IN RE: DEATRICK A. (1984)

Deatrick A. appeals the order of wardship (Welf. & Inst.Code, § 602) entered following a finding that he committed robbery and felony-murder wherein a principal was armed with a firearm.  (Pen.Code, §§ 189, 211, 12022, subd. (a).)  He contends that the evidence was insufficient to support the finding of murder under the felony murder rule.   We requested and received briefs on the additional issues of (1) whether the recent decision of People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318 has an application to this case, and (2) whether appellant's commitment to the California Youth Authority, for the maximum period of confinement for first degree felony-murder, violated the prohibition against cruel and unusual punishment of article I, section 17, of the California Constitution in view of the decision in People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697.

We conclude that, under the present state of the law, this 14-year old appellant was properly convicted of first-degree murder even though he neither committed a killing nor intended to kill, and that any challenge to his punishment as cruel and unusual must be brought by writ of habeas corpus.

Viewing the entire record in the light most favorable to the judgment (In re Dennis B. (1976) 18 Cal.3d 687, 697, 135 Cal.Rptr. 82, 557 P.2d 514), it was established that, on the afternoon of July 17, 1982, an adult male and two boys, one of whom was appellant, entered a garage where 15 or 16 men were having a barbeque.   The adult held the group at bay with a shotgun, ordered them to throw their money to the ground, and directed the two boys to gather up the money.   As the boys gathered the money, one victim threw a glass of wine at the gunman, causing appellant and his minor companion to flee and the gunman to discharge his shotgun into the garage before following them in flight.   Immediately after running out of the garage, the gunman discharged his weapon a second time, killing Emiliano Gudino.   The victims gave chase, but eventually lost sight of the gunman.

Appellant's defense was alibi, testified to by his mother and sister.

I

Appellant's insufficiency argument is based on the rule that, in order for a killing to constitute felony-murder, the act of killing must be done “in furtherance” of the underlying felony rather than in pursuit of an independent motive such as revenge.  (People v. Asher (1969) 273 Cal.App.2d 876, 887, 78 Cal.Rptr. 885.)   Appellant argues that the gunman's act of killing in this case was simply an act of revenge, in retaliation for the throwing of the wineglass.

 The evidence, however, supports a reasonable inference that the gunman discharged his weapon in order to expedite his escape and therefore to “further” the success of the robbery.   He was being chased when he turned to fire the fatal shot, and he fired it not at the glass-thrower, but at another of the robbery victims.   For purposes of the felony murder rule, a killing is done “in furtherance” of the underlying felony if the killing and felony are parts of one continuous transaction, as when the victim is killed during a continuous integrated attempt to successfully escape after the perpetration of robbery, and before the robbers have reached a place of temporary safety.  (People v. Salas (1972) 7 Cal.3d 812, 821–824, 103 Cal.Rptr. 431, 500 P.2d 7, cert. den. Salas v. California (1973) 410 U.S. 939, 93 S.Ct. 1401, 35 L.Ed.2d 605;  People v. Chavez (1951) 37 Cal.2d 656, 670, 234 P.2d 632.)   Where, as here, the evidence would support a finding that the killing was in furtherance of the underlying felony, the possibility that it might also have been motivated by spite or revenge will not lead to reversal.  (People v. Asher, supra.)

II

As is apparent from the evidence, appellant neither killed, aided the act of killing, nor intended to kill.   The finding of first-degree murder was therefore predicated solely on his accomplice liability for the underlying robbery.   In People v. Dillon, supra, our Supreme Court held that the only intent requirement for first-degree felony murder is the specific intent to commit the underlying felony;  the defendant's state of mind with respect to the killing is irrelevant and need not be proved.  (34 Cal.3d at pp. 475–477, 194 Cal.Rptr. 390, 668 P.2d 697.)   We conclude that the subsequent cases of People v. Beeman, supra, and Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, have not eroded the Dillon holding.

In Beeman, the court held that a defendant cannot be found guilty of a crime as an accomplice unless he harbors the intent to either commit the crime, encourage commission of the crime, or facilitate its commission.   Nothing in Beeman, however, indicates that a defendant cannot be found guilty of felony-murder as an accomplice without harboring the intent to commit or aid the commission of the killing.   Were we to construe Beeman's general holding to require such intent with regard to the killing itself as well as to the underlying felony, then Dillon's contrary holding would be nullified.   Since Beeman was not a felony-murder case and contains no indication that the court meant to overrule Dillon, we must conclude that the intent requirement of Beeman applies only to the underlying felony in felony-murder cases, and not to the act of killing itself.

 Nor does Carlos v. Superior Court preclude a felony-murder conviction in the absence of proof of intent to kill or to aid in a killing.   Carlos held that such proof is necessary to support the felony-murder special circumstance of Penal Code section 190.2.  Section 190.2, however, pertains to punishment for murder, not to the question whether a defendant is guilty of murder in the first place.   As to the latter question, Carlos affirmed Dillon's holding that the felony-murder rule “dispenses with the need to prove malice aforethought” and classifies as first-degree murder those homicides occurring as a result of the commission of robbery.   (35 Cal.3d at p. 138, 197 Cal.Rptr. 79, 672 P.2d 862.)   It is therefore apparent that appellant must be adjudged a first-degree murderer solely on the basis of his intentional participation in the underlying robbery.

III

In Dillon, the defendant, while attempting a robbery, killed his would-be robbery-victim out of panic when the latter approached him with a gun.   The Supreme Court, while upholding the constitutionality of the felony-murder rule, held that the punishment for first-degree murder was cruel and unusual (Cal. Const., art. I, § 17) as applied to Dillon's case.   The court noted that first-degree murder, as defined by the Legislature, encompasses such a wide variety of conduct, that the statutory punishment for it may be so disproportionate to individual culpability in some cases as to constitute cruel and unusual punishment.   Holding Dillon's to be one such case, the court reduced his conviction to second-degree murder.

Dillon was 17 years old at the time of his crime;  he planned the underlying robbery, enlisting several companions to aid him;  he committed the killing himself, did so intentionally, and fired nine shots into his victim.   Here, we have a 14-year old appellant, who was not armed, apparently acting under the direction—and assuredly under the influence—of an adult, who neither killed nor intended to kill, and who fled before the killing occurred.   We therefore asked the parties to brief the question whether appellant's punishment for first-degree murder, like Dillon's, might be so disproportionate to his actual culpability as to constitute cruel and unusual punishment.

The Attorney General argues that the two cases are not comparable since Dillon was sentenced to state prison while appellant was committed to the California Youth Authority.   Two reasons are urged why appellant's Youth Authority commitment cannot be deemed cruel or unusual punishment.   We discuss them in turn.

First, the Attorney General cites us to the rule that the cruel and unusual punishment provisions of the California and United States Constitutions do not apply to Youth Authority commitments because such commitments are solely for the purpose of rehabilitation and not punishment.  (People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375;  In re Gary W. (1971) 5 Cal.3d 296, 96 Cal.Rptr. 1, 486 P.2d 1201;  In re Richard W. (1979) 91 Cal.App.3d 960, 155 Cal.Rptr. 11.)   We question the continuing validity of this rule.

Gary W. dealt not with initial (Welf. & Inst.Code, § 602) commitments to Youth Authority, such as the one before us here, but with extensions of the initial commitment (pursuant to Welf. & Inst.Code, §§ 1800–1803) due to physical or mental defect.  (See People v. Feagley (1975) 14 Cal.3d 338, 359, 121 Cal.Rptr. 509, 535 P.2d 373.)   While Gary W. held that the latter type of commitment does not constitute cruel and unusual punishment if accompanied by adequate treatment, the case had nothing to say about the application of cruel and unusual punishment principles to initial commitments.

More significantly, People v. Olivas, supra, can be read to indicate that the question before us is an open one.  Olivas broke with previous authority and held that the length of commitments to Youth Authority may in some instances violate the constitutional guarantee of equal protection.   In so doing, the court rejected the Attorney General's argument that the rehabilitative, rather than punitive, purpose of Youth Authority justifies the confinement of Youth Authority wards for periods longer than those imposed upon similarly-situated defendants sentenced to state prison.   The court reasoned that the rehabilitative purpose of Youth Authority did not save Olivas' commitment from constitutional attack since the disparate length of his commitment was not shown necessary to achieve his rehabilitation.

Olivas declined to reach the further question whether the defendant's Youth Authority commitment violated the state and federal prohibitions of cruel and unusual punishment.   The court noted, however, that if it were to adhere to its previous holding that the cruel and unusual punishment provisions are inapplicable to Youth Authority commitments (citing Gary W.) and if it were also to adhere to its previous holding that the equal protection provisions are similarly inapplicable (In re Herrera (1943) 23 Cal.2d 206, 143 P.2d 345), then nothing could stop the Legislature from allowing marginally incorrigible youths to be committed to Youth Authority for decades or for life under the guise of rehabilitation.

By breaking with precedent in its application of equal protection analysis to Youth Authority commitments, the court in Olivas indicated that traditional notions that such commitments are impervious to constitutional challenge as excessive punishment are now open to dispute.   Further, although the court, in passing, cited Gary W., as a decision which proscribed the application of cruel and unusual punishment principles to Youth Authority commitments, we have seen that Gary W. actually addressed only the narrower issue of Sections 1800–1803 commitments.   We therefore cannot reject out of hand the application of cruel and unusual punishment principles to the instant case.

We agree, however, with the Attorney General's second contention:  that a challenge to a Youth Authority commitment as cruel and unusual punishment should generally be raised, if at all, by means of habeas corpus rather than direct appeal.

 On direct appeal from such a commitment, the appellate court has no knowledge of the actual term that a minor will serve for his offense.   The juvenile court does not set the actual length of Youth Authority confinement, it merely specifies the maximum possible period of confinement, which is defined as the maximum period of imprisonment which could be imposed upon an adult convicted of the same offense in superior court.   (Welf. & Inst.Code, §§ 726, 731.)   Moreover, when such maximum period, as here, is lengthier than the ceiling set by Welfare and Institutions Code section 1769,¹ the latter ceiling controls as the maximum period of confinement.   Regardless of whether the maximum period in a particular case is that specified in sections 726/731 or 1769, the actual length of a minor's confinement in Youth Authority is set by the Youthful Offender Parole Board after the minor has been received.  (In re James V. (1979) 90 Cal.App.3d 300, 153 Cal.Rptr. 334;  Welf. & Inst.Code, §§ 1765, 1766.)

 Under these circumstances, we think that any review of a Youth Authority commitment as cruel and unusual punishment should rest not on the maximum confinement period of sections 726/731 or 1769, but on the actual term set by the Youthful Offender Parole Board.

The Supreme Court's analysis in People v. Wingo (1975) 14 Cal.3d 169, 121 Cal.Rptr. 97, 534 P.2d 1001 presents an apt analogy.   In Wingo, the adult defendant was sentenced to an indeterminate life term in state prison under our former indeterminate sentencing law (ISL).   The ISL was largely designed to promote rehabilitation rather than to punish per se.  (See, In re Eric J. (1979) 25 Cal.3d 522, 531, 159 Cal.Rptr. 317, 601 P.2d 549.)   Under the ISL, as under present juvenile court law, the trial court did not set the actual term to be served;  rather the actual term was set (subject to statutory limits) by an administrative agency within the Department of Corrections, after the defendant's receipt into state prison.  (Pen.Code, former §§ 3020–3025.)

On direct appeal from his conviction of felonious assault, Wingo challenged his potential maximum sentence of life imprisonment as cruel and unusual.   The court, however, declined to base any constitutional analysis on the maximum possible sentence for felonious assault, since it held that felonious assault encompasses a wide variety of conduct, some of which conduct might be properly punished by imprisonment for life.   In other words, a life sentence for felonious assault was not cruel and unusual on its face, although it might be as applied to cases where the defendant's culpability is minimal.   Under these circumstances, the court reasoned that “a consideration of only the maximum is fruitless, leaving as [the] sole alternative a determination whether in light of the individual offense the actual penalty imposed is excessive.”  (Emphasis added;  14 Cal.3d 169, 182, 121 Cal.Rptr. 97, 534 P.2d 1001.)   Thus the court held that any judicial review of Wingo's punishment as cruel and unusual must await the fixing of his actual term by the Adult Authority, and must be addressed to that actual term rather than to the maximum possible term allowed by statute.²  Such review, the court held, must be sought by petition for writ of habeas corpus rather than by direct appeal.

 The analogy of Wingo to Youth Authority commitments for felony-murder is compelling.   In both situations, the offender is initially confined for an indeterminate term, which term is not cruel and unusual on its face.   In both situations, the actual length of confinement may fall short of the maximum, and is set by an administrative agency subsequent to the termination of the court proceedings reviewable on direct appeal.   In both situations, the statutory offense upon which confinement is based encompasses a wide degree of culpability such that the term which is appropriate for some offenders may arguably be excessive if applied to other offenders.   We therefore hold that, assuming a Youth Authority commitment for felony-murder can be challenged as cruel and unusual punishment, such challenge should be based, per Wingo, on the actual term set and should be raised on habeas corpus rather than direct appeal.

It is true that in Dillon, supra, which might seem to represent a comparable situation, the Supreme Court reviewed the constitutionality of the defendant's indeterminate sentence on direct appeal and before an actual parole date was set.   However, the court noted that, under the applicable parole board regulations, Dillon's base-term of confinement could be expected to be set at a minimum of 16 years (34 Cal.3d 441, at p. 487, fn. 37, 194 Cal.Rptr. 390, 668 P.2d 697), and apparently based its cruel and unusual punishment analysis on that indicated base-term.

That sort of modified-Wingo analysis does not appear to be appropriate to the situation at bar.   We have no reason to think that the Youth Offender Parole Board is so inflexible that it will fail to take into account appellant's individual level of culpability in setting his term.   That distinguishes the instant case from Dillon, where the Supreme Court made an implied finding that a minimum commitment period of 16 years would be inflexibly imposed despite its excessiveness in relation to the defendant's individual culpability.

If, upon the setting of a tentative release date by the Youth Offender Parole Board, appellant wishes to argue that the term set is unresponsive to his culpability, as, for instance, by being identical to the term set for other wards of comparable age and history whose first-degree murder commitments are based on their personal commission of premeditated murder, then any such challenge would be most appropriately raised in a writ proceeding where proof can be made in an evidentiary hearing.   On the present direct appeal, however, the judgment must be affirmed.

The judgment is affirmed.

FOOTNOTES

1.   At the time of appellant's offense, section 1769 provided as follows:  “(a) Every person committed to the authority by a juvenile court shall, except as provided in subdivision (b), be discharged upon the expiration of a two-year period of control or when the person reaches his 21st birthday, whichever occurs later, unless an order for further detention has been made by the committing court pursuant to Article 6 (commencing with Section 1800).  [¶] Every person committed to the authority by a juvenile court who has been found to be a person described in Section 602 by reason of the violation, when such person was 16 years of age or older, of any of the offenses listed in subdivision (b) of Section 707, shall be discharged upon the expiration of a two-year period of control or when the person reaches his or her 23rd birthday, whichever occurs later, unless an order for further detention has been made by the committing court pursuant to Article 6 (commencing with Section 1800).”  (Stats.1976, c. 1071, p. 4831, § 34.)   Since appellant was not “16 years of age or older” (subd. (b)), the maximum period for which he may be confined (absent subsequent application of §§ 1800 et seq.) expires on his 21st birthday.

2.   The court indicated that in cases where the Adult Authority fails to fix a term “within a reasonable time,” then a constitutional challenge could be made based on the maximum term.  (Id., 14 Cal.3d at p. 183, 121 Cal.Rptr. 97, 534 P.2d 1001.)

KINGSLEY, Associate Justice.

WOODS, P.J., and McCLOSKY, J., concur.