The PEOPLE, Plaintiff and Respondent, v. Martin Edward MARSH, Defendant and Appellant.
Defendant Marsh appeals from judgment entered on his plea of nolo contendere to kidnaping for ransom (§ 209, Pen.Code) (count I) with bodily harm, eight counts of forcible rape (counts III, IV, V, VIII, IX, X, XII, XIII) and that he acted in concert, three counts of oral copulation (§ 288a, subd. (c)) (counts VI, XIV, XX), two counts of oral copulation (§ 288a, subd. (d)) (counts VII, XXI), sodomy (count XI), two counts of robbery (counts XV, XVI), allegation of use of a deadly weapon (knife) within the meaning of section 12022, subd. (b) in the commission of all of the foregoing crimes, and three counts of assault with a deadly weapon by means of force likely to produce great bodily injury (counts XVII, XVIII, XIX). The pleas were entered pursuant to a plea bargain in return for which the People agreed to and the court did dismiss count II (simple kidnaping [§ 207, Pen.Code] ).
MOTION TO STRIKE
At probation and sentence defendant moved to strike from count I the allegation of ransom and of bodily harm to reduce the charge of kidnaping under section 209, Penal Code, to simple kidnaping in violation of section 207, Penal Code, in order to render him eligible for commitment to the California Youth Authority. The intent, of course, was to completely destroy the charge of kidnaping for ransom with bodily harm as alleged in count I. The motion was denied and defendant was sentenced on count I to life imprisonment without possibility of parole. Appellant contends the court abused its discretion in denying the motion because (1) striking both allegations would have made him eligible and cleared the way for commitment to the California Youth Authority (a maximum term of four years) and (2) striking the allegation of bodily harm would have permitted him to be sentenced to life imprisonment. His contention is based on the premise first, that without an order striking the ransom and bodily harm allegations he was and is not eligible for commitment to the Youth Authority and second, that he “clearly demonstrated his amenability to the training and treatment available at Youth Authority” and “established from the undisputed evidence that the interests of justice required a Youth Authority commitment.” The court's power to dismiss (here to strike) under section 1385, Penal Code is limited by the concept that requires the dismissal to be “in furtherance of justice” and, contrary to appellant's assertion, factually he was not amenable to the California Youth Authority treatment and training, and the trial court recognized this in denying the motion. The real question is did the trial court abuse its discretion in denying the motion to strike to make defendant eligible for training and treatment at the Youth Authority; the answer is no.
Trading heavily on his age (16) at the time of commission of the offenses in 1980, the asserted lack of “sophistication” in the crime and “a robbery attempt that went awry and ended with an amateurish $300 ransom,” the lack of “substantial physical injuries [to the victim] in addition to the sexual assaults,” Billy's “influence” over him “forcing” him to participate and his “appearance” of being under the influence of “speed” and alcohol, the thrust of appellant's argument is that the sentence of life imprisonment without possibility of parole is too harsh. The other side of the coin tells an entirely different story. It is reflected in a plethora of information before the trial court—the transcript of testimony taken at the preliminary hearing, probation report, statement of defendant's parole officer, report of the Newport Medical Group, report of Dr. Donaldson, report of Dr. Nutter, and a study of Juvenile Hall Group Supervisors.
The transcript of the preliminary hearing establishes the following. After midnight on April 11, 1980, defendant (then age 16, now over 18 years) and Billy (age 19) approached Anne and her companions Michael and Robin as they entered their car near the beach, pulled them out of the car, pointed knives at them and demanded their property; they surrendered their watches and rings but had no money. Threatening them with knives drawn at their throats, defendant and Billy who had returned them to a grassy area near their car, forced Michael and Robin to lie down and questioned them about getting some money, kicking them about the head, body and groin area and poking and stabbing at them with their knives. Billy told defendant to watch them and ordered Anne to remove her clothes; she refused and Billy said “I'm going to kill your friends if you don't”; she complied and he forcibly raped her. Defendant and Billy then led Anne and her two companions to another area near the restrooms, and again Billy raped her while defendant watched the two males and talked to them about getting some money ($300) for Anne's release—“[defendant] was talking about having them meet them the next day for some money. And he was telling [Michael] where to put it and what to put it in and how much.” After making the money arrangements with Michael and Robin, defendant said to Billy “ ‘Well, let me have a turn.’ They just kept playing around like, like it was nothing to them,” and defendant forcibly raped Anne while Billy watched Michael and Robin; in addition Anne was forced to engage in various acts of oral copulation with Billy, then with defendant; defendant and Billy told Michael and Robin to have $300 the next day and “if you don't show up with the money, you're never going to see her again” reiterating instructions concerning where to leave the money (in a trash can by the Holiday Inn at 11 or 12 o'clock noon that day). Defendant and Billy walked to Michael's car, and when Billy could not find the key they slashed the tires then led Anne away along the beach over a freeway to a grassy field where again she was sexually assaulted by Billy and defendant; Billy, then defendant, raped her and while defendant engaged in an act of sexual intercourse Billy committed sodomy on Anne then forced her to engage in additional acts of oral copulation with both. Billy and defendant walked Anne down the railroad tracks, down several streets and up the stairs to the top of some apartments where she was blindfolded and led to a van, they walked about a mile in all; in the van she was ordered to undress and threatened with death if she did not do as she was told; they engaged in further acts of sexual intercourse, “They just sort of took turns”; Billy engaged in another act of oral copulation with her; and they told her she would be killed if her friends did not come up with the money. The next morning about 11:30, defendant left the van to pick up the ransom money but returned “Because he was scared that the cops were around”; defendant left again in the afternoon but returned without the money. At 4:30 p.m. Anne was released to two persons who knew Billy and defendant.
Was defendant coerced into participating in the crimes by Billy, only three years older? Hardly. The record demonstrates that defendant played a full, complete and meaningful and violent role in all events. While it is true Billy raped the victim first, the second time defendant said to Billy “ ‘Well, let me have a turn.’ ” They would not have “just kept playing around like” had defendant been under any coercion by Billy. From then on during the 16-hour period they repeatedly sexually abused the victim taking turns. Defendant discussed the ransom with Michael and Robin on two occasions while Billy was raping the victim and it was defendant who made the arrangements and gave the instructions when and where to leave the $300. It was also defendant who twice the next day left the van to pick up the ransom money but returned without it because he was “scared the cops were around.” If the kidnaping was “amateurish” and lacked “sophistication” as claimed by appellant, it nonetheless was a deliberate, vicious, violent and callous crime accompanied by numerous and varied acts of sexual abuse over a period of 16 hours ravaging the 18-year-old female victim.
The probation reports reveals a serious criminal record 1 for a 16-year-old—two burglaries, two escapes, possession of marijuana and auto theft. It also points up various factors. (1) The increasing seriousness of the crimes committed by the minor over a 4-year period. (2) A history of violence indicating defendant is a danger to society, especially when using alcohol and drugs. His conduct has a basic pattern of violence, irresponsibility and anti-authority. Defendant showed such great hostility and was so verbally abusive toward the probation officer and the court in his second interview in this case that the probation officer was forced to conclude it without completion and ended with defendant's statement “Fuck the court.” Defendant's parole officer describes the defendant as being anti-authority, and “should be considered dangerous if stopped by the police when, under the influence of alcohol or drugs” (which, the record shows, has been most of the time). Defendant has caused trouble wherever he has gone—he was never able to adjust to home placement, created a fight incident at Colston Youth Center, broke up furniture and glass out of car windows at Klein Bottle Treatment, made a disturbance kicking a hole in the wall at Life Skills Home, tried to assault the Director and brought a large quantity of drugs to the Home and distributed them, and stole an automobile belonging to a staff member at Klein Bottle Treatment, left the facility and crashed the vehicle in Fresno. One week before the instant offenses, defendant's mother told his parole officer that defendant was drinking heavily and had gotten into a fight and left home with a knife threatening to kill someone. (3) Defendant's performance on probation and on parole from the California Youth Authority was unsatisfactory. He ran away from home, failed to report to the probation officer, refused to attend school and would not undertake alcohol treatment. On home placement with an aunt he was thrown out of school for taking a bicycle without permission and had a large amount of marijuana seeds in his room. He failed at two residential placements and a secured one. Finally, he was committed to California Youth Authority and released on parole to Parks Center Halfway House where he refused to obey curfew rules, had problems with alcohol and fled becoming a parole violator. Upon his release from Clifton Tatum Center, defendant resided with his mother while still on parole during which time he drank excessively, got into a fight and missed appointments with his parole officer culminating in his leaving home with a knife threatening to kill someone. He was on parole when he committed the within offenses. (4) Defendant repeatedly ran away from home, home placement and various facilities. Twice he escaped from Colston Youth Center, twice he ran away from Klein Bottle Treatment Program and escaped from Parks Center Halfway House while on parole from the California Youth Authority. (5) Defendant failed to take advantage of available drug and alcohol treatment programs. Exhaustive efforts to rehabilitate defendant ended in failure. Defendant described himself to the probation officer “as a person who is heavily involved in drugs and alcohol,” and admits being an alcoholic and indulging in paintsniffing, PCP, LSD, Crystaline Methedrene, valium, codeine, and heroin—he said he used PCP 20 to 75 times during 1978 and 1979, LSD on “thousands” of occasions and experienced “about 25 bad trips” since 1976. He admitted using Crystaline Methedrene almost daily while on parole from the California Youth Authority. Defendant continued to use alcohol and drugs up to the time of his arrest on the instant offenses.
While it is true that Dr. Donaldson, psychiatrist, reported defendant “seems a good candidate for the Youth Authority,” defendant's parole officer recommended commitment to California Youth Authority because “they have better programs,” the Juvenile Hall Group Supervisors study stated defendant was doing well and the Newport Medical Group recommended he receive a tightly structured treatment program of “relatively long duration,” the fact remains that the probation officer who made the most exhaustive and thorough investigation of and report on defendant recommended that he be committed to the Department of Corrections because “To commit the defendant to California Youth Authority for the maximum term of four years appears to be plainly inconceivable,” and Dr. Nutter, staff psychologist, Corrections Services Agency (Ventura County) recommended that defendant be sent to the state prison because he “should be incarcerated for as long a period of time as possible.”
Use of section 1385, Penal Code for a dismissal “in furtherance of justice” after return of verdict of guilty is proper (People v. Superior Court (Howard), 69 Cal.2d 491, 504, 72 Cal.Rptr. 330, 446 P.2d 138) as is an application to strike a count or allegation of an accusatory pleading (Rockwell v. Superior Court, 18 Cal.3d 420, 441, 134 Cal.Rptr. 650, 556 P.2d 1101); and it is within the trial court's power thereunder to strike or dismiss a pleading for the purpose of sentencing. (People v. Tenorio, 3 Cal.3d 89, 91, 89 Cal.Rptr. 249, 473 P.2d 993 [prior conviction].) Paramount is the rule “ ‘that the language of that section [1385, Penal Code], “furtherance of justice” requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]’ ․ the reason for dismissal must be ‘that which would motivate a reasonable judge.’ [Citations.]” (People v. Orin, 13 Cal.3d 937, 945, 120 Cal.Rptr. 65, 533 P.2d 193; emphasis in original.) There is considerable opposition to “the granting of dismissals under section 1385 in instances where the People are thereby prevented from prosecuting defendants for offenses of which there is probable cause to believe they are guilty as charged. Courts have recognized that society, represented by the People, has a legitimate interest in ‘the fair prosecution of crimes properly alleged.’ (People v. Davis, supra, 20 Cal.App.3d 890, 898 [98 Cal.Rptr. 71].) ‘ “[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.” [Citations.]’ (People v. Superior Court (Montano) (1972) 26 Cal.App.3d 668, 671, 102 Cal.Rptr. 925.)” (People v. Orin, 13 Cal.3d 937, 946–947, 120 Cal.Rptr. 65, 533 P.2d 193.)
A determination whether to dismiss in the furtherance of justice after a verdict involves a balancing of many factors including the weight of the evidence indicative of guilt or innocence and the nature of the crime involved (People v. Superior Court (Howard), 69 Cal.2d 491, 505, 72 Cal.Rptr. 330, 446 P.2d 138) and the trial court considered all the evidence offered by defendant in support of his assertion that striking the ransom and bodily harm allegations would be in furtherance of justice. (Rockwell v. Superior Court, 18 Cal.3d 420, 441–442, 134 Cal.Rptr. 650, 556 P.2d 1101.) Considering all of the circumstances here, it appears to us that had the trial court granted defendant's motion to strike thereby reducing aggravated kidnaping to simple kidnaping solely to make him eligible for commitment to the California Youth Authority, it would have abused its discretion.2 “Permitting dismissals under section 1385 when no doubt exists as to a defendant's guilt might lead to dismissals after conviction for crimes, even when the statutes generally prohibit probation. (See Pen.Code, § 1203.) Allowing dismissals then ‘would completely stultify the statutory scheme and would exalt the rule of men above the rule of law.’ [Citations.]” (People v. Superior Court (Montano) 26 Cal.App.3d 668, 671, 102 Cal.Rptr. 925.)
REFERRAL TO YOUTH AUTHORITY UNDER SECTION 707.2, WELFARE AND INSTITUTIONS CODE
It is readily apparent from the record that both parties and the trial court were of the opinion that defendant was statutorily ineligible for commitment to the Youth Authority, thus defendant did not request referral to the Authority for evaluation and report pursuant to section 707.2, Welfare and Institutions Code. However, appellant cites as error the failure of the trial court to order such report.
Section 1731.5, Welfare and Institutions Code, defines whom an adult court may or may not ultimately commit to the California Youth Authority, and section 707.2 sets forth the conditions and procedure by which a minor may be sent to prison. (People v. Eaker, 100 Cal.App.3d 1007, 1016, 161 Cal.Rptr. 417.) Thus, the restriction imposed on the trial court in section 707.2 3 is against sentencing a minor under the age of 18 who has committed any criminal offense, to the state prison unless (1) he has been remanded to the Youth Authority for evaluation and report, (2) the court has read and considered the report, and (3) the court finds the minor is not a suitable subject for commitment to the Youth Authority. (People v. Carl B., 24 Cal.3d 212, 217, 155 Cal.Rptr. 189, 594 P.2d 14; People v. Garcia, 115 Cal.App.3d 85, 108, 171 Cal.Rptr. 169.) The Attorney General argues that inasmuch as defendant was ineligible for commitment to the Youth Authority the court did not err in failing to refer him for a report pursuant to section 707.2; appellant's position is that even if he was ineligible, he nevertheless was entitled to an evaluation and report under section 707.2.
Section 1731.5, Welfare and Institutions Code 4 provided in pertinent part that an adult court may commit to the Youth Authority any person convicted of a public offense who “(a) Is found to be less than 21 years of age at the time of apprehension. [¶] (b) Is not sentenced to ․ imprisonment for life ․ [and] [¶] (c) Is not granted probation.” Our Supreme Court early interpreted the phrase “Is not sentenced” to imprisonment for life to mean “is not subject to being sentenced” to imprisonment for life. A literal interpretation of subdivision (b) was rejected in In re Ralph (1946) 27 Cal.2d 866, 168 P.2d 1, because, as stated by the court, such interpretation “would require the commitment to the Youth Authority of those obviously intended by the Legislature to be excepted; i.e., those who, following conviction, are subject to being ‘sentenced to death, imprisonment for life, imprisonment for not more than 90 days, or the payment of a fine.’ ” (Pp. 870–871, 168 P.2d 1; see also, People v. McCullin, 19 Cal.App.3d 795, 798, 97 Cal.Rptr. 107; People v. Bell, 17 Cal.App.3d 949, 957, 95 Cal.Rptr. 270; People v. Machado, 150 Cal.App.2d 190, 195, 309 P.2d 903.) In People v. McCullin, 19 Cal.App.3d 795, 97 Cal.Rptr. 107, the court said, “The trial court correctly observed that it did not have the power to commit defendant to the Youth Authority ‘where the penalty is life imprisonment.’ ” (P. 798, 97 Cal.Rptr. 107.) So too in People v. Chi Ko Wong, 18 Cal.3d 698, 135 Cal.Rptr. 392, 557 P.2d 976, when defendant was arraigned for sentencing on a first degree murder conviction he urged commitment to the Youth Authority rather than state prison. The Supreme Court said at pages 724–725, 135 Cal.Rptr. 392, 557 P.2d 976: “But defendant, being subject to life imprisonment by virtue of the first degree murder conviction (see Pen.Code, § 190) was and is not eligible for commitment to the Youth Authority. (§ 1731.5; see People v. McCullin (1971) 19 Cal.App.3d 795, 798, 97 Cal.Rptr. 107; People v. Bell (1971) 17 Cal.App.3d 949, 955–957, 95 Cal.Rptr. 270.)” (See also People v. Claxton, 129 Cal.App.3d 638, 669, 181 Cal.Rptr. 281; People v. Eaker, 100 Cal.App.3d 1007, 1016, 161 Cal.Rptr. 417.) Citing Chi Ko Wong the court in Eaker said at page 1016: “We conclude that if a minor is convicted of an offense punishable as described in Welfare and Institutions Code section 1731.5, he is ineligible for commitment to the Youth Authority.”
Defendant, having been convicted of kidnaping for ransom with bodily harm punishable by life imprisonment without possibility of parole (§ 209, subd. (a), Pen.Code), was and is ineligible for commitment to the Youth Authority under section 1731.5, Welfare and Institutions Code. While it is clear that section 707.2 does not exclude minors ineligible for commitment to the Youth Authority under section 1731.5, and the prevailing view is that the trial court may but need not make such reference for an evaluation and report before sentencing a minor who is statutorily ineligible for Youth Authority commitment (People v. Garcia, 115 Cal.App.3d 85, 109, 171 Cal.Rptr. 169; People v. Grisso, 104 Cal.App.3d 380, 386, 163 Cal.Rptr. 547), our Supreme Court has specifically left open this issue. (People v. Black, 32 Cal.3d 1, 10, fn. 7, 184 Cal.Rptr. 454, 648 P.2d 104; In re Jeanice D., 28 Cal.3d 210, 214, 168 Cal.Rptr. 455, 617 P.2d 1087.) In People v. Black, defendant's request for referral pursuant to section 707.2 was rejected and, although eligible for commitment to the Youth Authority, he was sentenced to state prison. The question presented was whether a person who was under 18 years of age when the offense was committed but who has turned 18 by the time of sentencing is entitled to be remanded to the Youth Authority for evaluation and report. In concluding that the word “minor” in section 707.2 includes any person who is within the age of those subject to training by the Youth Authority, the court said in footnote 7 at page 10: “This case does not involve the issue of whether a minor who is statutorily ineligible for Youth Authority commitment must nevertheless be remanded for evaluation and report prior to sentencing to the state prison. We left the question open in In re Jeanice D. (1980) 28 Cal.3d 210, 214, 168 Cal.Rptr. 455, 617 P.2d 1087. At least one court has said that the minor is entitled to the report whether or not he is eligible for commitment to the Youth Authority. (People v. Grisso (1980) 104 Cal.App.3d 380, 386, 163 Cal.Rptr. 547; see also People v. Eaker (1980) 100 Cal.App.3d 1007, 1014–1016, 161 Cal.Rptr. 417.)”
In each of the cases cited by the Supreme Court, People v. Eaker, 100 Cal.App.3d 1007, 161 Cal.Rptr. 417 and People v. Grisso, 104 Cal.App.3d 380, 163 Cal.Rptr. 547, defendant age 17, convicted in an adult court of first degree murder without special circumstances (committed prior to Nov. 1978), was referred to the Youth Authority pursuant to section 707.2; in each the evaluation report advised that defendant was a proper subject for treatment by the Authority but acknowledged that he was not eligible for commitment under section 1731.5, and defendant was sentenced to imprisonment for life under former section 190, Penal Code. In Eaker the issue was whether the trial court's determination that defendant was ineligible under section 1731.5 was error (pp. 100 Cal.App.3d at 1013–1014, 161 Cal.Rptr. 417), and the court concluded that it was not; because the referral in fact was made pursuant to section 707.2, the issue was not, as here, whether a statutorily ineligible minor is entitled to a report under that statute. In People v. Grisso, 104 Cal.App.3d 380, 163 Cal.Rptr. 547, the contention was that section 707.2, which prohibits sentencing a minor to state prison unless he is found not to be suitable for a Youth Authority commitment, impliedly repealed the state prison mandate of section 1731.5; the court held that it did not. However, it observed: “Although in this instance the report submitted by the Youth Authority required under section 707.2 concerning the amenability of the youthful offender to training and treatment offered by the CYA was useless inasmuch as he could not be referred to the CYA by virtue of the exclusionary language of section 1731.5, the court nevertheless ordered such a diagnostic study as an aid to the court's processes. [¶] When examined together, the two sections (1731.5 and 707.2) do not conflict, but rather are seen to be harmonious and easily reconciled. The mere fact that the minor is not eligible for a Youth Authority commitment does not preclude the court from referring the youth for evaluation and a report.” (P. 386, 163 Cal.Rptr. 547.)
The precise issue involved in the instant case was not before the court in either Eaker or Grisso; in each case the court simply recognized that the trial court followed a literal reading of section 707.2, and obtained an evaluation report. Nothing in either case suggests that the judgment would have been reversed had the trial court failed to refer defendant to the Youth Authority pursuant to section 707.2. In People v. Garcia, 115 Cal.App.3d 85, 171 Cal.Rptr. 169, this court held it was not error to fail to obtain a diagnostic report in the case of a minor convicted of first degree murder. After discussing section 707.2 and 1731.5, the court held “The two statutes can be read together and reconciled. We conclude that the trial court need not, but may, if it concludes that a diagnostic report would aid in sentencing, remand a minor defendant to the Youth Authority prior to sentencing the minor to state prison if the convicted minor is not eligible for the training and treatment offered by the Youth Authority.” (P. 109, 171 Cal.Rptr. 169; fn. omitted.)
“The stated purpose of such a report under 707.2 is to evaluate a minor's ‘amenability to training and treatment offered by the Youth Authority.’ ” (People v. Garcia, 115 Cal.App.3d 85, 108, 171 Cal.Rptr. 169.) Thus we perceive no reason for requiring the limited resources of the Youth Authority be expended in analyzing and evaluating the minor's amenability to its program when there is no possibility under the law that he can take advantage of such training and treatment. The report would have been “useless” (People v. Grisso, 104 Cal.App.3d 380, 386, 163 Cal.Rptr. 547) and served no purpose (People v. Garcia, 115 Cal.App.3d 85, 109, 171 Cal.Rptr. 169). Inasmuch as defendant was statutorily ineligible for commitment to the Youth Authority (§ 209, subd. (a), Pen.Code; § 1731.5, Welf. & Inst.Code) we conclude that while he came within the literal terms of section 707.2, it was not error for the trial court to fail to remand him to the Youth Authority for evaluation and report prior to imposition of sentence of life imprisonment without possibility of parole.
LIFE IMPRISONMENT WITHOUT POSSIBILITY OF PAROLE NOT CRUEL OR UNUSUAL PUNISHMENT
Appellant's contention that life imprisonment without possibility of parole for kidnaping for ransom with bodily harm constitutes cruel or unusual punishment is based on the asserted disproportionate aspect of the punishment and its mandatory nature.
Selection of the proper penalty for a criminal offense is a legislative function “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 re Lynch, 8 Cal.3d 410, 423, 105 Cal.Rptr. 217, 503 P.2d 921.) The Legislature is accorded the broadest discretion possible in enacting penal statutes and in specifying punishment for crime (People v. Anderson, 6 Cal.3d 628, 640, 100 Cal.Rptr. 152, 493 P.2d 880), and may properly limit the discretion of the trial judge by enacting mandatory provisions for punishment. (People v. Tanner, 24 Cal.3d 514, 520, 156 Cal.Rptr. 450, 596 P.2d 328.) The ultimate test of unconstitutionality, which must appear “ ‘clearly, positively, and unmistakably’ ” (People v. Wingo, 14 Cal.3d 169, 174, 121 Cal.Rptr. 97, 534 P.2d 1001), is whether the punishment prescribed “is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921.) The court in Lynch articulated certain techniques to aid in administering this rule. The first involves examination of the nature of the offense and/or the offender (p. 425, 105 Cal.Rptr. 217, 503 P.2d 921); the second is a comparison of the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious (p. 426, 105 Cal.Rptr. 217, 503 P.2d 921); and the third is a comparison of the challenged penalty with punishments prescribed by the same offense in other jurisdictions having identical or similar constitutional provision (p. 427, 105 Cal.Rptr. 217, 503 P.2d 921). “Underlying the three criteria of disproportionate punishment prescribed by Lynch is a central idea: the social utility of the particular penalty․ Presented with a rational basis for the choice, the courts should hesitate to call the penalty cruel or unusual.” (In re Maston, 33 Cal.App.3d 559, 562, 109 Cal.Rptr. 164.)
Any argument that punishment of life imprisonment without possibility of parole for aggravated kidnaping is unconstitutional is answered in People v. McKinney, 95 Cal.App.3d 712, 735, 157 Cal.Rptr. 414 [kidnaping in which victim died]; People v. Isitt, 55 Cal.App.3d 23, 27–32, 127 Cal.Rptr. 279 and In re Maston, 33 Cal.App.3d 559, 561–566, 109 Cal.Rptr. 164 [kidnaping for purpose of robbery with bodily harm]. In Isitt and Maston the court analyzed and applied the three Lynch criteria and found the penalty of life imprisonment without possibility of parole to serve a rationally conceived penal purpose. We note in Isitt that defendant was 17 years old at the time of the offense (55 Cal.App.3d at p. 33, 127 Cal.Rptr. 279). However, we are not here dealing with kidnaping for purpose of robbery with bodily harm as in In re Maston, 33 Cal.App.3d 559, 109 Cal.Rptr. 164 and People v. Isitt, 55 Cal.App.3d 23, 127 Cal.Rptr. 279, but with a far more serious crime of kidnap for ransom with bodily harm. (See also People v. Noble, 126 Cal.App.3d 1011, 1020, 179 Cal.Rptr. 302; People v. McKinney, 95 Cal.App.3d 712, 746, 157 Cal.Rptr. 414.) This crime embraces a coldly planned deliberate scheme to raise money by transporting a human being against his or her will and with force and violence to a place where he or she is held captive for ransom, resulting in bodily harm (In re Maston, 33 Cal.App.3d 559, 563, 109 Cal.Rptr. 164); and here it embraces the reality of the crime—the evidentiary aspect of deliberation and planning, albeit during the criminal conduct, arrangements for delivery of ransom money, and bodily harm in addition to the cuts and bruises sustained during the forcible asportation, in the form of repeated acts of sexual abuse forced upon the victim under threat of death at the point of a knife in the course of 16 hours, and the psychological and emotional stress of the sexual assaults. (People v. Caudillo, 21 Cal.3d 562, 582, 146 Cal.Rptr. 859, 580 P.2d 274; People v. Gayther, 110 Cal.App.3d 79, 88, 167 Cal.Rptr. 700.) Kidnaping, appellant's claim notwithstanding, is “one of the most serious of crimes” (see People v. Daniels, 71 Cal.2d 1119, 1135, 80 Cal.Rptr. 897, 459 P.2d 225) which by its very nature involves violence or forcible restraint; and here it is one in which individually defendant shares culpability equally with Billy.
PENALTY NOT VIOLATE EQUAL PROTECTION CLAUSE
Appellant's “charge of a denial of equal protection disappears with the recognition of a rational basis for the augmented penalty. [Citation.]” (In re Maston, 33 Cal.App.3d 559, 566, 109 Cal.Rptr. 164; People v. Isitt, 55 Cal.App.3d 23, 31–32, 127 Cal.Rptr. 279.) Persons convicted of different crimes are not similarly situated for equal protection purposes (People v. Hughes, 112 Cal.App.3d 452, 459, 169 Cal.Rptr. 364; People v. Gayther, 110 Cal.App.3d 79, 90–91, 167 Cal.Rptr. 700; Smith v. Municipal Court, 78 Cal.App.3d 592, 601, 144 Cal.Rptr. 504) thus appellant's argument based on the theory he is similarly situated with those convicted of kidnaping for purposes of robbery, fails because of the far more serious offense of kidnaping for ransom with bodily harm to which he pleaded nolo contendere.
INVALIDITY OF PLEAS
There are a variety of reasons for this court to reject appellant's contention that his pleas of nolo contendere were invalid and that he should be given the opportunity to withdraw them because the plea bargain was illusory, they were induced by fundamental misstatements and he did not have fair notice of what he was asked to admit. First, it does not appear that a certificate of probable cause was obtained (§ 1237.5, Pen.Code) from the trial judge and there is nothing in the record to indicate defendant sought to procure one. He merely filed a notice of appeal. In these circumstances we are precluded by section 1237.5 from reviewing the issue of the validity of the pleas. (People v. Pinon, 96 Cal.App.3d 904, 909, 158 Cal.Rptr. 425; People v. Musante, 102 Cal.App.3d 156, 158, 162 Cal.Rptr. 158.) Second, although he had ample opportunity to do so in the court below, defendant failed to move to withdraw his pleas. “Failure to seek such relief in the trial court precludes relief on this basis on appeal. [Citations.]” (People v. Pinon, 35 Cal.App.3d 120, 126, 110 Cal.Rptr. 406; People v. Barajas, 26 Cal.App.3d 932, 937, 103 Cal.Rptr. 405; § 1018, Pen.Code.) Third, appellant's claim that the plea bargain was illusory because the evidence which shows the distance of asportation to be insubstantial was insufficient as a matter of law to sustain a conviction of simple kidnaping as charged in count II (which was dismissed), is without merit. The insufficiency of the evidence of the dismissed charge is not properly before us because defendant did not make a 995 motion based on the ground there was no probable cause to hold him to answer for lack of evidence, and he is precluded from making that objection at this time. (People v. Ceballos, 12 Cal.3d 470, 484–485, 116 Cal.Rptr. 233, 526 P.2d 241; People v. Cloud, 1 Cal.App.3d 591, 600, 81 Cal.Rptr. 716; §§ 995, 996, Pen.Code.) The reasoning of the court in a similar situation in People v. Warburton, 7 Cal.App.3d 815, 822, 86 Cal.Rptr. 894 controls: “It is a reasonable assumption that a defendant will not plead guilty or nolo contendere unless he is satisfied that the People do have sufficient evidence at least to hold him for trial. No reason has been suggested why a defendant should be permitted to enter a plea of guilty or nolo contendere, and thereafter seek appellate review of whether the evidence before the grand jury indicated probable cause to hold him to answer.” It is reasonable to assume defendant will not plead nolo contendere in return for dismissal of a count unless he is satisfied that the prosecution has sufficient evidence to hold him for trial thereon.
IMPOSITION OF LIFE IMPRISONMENT WITHOUT POSSIBILITY OF PAROLE ON MINOR
Relying on People v. Davis, 29 Cal.3d 814, 176 Cal.Rptr. 521, 633 P.2d 186, appellant advances the position that a sentence of life imprisonment without possibility of parole cannot be legally imposed upon a minor. Before the court in Davis was a 16-year-old male convicted of rape and first degree murder with special circumstances under former section 190, Penal Code, which made him automatically subject to the penalty of life imprisonment without possibility of parole. The court viewed the statutory scheme arising out of the 1977 act commencing with former section 190, Penal Code, as ambiguous insofar as it related to the penalties thereunder applicable to minors. The court said that well settled principles of statutory interpretation, the history and language of the statute and “a statute unclear in its effect on the penalty applicable to minors, silent regarding appropriate procedures by which the new penalty would be imposed on them, and devoid of evidence of any legislative intent to depart from the status quo” (p. 832, 176 Cal.Rptr. 521, 633 P.2d 186) all support the conclusion that the statute “should not be read to allow the state to imprison a minor for life without possibility of parole” (p. 829, 176 Cal.Rptr. 521, 633 P.2d 186), and resolved the ambiguity in defendant's favor finding no authority for charging minors with special circumstances.
The situation here is in direct contrast to that in Davis. There is no ambiguity in the applicable statute and nothing requiring interpretation. Section 26, Penal Code, defines “persons capable of committing crime” as including children 14 years of age or older. At the very inception of the within proceedings the determination was made to prosecute the minor as an adult. Thus defendant having been declared “not a fit and proper subject to be dealt with under the juvenile court law” (§ 707, Welf. & Inst.Code), the district attorney started proceedings against him by filing a complaint in a court of criminal jurisdiction under section 707.1, Welfare and Institutions Code, which provides that “[t]he case shall proceed from that point according to the laws applicable to a criminal case ․” This means that defendant was tried as an adult and, having been convicted, is subject to the same punishment as an adult. Although there are restrictions and qualifications upon the right of the court to sentence such a defendant to state prison (§ 707.2, Welf. & Inst.Code; Breed v. Superior Court, 63 Cal.App.3d 773, 784, 134 Cal.Rptr. 228), the “law applicable” here is section 209, subdivision (a), Penal Code, which provides that “[a]ny person” who kidnaps for ransom with bodily harm shall be punished by imprisonment in the state prison for life without possibility of parole. Nothing in the statute makes a person under age 18 exempt from the automatic penalty of life imprisonment without possibility of parole and there is no ambiguity in its application; indeed, it applies to “[a]ny person” convicted thereunder. Had the Legislature intended to exclude minors under 18 from this penalty, it would have done so. (See section 190.5, Penal Code, which specifically exempts minors from death penalty.) Inasmuch as section 209, subdivision (a), Penal Code, clearly authorizes the imposition of life imprisonment without possibility of parole (subject to the Governor's power to grant a pardon or commutation [Cal.Const., art. V, § 8; Pen.Code, § 4800 et seq.] in appropriate cases) upon any person convicted of kidnaping for ransom with bodily harm and requires no statutory interpretation to determine if the penalty is applicable to minors under 18, and inasmuch as we have found defendant's sentence to be constitutional, we perceive no legal basis for holding the penalty to be inapplicable to this defendant.5
MODIFICATION OF SENTENCE
The Attorney General has noted, and correctly so, that in each of counts III through XIV, XX and XXI, three year enhancements were imposed for deadly weapon use. This is permissible under section 12022.3, Penal Code, but here defendant was charged with and pleaded nolo contendere to use of a deadly weapon under section 12022, subdivision (b), Penal Code which renders him subject to only one year enhancement as to each of the foregoing counts. Thus the judgment must be modified to reflect the reduced enhancements. Further, the Attorney General seeks clarification in the judgment relative to the inapplicability of 75 days good/work time to the indeterminate term imposed on count I. (See People v. Garcia, 115 Cal.App.3d 85, 112, 114, 171 Cal.Rptr. 169.)
The judgment is modified by striking from the fifth paragraph on page 2 thereof in connection with imposition of the penalty of imprisonment in the state prison on counts 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, and 21 for the aggravated term of 9 years, the following: the numeral “3” appearing after the word “plus” and before the word “years” for use of a deadly and dangerous weapon, a knife, as to each count, and substituting therefor the numeral “1”; by striking from the sixth paragraph on page 2 thereof in connection with imposition of the penalty of imprisonment in the state prison on counts 6, 14 and 20 for the aggravated term of 8 years, the following: the numeral “3” appearing after the word “plus” and before the word “years” for use of a deadly and dangerous weapon, a knife, as to each count, and substituting therefor the numeral “1”; and by adding to the end of the tenth paragraph on page 2 thereof after the word “credit” the following: “on Counts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21. Defendant is entitled to 151 days in custody on Count 1.” As modified, the judgment is affirmed.
Although I concur in the judgment, I respectfully dissent from that portion of the opinion regarding imposition of the penalty of life without possibility of parole upon a youthful offender.
Conceding that the defendant deliberately committed vicious, brutal, and abhorrent crimes and that his prior record is anything but exemplary, I nevertheless believe that a life sentence without possibility of parole is not a punishment contemplated by the Legislature for a person under the age of 18 at the time of the commission of his crime. Assuming that the Legislature did so intend, I believe that the visitation of such a penalty upon a 16-year-old constitutes cruel and unusual punishment in violation of article I, section 17, of the California Constitution.
In People v. Davis (1981) 29 Cal.3d 814, 827–832, 176 Cal.Rptr. 521, 633 P.2d 186, it was held that the 1977 revisions of the Penal Code dealing with punishment for first degree murder did not render minors liable to life imprisonment without possibility of parole. Tracing the history of death penalty legislation and interpreting the 1977 legislation, the court held that the “history of the statute clearly reveals a specific and limited legislative intent, unrelated to any desire to impose harsher sanctions on minors.” (Id. at p. 829, 176 Cal.Rptr. 521, 633 P.2d 186.) Observing that minors have been excluded from the punishment of death since 1921 by virtue of Penal Code section 190.5 1 and its predecessor sections, the court construed the legislative efforts to comply with the admonitions of Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 and People v. Anderson (1972) 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, cert. den., 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344, as not affecting minors, because such efforts dealt only with circumstances that mandate the death penalty. The court stated that the legislative enactments of 1977 were an attempt to deal with constitutional deficiencies outlined in Rockwell v. Superior Court (1976) 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101 and Gregg v. Georgia (1976) 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859. Concluding that the amended statutes did not impose life imprisonment without possibility of parole on minors, the court reasoned that “if the Legislature had intentionally and substantially increased the maximum penalty that could lawfully be inflicted on minors, we would have expected it to express its purpose clearly and set out the appropriate procedures in detail.” (People v. Davis, supra, 29 Cal.3d 814, 831–832, 176 Cal.Rptr. 521, 633 P.2d 186, fn. omitted.)
Much the same analysis can be applied to Penal Code section 209, subdivision (a), which is here in question. Section 209 was adopted in 1901 and, as differentiated from section 207, the common law kidnaping statute, which requires removal of the victim from the “country, state, or county, or into another part of the same county,” was conceived to be an aggravated false imprisonment statute. (20 Cal.Jur.3d, Criminal Law, § 1908, p. 460.) In 1933 section 209 was amended by adopting almost verbatim language from the federal kidnaping statute. (Compare Stats. 1933, ch. 1025, § 1, p. 2617 with Act of June 22, 1932, ch. 271, 47 Stat. 326.) This action is generally agreed to have been a direct result of the infamous Lindbergh kidnaping. (Recent Decisions, Criminal Law: Kidnaping: California Penal Code § 209 (1936) 24 Cal.L.Rev. 220, 222; Enright, California's Aggravated Kidnapping Statute—A Need for Revision (1967) 4 San Diego L.Rev. 285, 290.)
Prior to the 1933 amendment the penalty for aggravated kidnaping was life or “any number of years not less than ten.” (Stats. 1901, ch. LXXXIII, § 1, p. 98.) The amendment provided for a penalty of death or life imprisonment without possibility of parole at the discretion of the jury in cases where the victim suffered bodily harm. The amendment further provided a penalty of life with possibility of parole where the victim did not suffer bodily injury.2 It is by no means clear that the Legislature in 1933 intended to impose the death penalty or life without possibility of parole on minors who committed kidnaping for ransom or robbery where the victim suffered bodily injury. In 1933 then section 190 provided that the death penalty could not be imposed for murder on a person under age 18 at the time of the commission of the crime. (Stats. 1927, ch. 889, § 1, p. 1952.) I have been unable to find any indication that the Legislature was considering the punishment of minors when it enacted the 1933 amendment of section 209, although there is abundant evidence that it was reacting to the wave of indignation engendered at the time by the murder of the Lindbergh infant. (In re Maston (1973) 33 Cal.App.3d 559, 562, 109 Cal.Rptr. 164.) Additionally, there are no reported cases of a sentence of death or life without possibility of parole being imposed on a person who was under age 18 at the time of commission of the crime until People v. Isitt (1976) 55 Cal.App.3d 23, 127 Cal.Rptr. 279.3
In the landmark case of In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 the court, for the first time in California judicial history, declared a statutory penalty unconstitutional on the ground that it was disproportionate to the crime committed. The court held that a punishment may violate article I, section 6,4 of the California Constitution 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.” (Id., at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921, fn. omitted.) The Lynch court outlined three techniques that may be used in applying the rule announced. The first technique directs that an examination should be made of the nature of the offense, the offender, or both. This technique was expanded by the court in In re Foss (1974) 10 Cal.3d 910, 919–920, 112 Cal.Rptr. 649, 519 P.2d 1073, where it was explained that there should be a consideration of the penological purposes of the prescribed punishment.
In re Maston, supra, 33 Cal.App.3d 559, 566, 109 Cal.Rptr. 164, held that the mandatory penalty of life without possibility of parole for kidnaping for the purpose of robbery where the victim suffers bodily harm 5 does not violate the constitutional interdictions against cruel or unusual punishment and does not constitute a denial of equal protection. In People v. Isitt, supra, 55 Cal.App.3d 23, 127 Cal.Rptr. 279, the constitutionality of the life without possibility of parole penalty for kidnaping for robbery where the victim suffers bodily harm was again upheld by the same division of the Court of Appeal that decided Maston. The Isitt court relied heavily upon its decision in Maston.
Neither the Maston court nor the Isitt court considered the penological purposes of the prescribed punishment as applied to an offender who was a minor at the time of the commission of the act. Although the minority of the defendant was considered tangentially in People v. Isitt, supra, 55 Cal.App.3d 23, 32, 127 Cal.Rptr. 279, that court did not consider the constitutional question tendered in the case at bench. Rather, the Isitt court dealt only with the trial court's exercise of its discretion to ameliorate the sentence for that particular 17-year-old defendant under former section 1202b and determined that there was no abuse thereof.
As pointed out in In re Lynch, supra, 8 Cal.3d 410, 426, 105 Cal.Rptr. 217, 503 P.2d 921, the question of proportionality may be affected by the age of offenders to whom it is applied. And, as mentioned, the penological purposes of the prescribed punishment are also relevant to the question of proportionality. The Lynch court cited with approval Workman v. Commonwealth (Ky.App.1968) 429 S.W.2d 374 where a punishment of life without possibility of parole for rape committed by juveniles was held to be unconstitutionally disproportionate to the offense. In Workman, the Kentucky Court of Appeals said, “The first approach [to the question of what is cruel or unusual punishment] is to determine whether in view of all of the circumstances the punishment in question is of such character as to shock the general conscience and to violate the principles of fundamental fairness. This approach should always be made in light of developing concepts of elemental decency. This resolves itself into a matter of conscience and the principles to be applied to the individual case without a lot of attention to ancient authorities. [Citation.] [¶] The next approach is likewise one of conscience but the test pits the offense against the punishment and if they are found to be greatly disproportionate, then the punishment becomes cruel and unusual. [Citation.]” (Id., at p. 378.)
I agree with the Kentucky court's holding that it is impossible to make a judgment that a juvenile will remain incorrigible for the rest of his life. This is so whether he be 14 years or 16 years of age at the time of his crime. Recognizing that a line must somewhere be drawn, the Legislature drew the line at age 18 when it exempted from the death penalty persons under that age at the time of commission of the crime. (Stats. 1921, ch. 105, § 1, p. 98.) Almost to the same degree as the death penalty, life without possibility of parole is a permanent, unalterable judgment when applied to a juvenile.
As the court said in People v. Davis, supra, 29 Cal.3d 814, 176 Cal.Rptr. 521, 633 P.2d 186, “The amount of time actually spent in prison is vastly increased in the ordinary case if the possibility of parole is eliminated. According to amicus public defender, on average, parole is granted to a convict serving a life sentence after 111/212 years. But a minor would conceivably spend 60 or more years in prison without hope of release on a true life sentence. Furthermore, the difference in time is less significant than the difference in effect on the human spirit. ‘Life in prison [without the possibility of parole] is unique, ․ and it ․ differs in kind from all other, lesser sentences of imprisonment, including a sentence of life imprisonment with a fixed parole-eligibility date.’ (Rogers v. Britton (E.D.Ark.1979) 476 F.Supp. 1036, 1040.) This is particularly true if the person on whom it is inflicted is a minor, who is condemned to live virtually his entire life in ignominious confinement, stripped of any opportunity or motive to redeem himself for an act attributable to the rash and immature judgment of youth.” (Id., 29 Cal.3d at p. 832, fn. 10, 176 Cal.Rptr. 521, 633 P.2d 186.)
Yet another consideration impels me to conclude that the punishment of life without possibility of parole is disproportionate. By virtue of People v. Davis, supra, 29 Cal.3d 814, 176 Cal.Rptr. 521, 633 P.2d 186, and People v. Polk (1982) 131 Cal.App.3d 764, 182 Cal.Rptr. 847, had defendant herein caused the death rather than the injury 6 of the victim, his punishment would have been, at most, 25 years to life. Such an anomalous situation was not, of course, considered by the Isitt court because that decision predated both Davis and Polk.
As the Legislature has provided no alternative sentence for a person who commits kidnaping for ransom where the victim suffers bodily injury, I would hold that the punishment should be no greater than that which would have been provided had the victim succumbed to her injuries; namely, 25 years to life. Therefore, I would affirm the judgment and remand for modification of sentence and compliance with Welfare & Institutions Code section 707.2.
1. December 28, 1976 runaway, apprehended by police after burglary of high school, placement with relative.February 9, 1977 burglary of camper and possession of marijuana; committed to Colston Youth Center.March 29, 1977 escape from Colston Youth Center, apprehended and returned.April 12, 1977 escape, Colston Youth Center, apprehended and returned.July 28, 1977 involved in a fight incident at Colston Youth Center, returned to mother.November 10, 1977 burglary of garage, placement in Klein Bottle Treatment Program.January 27, 1978 ran away from Klein Bottle, apprehended and returned; several days later broke up furniture and windows of an automobile.May 8, 1978 ran away from home, failed to report to probation officer or Juvenile Hall.July 2, 1978 failed to adjust to home supervision in home of aunt.August 2, 1978 possession of 23 marijuana cigarettes, placement in Life Skills Home.November 20, 1978 created disturbance at Life Skills Home by kicking hole in wall and trying to assault Director and by bringing in large quantity of drugs and distributing them; placed in Klein Bottle Treatment Program.January 16, 1979 auto theft; defendant stole car of a staff member at Klein, crashed the vehicle in Fresno and left the scene; committed to CYA and released June 26, 1979, to CYA Parks Central Halfway House.July 17, 1979 violated parole, fled CYA Halfway House; arrested as parole violator December 29, 1979; continued on CYA parole.July 2, 1980 arrested for being drunk and disorderly conduct. Placed in custody of mother.April 11, 1980 within offenses committed while defendant on parole.
2. Abuse of discretion was found in the court's dismissal of two counts in People v. Orin, 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193, after defendant entered a plea of guilty to one count over objection by the People which “accorded defendant a more lenient disposition of the charges without any reason other than that defendant entered a plea of guilty to one count.” (P. 949, 120 Cal.Rptr. 65, 533 P.2d 193.) Likewise in People v. Superior Court (Montano), 26 Cal.App.3d 668, 670–671, 102 Cal.Rptr. 925, the court abused its discretion because the reasons offered for dismissal were concern for defendant's rehabilitation and preservation of the family unit. (See also People v. Municipal Court (Gelardi), 84 Cal.App.3d 692, 699, 149 Cal.Rptr. 30.)
3. Section 707.2, Welfare and Institutions Code provided: “Prior to sentence, the court of criminal jurisdiction may remand the minor to the custody of the California Youth Authority for not to exceed 90 days for the purpose of evaluation and report concerning his amenability to training and treatment offered by the Youth Authority. No minor who was under the age of 18 years when he committed any criminal offense and who has been found not a fit and proper subject to be dealt with under the juvenile court law shall be sentenced to the state prison unless he has first been remanded to the custody of the California Youth Authority for evaluation and report pursuant to this section and the court finds after having read and considered the report submitted by the Youth Authority that the minor is not a suitable subject for commitment to the Youth Authority.”
4. Section 1731.5 in effect at the time of sentence provided in pertinent part: “After certification to the Governor as provided in this article a court may commit to the authority any person convicted of a public offense who comes within subdivisions (a), (b), and (c), or subdivisions (a), (b), and (d), below: [¶] (a) Is found to be less than 21 years of age at the time of apprehension. [¶] (b) Is not sentenced to death, imprisonment for life, imprisonment for 90 days or less, or the payment of a fine, or after having been directed to pay a fine, defaults in the payment thereof, and is subject to imprisonment for more than 90 days under the judgment. [¶] (c) Is not granted probation. [¶] (d) Was granted probation and probation is revoked and terminated. [¶] ․”
5. The dissent seeks to avoid imposition of sentence of life imprisonment without possibility of parole on this defendant who was tried and convicted as an adult of kidnaping for ransom with bodily harm on the ground that such penalty was not contemplated by the Legislature for a person under 18 at the time of commission of his crime and, in any case, such penalty constitutes cruel and unusual punishment. We think it clear from the language of section 209, Penal Code, that the Legislature intended that “[a]ny person” convicted of kidnaping for ransom with bodily harm in a court of criminal jurisdiction whether he be a minor tried as an adult or an adult, would be subject to life imprisonment without possibility of parole. We have hereinabove dealt with the cruel and unusual punishment issue but in our view age alone, where the minor is tried as an adult, is not sufficient for us to conclude that the punishment is disproportionate. The dissent is correct in stating that the Legislature has provided no alternative sentence for a person who commits kidnaping for ransom with bodily harm, and the sentence of life imprisonment without possibility of parole is mandatory. In light of the plain language of section 209, subdivision (a), Penal Code, the conclusion is inescapable that persons under 18 when the offense is committed are not exempt from punishment of life imprisonment without possibility of parole; indeed if they are convicted of kidnaping for ransom with bodily harm they are automatically subject to that penalty. Thus we are unable to justify the sentence of 25 years to life suggested by the dissent.
1. All statutory references are to the Penal Code unless otherwise designated.
2. The 1933 amendment (Stats. 1933, ch. 1025, § 1, p. 2617) provided: “Every person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains, such individual for ransom, reward or to commit extortion or robbery or to exact from relatives or friends of such person any money or valuable thing, or who aids or abets any such act, is guilty of a felony and upon conviction thereof shall suffer death or shall be punished by imprisonment in the State prison for life without possibility of parole, at the discretion of the jury trying the same, in cases in which the person or persons subjected to such kidnaping suffers or suffer bodily harm or shall be punished by imprisonment in the State prison for life with possibility of parole in cases where such person or persons do not suffer bodily harm.”
3. In People v. Isitt, supra, 55 Cal.App.3d 23, 127 Cal.Rptr. 279, a sentence of life without possibility of parole was imposed.
FN4. Now article I, section 17.. FN4. Now article I, section 17.
5. Section 209 was amended in 1976 to lower the penalty for this type of aggravated kidnaping to life with possibility of parole. (Stats.1976, ch. 1139, § 136.5, p. 5099.)
6. That the injuries here involved consisted of obnoxious sexual invasions of the victim's person rather than other types of physical injuries should not be determinative of disproportionality. The enhanced penalty provisions of section 209 are operative regardless of the nature of the injuries inflicted.
LILLIE, Associate Justice.
SPENCER, P. J., concurs.