People v. King

Page 233

19 Cal.Rptr.2d 233

5 Cal.4th 59, 851 P.2d 27

The PEOPLE, Plaintiff and Respondent, v. Sammy KING III, Defendant and Appellant.

No. S026827.

Supreme Court of California, In Bank.

May 17, 1993.

Carmella F. Simoncini, under appointment by the Supreme Court, San Diego, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield and Gary W. Schons, Asst. Attys. Gen., Keith I. Motley, Frederick R. Millar, Jr., M. Howard Wayne and Pat Zaharopoulos, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

ARABIAN, Justice.

Pertinent provisions of the Penal Code and the Welfare and Institutions Code, combined with prior decisions of this court, seem to provide that a person under the age of 18 who commits first degree murder and is tried as an adult may be committed to the California Youth Authority (CYA), while the same person who attempts but fails to commit the same crime is not eligible for CYA, but must instead be sentenced to prison. The Court of Appeal in People v. Ladanio (1989) 211 Cal.App.3d 1114, 1121, 260 Cal.Rptr. 12, while finding the result "unquestionably anomalous," felt compelled to hold precisely that. Here we face that question and the propriety of that result.

In addition, Penal Code section 12022.5 provides for a sentence enhancement when a person uses a firearm in the commission or attempted commission of a felony. In 1976, a four-to-three majority of this court, interpreting a substantially similar but earlier version of that section, held that even if there are multiple counts involving multiple victims of violent crime, the enhancement may be imposed only once "if all the charged offenses are incident to one objective and effectively comprise an indivisible transaction...." (In re Culbreth (1976) 17 Cal.3d 330, 333, 130 Cal.Rptr. 719, 551 P.2d 23 (Culbreth ).) This holding has been heavily criticized in the ensuing years, and Courts of Appeal have urged us to reconsider it. We do so here.

By way of preview, we hold that persons convicted of either attempted premeditated murder or first degree murder, committed when they are under the age of 18 years, are eligible for CYA commitment. We also overrule Culbreth, supra, 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23, but conclude that our decision cannot constitutionally be applied retroactively to this case.

I. FACTS

Testimony at the preliminary hearing indicated that on the morning of October 8, 1989, victims Nina Manlove and Marc Anthony Enciso arrived at work at the Thrifty Drug Store in Redlands. While they were preparing to open the store for business, defendant, 16 years old at the time, entered with a handgun. Defendant forced Enciso and Manlove into a back room at gunpoint; there he ordered them to get down on their knees. He demanded that Manlove give him her keys, some of which were for locked cases which held electronics merchandise. She complied. Defendant then forced the two to lie down on the floor.

Defendant "cocked the gun" and shot the prone Enciso in the head. He then pointed the gun at Manlove. She begged him not to shoot her. Nevertheless, he shot her in the arm. As he bent down and picked up the expended bullet casings, Manlove opened one eye to look at him. He then shot her again, this time in the face. Defendant walked out of the back room, leaving Manlove for dead. She was able, however, to call the police, and survived to testify against her assailant. Enciso died.

Defendant later told the police that he went to the store to commit a robbery. He shot the two "to hide his identity." Afterwards, he stole a few items from the store and fled.

Defendant was ordered tried as an adult. (See Welf. & Inst.Code, § 707.) He pleaded guilty to one count of first degree murder, one count of attempted premeditated murder, and two counts of second degree robbery. He admitted that he personally used a firearm in the commission of the murder and attempted murder. Defendant asked to be committed to CYA. The court sent him there for an amenability study. The resulting report stated that defendant was amenable to CYA treatment. At sentencing, the court expressed doubts that defendant should be committed to CYA, but made no specific ruling on the question. Instead, it found that he was statutorily ineligible under Welfare and Institutions Code section 1731.5, and therefore stated that it need not decide whether it would commit him to CYA if he had been eligible.

The court sentenced defendant to state prison for 25 years to life for the murder plus 2 years for the firearm use enhancement. For the attempted murder, the court imposed a consecutive sentence of life in prison with possibility of parole plus two years for the firearm-use enhancement. Sentencing on the robbery counts was made concurrent. Due to defendant's age, the court ordered that he be housed at CYA until that institution determined that he should be transferred to state prison to serve the balance of his term. (See Welf. & Inst.Code, § 1731.5, subd. (c).)

The Court of Appeal, relying on People v. Ladanio, supra, 211 Cal.App.3d 1114, 260 Cal.Rptr. 12, affirmed the trial court's finding that defendant was ineligible for a CYA commitment. However, it "reluctantly" struck the consecutive firearm-use enhancement for the attempted murder under compulsion of Culbreth, supra, 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23.

Defendant petitioned for review on the question of his eligibility for CYA. The Attorney General petitioned for review on the Culbreth question. We granted both petitions.

II. DISCUSSION

A. Defendant's Petition

1. The Problem

A person who was between the age of 16 and 18 years at the time of the crime may be tried as an adult if found unfit for juvenile court treatment. (Welf. & Inst.Code, § 707.) A person who was tried as an adult but was under the age of 21 at the time of apprehension may, with some exceptions, be committed to CYA rather than sentenced to state prison. (Welf. & Inst.Code, § 1731.5, subd. (a).) The issue here is whether defendant, who was 16 at the time of the crime and was tried as an adult, comes within one of the exceptions that makes him ineligible for CYA commitment. ¹

Among those not eligible for CYA commitment is a person who is "sentenced to death, [or] imprisonment for life...." (Welf. & Inst.Code, § 1731.5, subd. (a).) The sentence for first degree murder is "confinement in the state prison for a term of 25 years to life." (Pen.Code, § 190, subd. (a).) The sentence for attempted "willful, deliberate, and premeditated" murder is "imprisonment in the state prison for life with the possibility of parole." (Pen.Code, § 664, subd. 1.) Defendant committed both of these crimes, and received both of these sentences. The precise question is therefore whether either or both of these sentences renders defendant ineligible for CYA, i.e., whether either of these is a sentence of "imprisonment for life."

We have held that the punishment for first degree murder of "25 years to life" is not a life sentence under Welfare and Institutions Code section 1731.5. (In re Jeanice D. (1980) 28 Cal.3d 210, 168 Cal.Rptr. 455, 617 P.2d 1087 (Jeanice D.).) Under that decision, a juvenile convicted of first degree murder is eligible for CYA. If, conversely, we held that a sentence of imprisonment for "life with the possibility of parole" for attempted premeditated murder (Pen.Code, § 664, subd. 1) was a sentence to "imprisonment for life" under section 1731.5, that would render an attempted murderer ineligible for CYA. The anomaly would be obvious.

A review of the history of the relevant statutes helps explain how this problem arose. When Welfare and Institutions Code section 1731.5 was first enacted, California operated under the Indeterminate Sentence Law. Most sentences were indeterminate, and the California Adult Authority determined when the inmate would be released. Typical was the sentence for robbery, which was "not less then five years." (Pen.Code, former § 213; People v. McNabb (1935) 3 Cal.2d 441, 444, 45 P.2d 334.) The question quickly arose whether such an indeterminate sentence was a life sentence for purposes of section 1731.5. We held that it was not. (People v. Ralph (1944) 24 Cal.2d 575, 150 P.2d 401.) However, a sentence for first degree murder, which used to be confinement "in state prison for life" (Pen.Code, former § 190; see Jeanice D., supra, 28 Cal.3d at p. 218 & fn. 6, 168 Cal.Rptr. 455, 617 P.2d 1087), did render the person ineligible under section 1731.5. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 724-725, 135 Cal.Rptr. 392, 557 P.2d 976.) As phrased in Jeanice D., supra, 28 Cal.3d at p. 218, 168 Cal.Rptr. 455, 617 P.2d 1087, such a sentence was a " 'straight' life imprisonment sentence."

An initiative measure passed on November 7, 1978, amended Penal Code section 190 to change the punishment for first degree murder from "state prison for life" to its current "25 years to life." Although, in effect, this substantially increased the punishment for the crime, we held in Jeanice D., supra, 28 Cal.3d 210, 168 Cal.Rptr. 455, 617 P.2d 1087, that 25 years to life is an indeterminate term under People v. Ralph, supra, 24 Cal.2d 575, 150 P.2d 401. Therefore, the initiative made convicted first degree murderers eligible for CYA. When Jeanice D. was decided, the punishment for attempted murder was for a specified period of years, so the current question did not arise. (See People v. Ladanio, supra, 211 Cal.App.3d at p. 1118, 260 Cal.Rptr. 12.)

The Legislature promptly responded to Jeanice D. Within a year, it passed emergency legislation making ineligible for CYA a person who is "convicted of first degree murder, committed when that person was 18 years of age or older...." (Welf. & Inst.Code, § 1731.5, subd. (a)(2).) Also pertinent is Welfare and Institutions Code section 1732.5, adopted by initiative in 1982, which makes ineligible for CYA any...