People v. Thompson

Opinion

Facts and Proceedings Below

This is an appeal after remand following a prior decision of this court whereby we instructed the trial court to resentence the defendant either to 25 years to life or to life without possibility of parole and to stay the other sentence. On remand, the trial court sentenced defendant to life without possibility of parole and stayed the 25 years to life sentence. We affirm.

The discussion of the facts comes from our previous opinion in People v. Thompson (1992) 7 Cal.App.4th 1966 , 1969-1970 [ 10 Cal.Rptr.2d 15 ],

I. Life Without Possibility of Parole Is Not Cruel or Unusual Punishment Under the Facts of This Case.

It is well settled a statutory punishment may violate the constitutional prohibition against cruel and unusual punishment not only if it is inflicted by a cruel or unusual method, but also if it is grossly disproportionate to the offense for which it is imposed. (Enmund v. Florida (1982) 458 U.S. 782 , 788 [ 73 L.Ed.2d 1140 , 1145-1146, 102 S.Ct. 3368 ].) In the case of In re Lynch (1972) 8 Cal.3d 410 [ 105 Cal.Rptr. 217 , 503 P.2d 921 ], the Supreme Court held a punishment may violate the California constitutional prohibition “if, although not cruel or unusual in its method, 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.)

In holding an indeterminate life-maximum sentence for second offense indecent exposure was unconstitutionally excessive, the Lynch court promulgated a three-pronged analysis for determining whether a particular punishment is “so disproportionate” for a particular crime: (1) the nature of the offense and the offender, with particular regard to the degree of danger which both present to society; (2) a comparison of the challenged penalty with the punishment prescribed in the same jurisdiction for other more serious offenses; (3) a comparison of the challenged penalty with punishment prescribed for the same offense in other jurisdictions. (8 Cal.3d at pp. 425-427; accord, In re Grant (1976) 18 Cal.3d 1 , 8-9 [ 132 Cal.Rptr. 430 , 553 P.2d 590 ]; In re Rodriguez (1975) 14 Cal.3d 639 , 647 [ 122 Cal.Rptr. 552 , 537 P.2d 384 ]; People v. Wingo (1975) 14 Cal.3d 169 , 175 [ 121 Cal.Rptr. 97 , 534 P.2d 1001 ]; In re Foss (1974) 10 Cal.3d 910 , 919-920 [ 112 Cal.Rptr. 649 , 519 P.2d 1073 ].)

Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill 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 appropriate cases, some leeway or experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty “out of all proportion to the offense,” i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment. (In re Lynch, supra, 8 Cal.3d at pp. 423-424.) Implicit in the Lynch holding is the notion that the Legislature is best suited to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone.

While the rationale of the Dillon decision is applicable, the facts of that case are readily distinguishable from the case at bar. The Dillon court was persuaded to reduce defendant’s first degree murder conviction to second degree for several reasons: (1) the jury was reluctant to apply the felony-murder rule to the facts of that case; (2) defendant was an unusually immature youth and did not foresee the risk he was creating; (3) defendant had had no prior trouble with the law; and (4) only petty chastisements were handed out to the six other youths who participated with defendant in the same offenses. (People v. Dillon, supra, 34 Cal.3d at pp. 487-488.)

None of these mitigating circumstances present in the Dillon case and which might serve to reduce defendant’s sentence are present in the case at bar. The only mitigating factor in the defendant’s favor here was his youth, but there was no evidence defendant was an unusually immature youth and did not foresee the risk he was creating. By contrast, the final result was the natural and likely consequence of the defendant’s assistance and facilitation of the underlying crime. The probability a particular house is occupied at midnight and that grave bodily harm is likely to follow from the defendant’s conduct is substantial and undermines defendant’s argument that he is not as culpable as the two who actually went up to the house. Defendant has had minor skirmishes with the law, albeit as a minor, and there is no evidence the jury showed any reluctance to convict him under section 12310. Finally, defendant received the same penalty which his two partners in crime received, which we think is consistent with the facts of this case.

Defendant contends his sentence should be reversed under the second prong of the Lynch test which involves a comparison of the questioned punishment with punishments imposed within the same jurisdiction for offenses which may be deemed more serious than that for which the questioned punishment is imposed. While such a comparison is particularly striking when a more serious crime is punished less severely than the offense in question, it remains instructive when the latter is punished as severely as a more serious crime. (People v. Dillon, supra, 34 Cal.3d at p. 487 and fn. 38.)

In support of this argument defendant cites the fact he would only have been sentenced to 25 years to life if he had been convicted of intentionally killing someone with deliberation and premeditation and without a finding of

Defendant’s same argument could be made for the two other crimes associated with LWOP: kidnapping for the purpose of ransom, extortion or robbery with bodily harm (§ 209), or attempted or actual train wrecking (§§ 218, 219). In the case of People v. Ordonez (1991) 226 Cal.App.3d 1207 [ 277 Cal.Rptr. 382 ], the defendant made a similar argument which was rejected by this court. In that case we held the statutory scheme classifying aggravated kidnapping for ransom as a crime warranting imposition of life without possibility of parole on an aider and abettor where the victim dies or suffers bodily injury did not violate due process, despite the contention the trial court’s choice of crime to be used as base term in sentencing would subject a defendant to greater sentence than an aider and abettor sentenced on basis of conviction for second degree felony murder committed during aggravated robbery. (Id. at pp. 1238-1239). We also held the sentence of LWOP was not disproportionate to the crime of aggravated kidnapping for ransom, and therefore not cruel or unusual punishment under either the federal or state Constitutions. (Id. at p. 1237; see also People v. Castillo (1991) 233 Cal.App.3d 36 [ 284 Cal.Rptr. 382 ], rehg. den. and mod.) Even if a death does not occur during these crimes the Legislature has determined they evidence such a flagrant disregard for the value of human life the perpetrator deserves a sentence of life without possibility of parole. That is the case here. The fact a two-year-old boy was killed is testament to the dangerousness of the crime, and makes the whole situation even more of a tragedy.

II. Sentence of Life Without Possibility of Parole Did Not Manifest an Abuse of Discretion.

In our prior opinion in this case, we remanded to the trial court to determine which punishment, 25 years to life under count I, or LWOP under count III, was the more appropriate; to impose that punishment; and to stay the other punishment pursuant to section 654. (People v. Thompson, supra, 7 Cal.App.4th 1 .966, 1983.) We now consider whether the fact the sentencing judge chose the more severe penalty in this case manifested an abuse of discretion.

Section 654 mandates that “[a]n act or omission which is made punishable in different ways by different provisions of the code may be

On the other hand, the weight of authority is that the trial court itself has the discretion in sentencing on more than one count to select the count on which sentence is to be carried out, even if it is a count carrying a lesser penalty, and to stay sentence on the remaining counts as to which sentence is imposed. (People v. Barela (1983) 145 Cal.App.3d 152 , 156 [ 193 Cal.Rptr. 257 ]; People v. Avila (1982) 138 Cal.App.3d 873 , 879 [ 188 Cal.Rptr. 754 ]; People v. Bradley (1981) 115 Cal.App.3d 744 , 753 [ 171 Cal.Rptr. 487 ]; People v. Mendevil (1978) 81 Cal.App.3d 84 , 89 [ 146 Cal.Rptr. 65 ]; People v. Wesley (1970) 10 Cal.App.3d 902 , 911 [ 89 Cal.Rptr. 377 ]; see also Overland, The Complete Sentencing Handbook (1986) pt. I, ch. XIII, p. 32.)

Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power. (Denham v. Superior Court (1970) 2 Cal.3d 557 , 566 [ 86 Cal.Rptr. 65 , 468 P.2d 193 ].)

The trial court did not, nor do we, accept the fact that defendant was the least culpable of the three defendants. From the trial court’s remarks at sentencing, it is apparent the judge found all three defendants were equally to blame and implicitly exercised its discretion based on that premise. This is not a situation where an aider and abettor had no idea of the criminal scheme he joined. Nor was it a criminal enterprise where violence and death were unexpected. The defendant here drove his two friends to one gas station to fill up the beer bottles and then another station to get some matches. He then drove them to the victim’s house where he waited for their return. He knew the purpose of the endeavor—to firebomb a private residence at midnight when it surely would be occupied. This is very different

We do not read the record of the sentencing hearing to evidence any misunderstanding or mistaken assumption. The court’s statement “we don’t know if defendant was the least culpable” was evidence of the court’s exercise of judicial discretion. For anyone to consider defendant the “least culpable,” one would have to assume both of the other defendants threw a bomb at the house, as opposed to one of them handing the bombs to the other, who threw them at the house. If the latter situation were true, then defendant would not be the least culpable but would be as culpable as the other defendant who did not actually throw a bomb in the house. Indeed, given his heavy involvement in the several stages leading up to the actual throwing of the molotov cocktails, it is difficult to say defendant was less culpable than the two who approached the house and pitched the “cocktails” through the window. Taking into account the extraordinarily dangerous nature of the crime, defendant’s level of participation and state of mind, the sentencing court chose to exercise its discretion in favor of the maximum penalty in this case and we think properly so.

Disposition

The judgment is affirmed.

Lillie, P. J., and Woods (Fred), J., concurred.

Appellant’s petition for review by the Supreme Court was denied July 14, 1994.