PEOPLE v. KELLY (1981)

By information, appellant Kelly was charged with the murder of Peter Kleeman in violation of section 187 of the Penal Code. It was further alleged that the murder was committed while Kelly was engaged in or was an accomplice in the commission, or attempted commission, of robbery, a violation of section 211 of the Penal Code, within the meaning of Penal Code section 190.2, subdivision (a) (17)(i).

Kelly entered a plea of not guilty to the murder charge and denied the truth of the special circumstance allegation. A trial by jury found Kelly guilty of murder of the first degree and the special circumstance allegation was found to be true.

The District Attorney had elected not to seek the death penalty. Thus, upon return of the verdict, Kelly was committed to state prison for life without possibility of parole.

This appeal is taken from the judgment of conviction.

The pertinent facts are as follows: On the evening of March 9, 1979, witnesses Natalie Atwood and Juanita Collier observed Kelly and two other men in a nearby parking lot kicking and beating Kleeman on the ground. Atwood testified that she heard the attackers state: “Where's your money? Where's your money?” The victim responded that he had no money and told his assailants to stop beating him.

When police officers arrived, Kleeman was found lying face down in the parking lot. The victim was searched for identification, but no wallet or money was found on his person. The victim was not conscious, but was still alive as far as the officer knew.

That night, emergency surgery was performed upon the victim who had sustained severe head injuries, including skull and facial fractures, and damage to the brain and brain stem. The victim died ten days following surgery.

Kelly was subsequently arrested for the death of Kleeman.

Appellant's first contention is that before a special circumstance allegation of murder committed during the commission or attempted commission of the felonies enumerated in section 190.2, subdivision (a)(17), of the Penal Code¹ may be found true, the People must establish the defendant's guilt of an intentional killing.

The jury was instructed on first degree felony-murder (CALJIC Nos. 8.21, 8.27). The jury was also instructed on unpremeditated second degree murder (CALJIC No. 8.30) and second degree murder based upon a killing resulting from an unlawful act dangerous to life (CALJIC No. 8.31). Instructions on the special circumstance allegation (CALJIC Nos. 8.80, 8.81.17) were also read to the jury.² No instructions were given defining premeditated and deliberate homicide of the first degree. Since the jury returned a verdict of first degree murder, and a finding of the alleged special circumstance, it is clear that it was predicated on the felony-murder rule rather than on an actual finding of an intent to kill.

The first determination to be made is whether section 190.2, subdivision (a) (17)(i), requires that the defendant intended to kill.³ This statute was enacted pursuant to “Proposition 7,” an initiative measure approved by the General Election of November 7, 1978. To determine the proper construction of this statute it is helpful to examine its predecessor. Prior to the approval of “Proposition 7,” it was expressly stated that to qualify as a special circumstance, a murder committed during the commission or attempted commission of a robbery must be “willful, deliberate and premeditated” (former s 190.2, subd. (c)(3)). Thus, the initiative measure specifically deletes the requirements that the murder be “willful, deliberate and premeditated.” When existing law is amended by deleting an express provision of the previous statute, it is presumed the Legislature intended a change in the law. (People v. Schmel (1975) 54 Cal.App.3d 46, 51, 126 Cal.Rptr. 317.)

Contrary to appellant's assertions, the reach of the initiative was to change some of the requirements for a finding of special circumstances. The summary of the Attorney General and the legislative analysis of Proposition 7 provide guidance in the determination of the measure's meaning. (Amador Valley Joint Union High School District v. State Board of Equalization (1978) 22 Cal.3d 208, 245-246, 149 Cal.Rptr. 239, 583 P.2d 1281.) The Attorney General's summary of the initiative states in relevant part: “Changes and expands categories of first degree murder for which penalties of death or confinement without possibility of parole may be imposed.” (Italics added. Voter's Pamphlet, p. 32.)

The legislative analysis of the measure also demonstrates the intent to change the requirements for special circumstances: “The proposition would also expand and modify the list of special circumstances which require either the death penalty or life without possibility of parole.” (Italics added. Voter's Pamphlet, p. 32.) These comments, together with the deletion of the requirement of “willful, deliberate and premeditated,” clearly demonstrate that these elements are no longer necessary under section 190.2, subdivision (a)(17)(i).

There is also no evidence that section 190.2, subdivision (a)(17)(i), requires the murder be intentional. An examination of other enumerated special circumstances under section 190.2, subdivision (a), reveals that the term “intentional” is expressly stated. (See s 190.2, subds. (a)(1), (7), (8), (9), (10), (13), (15), (16), (18), (19) and subd. (b).) The absence of this term in subdivision (17) is a clear indication that “intent” to kill is not required.

Appellant argues that the procedural steps to be followed under section 190.1, cases in which the death penalty may be imposed, indicates that first degree murder must first be established independently of the underlying felony. Thus, there must be, at least, an intent to kill. Section 190.1, subdivision (a), reads in pertinent part: “The question of the defendant's guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2 ” This language does not support appellant's position. In the present case, first degree murder was established under the felony-murder rule (s 189). Therefore, the jury must have also found the existence of the special circumstance “at the same time” it determined first degree murder in that the murder was committed during the robbery of the victim. Section 190.1 states that if first degree murder is established, it shall “at the same time” determine whether the special circumstance exists. It is worded in this manner so as to cover those situations where the finding of first degree murder also establishes the existence of the special circumstance, such as under section 190.2, subdivision (a)(17)(i), and those situations where deliberations beyond that of establishing first degree murder must be conducted to establish the special circumstance allegation. The latter situation would exist under the special circumstance listed in section 190.2, subdivision (a)(1). In that situation, a finding of first degree murder would not, “at the same time,” establish the existence of the special circumstance. In such a case, the determination of first degree murder would be made and then the truth of the special circumstance would be considered.

An examination of the predecessor to section 190.2, as well as a reading of the present statute enacted pursuant to Proposition 7, clearly indicates it was the intent of the electorate that a person who murders another during the course of robbery, regardless of that person's intent to kill, is subject to the death penalty or life in prison without possibility of parole.

Appellant urges that the initiative supporters could not have intended that felony-murder, in and of itself, be a basis of a special circumstance, while not imposing at least the same severity of punishment on those who kill with premeditation and deliberation. It is argued that to do so would result in an impermissible “dual use” of facts to elevate an unintentional homicide to first degree murder, and then further punish the defendant by exposing him to death or imprisonment for life without possibility of parole.

However, appellant is not being punished twice for the same offense, nor is he being punished once for the robbery and again for the murder. Appellant was convicted for one offense and was punished once for that offense. The fact that he received a more severe punishment for killing his robbery victim is a result of the voters' will. Society recognizes that violent crimes have reached almost epidemic proportions. People live in constant fear of violent crimes being committed against their person. Proposition 7 is a clear mandate from the electorate that certain enumerated felonies are to be treated severely. The obvious purpose is deterrence. (“Argument in Favor of Proposition 7,” Voter's Pamphlet, p. 34.) No individual is free from the threat of armed robbery. That great bodily injury or death is a possible result therefrom cannot be disputed.

On the contrary, the possibility that a citizen will be the victim of a deliberate and premeditated murder is less likely. There is less of a threat to society as a whole. Therefore, a rational basis exists for the imposition of a more severe punishment on a person such as appellant. Apparently the victim was randomly chosen by the appellant to be the subject of a robbery and in the process thereof was brutally beaten and kicked to death. It cannot be said that society has no right to take action to deter certain acts that the electorate has found to be in need of special treatment. There is no improper dual use of the underlying felony. The fact that it is used to impose a greater punishment than would otherwise be given only illustrates the intent of the electorate. The robbery and the murder are treated as one offense and punishment is rendered only once for it under section 190.2, subdivision (a) (17)(i).

Whether the use of the underlying felony as an aggravating circumstance in the determination of the death penalty constitutes an impermissible dual use of facts is not under consideration. The People did not seek the imposition of the death penalty, thus, appellant was not subject to this possibility.⁴ Nor does this case involve a ”wholly accidental killing which results from a bungled attempt to commit” a robbery, the imaginary case posed by the dissent.

Appellant makes several constitutional arguments against the imposition of the death penalty for unintentional felony-murder. However, as was previously noted, the People at no time sought the death penalty. The only punishment appellant faced was imprisonment for life without parole. Therefore, appellant's arguments concerning the constitutionality of the death penalty under the present situation is not at issue.

Appellant also contends life imprisonment without possibility of parole for an unintentional homicide constitutes cruel and unusual punishment under article I, section 17, of the California Constitution.⁵ It is urged that although the method of punishment, in the abstract, is not cruel and unusual, the punishment offends article I, section 17, because it is so disproportionate to the offense committed it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 423-424, 105 Cal.Rptr. 217, 503 P.2d 921.)

Lynch sets forth three distinct techniques to determine whether a given punishment is disproportionate to the offense committed.

First, consideration must be given to the nature of the offense and/or offender, with particular regard to the degree of danger both present to society. Relevant to the question of proportionality is whether the offense is of a violent nature, and whether there are rational gradations of culpability that can be made on the basis of the injury to the victim. (In re Lynch, supra, at pp. 425-426, 105 Cal.Rptr. 217, 503 P.2d 921.)

The second technique enunciated by Lynch is to compare the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which would be deemed more serious. If among them there are found more serious crimes that are punished less severely than the offense in question, the challenged penalty is to that extent suspect. (Id. at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921.)

The third technique used in this inquiry is a comparison of the challenged penalty with the punishment prescribed by other jurisdictions for the same offense having an identical or similar constitutional provision. If the challenged penalty is found to exceed the punishments set by a significant number of those jurisdictions, the disparity is a further measure of its excessiveness. (Id. at p. 427, 105 Cal.Rptr. 217, 503 P.2d 921.)

Underlying the three criteria prescribed by Lynch is the primary concern of the social utility of the particular penalty. (In re Matson (1973) 33 Cal.App.3d 559, 562, 109 Cal.Rptr. 164.) The initial purpose or necessity of a given penalty is determined by the Legislature. As emphasized by Matson, courts should pay particular attention to whether there was a rational basis for the Legislature's choice of a particular penalty. If a rational basis exists, courts should hesitate to call the penalty cruel and unusual. (Id. at p. 562, 109 Cal.Rptr. 164.)

In Matson the court considered the constitutional challenge that imprisonment without parole for aggravated kidnapping constituted cruel and unusual punishment. Although recognizing the penalty in question was anomalous in that premeditated murderers could receive life imprisonment with possibility of parole, the court in Matson stated (at p. 563, 109 Cal.Rptr. 164):

“Arguments against the augmented penalty are available. One might urge that it encourages the kidnaper to kill his victim to prevent identification; that it rejects the rehabilitational objective of enlightened penology; or that kidnappers rarely consult the Penal Code. Absent empirical proof, such debates eventually wind up in a draw. (Citation.) The arguments for and against the social utility of the augmented penalty are settled by the Legislature's choice. Section 209 evinces a legislative hope that the augmented penalty may in some cases prevent physical harm. Even though it meets with as much failure as success, the hope is rational.”

As has been discussed at length, the electorate has clearly demonstrated their belief, by the overwhelming passage of Proposition 7, that the imposition of life without possibility of parole was necessary to deter acts such as were committed by appellant. A person died as a result of a vicious beating administered by appellant.

“ (T)he resulting legislative (or electorate) judgment commands the respect of the courts unless its unconstitutionality ‘clearly, positively, and unmistakably appears.’ (Quoting People v. Wingo (1975) 14 Cal.3d 169, 174, 121 Cal.Rptr. 97, 534 P.2d 1001.)

“

“Considering the penological and social objectives of the challenged punishment in the light of the evil to which that punishment is directed, we cannot say that the penalty of life imprisonment without parole is clearly, positively or unmistakably disproportionate to the offense ” (People v. Isitt (1976) 55 Cal.App.3d 23, 30-31, 127 P.2d 279.)

One of the main purposes of section 190.2, subdivision (a)(17)(i), is to deter a robber from using deadly weapons or deadly force, or taking actions which may result in the death of the victim. Therefore, the first prong of the Lynch test is satisfied.

The court in In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, stated, with respect to the second criterion, that if it were found that more serious crimes were punished less severely than the offense in question, the challenged penalty is to that extent suspect. (Id. at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921.) The fact that life imprisonment without possibility of parole for an unintentional murder in the course of a robbery may be a more severe punishment than a premeditated murder does not, in itself, automatically invalidate the statute. It cannot be said that the challenged penalty is “clearly, positively or unmistakably disproportionate to the offense.” As stated by the court in In re Matson, supra, 33 Cal.App.3d 559 at page 565, 109 Cal.Rptr. 164, in addressing the intra state comparisons directed by Lynch : “ (A) symmetry in the scale of penalties arouses constitutional alertness but breaches the cruel and unusual punishment clause only if it lacks a rational basis.”

Although anomalies are present in the existing laws, the penalty imposed is not disproportionate by the standards of internal California comparisons.

The third Lynch criterion involves a comparison of interstate legislation. (8 Cal.3d 410, 427, 105 Cal.Rptr. 217, 503 P.2d 921.) Appellant concedes that at least two states, South Dakota and Wyoming, have statutes similar to the one in question. It thus appears that California has taken the minority position. However, as noted in People v. Isitt, supra, 55 Cal.App.3d 23, at p. 31, 127 P.2d 279:

“ (W)e are not compelled constitutionally to conform ‘our Penal Code to the ” majority rule“ or the least common denominator of penalties nationwide.’ (Quoting People v. Wingo, supra, 14 Cal.3d 169, 179, 121 Cal.Rptr. 97, 534 P.2d 1001.) Since the challenged penalty has a judicially acknowledged rational purpose (citation), it would constitute an act of judicial wilfulness to invalidate the penalty on the basis that the superior wisdom resides with the legislative bodies of foreign sovereignties rather than the elected representatives of the people of California.”

To fail under the third prong of Lynch, there must be gross excessiveness in relation to the rest of the nation. (In re Matson, supra, 33 Cal.App.3d 559, 566, 109 Cal.Rptr. 164.) The challenged penalty cannot be said to be so out of line with the penalty standards throughout the nation that it may be called a cruel or unusual punishment.

The judgment is affirmed.

I respectfully dissent.

If the court is correct, the people voted on November 7, 1978 that a wholly accidental killing which results from a bungled attempt to commit an unarmed robbery, is a capital offense. I find this hard to believe.

Many of defendant's arguments relate solely to the issue of capital punishment. In view of the initiative's severability clause and defendant's doubtful standing to raise issues relating solely to the death penalty, I shall ignore those issues. Further, since, as I see it, the meaning of paragraph (17) of subdivision (a) of section 190.2 of the Penal Code can be resolved on mundane principles of statutory interpretation, I will not discuss the several constitutional issues raised by defendant.

Insofar as is pertinent to this case, section 190.2 reads as follows: (a) “The penalty for a defendant found guilty of murder in the first degree shall be confinement in the state prison for the term of life without the possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found under Section 190.4, to be true:

“(17) The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies:

“(i) Robbery in violation of Section 211.

“(ii) Kidnapping in violation of Sections 207 and 209.

“(iii) Rape in violation of Section 261.

“(iv) Sodomy in violation of Section 286.

“(v) The performance of a lewd or lascivious act upon person of a child under the age of 14 in violation of Section 288.

“(vi) Oral copulation in violation of Section 288a.

“(vii) Burglary in the first or second degree in violation of section 460.

“(viii) Arson in violation of Section 447.

“(ix) Train wrecking in violation of Section 219.” (Emphasis added.)

Of the nine subparagraphs of paragraph (17), five (i) (robbery), (iii) (rape), (v) (child molestation), (vii) (burglary) and (viii) (arson) involve murders which are necessarily of the first degree by virtue of section 189 of the Penal Code: “All murder which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary or any act punishable under section 288 is murder of the first degree; ” On the other hand if the defendant is found to have murdered in the commission of kidnapping, sodomy, oral copulation or train wrecking the four other felonies enumerated in paragraph (17) and a special circumstance is found because the defendant has been found guilty of murder in the first degree, the latter finding must rest on a basis independent of the felony named in the applicable subparagraph: kidnapping, sodomy, oral copulation and train wrecking are not mentioned in section 189 and thus are not felonies on the basis of which a defendant can be found guilty of first degree felony murder.¹

Thus, as construed by the majority, the condition of the opening phrase of section 190.2 a defendant “found guilty of murder in the first degree” means something quite different when applied to subparagraphs (ii), (iv), (vi) and (ix), than it does in connection with subparagraphs (i), (iii), (v), (vii) and (viii). With respect to the former it means that the finding of first degree murder cannot be based on the commission or attempted commission of the felony mentioned in the particular subparagraph, but must rest on some independent basis such as premeditation and deliberation or the commission of one of the felonies enumerated in section 189.² Yet, when used in connection with subparagraphs (i), (iii), (v), (vii) and (viii), no basis independent of paragraph (17) is necessary. To put the point differently: If the defendant kills in the commission of, say, sodomy, a finding of first degree murder on some other basis is a condition precedent to the application of subparagraph (iv). Yet, if the majority is correct, in connection with subparagraph (i) robbery the special circumstance is its own condition.

I do not claim that this is a legal impossibility. I do, however, contend that to construe the key phrase “a defendant found guilty of murder in the first degree” to mean one thing in connection with subparagraphs (i), (iii), (v), (vii) and (viii) and another as applied to subparagraphs (ii), (iv), (vi), and (ix) of subdivision (17), flies in the face of one of the oldest rules of statutory construction: that the scope and meaning of statutory language remains the same in different parts or portions of a law. (E. g., Stillwell v. State Bar (1946) 29 Cal.2d 119, 123, 173 P.2d 313; Coleman v. City of Oakland (1930) 110 Cal.App. 715, 719, 295 P. 59.) I fully appreciate that this argument is not valid with respect to all paragraphs of subdivision (a). It would be foolish to maintain that the special circumstances set forth in paragraphs (15), (18) or (19) murder by lying in wait, torture or poison are not, themselves, sufficient both as the bases for the first degree murder and as special circumstances. This, however, does not detract from the validity of the argument that at least with respect to the nine subparagraphs of paragraph (17), the opening phrase of subdivision (a) must be given the same scope and meaning.

FOOTNOTES

1.  Unless otherwise specified, all code section references are to the Penal Code.

2.  CALJIC No. 8.80 “SPECIAL CIRCUMSTANCES INTRODUCTORY” states as follows:“If you find the defendant in this case guilty of murder of the first degree, you must then determine if the murder was committed under the following special circumstance: (P) Namely, that the murder was committed by defendant while the defendant was engaged in or was an accomplice in the commission or attempted commission of robbery in violation of Section 211 of the Penal Code. (P) A special circumstance must be proved beyond a reasonable doubt. (P) If you have a reasonable doubt as to whether a special circumstance is true, it is your duty to find that it is not true. (P) In order to find the special circumstance charged in this case to be true or untrue, you must agree unanimously. (P) You will include in your verdict on a form that will be supplied whether the special circumstance is or is not true.”CALJIC No. 8.81.17 “SPECIAL CIRCUMSTANCES MURDER IN COMMISSION OF ROBBERY” states as follows:“To find that the special circumstance, referred to in these instructions as murder in the commission of robbery, is true, it must be proved: (P) (1a. That the murder was committed while the defendant (was engaged in) or (was an accomplice) in the (commission) (or) (attempted commission) of a robbery.) (P) (1b. That the murder was committed during the immediate flight after the (commission) (attempted commission) of a robbery.)”

3.  Section 190.2, subdivision (a)(17)(i), states in pertinent part as follows:“(a) The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found under Section 190.4, to be true:“...“(17) The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the following felonies:“(i) Robbery in violation of Section 211.”

4.  It is not necessary to address this issue.

5.  “Cruel and unusual punishment may not be inflicted or excessive fines imposed.” (Cal.Const., art. I, s 17.)

1.  Subparagraph (ix) relating to train wrecking presents a special problem: Section 219 provides that if anyone suffers death as a proximate result of the wreck, the person responsible is “punishable with death or imprisonment in the state prison for life without possibility of parole ” It does not, however, define the crime as murder. Yet a literal reading of section 190.2 demands that the defendant be found guilty of first degree murder in order for subparagraph (ix) to be of any relevance. Luckily the peculiar problems raised by subparagraph (ix) should not be too acute: the annotated codes do not reveal a single California case discussing section 219.

2.  Section 189 includes, in addition to robbery, rape, child molestation, burglary and arson the crime of mayhem.

STEPHENS, Associate Justice.

ASHBY, J., concurs.