PEOPLE v. BOX

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Lawrence Desmond BOX, Defendant and Appellant. IN RE: Lawrence Desmond BOX on Habeas Corpus.

Cr. 5456, Cr. 6239.

Decided: August 06, 1982

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Antonia D. Radillo, Deputy State Public Defender, Sacramento, for defendant and appellant, and petitioner. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher, James Ching, and Margaret Garnand, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Appellant Lawrence Desmond Box appeals from his conviction of a violation of Penal Code section 187, murder in the second degree, and the jury's finding that appellant personally used a firearm, a pistol, within the meaning of Penal Code section 12022.5.   This court, at appellant's request, consolidated this appeal with appellant's petition for a writ of habeas corpus raising the identical issue.

The facts relating to the crime are not germaine to this appeal as the sole legal issue raised by appellant relates to the trial court's refusal to allow him 26 peremptory challenges.   The information filed in the San Luis Obispo County Superior Court charged appellant with one count of murder in violation of Penal Code section 187.   The information further alleged personal use of a firearm.  (Pen.Code, § 12022.5.)   Prior to the beginning of trial, appellant's trial counsel, in chambers, requested that he be allowed 26 peremptory challenges pursuant to Penal Code section 1070.   The court denied the motion and permitted appellant 10 peremptory challenges.   Appellant concedes that he did not exhaust his peremptory challenges, but in fact utilized only nine of the ten peremptory challenges permitted by the court.

The trial court did not err in limiting appellant to 10 peremptory challenges where appellant was charged with murder without special circumstances.

 Appellant contends that he is entitled to 26 peremptory challenges pursuant to Penal Code section 1070, and that the trial court erred in limiting him to 10 peremptory challenges.   We disagree.

Penal Code section 1070 provides as follows:

“(a) If the offense charged be punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to 26 and the state to 26 peremptory challenges.   Except as provided in subdivision (b), on a trial for any other offense, the defendant is entitled to 10 and the state to 10 peremptory challenges.

“(b) If the offense charged be punishable with a maximum term of imprisonment of 90 days or less, the defendant is entitled to six and the state to six peremptory challenges.”

Appellant was charged with murder without any allegation of special circumstances.   The jury was instructed on the elements of both first and second degree murder and on manslaughter.  Penal Code section 190 sets forth the punishment for murder as follows:

“Every person guilty of murder in the first degree shall suffer death, confinement in state prison for life without possibility of parole, or confinement in the state prison for a term of 25-years to life.   The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

“Every person guilty of murder in the second degree shall suffer confinement in the state prison for a term of 15 years to life.

“The provisions of Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code shall apply to reduce any minimum term of 25 or 15 years in a state prison imposed pursuant to this section, but such person shall not otherwise be released on parole prior to such time.” 1

California authority relating to the number of challenges available to the defendant has consistently held that the provisions of section 1070 allowing the maximum number of peremptory challenges are not applicable to crimes where the punishment may be less than life imprisonment.  (See People v. Ralph (1944) 24 Cal.2d 575, 150 P.2d 401;  People v. Clough (1881) 59 Cal. 438, 441–442;  People v. Shaw (1965) 237 Cal.App.2d 606, 610–616, 47 Cal.Rptr. 96;  People v. Purio (1920) 49 Cal.App. 685, 687, 194 P. 74.)

The Court of Appeal thoroughly discussed the proper interpretation of section 1070 in cases such as this in People v. Shaw, supra, 237 Cal.App.2d 606, 47 Cal.Rptr. 96.   In Shaw, defendant contended that because the crimes of which he had been convicted were punishable by terms of not less than some specified number of years, which, under the provisions of then Penal Code section 671 would subject him to a maximum term of life imprisonment, he was entitled to 20 2 peremptory challenges.   The court rejected this contention as follows:

“It is concluded that the right to 20 peremptory challenges is not available where the punishment for the offense charged is an indeterminate sentence which may be fixed at less than a life term.   As stated in Sullivan, supra, [People v. Sullivan (1901) 132 Cal. 93, 64 P. 90]:  ‘The construction thus given to the section (§ 1070) was made ․ years ago;  and as the legislature has not seen fit to make a change in the statute, we do not feel authorized to recede from the construction then given.’  (132 Cal. at p. 94, 64 P. 90.)”  (Shaw, supra, 237 Cal.App.2d at p. 616, 47 Cal.Rptr. 96.)

Witkin has also recognized that “[o]ffenses punishable by ‘life imprisonment’ under [Pen.Code, § 1070] are only those crimes for which the statute prescribes the term of life.   In some instances, where the statute sets forth only a minimum (e.g., not less than 5 years), the maximum is life․  Such cases, however, fall within the ‘other offense’ part of [Pen.Code, § ] 1070․”  (Witkin, Cal. Criminal Procedure, § 405, p. 406, (1978 supp.) p. 724.)

The court in People v. Shaw rejected defendant's claim that the prior cases upon which the court relied were not applicable due to the subsequent change of sentencing procedures brought about by indeterminate sentencing where the court no longer imposed the specific term, but rather allowed indeterminate sentences to be fixed administratively.  (Id., 237 Cal.App.2d at p. 613, 47 Cal.Rptr. 96.)   Defendant argued that this, in effect, made a “not less than sentence” automatically a life sentence until otherwise ordered by the Adult Authority.   The court also rejected defendant's contention that the line of cases limiting the number of his peremptory challenges because the sentence was not by its terms fixed at life was inconsistent with the line of authority that “a prisoner who may receive a maximum punishment of a life sentence may be treated as undergoing such until a sentence is fixed at a lesser term ․, or cases which hold that a conviction which subjects the offender to a possible life sentence carries the possibility of greater punishment than one with a fixed term, and the latter must therefore yield to the former if double punishment would violate the provisions of section 654 of the Penal Code.   [Citations.]”  (Id., at p. 614, 47 Cal.Rptr. 96.)   According to the court:

“The precept that each reference to life imprisonment must be interpreted in its own context, is further exemplified by the principle that the provisions of section 669 of the Penal Code do not preclude the sentencing court from making an indeterminate sentence which may carry a maximum penalty of life imprisonment consecutive to another sentence.  (In re Quinn (1945) 25 Cal.2d 799, 801–805 [154 P.2d 875] ․;  and People v. Kostal (1958) 159 Cal.App.2d 444, 453–455, 323 P.2d 1020 ․)”  (Id., 237 Cal.App.2d at pp. 614–615, 47 Cal.Rptr. 96.)

At the time of these decisions Penal Code section 190 set the penalty for first degree murder at life imprisonment or death.3  Under Penal Code section 190, as amended by the “Death Penalty Initiative” in November 1978, first degree murder without allegation of special circumstances now carries a penalty of “25 years to life”.

Since the 1978 change, no court has directly considered the effect, if any, of the change on the number of peremptory challenges available to a defendant in appellant's situation (i.e., charged with first degree murder without special circumstances).

However, subsequent cases considering the effect of the initiative have uniformly held that Penal Code section 190, as amended by the 1978 initiative, is an indeterminate sentence and is not to be considered as imposing automatically the maximum term of life imprisonment.   Most prominent among these cases is In re Jeanice D. (1980) 28 Cal.3d 210, 221, 168 Cal.Rptr. 455, 617 P.2d 1087 in which the California Supreme Court held, following the 1978 initiative, that murder without special circumstances “under Penal Code section 190 constitutes an indeterminate 25 years to life sentence”.   In reaching its conclusion that Penal Code section 190 provides for an indeterminate sentence, the Supreme Court stated:

“To begin with, the initial, and most obvious, indication of the nature of the sentence established by the statute flows from the ‘25 years to life’ language utilized in the provision.   As already noted, this statutory terminology is precisely the language that has been commonly and uniformly utilized in this state to denote an indeterminate sentence․

“․

“In referring to a ‘minimum term of 25 ․ years ․ imposed pursuant to this section,’ the current statute unambiguously demonstrates that the provision contemplates that an individual sentenced under the statute will not automatically receive a determinate term of life imprisonment.   Instead, the statute recognizes that, as with traditional indeterminate sentences, the term actually imposed upon an individual offender may range from 25 years to life․”  (Id., at pp. 216–217, 168 Cal.Rptr. 455, 617 P.2d 1087.)

Upon reaching its determination that Penal Code section 190 imposed an indeterminate sentence for murder without special circumstances, the Supreme Court concluded that under the authority of People v. Ralph, supra, 24 Cal.2d 575, 150 P.2d 401, the defendant, a minor convicted of first degree murder without special circumstances, was eligible for a Youth Authority commitment, despite provisions of Welfare and Institutions Code section 1731.5 prohibiting Youth Authority commitment of a minor sentenced to death or imprisonment for life.  (Id., 28 Cal.3d at p. 221, 168 Cal.Rptr. 455, 617 P.2d 1087.)

The court in People v. Ralph, supra, 24 Cal.2d 575, 150 P.2d 401 relied heavily upon the line of cases interpreting section 1070 as providing for the maximum number of peremptory challenges only when a life sentence was imposed by its terms, and not pursuant to an indeterminate sentence where the maximum possible term was life.  Ralph concluded that an indeterminate sentence, where the maximum was life imprisonment, did not preclude commitment of a minor to the Youth Authority.   According to People v. Ralph, supra, at p. 579, 150 P.2d 401:

“[D]efendants point to the line of cases, commencing with People v. Clough (1881), 59 Cal. 438, 441, and including People v. Riley (1884), 65 Cal. 107, 108–109 [3 P. 413] ․;  People v. Fultz (1895), 109 Cal. 258, 259–260 [41 P. 1040] ․;  People v. Logan (1899), 123 Cal. 414, 416–417 [56 P. 56] ․;  People v. Sullivan (1901), 132 Cal. 93, 94 [64 P. 90] ․;  and People v. Purio (1920), 49 Cal.App. 685, 687 [194 P. 74] ․, which have established and uninterruptedly held that although section 1070 of the Penal Code provides that a defendant charged with an offense ‘punishable with death, or with imprisonment in the state prison for life ․ is entitled to twenty ․ peremptory challenges' to jurors, and that ‘On a trial for any other offense, the defendant is entitled to ten ․ peremptory challenges,’ nevertheless it is ‘only in capital cases, or cases in which a life sentence is in terms affixed by the Legislature as the punishment of the crime, that the defendant is entitled to twenty peremptory challenges.’  (People v. Clough (1881), supra.)   It may be noted that in People v. Purio (1920), supra, in which the trial court's action in allowing defendants accused of robbery (punishable by imprisonment in the state prison for not less than one year, Pen.Code, § 213) only ten peremptory challenges was approved on appeal, the further statement is made (at p. 687 of 49 Cal.App. [194 P. 74] ) that ‘the recent (in 1917) change in the law providing for an indeterminate sentence has not affected the rule in reference to the number of peremptory challenges.’ ”

The Supreme Court in Ralph recognized the contrary line of authority which holds that “for certain purposes an indeterminate sentence under the law which fixes no maximum term, prior to action by the authorized board, is in effect a ‘life sentence’ ․”  (Id., at p. 578, 150 P.2d 401, citing People v. McNabb (1935) 3 Cal.2d 441, 444–445, 456–457, 45 P.2d 334;  In re Lee (1918) 177 Cal. 690, 171 P. 958;  People v. Jones (1936) 6 Cal.2d 554, 556, 59 P.2d 89;  In re Daniels (1930) 106 Cal.App. 43, 45, 288 P. 1109;  People v. Hayes (1935) 9 Cal.App.2d 157, 160, 49 P.2d 288;  People v. Meyers (1939) 31 Cal.App.2d 515, 517, 88 P.2d 212.)   Consequently, it is significant to note the “certain purposes” for which an indeterminate sentence is in effect a “life sentence.”   The foregoing cases rely upon In re Lee, supra, 177 Cal. 690, 171 P. 958 which held that an indeterminate sentence is not void for uncertainty.   Such a sentence was held to be certain and definite on the basis that it is, in legal effect, a sentence for the maximum term.   None of these cases concerned Penal Code section 1070 or a peremptory challenge issue.

Other more recent cases have followed In re Jeanice D. in holding that the terms of Penal Code section 190 involving first and second degree murder without special circumstances provide for an indeterminate, rather than a determinate term.  (See, e.g., People v. McNiell (1980) 112 Cal.App.3d 330, 340, 169 Cal.Rptr. 313 [enhancement of sentence permissible where the term is an indeterminate sentence of 15 years to life for a second degree murder];  People v. Marling (1981) 116 Cal.App.3d 284, 287, 172 Cal.Rptr. 109 [indeterminate sentence entitles minor to consideration for Youth Authority];  People v. McGahuey (1981) 121 Cal.App.3d 524, 527, fn. 2, 175 Cal.Rptr. 479.)

 Appellant argues strenuously that the adoption of the 1978 initiative changing the traditional punishment for first degree murder should not be interpreted to deprive appellant of the 26 peremptory challenges to which he would have been entitled prior to the adoption of the initiative.

However, Penal Code section 1070 bases the number of peremptory challenges to which a defendant is entitled upon the term of punishment, rather than upon the type of crime committed.  Section 1070 has never provided that the number of peremptory challenges should be based upon the type of crime committed, rather than upon the length of punishment provided.

Although it is true that in the past murder in the first degree has been a crime which by its terms was punishable by death or life imprisonment, it is also true that defendants charged with commission of other “lesser” crimes have also been entitled to 26 peremptory challenges where the sentence by its terms was a life sentence.  (See, e.g., Pen.Code, § 209 [kidnap with intent to rob];  see Hines v. Enomoto (9th Cir. 1981) 658 Fed.2d 667.)

The Supreme Court in In re Jeanice D., supra, did recognize that the Death Penalty Initiative, although superficially prescribing a lesser term than the prior statute, in fact resulted in a more severe sentence.   As the court stated:

“It might be argued that the replacement of the former straight life sentence for first degree murder with an indeterminate 25 years to life sentence would represent a reduction in penalty because under an indeterminate scheme an offender's actual sentence may in some cases be set at less than life imprisonment.   In light of the actual operation of the pre-1978 provisions, however, this aspect of the ‘25 years to life’ indeterminate sentence does not in reality represent any reduction from the actual sentence prescribed by the prior law.

“Under the prior statutory scheme, although Penal Code section 190 prescribed a straight life term, the Board of Prison Terms could effectively establish an ultimate sentence for life prisoners at less than 25 years.   As already noted, under Penal Code section 3046 the board was authorized to release a life prisoner on parole after seven years;  Penal Code section 3000, subdivisions (b) and (d), in turn, provided that such life prisoners would be completely discharged from custody upon their successful completion of a five-year period of parole.   As a consequence of these statutory provisions, a life prisoner's ultimate sentence under the pre-1978 law could be considerably shorter than is possible under the present 25 years to life indeterminate sentence.”  (Id., 28 Cal.3d at pp. 219–220, fn. 9, 168 Cal.Rptr. 455, 617 P.2d 1087.)

The court further recognized that the 1978 election brochure arguments and analysis disclosed an intent to increase the punishment for first and second degree murder.  (Id., at p. 220, 168 Cal.Rptr. 455, 617 P.2d 1087.)   Appellant contends that because the penalties were increased under the determinate sentencing law, it can be inferred that the drafters did not intend to change or affect any other section and did not intend to reduce the number of peremptory challenges to which a defendant was entitled.

 Appellant further contends that “the restriction of peremptory challenges was not contemplated by proponents of the initiative” because to do so would violate the “single subject” provisions of the California Constitution article II section 8.4  Appellant asserts that to construe the provisions of Penal Code section 190 relating to murder in the first degree without special circumstances as we do here, causes Penal Code section 190 to violate the single subject rule.   We disagree.

Clearly, Penal Code section 190 by its terms does not embrace more than a single subject.   It changes no language in section 1070 and, in fact, does not change our interpretation of that statute as providing the maximum number of peremptory challenges for persons charged with “straight” life sentences, while allowing those charged with indeterminate “X to life” sentences the lesser number of peremptories.   At most, Penal Code section 190, by changing the penalty for murder, has the secondary and indirect effect of changing the number of peremptory challenges allowed for murder in the first degree without special circumstances and we decline to hold that such remote effect violates the single subject rule.   In fact, the Supreme Court's interpretation of Penal Code section 190 in In re Jeanice D., supra, supports our conclusion as it resulted in the same type of effect upon Welfare and Institutions Codes section 1731.5.

Prior to the initiative, a minor convicted of murder in the first degree and sentenced to “imprisonment for life” was ineligible for CYA commitment.   Following the initiative's enactment, Jeanice D., convicted of murder in the first degree without special circumstances, was held to be eligible for CYA because under section 1731.5 the nature of the sentence, and not the offense, governed eligibility.   As the court stated:

“In attempting to defend his proposed interpretation of Penal Code section 190, the Attorney General points out that prior to the November 1978 amendment of the statute minors convicted of first degree murder without special circumstances were not eligible for CYA commitment.  [Citation.]  The Attorney General argues that because there is no indication that the drafters of the amendment specifically intended to render such minors eligible for CYA commitment, the section should not be given such effect.   The prior ineligibility for CYA of minors convicted of first degree murder, however, flowed simply from the fact that before 1978, Penal Code section 190 prescribed a ‘straight’ life imprisonment sentence for the offense.   As we have explained, under section 1731.5, the alteration of this sentence in November 1978 carried with it an alteration in a minor offender's CYA eligibility.   Although there may be no affirmative indication that the drafters of the provision specifically had this consequence in mind, by the same token there is similarly no indication that the drafters intended to preclude the normal application of section 1731.5.”  (28 Cal.3d at pp. 217–218, 168 Cal.Rptr. 455, 617 P.2d 1087, fn. omitted.)

There was no indication in In re Jeanice D. that alteration of a minor's CYA eligibility brought about by alteration of the sentencing provisions of section 190 in any way ran afoul of the single subject rule.   Indeed, were we to adopt appellant's argument that the single subject requirement is violated in circumstances such as those here present, and were we also to adopt appellant's contention that Penal Code section 1070 operates on the type of crime (such as murder) rather than upon the term of sentence, such interpretation could also violate the single subject rule.   Moreover, if we were to hold that the provisions of Penal Code section 190 provided for a determinate life sentence for murder, then we would also be changing the traditional application of the law with respect to murder in the second degree which is now punished by a term of 15 years to life and which, prior to the initiative was punished by a determinate term of five, six or seven years.   (Former Penal Code, § 190, as amended by Stats.1977, ch. 316, § 5, p. 1256, amended by Stats.1978, ch. 579, § 2, p. 1981.)   Under appellant's argument, one charged with murder in the second degree would now also be entitled to 26 peremptory challenges.

Penal Code section 1070 was amended in 1978.  (Stats.1978, ch. 103, § 1, p. 266 [urgency statute took effect on April 18, 1978];  Stats.1978, ch. 98, § 2, p. 261 [effective date, January 1, 1979].)  Had the Legislature, which presumably was aware of prior decisional law relating to the effect of indeterminate sentences on peremptory challenges, wished to change that section to provide that persons charged with the crime of murder in the first degree without special circumstances should be entitled to 26 peremptory challenges, despite the fact that the then pending initiative would change the penalties to indeterminate terms, they certainly could have done so.   The words “25-years-to-life” historically have been judicially construed to denote an indeterminate sentence.  In re Jeanice D., supra, at page 216, 168 Cal.Rptr. 455, 617 P.2d 1087, stated that:

“As this court observed nearly a half-century ago:  ‘It is a well-recognized rule of construction that after the courts have construed the meaning of any particular word, or expression, and the legislature subsequently undertakes to use these exact words in the same connection, the presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the courts.’  (City of Long Beach v. Payne (1935) 3 Cal.2d 184, 191, 44 P.2d 305 ․)

“This prime principle, moreover, applies equally to subsequent legislation adopted through the initiative process as to enactments passed by the Legislature itself.  [Citation.]  If the drafters of the current version of Penal Code section 190 had intended to establish a determinate life sentence, with some minimum parole fixing date, they surely would not have specifically utilized language that unequivocably connotes an indeterminate sentence.”

It is true that cases wherein the courts have held that the indeterminate sentence with a life maximum does not entitle appellant to the maximum peremptory challenges have involved offenses other than murder.   However, In re Jeanice D., supra, and other cases following it, have unequivocably held that a sentence of “X years to life” is an indeterminate sentence and that it will not be considered a life sentence for purposes of precluding a minor from CYA commitment or for purposes of prohibiting enhancements.  (See People v. McNeill, supra, 112 Cal.App.3d 330, 169 Cal.Rptr. 313.)   Moreover, it is clear from the fact that defendants charged with crimes other than murder are allowed 26 peremptories where a life sentence is by its terms imposed, that the distinction is not the type of crime, but rather the punishment provided.

Appellant contends that the term “confinement in the state prison for a term of 25 years to life” could arguably mean either an indeterminate sentence with a life maximum or a straight life sentence with a possibility of parole, concluding that the initiative was ambiguous and therefore must be resolved in favor of appellant in this case.   However, it is clear after In re Jeanice D., if it was not clear before, that the provisions of the initiative and Penal Code 190 do mean indeterminate sentences with a life maximum and not, as was contended by the Attorney General in In re Jeanice D. (and rejected by the court) a straight life sentence with the possibility of parole.  (Id., 28 Cal.3d at p. 216, 168 Cal.Rptr. 455, 617 P.2d 1087.)   Thus, although it does not appear that the statute is ambiguous on its face, even if it were so, it appears that the Supreme Court has interpreted that ambiguity.5

Lastly, appellant argues that to hold that he is not entitled to 26 peremptories in this case would be to construe the statute impermissibly and in violation of the equal protection guarantees of the federal and California Constitutions.  (People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375.)

Appellant contends that by refusing to allow greater procedural protections (the granting of 26 peremptory challenges) for the crime of murder without special circumstances which in reality is more severely punished (by a 25-year-to-life sentence with a possibility of parole in 162/323 years) than for the crime of kidnap with intent to rob (Pen.Code, § 209) (which is punished by a straight life sentence, in reality subject to parole after 7 years [Pen.Code, § 3046] ), the construction of the statute violates equal protection.

Appellant relies on People v. Olivas, supra, 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375 in support of his contention that the construction we have placed upon section 190, when read together with section 1070, denies him equal protection of the law.

 It is clear that equal protection does not require that persons convicted of different crimes be treated equally, primarily because they are not similarly situated.  (People v. Preciado (1981) 116 Cal.App.3d 409, 413, 172 Cal.Rptr. 107 [mandatory imposition of consecutive sentences for multiple rapes does not violate equal protection, though consecutive sentences for multiple murders is not mandatory];  People v. Hughes (1980) 112 Cal.App.3d 452, 459, 169 Cal.Rptr. 364;  People v. Gayther (1980) 110 Cal.App.3d 79, 91, 167 Cal.Rptr. 700;  Smith v. Municipal Court (1978) 78 Cal.App.3d 592, 601, 144 Cal.Rptr. 504.)

As the court stated in People v. Hughes, supra, 112 Cal.App.3d at pp. 458–459, 169 Cal.Rptr. 364:

“ ‘The concept of equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’  (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578 [79 Cal.Rptr. 77, 456 P.2d 645] ․ (italics added).)   Thus, in Olivas, the statutory scheme operated to divide misdemeanants into two groups and permitted more severe punishment of youthful offenders though their crimes were identical to those of adults.   This unequal treatment was found to violate the right to equal protection and to be without support of a compelling state interest․

“․ ‘[I]t is one thing to hold, as did Olivas, that persons convicted of the same crime cannot be treated differently.   It is quite another to hold that persons convicted of different crimes must be treated equally.   The latter are not similarly situated for equal protection purposes.’  (Smith v. Municipal Court (1978) 78 Cal.App.3d 592, 601 [144 Cal.Rptr. 504] ․, upholding mandatory 90-day minimum sentence for use of heroin.)”

Of course, as pointed out by Justice Reynoso in his concurring opinion in People v. Gayther, supra, 110 Cal.App.3d at page 91, 167 Cal.Rptr. 700, this rule has its limitations.   For example, 30 years of prison for possession of one ounce of marijuana versus six months for selling heroin would violate equal protection, or would be cruel and unusual punishment.   Justice Reynoso went on to point out that “[g]enerally, defendant [in Gayther] is correct that it makes little sense to permit probation for a murderer but not for a rapist.   Senselessness, however, is not synonymous with unconstitutionality.”

 In the instant case, the recognition that Penal Code section 190 provides an indeterminate sentence for persons convicted of murder without special circumstances and the application of the traditional interpretation of Penal Code section 1070, to allow only 10 peremptory challenges where a sentence does not by its terms impose a life sentence, does not violate the constitutional right to equal protection of the laws.   Equal protection does not require persons convicted of different crimes be treated equally and the above construction of the applicable statutes does not establish a classification which treats a similarly situated group in disparate ways.

The conclusion we reach herein makes it unnecessary for us to determine the issue raised by the petition for habeas corpus.

Judgment affirmed.   Habeas corpus petition denied.

FOOTNOTES

FOOTNOTE.  

1.   Penal Code section 190 was added by section 2 of Initiative Measure, commonly called “the Death Penalty Initiative”, on November 7, 1978.

2.   Penal Code section 1070(a) was amended in 1975 to increase the number of peremptory challenges from 20 to 26.

3.   Prior to amendment in the 1978 election, Penal Code section 190 provided in pertinent part:  “Every person guilty of murder in the first degree shall suffer death, confinement in state prison for life without possibility of parole, or confinement in state prison for life․”  (1977 Stats., ch. 316, § 5, p. 1256.)

4.   California constitution article II section 8, provides in relevant part as follows:“(d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.”

5.   In view of the authority cited herein this court feels compelled to affirm the judgment although recognizing the practical merits of appellant's argument.   Perhaps relief, if any, should be sought through the legislative process rather than by judicial interpretation.   In this respect, Justice Kaus' observation in his separate opinion in People v. Pic'l (1982) 31 Cal.3d 731, 747, 183 Cal.Rptr. 685, 646 P.2d 847, (conc. and dis. opn. of Kaus, J.) appears appropriate:  “If I were a legislator, I might well vote for such a statute.   As a judge, however, I cannot stretch the meaning of section 153 so as to make the legislation unnecessary.”

MORONY, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

FRANSON, Acting P. J., and ANDREEN, J., concur.

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