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

Jack LEAMING, Petitioner, v. MUNICIPAL COURT OF the SAN JOSE-MILPITAS JUDICIAL DISTRICT, COUNTY OF SANTA CLARA, Respondent; PEOPLE of the State of California, Real Party In Interest.

Civ. 33022.

Decided: June 08, 1973

Shelton, Packard & Jay, San Mateo, for petitioner. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., W. Eric Collins, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for respondent.

Petitioner, charged by complaint of felony, of violation of Penal Code section 314, subdivision 1, indecent exposure, and with three prior convictions of the same offense, seeks writ of prohibition against proceeding with a preliminary hearing in respondent municipal court on two grounds: 1) that the charged offense is not actually a felony, but a misdemeanor; and 2) that he has been deprived of a speedy trial.


Petitioner contends that by the decision of In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, the felony provision of section 314 was declared unconstitutional. The People reply that the felony provision was not destroyed in its entirety, but only as to the maximum penalty of life imprisonment; thus there applies the general five year maximum penalty provision of Penal Code section 18 for felonies where a different punishment is not prescribed by law.

We agree with the position of the People, that the Lynch case did not destroy the felonious character of a second or subsequent conviction under subdivision 1 of section 314 of the Penal Code, although it invalidated the maximum life imprisonment penalty.1 The court did state, it is true, that ‘the recidivist provision of section 314 is void under article I, section 6, of the California Constitution.’ (8 Cal.3d at p. 439, 105 Cal.Rptr. at p. 236, 503 P.2d at p. 940.) (This section provides that cruel or unusual punishment shall not be inflicted.) But immediately following this declaration, the court, in considering the matter of relief, said that if the petitioner's offense were treated as a misdemeanor, he had long since served his time (it would have been not more than six months under Penal Code section 19); but if the offense were treated as a felony, then, since section 314 no longer prescribes a valid punishment (this because of the Lynch case itself), and a statute declaring the act a felony but not prescribing punishment produces a maximum penalty of five years, petitioner have served more than five years was entitled to his freedom. If the court had intended to declare the five year penalty a cruel and unusual punishment, as it did the life imprisonment, it could have done so expressly. If it were to be done impliedly, one would expect some discussion of the five year term in the body of the opinion, but none is to be found. Moreover, the reference to Penal Code section 18 in the dispositive paragraph would have been irrelevant. The particular reference to the five year term in the dispositive part of the opinion, at its conclusion, takes precedence, in our interpretation of the decision, over the general declaration of invalidity of the recidivist provision of section 314.

But there are other indications in the body of the Lynch opinion which sustain this interpretation. They are: 1) The expressed recognition that the punishments of crimes are in the first instance for the judgment of the Legislature alone (8 Cal.3d at p. 414, 105 Cal.Rptr. 217, 503 P.2d 921), and that mere doubt does not afford a sufficient reason for a judicial declaration of invalidity (pp. 414–415). Further, that the Legislature may weigh practical alternatives to any proposed punishment, may consider relevant policy factors, and may also be responsive to the public will (p. 423). 2) The court's announced realization that no California court had yet held a statutory penalty unconstitutional on the ground that it is disproportionate to the crime committed (p. 420), from which it may be deduced that a cautious approach is indicated. 3) The court's reference to cruel and unusual punishment as that which ‘shocks the conscience and offends fundamental notions of human dignity’ (p. 424, 105 Cal.Rptr. p. 226, 503 P.2d p. 930). 4) The emphasis by the court on the incongruity of providing a life sentence for indecent exposure while lesser punishments are provided for crimes of extreme violence (pp. 431–432); and even when recidivism is taken into account, the enormous single leap from an ordinary misdemeanor to a life maximum felony (p. 434); wherefore, the fault does not lie in the theory of the indeterminate sentence law but in the unreasonably high maximum term prescribed for this offense (p. 438). Thus, it is the life term which the Supreme Court found to violate the Constitution and not the lesser five year term to which it referred in coming to its conclusion that Lynch was entitled to his freedom. 5) The court took notice of anticipated attention by the Legislature to revision of section 314 and did not undertake itself to make any declaration against validity of the five year penalty (p. 437). 6) The court noted that in other jurisdictions the courts, in examining the constitutionality of penalties, have sometimes taken into account the nature of the particular offense as committed, and of the age and personal qualities of the offender (p. 425). Then, as to Lynch and his offense, the court found that the punishment not only failed to fit the crime, but also failed to fit the criminal (p. 437). The trial court had appraised the offender rather favorably (p. 437). The Supreme Court noted the relatively minor features of his particular offense in view of the tremendous penalty which he might yet have to undergo (pp. 437–438).

It is impossible to take into consideration at this stage of the proceedings before us the details of the particular offense, for not even the preliminary hearing has yet been held. Nor do we know anything about the character of the petitioner, except that it is charged that he has twice been convicted of the same offense and that he has been found not to be a mentally disordered sex offender.

Petitioner submits that even if In re Lynch does not expressly invalidate the felony provision of section 314, that provision is not severable from the invalid life term penalty, and must fall with the dissolution of the latter. There is no evidence, says petitioner, of legislative intent to apply the general felony statute in lieu of the specific terms of the statute. This proposition we find untenable. Section 314 expressly says that every person so convicted (of a second or subsequent offense under the section) is guilty of a felony, and then proceeds to declare the punishment. It would not have been necessary for the Legislature to have declared the repeated offense to be a felony, because Penal Code section 17, subdivision (a) defines a felony as ‘a crime which is punishable with death or imprisonment in the state prison.’ Many crimes (kidnapping [Pen.Code, § 207], mayhem [Pen.Code, § 203], robbery [Pen.Code, § 211], forcible rape [Pen.Code, § 261], and a host of others) are not expressly declared to be felonies, but are made so by the penalties attached to them by operation of section 17, subdivision (a). When the Legislature decided, in 1952 (Stats.1953, First Ex.Sess.1952, ch. 23, § 4, p. 381), to make repeated violation of section 314, subdivision 1 a felony, it did so by double declaration. Particularly in view of judicial deference to the judgment and will of the Legislature when it acts within its wide constitutional powers in these matters (as expressed in In re Lynch), we regard the Legislature's characterization of felony of the offense charged against petitioner as an alleged recidivist to be severable from the now nullified life term punishment.

We deem the offense of subsequent violation of Penal Code section 314 in the abstract to be a felony, with maximum penalty of five years in the state prison. Possibly the circumstances of a lengthy term in some case may move the courts to review the matter of the five year penalty; but the question before us, as put by petitioner, is simply that the Lynch decision already had annulled that penalty.


Petitioner was charged with the misdemeanor offense on November 11, 1972. At a conference of December 6, 1972, a mentally disordered sex offender examination was ordered. Later, trial date was set for February 13, 1973. On that date the district attorney moved that the misdemeanor complaint be abandoned and that petitioner be arraigned on a felony complaint issued on February 9, 1973, which alleged not only the latest offense, but also two prior convictions of the same offense.

Petitioner contends that there was violation of the self-executing constitutional provision for speedy trial, citing Barker v. Municipal Court, 64 Cal.2d 806, 51 Cal.Rptr. 921, 415 P.2d 809; Jones v. Superior Court, 3 Cal.3d 734, 91 Cal.Rptr. 578, 478 P.2d 10; Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. The cases are far different from the present one. In Barker, the state had delayed for over 18 years to bring federal prisoners to state trial. In Jones, there was no attempt to serve an arrest warrant for 19 months. In Klopfer, there had been an indefinite prolonging of criminal procedure, the state taking the position that so long as petitioner was permitted to go ‘whithersoever he will’ (386 U.S. at p. 227, 87 S.Ct. 988) there was no denial of constitutional right. Petitioner also cites Huerta v. Superior Court, 18 Cal.App.3d 482, 95 Cal.Rptr. 748, and Pickett v. Municipal Court, 12 Cal.App.3d 1158, 91 Cal.Rptr. 315. But in both of those cases section 1382 of the Penal Code was applicable, whereas in the present case there is no statutory time limit for the procedure which was used. The dismissal of a misdemeanor complaint does not bar prosecution of a felony complaint. (People v. Mitman, 122 Cal.App.2d 490, 494, 265 P.2d 105; People v. Hinshaw, 194 Cal. 1, 24, 227 P. 156; Necochea v. Superior Court, 23 Cal.App.3d 1012, 100 Cal.Rptr. 693.) No denial of constitutional or statutory right of petitioner appears.

The petition for writ of prohibition is denied and the alternative writ is discharged.


1.  The penalty is not expressed as life imprisonment, but as imprisonment in the state prison for not less than one year. Such an open-end term is deemed to be one for life for the purpose of applying the constitutional test. (In re Lynch, supra, at p. 419, 105 Cal.Rptr. 217, 503 P.2d 921.)

DEVINE, Presiding Justice.

BRAY, J.,* and GOOD, J.,** concur.

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Docket No: Civ. 33022.

Decided: June 08, 1973

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

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