People v. Mutch

482 P.2d 633, 4 Cal. 3d 389, 93 Cal. Rptr. 721, 1971 Cal. LEXIS 321

• Court: California Supreme Court
• Decided: March 24, 1971
• Docket: Crim. 14182
• Status: Published

Opinions

Opinion

MOSK, J.

The principal question presented in this proceeding is whether a defendant whose conviction of the crime of kidnaping for the purpose of robbery in violation of Penal Code section 209 became final before our decision in People v. Daniels (1969) 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225], is entitled to post-conviction relief upon a showing that his conduct was not prohibited by the statute as we construed it in Daniels.1

In 1966 defendant was convicted on two counts of kidnaping for the purpose of robbery (counts I and II) and two counts of robbery (counts III and IV). The jury found that the victims suffered bodily harm in the course of the kidnapings, and that the robberies were of the first degree. The court granted a “motion for finding that injury to victim [on each kidnaping count] was insufficient,” and sentenced defendant to life imprisonment with possibility of parole on the kidnaping counts and to the terms prescribed by law on the robbery counts, the sentences to run concurrently with each other and with sentences in two other cases. The court further ordered that the sentences on the robbery counts be stayed pending appeal and until service of the kidnaping sentences, the stays then to become permanent.

Defendant appealed, and the judgment was affirmed by the Court of Appeal in an unpublished opinion in 1967. We denied a hearing, and in 1968 the United States Supreme Court denied certiorari.

On October 2, 1969, we filed our decision in People v. Daniels, supra, 71 Cal.2d 1119. On October 22 defendant petitioned the Court of Appeal for a recall of the remittitur or “other appropriate relief,” summarizing the facts of the case and contending he was entitled to a redetermination of his appeal in the light of Daniels. The request was denied without opinion, and We granted a petition for hearing and transferred the application to this court.

For almost two decades prior to 1951, Penal Code section 209 defined aggravated kidnaping to include the act of every person who “holds or detains” another “to commit . . . robbery.” Under its terms, a robber could be convicted of such “kidnaping” even though he did no more than hold his victim at gunpoint or compel him to make brief movements incidental to the commission of the robbery. (People v. Knowles (1950) 35 Cal.2d 175, 179-186 [217 P.2d 1].) In 1951 the Legislature amended section 209 by deleting the reference to detention for the purpose of robbery, substituting instead language which makes punishable every person who “kidnaps or carries away” another to commit robbery. In People v. Chessman (1951) 38 Cal.2d 166, 192 [238 P.2d 1001], however, the court construed the words “kidnaps or carries away” to mean the act of forcibly moving the victim any distance whatever, no matter how short or for what purpose, declaring that “It is the fact, not the distance, of forcible removal which constitutes kidnaping in this state.” The Chessman construction was applied by this court in People v. Wein (1958) 50 Cal.2d 383, 399-400 [326 P.2d 457], People v. Monk (1961) 56 Cal.2d 288, 295 [14 Cal.Rptr. 633, 363 P.2d 865], and People v. Lara (1967) 67 Cal.2d 365, 395 [62 Cal.Rptr. 586, 432 P.2d 202].

Troubled by a growing disparity between the Chessman reading of section 209 and a “current of common sense in the construction and application of statutes defining the crime of kidnaping” (71 Cal.2d at p. 1127), we undertook in Daniels to determine the intent of the Legislature when it adopted the 1951 amendment to the statute. We began by characterizing the issue before us as “whether the acts of defendants Daniels and Simmons, on the record in this case, constitute the kind of conduct proscribed by section 209.” (Id. at p. 1126.) We turned for guidance to decisions of this court which have construed closely related statutory language. In Cotton v. Superior Court (1961) 56 Cal.2d 459, 465 [15 Cal.Rptr. 65, 364 P.2d 241], we held that brief movements “incidental to” an assault or riot do not amount to the asportation necessary to support a kidnaping conviction; in Daniels we concluded by the same token that “ ‘the Legislature could not reasonably have intended that such incidental movement be a taking “. . . from one part of the county to another.” ’ ” (Italics added; fn. omitted.) (71 Cal.2d at p. 1131.)² And in People v. Jackson (1955) 44 Cal.2d 511, 517 [282 P.2d 898], we held that minor injuries to the victims “incidental to” forcible kidnaping are “not of the nature contemplated by the Legislature” in prescribing the bodily harm element of the crime; we concluded likewise in Daniels that the incidental movements there shown “are not of the scope intended by the Legislature in prescribing the asportation element of the same crime.” (Italics added; fn. omitted.) (71 Cal.2d at p. 1134.)

Finally, we reviewed various authorities from our sister jurisdictions, and held that “the rule of construction declared in People v. Chessman (1951) supra, 38 Cal.2d 166, 192, i.e., that ‘It,is the fact, not the distance, of forcible removal which constitutes kidnaping in this state,’ is no longer to be followed. Rather, we hold that the intent of the Legislature in amending Penal Code section 209 in 1951 was to exclude from its reach not only ‘standstill’ robberies (e.g., People v. Knowles (1950) supra, 35 Cal.2d 175) but also those in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.” (Italics added.) (Id. at p. 1139.)

The emphasized language makes it clear that the purpose of our decision in Daniels was not to “redefine” the crime of kidnaping to commit robbery—under our tripartite system, of government, that power is vested exclusively in the legislative branch—but simply to declare what the intent of the Legislature has been in this regard since the enactment of the 1951 amendment to section 209. Two important consequences flow from this circumstance. First, we need not embroil ourselves in the ancient dialectic between protagonists of the “Blackstonian” and the “Austinian” theories on the effect of a judicial decision which overrules another. (See, e.g., Linkletter v. Walker (1965) 381 U.S. 618, 622-625 [14 L.Ed.2d 601, 604-605, 85 S.Ct. 1731].) In Daniels we did not overturn a judge-made rule of common law; rather, we recognized a statutory rule which the Legislature adopted in 1951 but to which courts had not previously given appropriate effect.

Secondly, and by the same token, we need not undertake the often perilous task of applying to the facts of this case the test of “retroactivity” developed in a well-known series of decisions of the United States Supreme Court. In those cases the high court was primarily concerned with such matters as the control of improper police practices (Stovall v. Denno (1967) 388 U.S. 293 [18 L.Ed.2d 1199, 87 S.Ct. 1967]; Johnson v. New Jersey (1966) 384 U.S. 719 [16 L.Ed.2d 882, 86 S.Ct. 1772]), the exclusion of tainted evidence (Desist v. United States (1969) 394 U.S. 244 [22 L.Ed.2d 248, 89 S.Ct. 1030]; Linkletter v. Walker, supra, 381 U.S. 618), and the reform of procedural rules affecting the reliability of the fact-finding process (e.g., Berger v. California (1969) 393 U.S. 314 [21 L.Ed.2d 508, 89 S.Ct. 540]; Roberts v. Russell (1968) 392 U.S. 293 [20 L.Ed.2d 1100, 88 S.Ct. 1921]; Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]; Tehan v. Shott (1966) 382 U.S. 406 [15 L.Ed.2d 453, 86 S.Ct. 459]). By contrast, our decision in Daniels did not change any such evidentiary or procedural rules, less still penalize improper police practices; instead, it confirmed a substantive definition of crime duly promulgated by the Legislature. Moreover, in each of the just-cited cases the error (reached constitutional proportions; in Daniels, however, we reversed the defendants’ kidnaping convictions under Penal Code section 209 on the ground that when the statute is properly construed the evidence there introduced was insufficient to support the judgments.³

Here, as in Daniels, the issue is “whether the acts of [defendant], on the record in this case, constitute the kind of conduct proscribed by section 209.” From the foregoing analysis we conclude that a robber who suffered a post-1951 conviction of violating section 209 because he compelled his victim to perform movements which were “merely incidental to the commission of the robbery and [did] not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself,” was convicted under a statute which did not prohibit his acts at the time he committed them. As the Court of Appeal correctly reasoned in a decision rendered shortly after Daniels, “There, the Supreme Court stresses that its interpretation of section 209 is what the Legislature always intended that it should be. In this light, what defendant did was never proscribed under section 209.” (Italics added.) (People v. Ballard (1969) 1 Cal.App.3d 602, 605 [81 Cal.Rptr. 742]; accord, People v. Ross (1969) 276 Cal.App.2d 729, 736, fn. 7 [81 Cal.Rptr. 296].)⁴

In such circumstances, it is settled that finality for purposes of appeal is no bar to relief, and that habeas corpus or other appropriate extraordinary remedy will lie to rectify the error: “Habeas corpus is available in cases where the court has acted in excess of its jurisdiction. [Citations.] For purposes of this writ as well as prohibition or certiorari, the term ‘jurisdiction’ is not limited to its fundamental meaning, and in such proceedings judicial acts may be restrained or annulled if determined to be in excess of the court’s powers as defined by constitutional provision, statute, or rules developed by courts. [Citations.] In accordance with these principles a defendant is entitled to habeas corpus if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct. [Citations.]” (In re Zerbe (1964) 60 Cal.2d 666, 667-668 [36 Cal.Rptr. 286, 388 P.2d 182, 10 A.L.R.3d 840]; accord, In re Panchot (1968) 70 Cal.2d 105, 107, fn. 4 [73 Cal.Rptr. 689, 448 P.2d 385]; In re Culver (1968) 69 Cal.2d 898, 899 [73 Cal.Rptr. 393, 447 P.2d 633]; In re Murdock (1968) 68 Cal.2d 313, 316 [66 Cal.Rptr. 380, 437 P.2d 764]; In re Bevill (1968) 68 Cal.2d 854, 863 [69 Cal.Rptr. 599, 442 P.2d 679].)⁵

The present application is to recall the remittitur. As a general rule, an error of law does not authorize the recalling of a remittitur. (People v. Randazzo (1957) 48 Cal.2d 484, 488 [310 P.2d 413].) An exception is made, however, when the error is of such dimensions as to entitle the defendant to a writ of habeas corpus. The remedy of recall of the remittitur may then be deemed an adjunct to the writ, and will be granted when appropriate to implement the defendant’s right to habeas corpus. (See, e.g., In re Mitchell (1968) 68 Cal.2d 258, 263 [65 Cal.Rptr. 897, 437 P.2d 289]; People v. Ketchel (1966) 63 Cal.2d 859, 868 [48 Cal.Rptr. 614, 409 P.2d 694]; In re Shipp (1965) 62 Cal.2d 547, 556-557 [43 Cal.Rptr. 3, 399 P.2d 571].)

The application should therefore have been granted by the Court of Appeal. Ordinarily, the correct disposition (see Southwestern Inv. Corp. v. City of L.A. (1952) 38 Cal.2d 623, 630 [241 P.2d 985]) would be for us to retransfer the proceeding to the Court of Appeal with directions to recall its remittitur and reinstate the appeal for the limited purpose of ruling on the merits of defendant’s claim of the applicability of Daniels to the facts of his case. Nevertheless, as those same facts are now before us in the record prepared in connection with defendant’s original appeal to the Court of Appeal, no useful purpose would be served by an order of reinstatement with the consequent delay in ultimate resolution of the issue presented.

Accordingly, we have undertaken a review of the relevant facts. We find—a common circumstance—no material dispute as to the nature and extent of the movements which defendant compelled his victims to perform. The alleged kidnapings in the case at bar arose out of a holdup of the offices of a milk company. About 9:30 p.m. on May 28, 1965, defendant and one Fraser⁶ entered the building where Todisco and Umberger, employees of the company, were at work. Fraser struck both men with a gun and forced them to the floor. He then grasped Todisco by his clothing and compelled him to crawl 30 or 40 feet into an adjacent room where the safe was located. After striking Todisco several times in an unsuccessful attempt to learn the safe combination, Fraser robbed him of his wallet containing $550 in cash and a payroll check. Meanwhile, defendant straddled Umberger and compelled him to crawl 30 or 35 feet in a different direction to the nearby office of the manager. There he tied Umberger’s hands and took his wallet, but threw it back when he found it contained only three dollars.

These are the movements upon which defendant’s conviction on two counts of kidnaping for the purpose of robbery were predicated. Such brief movements, however, did not amount to the conduct proscribed by section 209: they were merely incidental to the robberies, and did not substantially increase the risk of harm beyond that inherent in the robberies themselves. Contrary to the Attorney General’s contention, the fact that Todisco and Umberger were repeatedly struck with a gun in the course of the events does not demonstrate that their movements substantially increased the risk of such harm. Pistol-whipping, unfortunately, is a risk inherent in the crime of armed robbery, as shown here by the fact that after reaching the room containing the safe Fraser struck Todisco several more times in an effort to force him to divulge the combination.⁷ The movements of Todisco and Umberger were from one room to another inside a single place of business; as we observed in Daniels (71 Cal.2d at p. 1140), “when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him—whether it be a residence ... or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209. Movement across a room or from one room to another, in short, cannot reasonably be found to be asportation ‘into another part of the same county.’ (Pen. Code, § 207.)”

It follows that on the undisputed facts defendant was convicted of kidnaping under a statute which did not prohibit his conduct at the time. Pursuant to the authorities cited herein, defendant is therefore entitled to relief by habeas corpus, and, to implement that right, is further entitled to a recall of the remittitur in his appeal and an order vacating the judgment on the kidnaping counts.

Finally, the People move to “dismiss the appeal” on the ground that defendant escaped from custody on February 17, 1970. (Molinaro v. New Jersey (1970) 396 U.S. 365 [24 L.Ed.2d 586, 90 S.Ct. 498]; People v. Fuhr (1926) 198 Cal. 593 [246 P. 1116]; People v. Clark (1926) 198 Cal. 453 [246 P. 1116]; People v. Redinger (1880) 55 Cal. 290.) In each of the cited cases the defendant remained at large at the time of his appeal; here he was recaptured the same day, and the rule is therefore inapplicable.

The motion to dismiss the appeal is denied. The cause is retransferred to the Court of Appeal for the Second Appellate District with directions to recall its remittitur in People v. Mutch, Crim. 12915, and to issue a new remittitur vacating the judgment on counts I and II and affirming the judgment on counts III and IV.

Tobriner, Acting C. J., Peters, J., and Kaus, J.,* concurred.

1 Since the issue was not relevant there, we left this question unanswered in Daniels. {Id. at p. 1140, fn. 14.)

2 With commendable foresight, appellate counsel in the case at bar urged this same analogy in his briefs filed in the Court of Appeal in 1967.

3 For these reasons, People v. Pelio (1965) 24 App.Div.2d 500 [261 N.Y.S.2d 433], and Warring v. Colpoys (1941) 122 F.2d 642 [74 App.D.C. 303, 136 A.L.R. 1025], are irrelevant to our present inquiry. Moreover, in Pelio the New York intermediate appellate court held that the defendant’s kidnaping conviction was sustainable even under the statutory construction expounded in People v. Levy (1965) 15 N.Y.2d 159 [256 N.Y.S.2d 793, 204 N.E.2d 842]; in dictum the court stated that Levy “has no retroactive effect,” but gave as its reason only that “there has been no pronouncement [i.e., by the New York Court of Appeal] that the new rule should apply to cases no longer in the appellate process” (261 N.Y.S.2d at p. 434). Warring is distinguishable on a number of grounds (see, e.g., In re Jackson (1964) 61 Cal.2d 500, 507, fn. 5 [39 Cal.Rptr. 220, 393 P.2d 420]), and appears in any event to be an aberration in the law; it has been strongly criticized (Hart & Sacks, The Legal Process (Harv.L.Sch. tent, ed., unpub., 1958), pp. 631-635 [characterizing Warring as “utter . . . and mischievous nonsense”]; Currier, Time and Change in Judge-Made Law: Prospective Overruling (1965) 51 Va.L.Rev. 201, 258; Note, 60 Harv.L.Rev. 437, 447; but see 27 Iowa L.Rev. 315), and would probably not be followed today (see United States v. Kennedy (2d Cir. 1946) 157 F.2d 811, revd. on other grounds in Sunal v. Large (1947) 332 U.S. 174 [91 L.Ed. 1982, 67 S.Ct. 1588], discussed in In re Jackson at p. 506, fn. 4, of 61 Cal.2d).

4 We recognize that Ballard dealt with the applicability of Daniels to a judgment of conviction rendered before that decision but still pending on direct appeal, and that the Court of Appeal found it unnecessary to reach the precise issue now before us. The quoted language, nevertheless, aptly sums up our reasoning in the case at bar.

5 A useful analogy may be drawn to the rule that habeas corpus will lie to discharge a defendant held under a final judgment of conviction of violating a statute subsequently ruled unconstitutional in another case. (In re Downing (1935) 7 Cal.App.2d 731 [47 P.2d 322]; cf. In re Carlson (1966) 64 Cal.2d 70, 73 [48 Cal.Rptr. 875, 410 P.2d 379]; In re Jackson, supra, 61 Cal.2d 500, 508; In re Bell (1942) 19 Cal.2d 488, 493 [122 P.2d 22]; In re Montenegro (1966) 246 Cal.App.2d 515 [54 Cal.Rptr. 865].) In that situation it is apparent that the Legislature at least intended to punish the proscribed conduct of the defendant by the statute then in force; by contrast, Daniels teaches that after 1951 the Legislature intended not to punish as aggravated kidnaping those movements which are merely incidental to a robbery and do not substantially increase its risks. If habeas corpus lies in the former situation, it lies a fortiori in the latter.

6 Fraser was not tried with defendant Mutch and is not a party to the present proceeding.

7 The fear or force experienced by the victim in every armed robbery, of course, caused the Legislature to deem the crime to be of a most serious nature, punishable by a minimum of five years in state prison to a maximum of life imprisonment. (Pen. Code, § 213.) Nor will our ruling in the case at bar set defendant Mutch scot-free: when the kidnaping counts are vacated, the previously stayed sentence on two counts of first degree robbery will go into effect. The Adult Authority should give defendant credit, however, for the time served on the invalid kidnaping sentences.

The dissenting justices’ fear that our opinion may result in the release of “certain highly dangerous criminals” is mere speculation that is wholly unwarranted either legally or factually. The sole attempt statistically to support their concern is set forth in footnote 6 of the dissent, but a careful reading of even that paragraph indicates no cause for alarm. Counsel is cited as authority for the figure of 295 men held in prison under section 209, but it is recognized that “at least some” have their appeals still pending. Of those whose cases have become final, a proportion of the kidnaping convictions are doubtless valid under Daniels (e.g., West on Habeas Corpus, Crim. 14278, petition for habeas corpus denied by minute order of February 25, 1970) or predate the 1951 amendment to section 209 (e.g., Blevins on Habeas Corpus, Crim. 14319, petition for habeas corpus denied by minute order of November 25, 1970). Among those whose kidnaping convictions are invalid, we are not told of any who are not also —like Mutch—under conviction of one or more counts of robbery. Since section 209, insofar as here relevant, punishes persons who kidnap to commit robbery, it would indeed be an unusual circumstance in which a prosecutor might charge kidnaping but not the underlying robbery as well, or, if both were charged, could convict the defendant of kidnaping but not robbery. And since kidnaping is the more serious offense, it is highly unlikely that a defendant would make a bargain to plead guilty to kidnaping in exchange for dismissal of the robbery charge; invariably, the converse occurs. Finally, the dissent suggests we do not know how many persons convicted of violating sections 209 or 207 are on parole; but the very fact that a person is on parole demonstrates that the Adult Authority has determined he is not a “highly dangerous criminal” who should not be released into society.

The only accurate empirical data before us at this time are the cases which have reached the appellate courts. In each of the 10 cases companion to Mutch and filed this day, the defendant was charged with and convicted of robbery or other felonies in addition to kidnaping, and we aifirm each of those counts. And in every case thus far decided and reported by the Courts of Appeal in which kidnaping convictions have been reversed under Daniels, the defendant has also been convicted of robbery or other felonies. (See, e.g., People v. Chavez (1970) 4 Cal.App.3d 832 [84 Cal.Rptr. 783]; People v. Moore (1970) 4 Cal.App.3d 668 [84 Cal.Rptr. 771]; People v. Green (1970) 3 Cal.App.3d 240 [83 Cal.Rptr. 491]; People v. Cheffen (1969) 2 Cal.App.3d 638 [82 Cal.Rptr. 658]; People v. Blair (1969) 2 Cal.App.3d 249 [82 Cal.Rptr. 673]; People v. Ballard (1969) 1 Cal.App.3d 602 [81 Cal.Rptr. 742]; People v. Ross (1969) 276 Cal.App.2d 729 [81 Cal.Rptr. 296]; People v. Diaz (1969) 276 Cal.App. 2d 547 [81 Cal.Rptr. 16].)