PEOPLE v. FROST

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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Jack FROST, Defendant and Appellant.

Cr. 17646.

Decided: January 26, 1979

Quin Denvir, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, B. E. Bergesen, III, Deputy State Public Defender, San Francisco, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, John H. Sugiyama, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Appellant Jack Frost was convicted by a jury of first degree murder under the felony murder rule, and first degree robbery. The trial judge modified the murder verdict from first degree to second degree, and struck the arming clause for purposes of sentencing. The People appealed, and the Court of Appeal reversed and ordered the first degree murder verdict and the arming clause reinstated. (People v. Frost (May 3, 1977) 1 Crim. 15898 [unpub. opn.].) The trial judge amended the judgment as directed; appellant now appeals from that action of the trial court.

The only issue which is cognizable on this appeal is whether the action of the trial judge conformed to the directions of the reviewing court. Appellant does not argue that it did not, and it seems clear that it did. However, we elect to consider this appeal as a petition for writ of habeas corpus in order to address the constitutional issues raised. We hold that the statute which authorized the People's appeal in this case denies appellant and others similarly situated equal protection of the law. We, therefore, grant the petition.

Appellant's jury trial resulted in a conviction of first degree robbery and of first degree murder, and a finding that at the time of the commission of the murder, appellant was armed with a deadly weapon. The trial court denied appellant's motion for new trial, but granted the motion to reduce the degree of the murder conviction under Penal Code section 1181, subdivision (6).1 The court also struck the arming clause, stating that the striking of that clause was an act of leniency and within the trial court's discretion.

Appellant appealed from the murder and robbery convictions, and the People appealed from the order modifying the verdict and striking the arming clause. On May 3, 1977, the Court of Appeal affirmed the robbery conviction, reversed the order modifying the murder verdict, and ordered the trial court to reinstate the first degree murder verdict and the arming clause.

On October 21, 1977, the trial court stated that it had no choice, under the Court of Appeal opinion, but to reinstate the first degree murder verdict and the arming clause. The court stated that People v. Drake (1977) 19 Cal.3d 749, 139 Cal.Rptr. 720, 566 P.2d 622, a decision which was handed down after the May 3, 1977 Court of Appeal decision in this case, appeared to be indistinguishable from this case. Despite that decision, the trial judge stated he had “no jurisdiction, no power, no discretion to do anything but” reinstate the verdict. The court then sentenced appellant for the term prescribed by law for the first degree murder.

The Action of the Trial Judge in Reinstating the Jury Verdict Conformed to the Directions of the Reviewing Court.

The concluding paragraph of the May 3, 1977 Court of Appeal opinion is: “The judgment of conviction of first degree robbery is affirmed. The judgment reducing the verdict and striking the arming clause is reversed and the cause remanded to the trial court to restore the judgment of first degree murder and the arming clause.” This language clearly appears to be a reversal with directions to reinstate the jury verdict, and there is nothing in the Court of Appeal's decision which suggests an intention to remand the case for any other purpose. In such a case, “[t]he trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void.” (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655, 242 P.2d 1, 3; see also Puritan Leasing Co. v. Superior Court (1977) 76 Cal.App.3d 140, 146, 142 Cal.Rptr. 676.) Thus, the single issue that would confront us in reviewing the trial court's action would be whether it conformed to the appellate court's directions. Here, the trial court's action plainly did conform to the appellate court's directions, and appellant does not argue that it did not.

Treatment of This Appeal as a Petition for Writ of Habeas Corpus is Appropriate.

Appellant raises certain constitutional challenges to the reinstatement of the jury verdict which are not properly before us on this appeal, since the sole ground upon which the trial court's action may be attacked is nonconformity with the appellate court's directions, as discussed above. However, an improperly taken appeal has been treated as a petition for writ of habeas corpus where important constitutional questions were involved. (People v. Vest (1974) 43 Cal.App.3d 728, 118 Cal.Rptr. 84.) Such questions are involved in this case. Moreover, while habeas corpus generally will not serve as a medium for review of error which could have been made the subject of direct appeal (In re Walker (1974) 10 Cal.3d 764, 112 Cal.Rptr. 177, 518 P.2d 1129), the equal protection issue in this case became apparent only when the opinion in People v. Drake, supra, was issued, and that opinion was issued only after the first appeal in this case was decided. Since the equal protection issue was not apparent at the time of the first appeal, and since it is a substantial issue, we will not deny the posited writ for failure to exhaust other remedies.

The Statute Which Authorized the People's Appeal in This Case Denied Appellant Equal Protection of the Law.

Penal Code section 1238, subdivision (a)(6), at all times relevant, purported to authorize an appeal taken by the People from “[a]n order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed.” In People v. Drake, supra, 19 Cal.3d 749, 139 Cal.Rptr. 720, 566 P.2d 622, the Supreme Court held that neither this nor any other Penal Code section provided statutory authority for a prosecutorial appeal of a trial court's order reducing a verdict to a lesser included offense. On the other hand, Penal Code section 1238, subdivision (a)(6), by its terms, did allow a prosecutorial appeal of an order reducing a verdict to a lesser degree of the same offense.2

Appellant argues that the statutory scheme discriminated impermissibly between similarly situated persons in that it allowed the People to appeal an order reducing a conviction to a lesser degree of the same offense but did not allow an appeal of an order reducing a conviction to a lesser included offense. He argues that this classification affects the personal liberty interests of the persons included therein, and that therefore the state must demonstrate that the classification is necessary to a compelling state interest, which it has failed to do.

We agree. The effect of this statutory scheme was that out of all defendants whose punishments are lessened by the trial judge's modification of their verdicts, certain ones are subject to the possibility of the reinstatement of a more severe penalty, while others are exempt from that possibility. Thus, the classification clearly touches on the personal liberty interest of the persons affected by it, which interest was held to be fundamental in People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375. Since the classification did affect a fundamental interest, the state has the burden of showing that it is necessary to a compelling state interest. (Id., at p. 251, 131 Cal.Rptr. 55, 551 P.2d 375.)

Respondent seeks to distinguish Olivas on the ground that in Olivas the statute specifically involved a discrimination in terms of confinement, whereas section 1238, subdivision (a)(6) does not. The assertion is, of course, true, but to say that the difference between a conviction of first degree murder and second degree murder does not affect the personal liberty of appellant is to engage in sophistry. In Olivas, the vice was that Olivas, as a person under 21 years of age, could be held by the Youth Authority pursuant to Welfare and Institutions Code section 1770 for a period of time longer than the jail term that could be imposed for the same offense pursuant to the Penal Code. Here, appellant could be held for a longer prison sentence standing convicted of first degree murder than he might as one convicted of second degree murder. (See Pen.Code, § 190.)

The distinction between the two groups of defendants affected by Penal Code section 1238, subdivision (a)(6) was that the convictions of the one group are reduced to lesser degrees of the same offense, while the convictions of the other group are reduced to lesser included offenses. The distinction became a part of the law as a result of a legislative apprehension that to allow a prosecutorial appeal from a conviction modified to a lesser included offense would subject a defendant to double jeopardy while an appeal from a modification to a lesser degree of the same offense would not. (Gomez v. Superior Court (1958) 50 Cal.2d 640, 643-644, 328 P.2d 976.) However, in Gomez, the court held that the differentiation theretofore drawn in court decisions between the two kinds of sentence modification was, for the purposes of double jeopardy analysis, logically indefensible. Thus, Gomez is authority for the proposition that this distinction in section 1238, subdivision (a)(6) was based simply on a legislative misapprehension of controlling case law. The state has shown no compelling state interest in distinguishing between reductions in degree of an offense and reduction to a lesser included offense for purposes of an appeal by the People.

Assuming arguendo that a “strict scrutiny” standard of equal protection is not appropriate here but that the test is whether the classification is “rationally related to a legitimate state end” (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 150 Cal.Rptr. 435, 442, 586 P.2d 916, 923 (conc. opn. of Mosk, J.)), did Penal Code section 1238, subdivision (a)(6) pass muster?

As respondent states, the purpose of Penal Code section 1238, subdivision (a)(6) is to permit the state to appeal incorrect reductions by courts of jury verdicts. Certainly, it would appear that it is “a legitimate state end” that judges, given the power to reduce jury verdicts, be subject to some review in the exercise of that power. The question is whether the classification that separates reductions in degree from reductions to lesser included offenses was rationally related to that end. We hold that it was not.

First, we have heretofore observed that the classification was based on a legislative reading of the law that was demonstrated to be erroneous in Gomez v. Superior Court, supra.

Second, since respondent concedes that the purpose of section 1238, subdivision (a)(6) was to correct erroneous reduction by courts of jury verdicts, if respondent's position is correct, the following anomalous situation resulted: X was properly convicted of first degree murder by a jury. The trial court reduced the conviction to involuntary manslaughter, a lesser included offense. No appeal by the People was permitted. However, if that same X had his first degree murder conviction reduced to second degree murder, the People could appeal. Thus, if the trial court errs egregiously, there is no appeal by the People, but if the error was considerably less, then there was appeal.

Third, respondent argues that the Legislature could have provided for an appeal from a judgment reducing a verdict to a lesser included offense. Thus, by providing an appeal from a judgment reducing a verdict to a lesser degree of the same offense, the Legislature was simply proceeding “one step at a time” to correct an apprehended evil, citing Katzenbach v. Morgan (1966) 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828. It is correct that a Legislature can proceed “one step at a time” to remedy what it perceives to be problems in the body politic. But it is clear that the problem the Legislature was dealing with was improper reductions of criminal jury verdicts by the courts. The reason for only “one step” was that the Legislature thought it could not take the second step by reason of the constitutional prohibition against double jeopardy. We point out, too, that Penal Code section 1238, subdivision (a)(6) became law in 1951. Gomez points out that from a double jeopardy analysis, there is no difference between a reduction to a lesser degree and a reduction to a lesser included and was decided in 1958. Twenty years have gone by and if the language of section 1238, subdivision (a)(6) represented a first step towards creating review of error in judicial criminal jury verdict reductions, the Legislature had apparently forgotten about taking the next step until 20 years later.

Double Jeopardy

Appellant has argued that reimposition by the trial court of the original jury verdict and finding violated the constitutional prohibition against double jeopardy. Respondent, of course, takes a contrary position, contending not only that there is no double jeopardy in the reimposition of the higher degree of the crime but also, in effect, that the Legislature could provide for an appeal from a reduction to a lesser included and no double jeopardy problem would arise if, on appeal, the trial court was directed to reimpose the conviction for the greater crime. It is an interesting issue but its resolution will have to await some other time for, in light of the holding with regard to appellant being deprived of equal protection of the law, we need not attempt that resolution now.3

Conclusion

We therefore hold that the appeal taken by the People in People v. Frost, supra, 1 Crim. 15898, under the authority of Penal Code section 1238, subdivision (a)(6), violated appellant's right to equal protection of the law. His conviction as originally modified by the trial judge should be reinstated and the case is remanded for resentencing in accordance with the views expressed herein.

I dissent.

The majority appears to have created a rather novel equal protection concept. As I understand the lead opinion, when the Supreme Court in People v. Drake (1977) 19 Cal.3d 749, 754, 139 Cal.Rptr. 720, 566 P.2d 622, concluded that the Legislature did not intend to give the People the right of appeal from orders modifying a verdict to lesser included offenses, the provision granting the People the right to appeal from an order granting a reduction in the degree of a crime became unconstitutional. This is so because some defendants were able to take advantage of an error made by the trial court in reviewing and modifying a jury verdict while other defendants were denied the benefits of that error because the trial court's action was subject to further judicial scrutiny, thereby denying such defendants equal protection of the law. The majority cites no authority for its holding, nor do I find any.

Although the majority attempts to limit the impermissible classification to those defendants whose crime is reduced to a lesser included offense and those whose crime is reduced to a lesser degree, the logical extension of their holding would be to deny the People the right of appeal under any circumstances. “The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases.” (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 497, 72 Cal.Rptr. 330, 335, 446 P.2d 138, 143.) Those circumstances are enumerated in Penal Code section 1238. A People's appeal does not lie from all adverse orders or judgments. Under the majority's rationale, to give the People the right of appeal from some but not all orders or judgments would deny equal protection of the law to those defendants who by virtue of the People's appeal were exposed to a reversal of such favorable order or judgment.

In People v. Drake, supra, the court went to great length to evaluate the legislative intent, ultimately concluding that Penal Code section 1238, subdivision (a)(6) did not provide authority for prosecutorial appeal of a trial court's order reducing a verdict to a lesser included offense. Implicitly, Drake holds that the People retain the right to appeal from orders reducing the degree of a crime. The basic assumption in Drake is that the People do have such right of appeal. Its holding simply “reads” out of the statute any interpretation that would include the right of appeal from an order reducing the offense. There is no suggestion in the opinion that hidden in its holding somewhere is the result offered to us today by the majority.

In any event, as noted by the lead opinion, the Legislature has clarified its intent, spelling out in the amended Penal Code section 1238, subdivision (a) that the People in fact have the right of appeal in either the instance of the modification of the offense to a lesser included offense or the reduction of the offense to a lesser degree. Presumably, this modification will satisfy the majority's equal protection concern as to future appeals.

We are, however, left with an uncertainty as to the retroactivity of its holding, an issue not addressed by the majority. The Drake decision did not address the issue of its retroactivity. However, a footnote implies that the People may never have had the right to appeal such a reduction of a jury verdict: “Thus we do not resolve the issue left open by a majority of this court in People v. Serrato (1973) 9 Cal.3d 753, 762 [109 Cal.Rptr. 65, 512 P.2d 289], i. e., ‘Whether the order modifying the verdict, under section 1181, subdivision 6, can properly be characterized as an implied acquittal of the greater offense ․’ [¶] In Serrato this court cited (at p. 762, fn. 7, 109 Cal.Rptr. 65, 512 P.2d 289) two cases in which it has reviewed and affirmed orders modifying jury verdicts to lesser included offenses. (People v. Sheran (1957) 49 Cal.2d 101 [315 P.2d 5]; People v. Borchers (1958) 50 Cal.2d 321 [325 P.2d 97].) The court noted, however, that in each case ‘no question was raised as to the propriety of the appeals.’ The issue thus appears to be one of first impression. Its resolution here necessarily reflects upon our reviewing the merits of lower court orders in Sheran and Borchers.” (19 Cal.3d at p. 754, fn. 6, 139 Cal.Rptr. at p. 721, 566 P.2d at p. 624, emphasis added.)

However, implicit in the majority holding is the conclusion that Drake must be interpreted to apply retroactively. The Court of Appeal reversed the trial court's modification of Frost's murder conviction from first to second degree, and ordered the first degree verdict reinstated; that decision was filed on May 3, 1977. Defendant Frost then filed a petition for hearing in the Supreme Court. On July 25, 1977, the Drake decision was filed. On August 11, 1977, the Supreme Court denied Frost's petition for hearing. Thus the Supreme Court's decision in Drake was issued while Frost's petition for hearing was pending before that court. For the majority to conclude that allowing the People to appeal in Frost was unconstitutional, the majority must interpret the Drake decision to mean that the People did not have the right to appeal from a trial court's reduction of a jury verdict to a lesser included offense even before the Drake decision was filed.

Thus it appears that the impact of the majority's decision in Frost is that in past cases where the People successfully appealed a trial court's reduction of a jury verdict to a crime of lesser degree, the incarcerated person could now petition for a writ of habeas corpus to order the reinstatement of the trial court's modified verdict, as the People had no right to appeal that modification.

I would deny the writ.

FOOTNOTES

1.  Penal Code section 1181, subdivision (6) reads as follows:6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed;

2.  In 1978, effective 1979, the Legislature amended Penal Code section 1238, subdivision (a), to permit the People to appeal from an order modifying the offense to a lesser offense as well as from an order reducing the offense to a lesser degree. (Stats. 1978, ch. 1359, § 2, p. 4764, effective Jan. 1, 1979.)

3.  In light of the amendment to Penal Code section 1238, subdivision (a)(6), see footnote 2, supra, the question may be upon us sooner than we had thought.

FEINBERG, Associate Justice.

WHITE, P. J., concurs. SCOTT, Associate Justice, dissenting.