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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Titus Edward YATES, Defendant and Appellant.

Cr. 22997.

Decided: August 19, 1982

Quin Denvir, State Public Defender, Alice V. Collins, Deputy Public Defender, San Francisco, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stern, Asst. Atty. Gen., W. Eric Collins, Thomas A. Brady, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Titus Edward Yates appeals from a judgment of imprisonment rendered after a jury found him guilty of murder in the first degree (Pen.Code, § 187), burglary (Pen.Code, § 459), and robbery (Pen.Code, § 211).   The question on appeal is whether under the statute a defendant charged with first degree murder is entitled to 26 peremptory challenges of prospective jurors, or only 10, when there is no allegation of special circumstances subjecting the defendant to a penalty of death or of life without possibility of parole.   We hold that it was error to deny appellant 26 peremptory challenges.

Appellant and codefendant Sidney Easter collaborated in committing a robbery at a take-out shop.   During the robbery Easter shot one of the young employees, who died of his wound.

Appellant was tried separately.   Prior to the commencement of jury selection, defense counsel asked the court to allow appellant 26 peremptory challenges;  the court denied this request, holding that the defense was entitled to only 10 peremptories.   After exercising 10 peremptory challenges, defense counsel declared that he was dissatisfied with at least 6 of the jurors and again moved for additional challenges;  the court denied the motion.   That ruling is challenged in the appeal.

It has long been provided by statute that “If the offense charged [is] 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․  [O]n a trial for any other offense, the defendant is entitled to 10 and the state to 10 peremptory challenges.”  (Pen.Code, § 1070, subd. (a);  emphasis added.)   Appellant was charged with first degree murder which is punishable by “death, confinement in state prison for life without possibility of parole, or [if special circumstances are not alleged] confinement in the state prison for a term of 25 years to life.”  (Compare Pen.Code, § 190 with § 190.2.)   Appellant's argument hinges on whether a term of 25 years to life imposed in the absence of special circumstances should be construed as “life imprisonment” for purposes of allowing peremptory challenges.  (See Pen.Code, § 1070.)

In 1978 an initiative was adopted which changed the punishment for first degree murder from “life” to “25 years to life.”  (Pen.Code, § 190.)   Neither the language nor the background of the initiative indicates that it was intended to reduce the number of peremptory challenges in a trial for first degree murder without special circumstances.   The Legislature did not amend the peremptory challenge statute to conform to the new penalty language contained in the initiative.   The courts must, therefore, attempt to harmonize the preexisting statute and the new initiative measure if the two texts can fairly be given congruent effect.  (See 58 Cal.Jur.3d, Statutes, § 83, p. 432, § 84, p. 434, § 86, p. 436, § 99, p. 465, § 106, p. 481, § 108, p. 483.)

It is useful to review the history of both the first degree murder and the peremptory challenge statutes.   From 1856 to 1978, a person convicted of first degree murder was punishable by death or life imprisonment.  (See Stats.1856, c. 139, § 2, p. 219;  Pen.Code, § 190 as enacted 1872;  Stats.1873–74, c. 508, § 1, p. 457;  Stats.1921, c. 105, § 1, p. 98;  Stats.1927, c. 889, § 1, p. 1952;  Stats.1957, c. 1968, § 1, p. 3509;  Stats.1975, c. 719, § 2, p. 1297;  Stats.1976, c. 1124, § 1, p. 5028;  Stats.1976, c. 1139, § 133, p. 5098;  Stats.1977, c. 316, § 5, p. 1256;  Stats.1978, c. 579, § 2, p. 1981.)   On November 7, 1978, California voters adopted an initiative measure which is embodied in Penal Code section 190.   Under this statute first degree murder without special circumstances is punishable by a term of 25 years to life rather than life imprisonment.

The initiative measure was intended to increase the penalty for murder.   (In re Jeanice D. (1980) 28 Cal.3d 210, 219, 168 Cal.Rptr. 455, 617 P.2d 1087;  People v. Superior Court (Dillon) (1981) 115 Cal.App.3d 687, 691, –––Cal.Rptr. ––––;  Ballot Pamp., Analysis by Legislative Analyst of Prop. 7, Gen.Elec. (Nov. 7, 1978) p. 32.)   Prior to the 1978 amendment, a person convicted of first degree murder without special circumstances and sentenced to life imprisonment was eligible for parole in seven years.  (Pen.Code, § 3046.)   Under the 25 years to life sentence of current Penal Code section 190, the earliest that such an offender may be paroled is 16 years and 8 months.  (In re Jeanice D., supra, 28 Cal.3d 210, 219, 168 Cal.Rptr. 455, 617 P.2d 1087;  Ballot Pamp., Analysis by Legislative Analyst of Prop. 7, Gen.Elec. (Nov. 7, 1978) p. 33.)   Similarly, the 1978 amendment increased the punishment for second degree murder from “5, 6 or 7 years” to “15 years to life,” again, an increase in penalty.  (Id.;  see Pen.Code, § 190.)   There is no indication that the initiative, by increasing these penalties, sought to reduce the number of peremptory challenges to be available to persons charged with murder.

The peremptory challenges statute, Penal Code section 1070, subdivision (a), has provided since 1872 for a certain number of peremptory challenges where the defendant is charged with an offense for which the punishment is death or life imprisonment and a lesser number for all other offenses.   Although the statute has been amended to increase or decrease the number of such challenges, the language at issue here as to life imprisonment remains identical to that contained in the original enactment.   From the language of this statute, it can be inferred that the Legislature intended to allow a greater number of peremptory challenges to persons charged with crimes for which the punishments were extremely severe;  the most serious charges, carrying potential sentences of death and life imprisonment, entitled the defendant to the greater number of challenges.

In the instant case, the punishment at issue is “25 years to life” which, because of parole eligibility rules, is effectively a more serious punishment than a generally-stated “life sentence.”  (See Pen.Code, § 3046 [defendant under life sentence must serve minimum of 7 years before eligible for parole];  Pen.Code, § 2931 [defendant must serve minimum of 2/323 of sentence before eligible for parole].)  Although replacement of the former straight life sentence for first degree murder with an indeterminate 25 years to life sentence might seem to 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, “[i]n light of the actual operation of the pre-1978 provisions ․ 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.”  (In re Jeanice D., supra, 28 Cal.3d 210, 219–220, fn. 9, 168 Cal.Rptr. 455, 617 P.2d 1087.)

If the trial court's construction is upheld, defendants subject to a minimum 7-year incarceration (i.e., life sentence) would receive 26 peremptories 1 whereas defendants subject to a minimum 18 years, 6 months incarceration (25 years to life) would receive only 10 peremptory challenges.   Statutes should, wherever possible, be interpreted to avoid absurd results.   (Brown v. Huntington Beach Union etc. Sch. Dist. (1971) 15 Cal.App.3d 640, 93 Cal.Rptr. 417.)   Moreover, “[t]o ascertain legislative intent, the courts should construe a statute with reference to the whole system of law of which it is a part, so that all may be harmonized and have effect.”  (58 Cal.Jur.3d 108, p. 483;  Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381, 137 Cal.Rptr. 332.)

 Applying these principles to the enactments at issue here, it appears that the statutes can best be harmonized and their legislative purposes effected by construing the “life imprisonment” language of Penal Code section 1070, subdivision (a), as applying to the “25 years to life” sentence for first degree murder.  (Pen.Code, § 190.)   This construction gives effect simultaneously to the legislative purpose of increasing the penalties for first degree murder (Pen.Code, § 190) and to the legislative intent to allow the maximum number of challenges to persons charged with crimes punishable by extremely severe sentences such as life imprisonment or, in this case, the more severe punishment of imprisonment for 25 years to life.

 The language of the statutes points explicitly toward the same result.   The statute provides that 26 peremptory challenges are allowed to defendants charged with an offense “punishable ․ with imprisonment in the state prison for life․”  (Pen.Code, § 1070, subd. (a);  emphasis added.)   Although “the term actually imposed on an individual offender may range from 25 years to life” (In re Jeanice D., supra, 28 Cal.3d 210, 217, 168 Cal.Rptr. 455, 617 P.2d 1087), and a conviction under the first degree murder statute thus does not result in an automatic determinate term of life imprisonment, it cannot be disputed that a defendant sentenced to “25 years to life” is subject to a potential punishment of life.   A person sentenced to “25 years to life” is within the class of defendants which the peremptory challenge statute was designed to protect, i.e., those charged with an offense “punishable” with life imprisonment.

Respondent argues that such an interpretation conflicts with both established case law and the recent Supreme Court decision in In re Jeanice D., supra.   The line of decisions referred to by respondent held that defendants charged with crimes punishable by indeterminate life sentences were not entitled to the maximum number of peremptory challenges under Penal Code section 1070, subdivision (a).

These older cases held that “it is only in capital cases, or cases in which a life sentence is in terms affixed ․ as the punishment of the crime, that the defendant is entitled to ․ [the maximum number of] ․ peremptory challenges.”  (People v. Clough (1881) 59 Cal. 438, 441;  followed in People v. Sullivan (1901) 132 Cal. 93, 94, 64 P. 90 [“The construction thus given to the section [in Clough] was made nearly twenty 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.”];  People v. Logan (1899) 123 Cal. 414, 416–417, 56 P. 56 [“[I]f the question of the construction of the statute pertaining to the number of peremptory challenges to which a defendant convicted of rape is entitled were now before us for the first time, the court might agree with defendant's contention.   But this is not a new question, and the authorities of this state are the other way.   [Citations.]  We feel that the law had best stand as it has been heretofore announced.”];  People v. Fultz (1895) 109 Cal. 258, 259, 41 P. 1040;  People v. Riley (1884) 65 Cal. 107, 108–109, 3 P. 413;  People v. Shaw (1965) 237 Cal.App.2d 606, 611–616, 47 Cal.Rptr. 96, cert. den. 384 U.S. 964, 86 S.Ct. 1594, 16 L.Ed.2d 676.)   In all of the cited cases, the penalty for the charged crime was expressed either as “not less than” a specified number of years or a certain number of years “to life,” i.e., each involved a potential life sentence.

The most recent interpretation of the peremptory challenge rule in the context of indeterminate sentences is People v. Shaw, supra.   In Shaw, appellant was charged with forcible rape which was punishable by a term of imprisonment of 3 years to life.   The court in Shaw rejected appellant's argument that such an indeterminate sentence constituted a life term until the Adult Authority fixed the sentence at something less than life.   The court noted that, for certain purposes, “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 lower term,” but that “each reference to life imprisonment must be interpreted in its own context.”  (People v. Shaw, supra, 237 Cal.App.2d 606, 614, 47 Cal.Rptr. 96.)   The court concluded that, in the context of entitlement to peremptory challenges, an indeterminate sentence which could be fixed at less than a life term did not constitute “life imprisonment.”   Thus, the defendant in Shaw was held to be entitled only to the lesser number of peremptories.   Respondent urges that Shaw and its predecessors, in which this conclusion was reached, should be followed here.

It must be remembered, however, that Shaw and similar cases were decided in the context of indeterminate sentencing law (ISL).   Under the ISL system, any person convicted of a crime punishable by imprisonment for “not less than” a certain number of years or by imprisonment for a certain number of years “to life” was subject to a potential life sentence.  (See former Pen.Code, § 671.)   Since most crimes were subject to such a sentence, a vast array of crimes were thereby punishable by an indeterminate life sentence.   Thus, had the courts, in the context of ISL, held such sentences to entitle a defendant to the maximum number of peremptories, the underlying distinctions and purposes of the peremptory challenge statute would have been subverted.

 The determinate sentencing law (DSL) created a totally new system of criminal punishment.2  The underlying rationale of the earlier cases is not pertinent to the new system.   Under DSL, almost all sentences are designated in terms of a specific number of years rather than by an indeterminate range of potential sentences.   It appears that the few sentences which are not so designated fall into two categories:  The first set impose a punishment of death, life imprisonment without parole, or life imprisonment.   (See Pen.Code, §§ 190, 190.2, 190.3, 209, 218, 219, 667.7, 12310, 4500.)   The second set are those which remain in the form of indeterminate sentences;  only two crimes, first degree murder without special circumstances (“25 years to life”) and second degree murder (“15 years to life”) seem to be within this category.  (Pen.Code, § 190.) 3  Under these circumstances, the purpose of the statutes in question are best effectuated by allowing the maximum number of peremptory challenges to those accused of an offense punishable by imprisonment for “25 years to life.”

Respondent contends that such an interpretation conflicts directly with the holding of In re Jeanice D., supra, 28 Cal.3d 210, 168 Cal.Rptr. 455, 617 P.2d 1087.   That decision held that for purposes of eligibility for commitment to the California Youth Authority (CYA), a “25 years to life” sentence was an indeterminate sentence.   The defendant in Jeanice D. was convicted of first degree murder without special circumstances after adoption of a 1978 initiative which changed the penalty for such an offense from life to 25 years to life.   (In re Jeanice D., supra, 28 Cal.3d 210, 213, 168 Cal.Rptr. 455, 617 P.2d 1087.)   The youthful offender was thus subject to the same sentence as appellant here, i.e., 25 years to life.   Prior to the initiative, a defendant convicted of first degree murder was ineligible for CYA commitment under a statute which prohibits such commitment where the offender has been sentenced to death or “imprisonment for life.”  (Welf. & Inst.Code, § 1731.5.)   The court held that the nature of the sentence rather than the offense governed eligibility for CYA commitment;  thus, a defendant who was sentenced under the 1978 initiative to “25 years to life” was not sentenced to life imprisonment.   (In re Jeanice D., supra, 28 Cal.3d 210, 216, 168 Cal.Rptr. 455, 617 P.2d 1087.)   As a result, a conviction for first degree murder no longer was a bar to eligibility for commitment.  (Id., at p. 221, 168 Cal.Rptr. 455, 617 P.2d 1087.)   Respondent contends that this interpretation should also apply in the context of peremptory challenges.

The statute in question in Jeanice D. used the language “sentenced ․ to imprisonment for life” whereas the language in the peremptory challenge statute deals instead with crimes “punishable ” with life imprisonment.   Furthermore, contexts in which the terms are used are dissimilar.   In Jeanice D., the court was concerned with CYA eligibility;  by contrast, here, the statute at issue arises in the totally different context of peremptory challenges.

It has been stated that “each reference to life imprisonment must be interpreted in its own context․”  (People v. Shaw, supra, 237 Cal.App.2d at p. 615, 47 Cal.Rptr. 96.)  “ ‘․ It is proper, therefore, in reaching a conclusion [as to interpretation], to consider the purpose of the particular statute and certain fundamental rules governing the construction of criminal laws generally.’ ”  (Id., at p. 614, 47 Cal.Rptr. 96.)   Indisputably, it “has [been] held that for certain purposes an indeterminate sentence under a law which fixes no maximum term․ is in effect a ‘life sentence,’ ․”  (People v. Ralph (1944) 24 Cal.2d 575, 578, 150 P.2d 401.)   For example, in In re Lynch (1972) 8 Cal.3d 410, 419, 503 P.2d 921, the California Supreme Court concluded that for purposes of determining whether a sentence constituted unconstitutional cruel and unusual punishment, an indeterminate sentence with a life maximum should be treated as the equivalent of a sentence of life imprisonment.  (See also Graham v. Superior Court (1979) 98 Cal.App.3d 880, 890, 160 Cal.Rptr. 10 [“Every inmate sentenced to prison for an offense carrying a maximum term of life is ‘a life prisoner’ within the meaning of [Pen.Code] section 4500 even though the Adult Authority may subsequently fix his term at less than life․”].)  A similar rationale applies here in that the term “life imprisonment” must be interpreted in light of the purposes of the statute at issue as well as the context in which the term is used.   With these principles in mind, we conclude that for purposes of eligibility for peremptory challenges an indeterminate sentence of 25 years to life constitutes a life term.

 “The failure to grant a defendant the prescribed number of peremptory challenges when the record reflects his desire to excuse a juror before whom he was tried is reversible error.  (People v. Diaz (1951) 105 Cal.App.2d 690, 695 [234 P.2d 300]․)”  (People v. Shaw, supra, 237 Cal.App.2d 606, 611, 47 Cal.Rptr. 96.)   In view of the penalty for the crime which was charged here, appellant was entitled to 26 rather than 10 peremptory challenges.   The improper denial of the additional challenges necessitates reversal of the judgment.

 Appellant also contends that his first degree murder conviction was based on an unsound felony murder theory.   He argues that:  the rule should be invalidated as a matter of judicial policy;  that the rule violates due process guarantees;  and that the rule violates equal protection guarantees.   Appellant's contention that a reinterpretation of the “outmoded fiction” is necessary, cannot be accepted by an intermediate appellate court.  (People v. Terrill (1979) 98 Cal.App.3d 291, 305, 159 Cal.Rptr. 360.)   The California Supreme Court has reiterated the felony-murder doctrine on numerous occasions, and the present challenge may appropriately be addressed to that court if retrial on a felony murder theory results in a new conviction.  (See People v. Ramos (1982) 30 Cal.3d 553, 589–590, 180 Cal.Rptr. 266, 639 P.2d 908.)

The purported appeal from denial of pretrial motions is dismissed.

The judgment is reversed.


1.   A life sentence is currently the punishment prescribed for the following offenses:  kidnapping under special circumstances (Pen.Code, § 209);  train wrecking (Pen.Code, § 218 and 219);  and exploding destructive devices (Pen.Code, § 12310).

2.   See Penal Code section 1170 added by Stats.1976, c. 1139, § 273, p. 5140.  (Amended by Stats.1977, c. 165, § 15, p. 647;  Stats.1978, c. 579, § 29, p. 1987;  Stats.1979, c. 255, § 8, p. 549;  Stats.1980, c. 676, § 251, No. 4 Deering's Adv.Legis.Service, p. 90;  Stats.1980, c. 1117, § 7, No. 6 Deering's Adv.Legis.Service, p. 401;  Stats.1981, c. 1111, § 1, No. 7 Deering's Adv.Legis.Service, p. 502.)

3.   There is a third category where determinate sentences were not provided by the Legislature.   Within this category are a variety of penal statutes which provide for punishment by imprisonment “not exceeding one year and one day.”  (See Pen.Code, §§ 270, 502.7, 594, 597.5, 653h, 4532;  In re Jeanice D., supra, 28 Cal.3d 210, 220, fn. 11, 168 Cal.Rptr. 455, 617 P.2d 1087.)   In that these statutes provide for a maximum term of punishment which is less than life, they need not be considered as “indeterminate sentences” for purposes of this decision.

CHRISTIAN, Associate Justice.

RATTIGAN, Acting P. J., and POCHE, J., concur.

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