DocketNumber: Crim. 10999
Judges: Mosk, McComb, Traynor, Peters, Tobriner, Burke, Sullivan
Filed Date: 10/2/1969
Status: Precedential
Modified Date: 10/19/2024
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1121
By amended indictment defendant Simmons was charged in count I with raping Miss M. by means of force and threat (Pen. Code, §
Defendants entered pleas of not guilty, and Daniels admitted the prior conviction. The jury found defendants guilty on all counts. The allegations in counts II, III, and IV that the kidnaping victims suffered bodily harm were found true.1
The jury fixed the penalty at death on the kidnaping counts. Motions for new trial were denied. On count I Simmons was sentenced to prison for the term prescribed by law, and on the remaining counts he was sentenced to death; on counts II and IV Daniels was sentenced to death. The appeals from the judgments of death are automatic. (Pen. Code, §
The relevant facts, viewed most favorably to the People, may be summarized as follows:
Count I. Miss M., a 24-year-old school teacher and graduate student, returned to her apartment shortly after midnight on *Page 1123 January 17, 1966. Finding no nearby parking space, she drove to her garage in an alley behind the apartment building. In so doing she observed two men standing on the street corner. As she was getting out of her car in the garage, she looked to the rear and saw defendant Simmons. She screamed, and he rushed towards her and struck her in the face, dislocating her jaw. He said, "Shut up; I have a knife," and held the weapon at her throat. Badly frightened, she asked him what he wanted. He ordered her into the back seat of the car, where he overcame her vigorous resistance and accomplished an act of rape. He then asked her if she had any money, and she told him to look in her purse.2
After Simmons left her, Miss M. crawled into the front seat and began to drive in the direction of a hospital. In her hysteria she had forgotten to turn on the car's headlights, and she was soon stopped by police for driving without lights and failing to observe a red signal. She ran towards the police car, screaming for help and for a doctor. Her face was swollen, her hair and clothing were in disarray, and she had lost her shoes. The officer obtained a description of the assailant, then took her to the hospital for treatment.
Count II. Two nights later, Mrs. R. was in her home awaiting the return of her husband, a deputy sheriff. There was a knock at the door, and she opened it. Defendants Daniels and Simmons, the latter carrying a gun, forced their way in. They pointed the weapon at her face and asked if she had any money, but she replied she did not. They walked her quickly through the dining room into the kitchen, a distance of approximately 18 feet. They repeated their demand for money, and she told them to look in her purse and see for themselves.3
Daniels, who was then holding the gun, put a dish towel over Mrs. R.'s face and warned her not to scream or he would shoot her. Simmons removed her pants and raped her. During the act of intercourse Daniels left the room briefly, then returned and told Simmons they had better get out of there. Again warning her not to move or cry out, defendants left the house. In a distraught condition Mrs. R. telephoned for her husband, and when he arrived the police were called and furnished with a description of the attackers.
Count III. Miss S., a graduate student, lived alone in a one-room apartment with a small kitchen and bathroom. Shortly after 11 p.m. on May 19, 1966, there was a knock at the door. *Page 1124 As she was expecting a classmate, she opened the door and was confronted by defendant Simmons. He asked for someone by a certain name; she said no one by that name lived there, and requested him to leave. She tried to shut the door, but he forced his way in, pushed her against the wall, and pulled a gun out of a paper bag he was carrying. When she screamed for her next-door neighbor, Simmons put the gun to the back of her neck and said he would shoot her if anyone came. He then demanded her money. She walked over to a nearby table on which her purse was lying, a distance of five or six feet; he followed with the gun, and she gave him the $12 that the purse contained.
Simmons then directed her to turn off the lights, lie down on the couch, and remove her clothes. After forcing her to orally copulate him, he raped her but achieved only slight penetration. Hoping to distract him from hurting her further, Miss S. engaged him in conversation. The lights were turned on again, and she could see him clearly. After a while he took her into the adjoining bathroom and resumed the sexual assault, forcing her to orally copulate him once more and to submit to another act of rape. Returning to the living room, Simmons emptied out her purse and examined its contents. He threatened to rip out the telephone cord unless Miss S. promised not to call anyone. Finally he replaced his gun in the paper bag and left the apartment. Miss S. immediately called the police, gave them a description of Simmons, and was taken to hospital for treatment.
Count IV Miss K., a student and part-time employee, was alone in her small cottage-apartment on the evening of May 31, 1966. She answered her doorbell about 9:45 p.m. and was met by defendants Daniels and Simmons. Simmons asked if the manager was in; Miss K. said this was not the manager's apartment and offered to give them the latter's telephone number. They seemed to look around, then Simmons pulled a gun from something he was carrying, pushed the door fully open, and forced Miss K. to step back into the room. Simmons asked if she was alone, and she said she was. He turned her around, put one hand over her mouth, held the gun to the back of her head, and walked her first towards the kitchen and then towards the bedroom to see if anyone was there. He then sat her down on the bed and asked for her money. The distance that the parties had covered was about 30 feet.
Miss K. told defendants her purse was on the couch in the living room, and Daniels went to look for it. Simmons put a bathrobe over her head, but she could hear her purse being *Page 1125 shaken. They asked if there was any more money, and searched some dresser drawers. They then removed her stockings and pants, and each raped her in turn. After taking off the rest of her clothing, defendants debated whether to tie her up. Finally they left the apartment, warning her not to move. After they had gone Miss K. discovered that a few dollars and some coins were missing.
Each of the foregoing crimes took place in the vicinity of the University of Southern California campus. Several teams of police officers were assigned to the case and provided with detailed descriptions of the suspects' physical appearance and modus operandi. On the evening of June 2, 1966, i.e., two nights after the rape and robbery of Miss K., officers on patrol in the area observed two men, walking along the street, who fitted the description of the suspects. The men, defendants Daniels and Simmons, increased their pace when a second police car passed them. The officers stopped them on a well-lighted street corner and undertook a "pat down" search. Simmons was carrying, in his right hand, a paper bag which was found to contain a loaded revolver. Defendants were thereupon placed under arrest. The gun was subsequently identified by Mrs. R., Miss S., and Miss K., as resembling the weapon displayed when they were attacked. Simmons' fingerprints, moreover, were found in Miss S.'s bathroom on a bottle of lotion used by him before he raped her for the second time. Each of the victims identified her assailant or assailants in open court.
The defendants presented alibi defenses as to certain, but not all, of the crimes charged.
Penal Code section
The evolution of the language and construction of this statute since its enactment at the turn of the century has been explored at length in our prior decisions (see, e.g., People v. Tanner
(1935)
We meet at the outset the issue whether the acts of defendants Daniels and Simmons, on the record in this case, constitute the kind of conduct proscribed by section
We believe, however, the time has come to reconsider the construction placed upon the statute in Chessman and applied inWein. More than a decade has elapsed since the latter *Page 1127 decision, and almost two decades since the former. During this period the law of kidnaping has not remained stagnant. There have been, as we will demonstrate, fresh judicial approaches, far-reaching legislative innovations, and considerable analysis of the problem by legal commentators and scholars. Out of this ferment has arisen a current of common sense in the construction and application of statutes defining the crime of kidnaping.Chessman and Wein, it now appears, stand as obstructions to the flow of that current in California.
We are not foreclosed from undertaking such an inquiry at this time by the statment in Wein (at p. 400 of 50 Cal.2d) that "the Legislature has been in session several times since the Chessman case was decided, and it has not seen fit to amend the kidnaping law to limit the rule we announced. If the section, asinterpreted by this court, is regarded as too harsh, the remedy is for the Legislature to redefine kidnaping, and not for this court to engraft some uncertain distance limitation onto the plain language of the section." (Italics added.) [1]
Legislative silence after a court has construed a statute gives rise at most to an arguable inference of acquiescence or passive approval, the weaknesses of which have been exposed elsewhere.4 But something more than mere silence *Page 1128
should be required before that acquiescence is elevated into a species of implied legislation such as to bar the court from reexamining its own premises. "We are not here faced with a situation in which the Legislature has adopted an established judicial interpretation by repeated reenactment of a statute." (Italics added.) (Muskopf v. Corning Hospital Dist. (1961)
[2] But while the Legislature may thus choose to remain silent, we may not. It continues to be our duty to decide each case that comes before us; in so doing, we must apply every statute in the case according to our best understanding of the legislative intent; and in the absence of further guidance by the Legislature, we should not hesitate to reconsider our prior construction of that intent whenever such a course is dictated by the teachings of time and experience. As the above-quoted language of Wein indicates, the rule of deference to legislative judgment applies to the statute "as interpreted by this court." [3] It is this judicial interpretation, and not the wisdom of the statute itself, that is here in issue; and if we conclude we should now revise that interpretation, we have both the power and the duty to do so. (See, e.g., People v.Hutchinson (1969)
Turning to the merits, we first observe that the Wein court was essentially concerned with the practical problems which it feared would arise in any attempt to "engraft some uncertain distance limitation" onto the language of section
In Cotton v. Superior Court (1961)
The case came to us on the defendants' petition for writ of prohibition. The record before the grand jury established that the defendants had forced each bracero to move some distance against his will. In such circumstances, we could simply have invoked the Chessman-Wein apothegm that "It is the fact, not the distance, of forcible removal" which constitutes kidnaping in this state. That would have both begun and ended the analysis, and the defendants would have been required to stand trial for "kidnaping" as that crime had theretofore been defined in our decisions. *Page 1130
But we did not do so. Rather, we issued a writ prohibiting the trial court from taking any further proceedings on the kidnaping counts other than to order their dismissal. Our reasoning was clear and forthright: "In the instant case, the only movements that occurred were those natural in a riot or assault. The evidence reveals that persons were pushed to the ground, dragged around, chased, and assaulted. All ``asportation' in the instant case would appear to be only incidental to the assault and rioting." (Italics added.) (56 Cal.2d at p. 464.)
In reaching this conclusion we invoked the settled rule of statutory interpretation that "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter." (United States v.Kirby (1868) 74 U.S. (7 Wall.) 482, 486-487 [19 L.Ed.2d 278, 279]; accord, People v. Oliver (1961)
[4a] This reasoning applies equally and perhaps more significantly to the case before us. In Cotton the defendants' primary intent was not to commit bodily harm upon their victims but to force them to move from one specific place to another, i.e., to "come out of the camp" (56 Cal.2d at p. 461) so as to join the strike. As one of the braceros testified, "All of them [i.e., the strikers] were hollering for us to get out of the camp." (Id. at p. 463.) In the present case, by contrast, defendants had no interest in forcing their victims to move just for the sake of moving; their intent was to commit robberies and rapes, and the brief movements which they *Page 1131 compelled their victims to perform were solely to facilitate such crimes. It follows, a fortiori, that those movements were "incidental to" the robberies and rapes within the meaning ofCotton, and that "the Legislature could not reasonably have intended that such incidental movement be a taking ``. . . from one part of the county to another.'"5
We are not unmindful of the fact that Cotton was a case of "simple" kidnaping under section
The legal commentators quickly recognized the relevance ofCotton to the Chessman-Wein line of decisions. It was noted, for example, that the "broad language" used in the earlier cases to describe the element of asportation was "severely limited" byCotton. (Enright, California's Aggravated Kidnaping Statute —A Need for Revision (1967) 4 San Diego L.Rev. 285, 293.) Another writer characterized Cotton as "in direct opposition" to the prior kidnaping cases. (Note, Kidnaping and the Element ofAsportation (1962) 35 So.Cal.L.Rev. 212.) Still another observed that in Cotton "the California court seems to have rejected the thrust of its earlier kidnapping decisions." (Note, 110 U.Pa.L.Rev. (1961) 293, 295.) Pointing to the "compelling factual similarity" between Cotton and Wein, the author reasoned that "It would be difficult to distinguish them on the ground that the slight asportation involved in both was, in the language of the court in [Cotton], more ``natural in' or more ``incidental to' rioting and assault than to a rape accomplished within the confines of a single enclosure. The court recognized that mere movement of the victim of a crime should not inevitably lead to the criminal's being indicted for kidnapping, for movement is incidental to the commission of many crimes." (Ibid.) Finally, the view was voiced that while it would be salutary for the Legislature to codify the gloss placed upon the kidnaping statute by Cotton, "perhaps it is more realistic and appropriate to urge the courts, which originally eviscerated the statute, to apply the rationale of [Cotton] not only in all simple kidnapping cases but also in cases of aggravated kidnapping, where the problems of construing what constitutes asportation are highly analogous." (Id. at p. 297.)
A further analogy must be drawn to decisions of this court construing an equally essential element of section
Applying this broad definition — taken essentially from the tort law of battery — the Tanner court held that a kidnaping victim who was locked in a closet and then bound hand and foot had suffered "bodily harm" within the meaning of section
In People v. Jackson (1955)
On appeal in Jackson, we reversed with directions to resentence the defendants for the crime of kidnaping for ransom but without bodily harm. In language foreshadowing our Cotton
opinion, we said: "Tested in its application to the facts of the present case, it is seriously questionable whether the definition in the Tanner case states the intention of the Legislature in distinguishing between kidnaping with bodily harm and cases in which no injury to the victim has resulted. If the more serious penalty may be imposed when the only injury is of a nature similar to that shown by the present record, which concededly isalmost necessarily an incident to every forcible kidnaping,
neither the purpose of enhancement of the penalty for the more heinous crime nor the intention of deterring the kidnaper from killing or injuring his victim is subserved." (Italics added.) (Id. at p. 517.) We concluded that the evidence "shows such trivial injury as to compel, as a matter of law, the conclusion that it is not of the nature contemplated by the Legislature in providing the more serious penalty for a kidnaping." (Ibid.) We have since reaffirmed the Jackson rule (People v. Gilbert
(1965)
Persuasive authority for our holding is found in a recent series of decisions by the New York Court of Appeals. While the precise wording of the kidnaping statute there construed is not the same as ours, the court's reasoning on the question of asportation is nevertheless applicable to the issue before us.
Until 1965, New York followed the rule that virtually any confinement or movement of the victim constituted kidnaping, even when it was undertaken solely to facilitate commission of another crime. A typical example was People v. Florio (1950)
In the landmark decision of People v. Levy (1965)
The court recognized that "Kidnapping is, by contemporary statutory standards, one of the most serious of crimes. In our era this crime has assumed particularly reprehensible forms." (204 N.E.2d at p. 843.) But the court then turned to fundamentals, observing that "In basic concept the crime of kidnapping envisages the asportation of a person under restraint and compulsion. Usually the complete control of the person and the secrecy of his location are means of facilitating extortion." (Id. at pp. 843-844.) Noting the breadth of the statutory definition of kidnaping, the court reasoned that it "could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes. Some of the definitions could apply alike to kidnapping and abduction. It is a common occurrence in robbery,for example, that the victim be confined briefly at gunpoint orbound and detained, or moved into and left in another room orplace. *Page 1136
"It is unlikely that these restraints, sometimes accompanied by asportation, which are incidents to other crimes and have long been treated as integral parts of other crimes, were intended by the Legislature in framing its broad definition of kidnapping to constitute a separate crime of kidnapping, even though kidnapping might sometimes be spelled out literally from the statutory words." (Italics added.) (Id. at p. 844.)
The court then overruled Florio, and expressly "limit[ed] the application of the kidnapping statute to ``kidnapping' in the conventional sense in which that term has now come to have acquired meaning." (Ibid.)
Although recognizing there may be situations in which "actual kidnapping in this sense" can be established even though the detention or movement is undertaken to facilitate commission of another crime,9 the court explained that "In the case before us the movement of the automobile, which was itself the situs of the robbery, was not essentially different in relation to the robbery than would be the tying up of a victim in a bank and hismovement into another room. In essence the crime remained a robbery although some of the kidnapping statutory language might literally also apply to it." (Italics added.)
Finally, the court noted the unanimous support of its position expressed by the legal commentators and scholars: "This separation of essentially separate crimes is consistent with the general trend of professional comment and analysis of kidnapping statutes which would be read to include acts which are integral to other crimes and are not essentially kidnapping. (See, e.g.,A Rationale of the Law of Kidnapping, 53 Col.L. Rev. 540, n. 20; Judicial Construction of Kidnapping Statutes, 15 Albany L.Rev. 65; Room-to-Room Movement: A Risk Rationale forAggravated Kidnaping, 11 Stan.L.Rev. 554; Kidnaping and theElement of Asportation, Note 35 So.Calif. L.Rev. 212; Note 110 U.Pa.L.Rev. 293.)" (Id. at p. 845.)
The case before us involves movement of the victims with the intent to commit both robbery and rape. Levy was a kidnap-robbery *Page 1137
case; two years later a kidnap-rape case similar to Florio
arose in People v. Lombardi (1967)
The Court of Appeals recognized that "The asportation of the three young women from Manhattan to Queens, aided in part, at least, by the drug, and the physical domination of them in a motel made possible by the drug, comes literally within the terms of the kidnapping statute." (Id. at p. 208.) But the court observed (ibid.) that "the direction of the criminal law has been to limit the scope of the kidnapping statute, with its very substantially more severe penal consequences, to true kidnapping situations and not to apply it to crimes which are essentially robbery, rape or assault and in which some confinement or asportation occurs as a subsidiary incident." (Italics added.) Stating that in the case before it asportation "played no significant role in the crimes," the court held Levy to be controlling and reversed with directions to dismiss the kidnaping counts.10
Finally, the spirit animating these judicial developments in the law of kidnaping has also manifested itself in new legislative proposals and enactments. Section 212.1 of the Model Penal Code, adopted by the American Law Institute in 1962, provides that "A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or asubstantial distance from the vicinity where he is found, or if he unlawfully confines another for a susbtantial period in a place of isolation," for the purpose, inter alia, of terrorizing *Page 1138 or holding the victim for ransom, or of facilitating the commission of a felony. (Italics added.)
The learned draftsmen of the Model Code explain that "it is desirable to restrict the scope of kidnapping, as an alternative or cumulative treatment of behavior whose chief significance is robbery or rape, because the broad scope of this overlapping offense has given rise to serious injustice, as well as to distortion of criminal statistics. Examples of abusive prosecution for kidnapping are common. Among the worst is use of this means to secure a death sentence or life imprisonment for behavior that amounts in substance to robbery or rape, in a jurisdiction where these offenses are not subject to such penalties [citing Tanner, Knowles, Chessman, and Wein]. The criminologically nonsignificant circumstance that the victim was detained or moved incident to the crime determines whether the offender lives or dies." (Italics added.) (Comments to § 212.1 (Tent.Draft No. 11, 1960), pp. 13-14.)
Turning to their proposed formulation, the draftsmen point out (at p. 16) that it first defines kidnaping in terms of removing the victim from his customary place of abode or work: "This eliminates the absurdity of prosecuting for kidnapping in cases where the victim is forced into his own home to open the safe, or to the back of his store in the course of a robbery. For situations where the victim is seized elsewhere than in his residence or place of business, the section requires removal ``a substantial distance from the vicinity' of seizure. By using the word ``vicinity' rather than ``place' and by requiring substantial removal, the section makes clear the purpose to preclude kidnapping convictions based on trivial changes of location having no bearing on the evil at hand."11
The Model Penal Code definition of kidnaping was adopted in virtually identical terms by the draftsmen of the recent revision of the New York criminal code. (Proposed New York Penal Law (1964), § 140.15.)12 The New York Legislature ultimately enacted a somewhat more complicated statutory scheme (N.Y. Pen. Law, art. 135 (eff. Sept. 1, 1967)), but *Page 1139
preserved the Model Code requirement that the asportation be "substantial."13 Commenting on the new statute in Lombardi,
the Court of Appeals explained (at p. 209 of 229 N.E.2d) that "The Legislature has undertaken to bring more certainty than the court was able to achieve in Levy to the problem of when confinement and restraint are significant enough by themselves to warrant a kidnapping prosecution." Similar legislative undertakings to provide "more certainty" and detail than is ordinarily appropriate in an appellate opinion are not unknown in California. (Compare Muskopf v. Corning Hospital Dist. (1961)supra,
[6a] For the reasons stated, the rule of construction declared in People v. Chessman (1951) supra,
In view of this disposition we do not reach the majority of defendants' remaining contentions, which deal with events not likely to recur upon retrial. [7a] Defendant Simmons raises one point, however, which also relates to his conviction of rape on count I. He claims he was denied counsel of his own choosing, and points to various objections he voiced to the attorney appointed for him by the court. Yet when the whole record on this point is considered, it fails to support Simmons' position.
Initially the public defender was assigned to represent both defendants. On Friday, July 8, 1966, because of a conflict of interest, the public defender moved for the appointment of separate counsel for Simmons under Penal Code section
When the case was called again, Simmons was asked if his father had arrived with an attorney, and he replied, "Not as I know of." After some discussion among the court and counsel relative to a trial date, Simmons said, "I would like the record to show I don't like this attorney forced on me by this Court." The court replied that Mr. Rosen was experienced in defending death penalty cases and had been selected because of his skill, reputation and knowledge. The court further advised him that if his father were to arrive with an attorney who was admitted to practice law in California and who agreed to act for him, Simmons might substitute counsel at that time. Simmons announced, however, that "until my people get an attorney, I would rather go pro. per. I don't want [Mr. Rosen] to represent me as an attorney."
The court thereupon undertook to determine whether Simmons was competent to conduct his own defense. The court inquired if Simmons knew what hearsay testimony was. Simmons replied that he did; but when asked if he knew any exceptions to the hearsay rule, Simmons declined to answer, saying it was not "appropriate." In response to the court's question whether he knew what a peremptory challenge was, he said, "I never heerd [sic] of it." The court expressed the opinion that Simmons was not competent to represent himself and that a miscarriage of justice might result if he were permitted to do so. The request to proceed in propria persona was therefore denied.
[8] We explained in People v. Carter (1967)
[12] Because of its bearing on Simmons' conviction on count I, we reach Daniels' contention that the police lineups at which he and Simmons were identified by the victims were so unfairly conducted as to deny them due process of law. (People v.Caruso (1968)
The judgment on count I is affirmed. The judgments on counts II, III, and IV are reversed.
Traynor, C.J., Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.