him must fail.

JURY INSTRUCTIONS

Defendant's next contention presents the mildly ironic spectacle of the accused basing a claim of error upon the refusal of the court below to give instructions which the prosecution requested at trial, but which it now disowns on appeal. The instructions in question, based upon CALJIC 5.40 and 5.41,2 set forth the law relating to the right to use force to eject and kill trespassers in the The argument is that, had the jury been allowed to view VanderBie's operations against the defendant as measures meant to protect the Little Heidelberg, rather than as steps taken to defend himself, they might have returned a verdict more favorable to the defendant.

Even assuming that there is some truth to defendant's assertion that the refused charges would have aided his cause, the fact remains that the proposed readings from CALJIC had nothing to do with the case. VanderBie at trial never claimed to have grappled with defendant in order to protect the bar. His vital concern was with self-protection from the blows of one who had instituted hostilities by the deliberately unfriendly act of socking him in the jaw. It is absurd to claim that VanderBie's right to use reasonable force to preserve his personal safety (Pen.Code, §§ 692, 693; People v. Hecker, 109 Cal. 451, 42 P. 307; People v. Jackson, 233 Cal.App.2d 639, 43 Cal.Rptr. 817; Perkins, Criminal Law (2d ed. 1969) pp. 993–1012) was in any way limited because an incidental effect of its successful exercise would have been defendant's ejection from the bar and, hence, the bar's preservation from damage. And this is not, in any case, what the relevant controverted instruction (CALJIC 5.40) says. It merely confers a right to eject trespassers by the lawful occupants of premises. It in no way limits occupants' right of self-defense, which, as defendant concedes, was properly propounded to the jury by the trial court.

As to CALJIC 5.41, it was so wildly off the mark that the trial court could have surprised no one by rejecting it. This instruction's concern is with the liability of lawful occupants of property who kill unfortunate trespassers to defend it. Defendant may count himself lucky that it had no application to the case at bar.

The law is clear that the trial court had no duty to instruct on matters for which there was no evidence or which were totally irrelevant to the issues in the case. (People v. Modesto, 59 Cal.2d 722, 31 Cal.Rptr. 225, 382 P.2d 33; People v. Carmen, 36 Cal.2d 768, 228 P.2d 281; People v. Cram, 12 Cal.App.3d 37, 90 Cal.Rptr. 393.) Therefore, there was no error in the exclusion of the People's proffered instructions.

SENTENCING

Defendant raises two challenges to his sentence. In the first place, he maintains that the trial court took into consideration impermissible materials in sentencing him. Specific complaint is made of the following remarks, made at the time of sentencing: ‘The Court would point out to you, Mr. Thomas, if you hadn't started that fight there wouldn't have been that trouble there and a man almost died when you knifed him or someone else did. It was a result of what you started when you defense of property. and you are fortunate you are not going up on a murder charge.’

Defendant claims that the language used by the trial court was intemperate, and shows that he was sentenced to prison (instead of given probation) for a crime of which he was acquitted, i.e., the nearly fatal assault on Dugan. To us, however, it appears merely that the trial court here was taking account of the circumstances surrounding the crime in passing sentence, something which it was specifically enjoined to do by statute (Pen.Code, § 1203(a)).3 The record reveals quite clearly that the court passed sentence on the basis of its own evaluation of defendant's fitness to return to society and that of the Department of Corrections Guidance Center personnel at the Chino facility. Both the court and the Corrections evaluators were in agreement that defendant was a menace who could not be allowed to remain at large.

There is no evidence here of vindictiveness on the part of the trial court. The trial judge knew that defendant had been acquitted of the assault on Durgan. On the other hand, he was correct in observing that it was defendant's outrageous conduct which had unleashed the chain of events leading to bloodshed and, for Dugan, almost to death. Defendant cites us to no authority for the proposition that the court below was under compulsion to blind itself to a consideration of the consequences of defendant's crime, in determining what sentence to mete out to him. This was nothing more than what section 1203(a) required the court to do.

Parenthetically, we may add that the trial court could reasonably have come to no other decision in light of the fact that (1) defendant stood convicted of a crime perpetrated with a deadly weapon used to inflict great bodily injury upon his victim, and (2) defendant had been convicted of, and admitted, a prior felony. These facts rendered him ineligible for probation in the absence of a finding that his case was an unusual one. (Pen.Code, §§ 1203(d)(2) and 1203(e)(2)(3), and (6). There was no evidence upon which such a finding could be made.

In sum, we find no abuse of the trial court's inherent power to impose sentence. (People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993; Keeler v. Superior Court, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617; People v. Dorsey, 28 Cal.App.3d 15; People v. Smith, 26 Cal.App.3d 404, 102 Cal.Rptr. 625.)

At oral argument, defendant also attacked his sentence on the ground that it constitutes a ‘cruel or unusual punishment’ proscribed by article I, section 6 of the California Constitution.4 In considering this claim, we note at the threshold that the punishment set forth in section 245(a) of the Penal Code—six months to life—is one imposed under the indeterminate sentence law (§§ 1168, 3020–3025). An indeterminate sentence is, in legal effect, for the maximum term, notwithstanding the fact that the Adult Authority may fix a lesser term actually to be served. (In re Lynch, 8 Cal.3d 410, 415–416, 105 Cal.Rptr. 217, 503 P.2d 921; In re Lee, 177 Cal. 690, 693, 171 P. 958.) Thus, the question posed by the instant case is whether life imprisonment can constitutionally be inflicted upon defendant for the commission of an assault with a deadly weapon. We conclude that it cannot.

A claim of violation of the cruel or unusual punishment clause must be measured against the standard articulated in In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921. In that case, the Supreme Court held that a punishment may violate article I, section 6 of the Constitution even though it is not outrageous or barbaric in its method—if ‘. . . it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ (8 Cal.3d at p. 424, 105 Cal.Rptr. at p. 226, 503 P.2d at p. 930.) In somewhat more concrete terms, the court offered certain factors to be taken into account in determining what is and what is not unconstitutionally disproportionate. Among these are: (1) a consideration of the nature of the offense and of the offender, with particular regard to the degree of danger they present to society; (2) a comparison of the challenged penalty with punishments prescribed in California for different offenses deemed more serious than that committed by the accused; and (3) a comparison of the challenged penalty with punishments meted out by other states for the same crime. (8 Cal.3d at pp. 425–427, 105 Cal.Rptr. 217, 503 P.2d 921.)

There can be little doubt that assault with a deadly weapon is a serious, inherently violent, and necessarily dangerous crime. Both the offense and its perpetrator pose a threat to the public peace and safety. Therefore, from the viewpoint of the first Lynch criterion, it cannot be said that there exists an unconstitutional imbalance between the offense and the penalty prescribed for it by section 245(a).

It is when we turn to the second of the Lynch considerations that evidence of constitutional infirmity first reveals itself. An examination of the Penal Code reveals several crimes which are more severe than defendant's but which are punished with penalties far lighter than life imprisonment. We discover that had defendant been so fortunate as to kill the bartender in the bar room struggle, his sentence for voluntary manslaughter could not have been for more than 15 years (Pen.Code, § 193). If defendant had cut an arm or a leg off VanderBie—rather than simply stabbing him in the abdomen—the penalty for this mayhem would have been six months to 14 years (Pen.Code, § 204). And, had defendant assaulted his opponent with the intent to murder him, the sentence could have been for no more than 14 years (Pen.Code, § 217). Besides these most apposite examples, the code gives many other man-endangering crimes comparatively milder punishment than assault with a deadly weapon: kidnapping, 1 to 25 years (Pen.Code, § 208); forcible abduction for purposes of prostitution, 5 years (Pen.Code, § 266); assault with intent to commit rape, sodomy, mayhem, robbery, or larceny, 1 to 20 years (Pen.Code, § 220); assault with intent to injure or disfigure, 1 to 14 years (Pen.Code, § 244); arson, 2 to 20 years (Pen.Code, § 447a); and burglary by torch or explosives, 10 to 40 years (Pen.Code, § 464).

Finally, with reference to the third Lynch benchmark, we are aware of only one state (Arizona) which provides a penalty of life imprisonment for the crime of assault with a deadly weapon. In the majority of states, the maximum penalty is 5 to 10 years.

While the Legislature is entitled to broad discretion in the drawing up of a scheme of crimes and punishments, the clear teaching of Lynch is that the scheme must be a rational one, reflecting that sense of balance and proportion which is the essence of justice. In point of fact, however, the statute in question reveals no such sense of even-handedness. There is too great a disparity to be tolerated between the life sentence inflicted by section 245(a) and the far lighter punishments meted out within California for graver crimes, and in other states for the same offense. To uphold this anomalous penalty would be to offend the very notions of human dignity which we are charged to protect. (See In re Lynch, supra, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921.) Consequently, we hold that the penalty provided for the crime of assault with deadly weapon under section 245(a) of the Penal Code is both a cruel and an unusual punishment, and is therefore void under article I, section 6 of the California Constitution.

The punishment here invalidated was provided for by amendment in 1970, when the words ‘six months to life’ were substituted for ‘not exceeding 10 years' (Stats.1970, ch. 796, § 1, p. 1510). The punishment of a maximum of 10 years imprisonment itself dated from a 1921 amendment (Stats.1921, ch. 89, § 1, p. 86). The law is clear that an invalid amendment to an otherwise valid statute is ineffective for any purpose; the statute remains in force as it existed before the amendment. (People v. Building Maintenance Etc. Assn., 41 Cal.2d 719, 264 P.2d 31; Danskin v. San Diego Unified Sch. Dist., 28 Cal.2d 536, 171 P.2d 885; Miller v. Union Bank & Trust Co., 7 Cal.2d 31, 59 P.2d 1024; Rocklite Products v. Municipal Court, 217 Cal.App.2d 638, 32 Cal.Rptr. 183.) Accordingly, the punishment prescribed for violation of section 245(a) prior to its purported 1970 amendment remains in full force and effect. The state prison provision then read—and now reads—that the proscribed crime is ‘. . . punishable by imprisonment in the state prison not exceeding 10 years . . .’

The judgment is modified by changing the words ‘term provided by law’ to ‘term provided by law, such term not to exceed 10 years.’ As modified, the judgment is affirmed.

I concur in all portions of the majority opinion except that portion which holds the penalty provision of Penal Code, § 245(a), to be unconstitutional.

James Madison, who was not prone to overblown rhetoric, referred to the doctrine of separation of powers as ‘the sacred maxim of free government.’ Thus, the power imposed on the courts to decide laws unconstitutional, a power declared to be a necessary consequence of our system of government in Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60, is so potent that it should be exercised with great restraint. Harlan Fiske Stone once expressed it this way: ‘. . . while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.'1 After all, there is no appeal by the other two branches of government from a ruling by the judicial branch that they have overstepped constitutional limitations. Here, action by the courts is the end of the road. While the three branches of government are theoretically equal, in this field the judicial branch is just a little more equal than the others. Courts are zealous in protecting their own powers (cf. People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993). Courts should be just as zealous in their protection of the powers of the other two branches of government—that is, if we are going to give more than lip service to the doctrine of separation of powers.

Therefore, in recognition of this doctrine, the rule has evolved that courts do not second-guess legislatures. The wisdom of legislation is of no concern to the courts. The legislature may enact laws that are foolish, capricious, even unfair—all without interference from the courts. It is only when legislation comes into direct conflict with an express provision of the Constitution that the courts can properly intervene. A legislative act is presumed to be constitutional, unconstitutionality must be clearly shown and all doubts resolved in favor of the validity of the legislative act. In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, recognized this rule in the following language at p. 415, 105 Cal.Rptr. at p. 219, 503 P.2d at p. 923: ‘Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears. (Citation.)’

Lynch after reaffirming this basic principle and recognizing that under our tripartite system of government it is the function of the legislature to define crimes and prescribe punishment, proceeded to formulate a new constitutional test for legislation in the field of punishment—disproportionality. The court noted that no California court had as yet held a statutory penalty unconstitutional on that ground, but concluded that ‘. . . in California a punishment may violate article I, section 6, 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.)’ (Lynch, supra, 8 Cal.3d p. 424, 105 Cal.Rptr. p. 226, 503 P.2d p. 930.)

Lynch was followed by In re Foss, 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073, which found unconstitutional on the same ground, section 11501 and its successor section 11532 of the Health & Safety Code, prohibiting parole consideration for a minimum of ten years of a repeat narcotics offender.

However, I do not conceive that Lynch and Foss have invested the judicial branch of the government with the authority to conduct a wholesale overhaul of the penalty aspects of our criminal laws—although such action may be long overdue. The courts cannot become involved in a program of rewriting the penalty provisions of the Penal Code in a gallant effort to achieve absolute in punishment. I am unaware of just how many hundreds of laws which prescribe punishment exist in our codes, but the very idea of going through these on a case-by-case basis in an effort to achieve some kind of mathematical balance not only boggles the mind from the standpoint of the logistics involved, it is clearly wrong if the doctrine of separation of powers is still viable.

Nevertheless, since Lynch and Foss, the practice of attacking punishment statutes is becoming quite fashionable—rapidly overtaking that long time favorite, incompetence of counsel. After all, any prisoner with access to a Penal Code is going to be able to find a penalty statute which, in his opinion, establishes that the sentence he is serving is so disproportionate to the crime which he committed as to shock the conscience and offend fundamental notions of human dignity. For example, a prisoner doing one year to life for a second degree robbery involving a $2.00 liquor store hold-up perpetrated with a cap gun would find his punishment grossly disproportionate when he compares it to that of his cellmate who is doing one to ten years for grand theft which wiped out the life savings of widows and orphans. So, too, the prisoners who find themselves in the same cell doing time for escape. One is doing one to five years for escape from prison (Penal Code, § 4530(b)), the other is doing one to seven years for escape from the CRC (Welf. & Inst. Code, § 3002).

The list is endless and the strain on the judicial system could become intolerable.

Lynch and Foss established a three-prong test for disproportionality. I will briefly discuss these tests and their application to the instant case.

(1) The nature of the offense and the offender with particular regard to the degree of danger both present to society.

(a) The nature of the offense.

The offense of assault with a deadly weapon clearly involves an act of violence and presents a high degree of danger to society. Although, personally, not in favor of long prison sentences, I cannot find anything particularly shocking in a potential life sentence for one convicted of assault with a deadly weapon. Every assault with a deadly weapon is by the very nature of the offense a potential murder. Webster defines the word ‘deadly’ rather simply—‘likely to cause death.’ In the instant case, it might be noted that the defendant who, as the majority opinion indicated, ‘pressed’ his knife against VanderBie's stomach, ‘pressed’ so enthusiastically that he made a rather large hole in Mr. VanderBie and were it not for the marvels of modern medicine, we might well be reviewing a murder conviction.

(b) The nature of the offender.

Both Lynch and Foss made much of the offender—in each case a member of an identifiable group of nature's unfortunates—sex offenders and narcotics addicts.2 The offense of assault with a deadly weapon applies to everyone who arms himself with and uses a deadly weapon. Obviously that person is a violent person since few, if any, non-violent persons use deadly weapons on other human beings.

Thus, both from the nature of the offense and the nature of the offender, I cannot find that the penalty for assault with a deadly weapon shocks the conscience and offends fundamental notions of human dignity.

(2) A comparison of the challenged penalty with the punishment prescribed in the same jurisdiction for different offenses.

Here, Lynch and Foss warn us of isolated excessive penalties enacted through ‘honest zeal’ generated in response to transitory public emotion. (Lynch, supra, 8 Cal.3d at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921; Foss, supra, at p. 927.) This, I submit, is a subject which must be approached with great delicacy. It ill-behooves a court to impute to a legislative body honest zeal generated in response to transitory public emotion when, in truth and fact, the statute involved may be the legislature's considered and reasoned reaction to a current social problem and one which, in the opinion of the legislature, was enacted with due regard for constitutional restraints.

So it is with the instant statute. Not only do blazing headlines tell their shocking stories of criminal violence through the use of deadly weapons, but the black figures of criminal statistics confirm the sky-rocketing increase of such crime. In enacting the present penalty provision in Penal Code, § 245(a), the legislature obviously felt that strong measures were necessary to combat this increase in violent crime effected through the use of deadly weapons. As the Supreme Court said in Foss of narcotic problems, ‘harsh penalties may be necessary to restrict the supply, sale and distribution of this substance.’ (Foss, supra, 10 Cal.3d at p. 921, 112 Cal.Rptr. at p. 655, 519 P.2d at p. 1079.) So, too, in the use of deadly weapons, ‘harsh penalties' may, in the considered opinion of the legislature, be necessary—although individual members of the bench may hold a contrary view. Reasonable men may differ sharply on the relative degrees of social danger involved in criminal misbehavior and to repeat, it is not the function of the court to second-guess the legislature in this respect. Fists and feet may have their place in the current spate of criminal violence but the use of the gun and knife is the more aggravated social problem. Thus, when we compare the offense of assault with a deadly weapon with all of the other assaults mentioned by the majority, one startling distinction stands out. Most of the rest of them may be committed without the use of a deadly weapon. Penal Code, § 245(a), cannot. To me, it is clear that the penalty aspect of Penal Code, § 245(a), is a part of a general legislative scheme conceived as a reasonable response to the increasing danger of the use of deadly weapons. It would unduly prolong this already overlong dissent to point out the legislative scheme detectable in sections in the Penal Code involving the use of deadly weapons which sections indicate clearly the seriousness with which the legislature approaches this problem.

I would note Penal Code, § 12022, which drastically increases the sentences of those who commit felonies while armed with deadly weapons. Lynch suggests that the comparison test of California statutes be with offenses deemed more severe. Therefore, to test the penalty provisions of Penal Code, § 245(a), against the assaults noted by the majority, the proper approach is to consider the penalty for these offenses assuming a deadly weapon was used. Thus, when applied to the assaults listed by the majority, the mere fact of being armed with a deadly weapon would increase the maximum punishments rather substantially, i. e., voluntary manslaughter 25 years, mayhem 24 years, assault with intent to murder 24 years, kidnaping 35 years, etc. While none of these are ‘life’ sentences, the number of persons serving ‘life’ sentences who serve anything close to the number of years set forth above is infinitesimal. While I must, as a legal abstraction, accept Lynch's approach to maximum sentences under the indeterminate sentence law, the concept is really rather naive when considered in the light of the actualities of the sentencing process. As any trial judge, district attorney or defense counsel who has ever handled negotiated pleas knows, the crunch comes with minimum sentences, not maximum sentences.

Therefore, I cannot find the penalty assessed for the crime of assault with a deadly weapon to be so disproportionate when compared with punishment for similar offenses as to shock the conscience and offend fundamental notions of human dignity.

(3) A comparison of the challenged penalty with the punishment prescribed for the same offense in other jurisdictions.

Here, we again tread on rather sensitive ground. Until we abolish the principles of federalism, each state must be allowed certain flexibility in its efforts to handle the social problems in that state. For instance, New York, faced with a narcotics problem of emergency proportions, recently embarked on a program calling for harsh measures for pushers. Other states which are fortunate enough not to be plagued with a problem of the seriousness as that found in New York may have a more lenient approach to the narcotics problem. I do not conceive that for this reason the Supreme Court of New York should invalidate the New York laws. After all, each state has its own problems. The sovereign state of Nevada recognizes the types of gambling which we prosecute vigorously. Other states may take a tolerant view of certain aspects of certain behavior which is considered outrageous by the citizens of another state. Until all the states voluntarily choose to accept something akin to the model Penal Code of the American Law Institute, disparities based upon local conditions will exist. We are advised that only Arizona has a life sentence for assault with a deadly weapon and we are further advised that the penalty in most states ranges from five to ten years. This is about as meaningless to me as the fact that in this state the penalty for assault with a deadly weapon carried a maximum punishment of two years from 1872 to 1921. I would gather from that that either the citizens of this state were at that time more tolerant of the use of deadly weapons or that the situation had not become sufficiently aggravated to call for more severe deterrents. Comparison of the punishment provided in other jurisdictions may be useful and instructive to a legislative committee involved in a study, but I seriously doubt that it should be of major import when used as a test by a court which is going to invade the doctrine of separation of powers by declaring a law unconstitutional. I would not on this basis alone find that the present penalty for Penal Code, § 245(a), shocks the conscience or offends fundamental notions of human dignity.

To conclude this seemingly endless monologue, I would like to quote again from Lynch, supra:

‘Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty ‘out of all proportion to the offense’ (Robinson v. California (1962) supra, 370 U.S. 660, 676, 82 S.Ct. 1417, 1425, 8 L.Ed.2d 758, 768 (concurring opinion of Douglas, J.); In re Finley (1905) supra, 1 Cal.App. 198, 202, 81 P. 1041, 1042), i. e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.' (Lynch, supra, at 8 Cal.3d pp. 423–424, 105 Cal.Rptr. at p. 226, 503 P.2d at p. 930.)

I do not find that the penalty for the offense of assault with a deadly weapon is so out of proportion to the offense, i. e., so severe in relation to the crime as to violate the provision against cruel or unusual punishment. I would not find the penalty aspect of Penal Code, § 245(a), to be unconstitutional and, therefore, I would affirm the judgment in its entirety.

FOOTNOTES

1.  At a later stage of the proceedings, defendant reversed himself and admitted the prior.

2.  CALJIC 5.40 provides:‘The lawful occupant of real property has the right to request a trespasser to leave the premises. If the trespasser does not do so within a reasonable time, such occupant may use force to eject the trespasser.‘The amount of force which may be used to eject the trespasser is limited by what would appear to a reasonable person, under the existing circumstances, to be necessary.’CALJIC 5.41 provides:‘Although the lawful occupant of property may not kill a trespasser unless in the necessary defense of life or to prevent great bodily injury to a person or to prevent the commission of a felony inherently dangerous to human life, if the trespasser should turn aggressor and intend or endeavor or appear to intend or endeavor to commit such a felony through the use of violence or surprise while the trespasser is upon the property, then the lawful occupant of the property is not bound to retreat even though a retreat might safely be made. If a reasonable man in a like situation would believe that it was necessary for him to take the life of the trespasser in order to prevent the commission by that trespasser of such a felony and if he acts under the influence of such fears alone and does take the trespasser's life, the act of killing is not felonious homicide but is justified.’

3.  Section 1203(a) of the Penal Code provides:‘In every case in which a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to the probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment. The probation officer shall immediately investigate and make a written report to the court of his findings and recommendations, including his recommendations as to the granting or denying of probation and the conditions of probation, if granted. The report shall be made available to the court and the prosecuting and defense attorneys at least two days or, upon request of the person, five days prior to the time fixed by the court for the hearing and determination of the report, and shall be filed with the clerk of the court as a record in the case at the time of the hearing. The time within which the report shall be made available and filed may be waived by written stipulation of the prosecuting and defense attorney which is filed with the court or an oral stipulation in open court which is made and entered upon the minutes of the court. At a time fixed by the court, the court shall hear and determine the application, if one has been made, or, in any case, the suitability of probation in the particular case. At the hearing, the court shall consider any report of the probation officer and shall make a statement that it has considered such report which shall be filed with the clerk of the court as a record in the case. If the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be subserved by granting probation to the person, it may place him on probation. If probation is denied, the clerk of the court shall immediately send a copy of the report to the Department of Corrections at the prison or other institution to which the person is delivered.’

4.  Among other things, counsel for defendant drew our attention to the fact that the Supreme Court has granted a hearing in two cases dealing with this issue: People v. Romo, 39 Cal.App.3d 326, 114 Cal.Rptr. 289 (1 Crim. 9767), hearing granted August 7, 1974 (Crim. No. 17941) and People v. Wingo, 38 Cal.App.3d 895, 13 Cal.Rptr. 695 (2 Crim. 23985), hearing granted August 7, 1974 (Crim. No. 17942). The fact that the courts involved reached conflicting conclusions is evidence of the complexity of the question here presented.

1.  United States v. Butler, 297 U.S. 1, 78–79, 56 S.Ct. 312, 325, 80 L.Ed. 477.

2.  In this respect I can understand Lynch. One who illegally exposes himself and is not a mentally disordered sex offender is simply a person who has an uncontrollable, if distasteful, urge and is a nuisance pure and simple. However, Foss bothers me. All heroin dealers are not addicts although Mr. Foss apparently was. With all due deference to the Supreme Court, I seriously question that portion of Foss which uses the fact that some pushers are addicts as a basis for unconstitutionality.

KERRIGAN, Associate Justice.

TAMURA, J., concurs.