Opinion
B159547.
7-25-2003
BYRN A. WATSON, Plaintiff and Appellant, v. BILL LOCKYER, as Attorney General, etc., Defendant and Respondent.
Byrn A. Watson, in pro. per., for Plaintiff and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Paul D. Gifford, Senior Assistant Attorney General, Julie L. Garland, Supervising Deputy Attorney General, and Michelle A. Des Jardins, Deputy Attorney General, for Defendant and Respondent.
Plaintiff Bryn Watson, as a taxpayer, filed a petition for a writ of mandate, seeking an order to invalidate as unconstitutional Proposition 7, known as the Briggs Initiative, by which the voters in 1978 amended Penal Code section 190 to increase the punishment for murder from an indeterminate term of life imprisonment to an indeterminate term of 25 years to life and for second degree murder from a term of 5, 6, or 7 years to an indeterminate term of 15 years to life in state prison. (See People v. Cooper (2002) 27 Cal.4th 38, 41-42.) Watsons petition also sought orders to resentence all prisoners convicted of murder under Proposition 7 to the terms of punishment in existence immediately before its enactment, to direct the parole agency to cease holding hearings for those prisoners sentenced to indeterminate terms for murder under Proposition 7, and to direct the Department of Corrections to discharge prisoners who have served terms in excess of the sentences permitted by the law in existence immediately before the enactment of Proposition 7.
We affirm the order of the trial court dismissing the petition with prejudice because Watson fails to establish that the provisions of Proposition 7 pertaining to the punishments for murder are unconstitutional.
PROCEDURAL BACKGROUND
In December 2000, Watson filed a petition for a writ of mandate or prohibition, seeking to invalidate under various statutory and constitutional provisions the indeterminate sentencing structures for first and second degree murder created by Proposition 7. Watson alleged that because the Legislatures enactment of the determinate sentencing law (DSL) in 1977 changed the public policy underlying the sentencing laws from rehabilitation to punishment, indeterminate sentencing structures were left without any underlying policy justification and without any valid administrative structure to fix the "penalties" for murder convictions carrying terms of 25 years to life and 15 years to life. The petition also alleged that the DSL repealed the "term fixing authority" of the statewide parole agency, the Board of Prison Terms (BPT), with respect to indeterminate sentences, and that Proposition 7 constitutes "incomplete legislation" which improperly delegates legislative and judicial power to the BPT.
In September 2001, with Watsons permission, other individuals filed a motion for intervention in Watsons proceeding and a motion for declaratory relief and injunction. On October 5, 2001, the court issued an order stating in pertinent part: "It appears to this Court that the petitioner is seeking in part to have the determinate sentencing law of the State of California declared unconstitutional. If that is the intent of this motion, it is without merit. People v. Wright [(1982) 30 Cal.3d 705, 180 Cal. Rptr. 196, 639 P.2d 267] held that the adoption of California Rules of Court, rules 421 and 423 (providing criteria governing aggravation and mitigation for sentencing purposes) pursuant to statutory authority (Penal Code section 1170.3[, subdivision] (a)), was consistent with California Constitution, article [VI], section 6. [P] Although it is not entirely clear, it also seems that petitioner contends the Board of Prison Terms is acting in excess of its authority because it is exercising a judicial function under the determinate sentencing law. However, [title 15, section 2000, subdivision (10) of the California Code of Regulations] defines the function of the Board of Prison Terms under determinate sentencing laws and they are identical to the function of the Board under the indeterminate sentencing law. (See Fleischer v. Adult Authority [(1962) 202 Cal. App. 2d 44, 47, 20 Cal. Rptr. 603].) Delegation of the power to fix and refix terms and grant and revoke parole, such as to the California Adult Authority is too well established to require further discussion. (Bennett v. People of State of California [(9th Cir. 1969) 406 F.2d 36, 38].)"
The trial court, exercising its authority under Code of Civil Procedure section 1061, concluded that "its declaration and determination are not necessary or proper at the time under all the circumstances."
The individuals seeking intervention filed a motion for reconsideration of the October 5, 2001 order. On October 30, 2001, the court granted the motion, stating, "This Court erroneously assumed petitioner was a sentenced inmate in the California prison system." On February 28, 2002, the court issued an order directing the Attorney General to file and serve a response to Watsons petition. In April 2002, the Attorney General filed opposition to the petition, arguing that the writ was barred by laches, that the enactment of Proposition 7 was a valid exercise of the Peoples initiative powers under article II, section 8 of the California Constitution, that Penal Code sections 3040 through 3041.5 authorized the BPT and the Governor to make parole determinations with respect to inmates serving indeterminate life sentences, and that indeterminate sentences have long been upheld as constitutional.
On April 30, 2002, the court issued an order to Watson to show cause why the courts order of October 5, 2001, should not be reimposed and the petition dismissed. In response to the order to show cause, Watson filed a supplemental response and motion to strike and a demurrer to the Attorney Generals opposition to the petition. After reviewing the entire file in the matter, the court issued an order on May 24, 2002, stating that "the Courts order of October 5, 2001 is reinstated and the petition is dismissed with prejudice." Watson filed a timely notice of appeal from the May 24, 2002 order.
DISCUSSION
Watson contends that Proposition 7 is invalid under Government Code section 9609 and a host of constitutional provisions. Watsons principal argument is that Proposition 7 improperly "reinstates" indeterminate sentences for murder after the Legislature repealed the indeterminate sentencing law (ISL) and rejected rehabilitation as an imprisonment policy. Watson reasons that when the Legislature repealed the ISL and enacted the DSL in 1977, it declared that the purpose of imprisonment is punishment; the indeterminate sentencing structure is invalid because it is based on a policy and purpose (rehabilitation) no longer sanctioned by the Legislature. Watson maintains that the indeterminate sentencing structure of Proposition 7 is invalid because it is not supported by any legislatively declared policy or purpose. Watson also contends that Proposition 7 violates principles of equal protection and due process by treating murderers sentenced to an indeterminate term differently from others sentenced to determinate terms under the DSL.
Government Code section 9609 provides: "A statute amending a section of a repealed statute is void."
Watson claims Proposition 7 violates the following California constitutional provisions: Article I, sections 1 (inalienable rights), 9 (bill of attainder and ex post facto laws), and 26 (constitutional provisions are mandatory and prohibitory unless declared otherwise); article II, section 8, subdivision (d) (initiative measure embracing more than one subject may not be submitted to voters); article III, section 3 (separation of governmental powers); article IV, sections 1 (legislative power vested in California Legislature but people reserve to themselves powers of initiative and referendum), 9 (statute must embrace one subject expressed in its title; section of a statute may not be amended unless the section is reenacted as amended), and 16 (uniform operation of laws); and article VI, sections 1 (judicial power) and 13 (no reversal of judgment for error unless miscarriage of justice).
Watson also claims that Proposition 7 violates the due process and equal protection clauses of the Fourteenth Amendment of the Unites States Constitution.
"As with statutes adopted by the Legislature, all presumptions favor the validity of initiative measures and mere doubts as to validity are insufficient; such measures must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears." (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 253, 902 P.2d 225.) "To the extent that the initiative is the constitutional power of the electors to propose statutes . . . and to adopt or reject them [citation], it is generally coextensive with the power of the Legislature to enact statutes." (Ibid.)
Watson fails to explain how his arguments with respect to Proposition 7 implicate any of the statutory or constitutional provisions he cites (see fn. 1, ante), let alone how Proposition 7 violates any of those provisions. Watson also fails to establish that the indeterminate sentences for murder provided under Proposition 7 are inconsistent with an imprisonment policy of punishment or are otherwise inconsistent with the DSL.
"In enacting the DSL, the Legislature did not provide determinate sentences for all penal provisions in this state." (In re Jeanice D. (1980) 28 Cal.3d 210, 220, fn. 11.) "Certain crimes remained punishable by indeterminate sentences. These were basically the life-sentence crimes, such as first degree murder ([Pen. Code,] former § 190.5), kidnapping for robbery or ransom ([id.,] § 209), and trainwrecking ([id. ,] § 218)." (In re Monigold (1983) 139 Cal. App. 3d 485, 490, 188 Cal. Rptr. 698.)
Thus, under the DSL, "life sentences are retained for certain crimes such as first degree murder (Pen. Code, § 190); but the legislative guidelines by which the Community Release Board sets a parole date for such an offender have been significantly amended. (Pen. Code, § 3041.)" (Way v. Superior Court (1977) 74 Cal. App. 3d 165, 171, 141 Cal. Rptr. 383.) With the adoption of the DSL, "indeterminate sentences are generally reserved for more serious crimes than those subject to determinate sentences." (People v. Felix (2000) 22 Cal.4th 651, 657, 995 P.2d 186 [a straight life sentence, as well as a sentence of some number of years to life, is not a determinate sentence within the meaning of the DSL].) Although the DSL excluded certain crimes from the determinate sentencing scheme, punishment still remained the major purpose of imprisonment for offenses punishable by indeterminate sentences. (In re Morrall (2002) 102 Cal.App.4th 280, 289.)
"Prior to 1976, persons convicted of second degree murder under Penal Code section 190 faced a five years to life sentence . . . . With the enactment of the [DSL], the sentence for second degree murder was revised to five, six or seven years . . . ." (In re Jeanice D., supra, 28 Cal.3d 210, 218, fn. 7.)
"On November 7, 1978, the voters amended [Penal Code] section 190 by the passage of the Briggs Initiative. The amendment increased the punishment for first degree murder from an indeterminate term of life imprisonment to a term of 25 years to life, and for second degree murder from a term of five, six, or seven years to 15 years to life in state prison. (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978) . . . .) The purpose of the Briggs Initiative was to substantially increase the punishment for persons convicted of first and second degree murder." (People v. Cooper , supra, 27 Cal.4th at pp. 41-42.) This purpose is expressly stated in the ballot pamphlet for Proposition 7. (People v. Noble (1981) 126 Cal. App. 3d 1011, 1016-1017, 179 Cal. Rptr. 302.) Because the initiative power of the electorate is coextensive with the legislative power, we reject Watsons claim that Proposition 7s amendment of Penal Code section 190 was not a valid expression of legislative power.
Watsons claim that Proposition 7 constitutes a denial of due process and equal protection also is without merit. ""Subject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch."" (Manduley v. Superior Court (2002) 27 Cal.4th 537, 552.) "The selection of the proper penalty for a criminal offense is a legislative function 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 . . . ." (People v. Noble , supra, 126 Cal. App. 3d 1011, 1018.) "The resulting legislative [or electoral] judgment commands the respect of the courts unless its unconstitutionality" is clear. (Id. at p. 1020.) Watson fails to establish that the sentences for the various degrees of murder established by Proposition 7 are disproportionate to the offenses under any applicable test. (See People v. Noble, supra, 126 Cal. App. 3d at pp. 1019-1020.)
In order to prevail in his equal protection claim, Watson "must first show the state has adopted a classification that affects similarly situated groups in an unequal manner. [Citation.] Persons who are similarly situated must be treated alike. [Citation.] There is, however, no requirement that persons in different circumstances must be treated as if their situations were similar." (People v. McCain (1995) 36 Cal.App.4th 817, 819.) Watson fails to establish that persons convicted of murder are similarly situated to persons convicted of other less serious crimes and sentenced to determinate terms under the DSL. Even assuming for purposes of argument that Watsons denial of equal protection claim warrants strict scrutiny of Proposition 7, we would conclude that his equal protection claim fails because there is a compelling purpose for the increased punishment for murder in order to deter the taking of human life. (See, e.g., People v. Alvarez (2001) 88 Cal.App.4th 1110, 1117-1118 [firearm enhancement statute met strict scrutiny standard because state had compelling interest in deterring use of firearms in serious crimes, which interest could not be addressed by less restrictive means].)
Without merit also are Watsons contentions challenging the authority of the BPT and claiming that its functioning violated the constitutional principle of separation of powers. He argues that because Proposition 7 contains no express delegation of power to any parole agency, the BPT only has ministerial powers and cannot properly determine "actual penalties" or grant parole to those sentenced under Proposition 7. Watson maintains that "allowing the BPT to continue on its present course is to authorize this agency unlimited discretion to circumvent the Constitution to make law by imposing the actual penalties within Prop. 7s penalty structure." (Emphasis omitted.)
As pointed out by the Attorney General, the enactment of the DSL and Proposition 7 did not abrogate the parole agencys authority to set parole release dates for prisoners sentenced to indeterminate terms under Penal Code section 1168. Rather, the parole agencys powers were set out in Penal Code section 3040 et seq. "New parole regulations were enacted in 1978 following passage of the DSL, and detailed parole procedures are described in [Penal Code] section 3040 et seq." (In re Stanworth (1982) 33 Cal.3d 176, 183, 187 Cal. Rptr. 783, 654 P.2d 1311.) "For indeterminate term prisoners the Legislature enacted [Penal Code] section 3040, which provides that the Board of Prison Terms shall have the power to parole persons sentenced pursuant to section 1168." (In re Monigold, supra, 139 Cal. App. 3d at p. 491.) Watson fails to cite to any provision of Proposition 7 which purports to abrogate Penal Code section 3040 et seq.
"With the original enactment of the DSL the Legislature provided for two classes of prisoners, those sentenced to determinate terms under chapter 4.5, and those sentenced to indeterminate terms under [Penal Code] section 1168. Prisoners sentenced to determinate terms had a date certain upon which they would be released, while those sentenced to indeterminate terms were to be released on parole when the Board of Prison Terms determined that release was appropriate." (In re Monigold, supra, 139 Cal. App. 3d at p. 491.)
In 1977 the Legislature amended Penal Code section 3040 to provide: "The Community Release Board [predecessor to BPT] shall have the power to allow prisoners imprisoned in the state prisons pursuant to subdivision (b) of Section 1168 to go upon parole outside the prison walls and enclosures. The board may parole prisoners in the state prisons to camps for paroled prisoners established under Section 2792." (Pen. Code, former § 3040, as amended by Stats. 1977, ch. 165, § 44.)
Nor does Watson establish that the authority of the BPT violates principles of separation of powers, as the BPTs authority to grant parole and fix release dates (In re Powell (1988) 45 Cal.3d 894, 901-902, 248 Cal. Rptr. 431, 755 P.2d 881) is generally regarded as an executive branch decision. "The decision, and the discretion implicit in it, are expressly committed to the executive branch. (Pen. Code, § 3040 et seq.; Cal. Const., art. V, § 8.) It is not a judicial decision." (In re Morrall, supra, 102 Cal.App.4th at p. 287 (Morrall).) PAGE CONTAINED FOOTNOTES
Nor does Watson establish that the BPT, in granting parole and fixing release dates, usurps any power granted to the Legislature. As is explained below, the granting of parole does not affect the prisoners sentence term established by the Legislature or by the electorate acting through the initiative process. "With respect to the offenders who are sentenced to indeterminate terms, the Legislature [in enacting the DSL] determined that the public interest can best be served by having their ultimate release dates determined through the exercise of executive discretion pursuant to the policies and procedures applicable to parole." (Morrall, supra, 102 Cal.App.4th at p. 289.) Under the indeterminate sentencing law, "[a] sentencing court would not select a fixed term, but would impose an indeterminate term, generally expressed as a range such as five years to life. [Citation.] The legal effect of the imposition of an indeterminate term was a sentence for the maximum term. [Citation.] It would be left to the executive branch to determine the actual period of confinement by, among other things, exercise of the authority to grant parole within the minimum and maximum time specified for the commitment offense." (Id. at p. 288.)
"A prisoner released on parole is not discharged; he is merely permitted to serve the remainder of his term outside rather than within prison walls. [Citation.] Until discharged from parole, he remains under the custody of the Department of Corrections and is subject to being taken back within the enclosure of the prison. (Pen. Code, §§ 3000, 3056.) [P] A person convicted of crime has no inherent or constitutional right to conditional release before the expiration of a valid sentence. [Citation.] Therefore, in establishing a parole system, a state may be as specific or general in defining the conditions for release and the factors to be considered as it believes will serve the public interest." (Morrall, supra, 102 Cal.App.4th at pp. 286-287.) Watson fails to establish delegation of either legislative or judicial power to the BPT or exercise by the BPT of legislative or judicial power.
In light of the foregoing, we conclude that Watsons challenges to the constitutionality of Proposition 7 and to the authority of the BPT are without merit. We have carefully considered Watsons briefs and find all arguments therein to be without merit.
DISPOSITION
The May 24, 2002 order is affirmed.
We concur: SPENCER, P. J., VOGEL (MIRIAM A.), J.