PEOPLE v. RANGEL (1984)

OPINION

The information charged defendant in count I with kidnaping for purposes of robbery (Pen.Code § 209, subd. (b)), in count II with robbery (Pen.Code § 211), and in count III with unlawfully taking or driving the vehicle of another (Veh.Code § 10851).   The information further alleged defendant used a firearm during the commission of each of the offenses (Pen.Code § 12022.5) and had suffered a prior felony conviction for second degree murder.   Defendant admitted the prior conviction.   A jury found the defendant guilty on all three counts and found that he had used a firearm with respect to each of the three counts.

Defendant was sentenced to state prison for life on count I, with a consecutive two year enhancement for the use of the firearm and a consecutive five year enhancement for the prior felony conviction.

The sentences on counts II and III were stayed.

On appeal defendant contends:  (1) the evidence was insufficient to establish that the kidnaping was for the purpose of committing robbery;  (2) the availability of defendant's prior second degree murder conviction for impeachment denied him due process of law;  and (3) the punishment of life imprisonment with the possibility of parole is grossly disproportionate to the offense of kidnaping to commit robbery as defined or as committed in this case, and/or to the individual culpability of the defendant, and hence the judgment should be reversed and the case remanded to the trial court to determine whether to punish the defendant for “simple” kidnaping under Penal Code sections 207 and 208.

FACTS

The victim took a friend's automobile to drive a young woman to her home from a bar in Perris, California.   On the way, at the woman's suggestion, they picked up defendant and another man.   They acquired beer either on the way to the woman's house or on a separate “beer run”.   They drank some of the beer at the woman's house.

The three men then got back in the automobile, the victim intending to return the automobile to his friend at the bar.   The victim was driving, defendant was in the right front passenger seat and the other man was in the rear seat.   After driving 100 meters, which took about a minute, the defendant drew a revolver and pointed it at the victim.   After a struggle the victim was placed in the back seat with defendant.   The other man drove the automobile for 25 or 30 minutes and stopped in Riverside, California, approximately 20 miles from Perris.   During the entire ride, the revolver was either pointed at or in the victim's mouth.

In Riverside the victim was pushed out of the automobile.   His boots and everything in his pockets were taken by defendant and the other man.   The defendant then drove away in the automobile with the other man as passenger leaving the victim behind.

The victim had left the bar in Perris on the evening of Sunday, November 21, 1982.   On Monday, November 22, 1982, at approximately 5:00 a.m., defendant was stopped in Los Angeles County while driving the automobile earlier driven by the victim.   In the automobile was a loaded revolver and the victim's clothing.   There was a hole in the roof of the automobile made by a bullet which had not been there when the victim was in the car.

Neither the victim nor the defendant had permission to take or drive the automobile.

No defense was presented.

SUFFICIENCY OF THE EVIDENCE TO ESTABLISH THAT THE KIDNAPING WAS FOR THE PURPOSE OF COMMITTING ROBBERY

 To support a conviction for kidnaping for purposes of robbery, the prosecution must show that the defendant had the intent to commit robbery at the time the kidnaping commenced and not as an afterthought.  (People v. Tribble (1971) 4 Cal.3d 826, 832, 94 Cal.Rptr. 613, 484 P.2d 589;  People v. Smith (1963) 223 Cal.App.2d 225, 232, 35 Cal.Rptr. 719, disapproved on other grounds in People v. Hood, 1 Cal.3d 444, 450, 82 Cal.Rptr. 618, 462 P.2d 370.)

In both Tribble and Smith the giving of an instruction that the intent to rob could be formed after the initial kidnaping was held to be prejudicial error.   Here the proper instruction was given.

Although not necessary to the decisions, both Tribble and Smith involved sexual assaults followed by robbery which factually could be an “afterthought”.   In this case there was no sexual assault, only the taking of the victim's property and the automobile he was driving.

The immediate use of the revolver by defendant once the three men started back to the bar, the holding of the gun at victim's mouth throughout the ride, and the taking of the property and vehicle as soon as the stop was made in Riverside, is substantial and uncontradicted evidence of defendant's intention to rob the victim at the initiation of the kidnaping.   In fact, it is difficult to see how the jury could have arrived at any other conclusion.

Since there is substantial evidence to support the conviction, defendant's contention that he only wanted a ride to Riverside need not be considered.   Unlike People v. Shelburne (1980) 104 Cal.App.3d 737, 163 Cal.Rptr. 767, defendant in the present case offered no evidence to support his contention.

THE AVAILABILITY OF DEFENDANT'S PRIOR CONVICTION OF A FELONY FOR THE PURPOSE OF IMPEACHMENT

Defendant raises two questions in this connection:

A. In view of the passage of Proposition 8, does Evidence Code section 352 still regulate which prior conviction may be used to impeach a witness?

B. Assuming Evidence Code section 352 no longer applies, is due process or the right to a fair trial violated by unrestricted use of felony priors for impeachment?

We note that the date of the offense, November 21, 1982, is subsequent to the adoption of Proposition 8, an initiative measure entitled “The Victims' Bill of Rights”, adopted at the statewide Primary Election on June 8, 1982.

 Fundamental questions regarding Proposition 8 have been resolved by our Supreme Court.   It is valid as against general constitutional attack.   (Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274.)   It applies only to crimes occurring on or after June 9, 1982.  (People v. Smith (1983) 34 Cal.3d 251, 262, 193 Cal.Rptr. 692, 667 P.2d 149.)

Does Evidence Code section 352 operate, after Proposition 8, to restrict use of prior felony convictions for impeachment?  Section 788 of the Evidence Code provides:   “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony ․”

The Evidence Code also contains section 352 which provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”   In 1972, our Supreme Court ruled that Evidence Code section 788 is limited by section 352 and that the trial court must balance prejudice against the probative value of a prior felony conviction before permitting its use as impeachment.  (People v. Beagle (1972) 6 Cal.3d 441, 452–453, 99 Cal.Rptr. 313, 492 P.2d 1.)   It is significant that Beagle specifically held “there is no constitutional bar to the use of valid prior felony convictions for impeachment purposes․”  (Id., at p. 454, 99 Cal.Rptr. 313, 492 P.2d 1.)   Numerous subsequent decisions have refined the Beagle criteria, but it is significant that all are premised on the Beagle conclusion that section 788 is limited by section 352;  they are not based on constitutional mandates.

As relevant to this case, Proposition 8 provides:  “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment ․ in any criminal proceeding.”  (Cal. Const., art. I, sec. 28, subd. (f).)  On its face, the provision does not state that Evidence Code section 352 is applicable;  to the contrary, it says prior felonies shall be used “without limitation.”   Had the voters wished section 352 to apply, they could have said so in express terms.   Indeed, the “Right to Truth-In-Evidence” portion of Proposition 8, expressly provides that it does not “affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782, or 1103.  (Cal. Const., art. I, sec. 28, subd. (d).)  In his majority opinion in Brosnahan, Justice Richardson observed that the Evidence Code Section 352 limitation does apply to the “Truth-In-Evidence” provisions of Proposition 8, but that the “prior conviction” provision “permits the unlimited use in a criminal proceeding of ‘any prior felony conviction’ for impeachment ․”  (Brosnahan v. Brown, supra, 32 Cal.3d 236, 243, 186 Cal.Rptr. 30, 651 P.2d 274.)

 Legislation should be interpreted so as to effectuate the intent of the voters.   In determining the intent of the electorate in adopting an initiative measure, it is proper to consider the history of the statute and official statements made to the voters.  (See Diamond International Corp. v. Boas (1979) 92 Cal.App.3d 1015, 1033–1034, 155 Cal.Rptr. 616;  Noroian v. Department of Administration (1970) 11 Cal.App.3d 651, 654–655, 89 Cal.Rptr. 889.)   In the California Ballot Pamphlet distributed to voters prior to the June 8, 1982 election, the Legislative Analyst told the voters:  “Prior Convictions.   The measure would amend the State Constitution to require that information about prior felony convictions be used without limitation to discredit the testimony of a witness, including that of a defendant.   Under current law, such information may be used only under limited circumstances.”   (California Ballot Pamphlet, p. 54.)   According to Beagle, the only “current law” which limits the use of prior felonies for impeachment is Evidence Code section 352.   Assuming they read and considered the Legislative Analyst's explanation, the voters intended and expected that by passage of Proposition 8 there would be no limitations on the use of prior felony convictions to impeach, and that the section 352 restriction would be eliminated.

Perhaps the most compelling argument why section 352 is inapplicable to the “prior convictions” provisions of Proposition 8 is that if it were to apply, passage of the initiative would effect absolutely no change in the law.   Prior to June 8, 1982, the only limitation on the use of prior felonies, according to Beagle, was that imposed by Evidence Code section 352 which required the trial court to balance the probative value of a prior felony conviction against the risk of undue prejudice.  (People v. Beagle, supra, 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1.)   If we were to hold that the “prior convictions” provision of Proposition 8 incorporates section 352, we would be violating the only purpose of enacting those provisions—to remove the section 352 restriction.   The responsibility of a reviewing court is to ascertain the intent of the legislature (or, as here, the voters) so as to effectuate the purpose of the law.  (People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 544 P.2d 1322.)   To hold otherwise would clearly frustrate the intention of the voters and the spirit of the enactment.

 Defendant contends that removing the section 352 limitation on using prior felonies for impeachment would be a denial of due process.   We disagree.

Beagle specifically held that there was no constitutional prohibition to the use of prior felony convictions for impeachment.  (People v. Beagle, supra, 6 Cal.3d 441, 454, 99 Cal.Rptr. 313, 492 P.2d 1.)   The due process argument was raised and specifically rejected by the California Supreme Court on several occasions before Beagle.  (See, e.g., People v. Roberts (1966) 65 Cal.2d 514, 522, 55 Cal.Rptr. 412, 421 P.2d 420.)

Nor does the due process provision of the United States Constitution bar unlimited use of prior felony convictions for impeachment.  (McGautha v. California (1971) 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711.)   Indeed, the United States Supreme Court has held that due process is not violated if a prior felony conviction is used for sentence enhancement and proved as part of the prosecution's case in chief, whether or not defendant testifies.  (Spencer v. Texas (1967) 385 U.S. 554, 565–566, 87 S.Ct. 648, 654–55, 17 L.Ed.2d 606.)

The availability of the prior felony conviction for impeachment was proper.

THE EXPRESS LIFE SENTENCE WITH POSSIBILITY OF PAROLE IS NOT CRUEL OR UNUSUAL PUNISHMENT

It is the function of the Legislature to define crimes and prescribe punishments.  (In re Lynch (1972) 8 Cal.3d 410, 414, 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.)

However, a punishment may violate the 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.  (In re Lynch, supra, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921.)   The Lynch court enumerated three criteria to aid in deciding this test:  an examination of the nature of the offense with particular regard to the degree of a danger presented to society;  a comparison of the punishment with punishments imposed in California for offenses which may be deemed more serious;  and, a comparison of the punishment with punishments for the same offense in other jurisdictions.  (Reiterated and restated in In Re Foss (1974) 10 Cal.3d 910, 919–920, 112 Cal.Rptr. 649, 519 P.2d 1073.)

 Given the presumption of constitutionality, it is incumbent upon defendant to demonstrate that the punishment violates the criteria.  (People v. Adams (1974) 43 Cal.App.3d 697, 709, 117 Cal.Rptr. 905.)

 In connection with the first Lynch criterion, kidnaping for the purpose of robbery is a deliberate if not coldly planned offense by definition involving great risk of bodily harm.  (People v. Isitt (1976) 55 Cal.App.3d 23, 30, 127 Cal.Rptr. 279.)   A sentence of life imprisonment without possibility of parole for kidnap-robbery with bodily harm was held not to exceed the constitutional limits in view of its danger to society.   (Ibid.;  In re Maston (1973) 33 Cal.App.3d 559, 109 Cal.Rptr. 164.)

We cannot say that the penalty of life imprisonment with possibility of parole is clearly, positively or unmistakably disproportionate to the offense of kidnaping for the purpose of robbery.

In this case the victim was driven for between 25 and 30 minutes with a gun pointed at or in his mouth and, obviously, the slightest provocation or accident could have resulted in the death or serious injury of the victim.   Clearly the movement of the victim in this case substantially increased his risk of harm over and above that present in the crime of robbery.  (People v. Daniels (1969) 71 Cal.2d 1119, 1139–1141, 80 Cal.Rptr. 897, 459 P.2d 225;  In re Earley, (1975) 14 Cal.3d 122, 127–128, 120 Cal.Rptr. 881, 534 P.2d 721.)

With respect to the second Lynch criterion, both Maston and Isitt upheld a punishment of life imprisonment without parole for the crime of kidnap-robbery with bodily injury.   The punishment of life imprisonment with possibility of parole for the crime of kidnap-robbery is clearly proportionate.

In connection with the third Lynch criterion, defendant has made no showing that the punishment imposed for the instant crime is disproportionate to those imposed for the same crime in other jurisdictions.   Since the burden to show lack of proportionality is on defendant, we do not have to consider this criterion.   In any event the test under this criterion was decided adversely to the defendant in People v. Isitt, supra, 55 Cal.App.3d 23, 31, 127 Cal.Rptr. 279.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

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

MORRIS, P.J., and RICKLES, J., concur.