Brief Bank # B-725
NOTE: The text of the footnotes appear at the end of the document.
POINTS AND AUTHORITIES IN SUPPORT
OF PETITION FOR WRIT OFPROHIBITION
INTRODUCTION
The Petitioner, John Doe, is a 22-year old immigrant from Some Country who on several occasions brutalized his 19-year old wife.
This Petition does not challenge the essential facts of this brutality or the resulting felony Spousal Abuse charges contained in Counts 2-5 of the Information.
This Petition only questions whether these acts can legally amount to “torture” in violation of Penal Code §206, which was enacted by direct vote as part of Proposition 1 15 in 1990. [Footnote 1] If they do, Petitioner is facing a sentence of life in prison.
I.
PROPOSITION 115
Proposition 115 was a voter initiative on the June 5, 1 990, primary election ballot, as the “Crime Victims Justice Reform” Act, more commonly referred to as “The Victims Bill of Rights.” As enacted, Penal Code §206 reads:
Every person who, with the intent to cause cruel or extreme pain and suffering for the purposes of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.
The crime of torture does not require any proof that the victim suffered pain.
Pursuant to §206. 1, also enacted as part of the initiative, the only sentence applicable to anyone convicted of torture is life in prison.
(See Exhibit H, page 151)
What the drafters apparently intended was to combine the existing body of law related to “great bodily injury” with new levels of specific intent and subjective purposes to create a new stand-alone crime called “torture.” What they actually did is still open to question.
In the Ballot Pamphlet, Exhibit F hereto, the drafters and proponents were clearly stating that only the worst of the worst violent criminals would be subject to the new torture law, people who all voters could agree deserved to be locked up for the rest of their lives. Their “Argument in Favor of Proposition 115” is exceptionally clear in this regard:
“ITS ‘SINGLETON’ TORTURE PROVISION assures that no criminal will ever again rape a young girl and hack off her arms and serve only a minimal punishment, such as the 7 1/2 years Singleton served. Instead, Proposition 115 will send such a criminal to prison for life.” (Exhibit F, page 34)
Only the most vicious of criminals, like John Singleton, would be subject to this statute. That is what our current Governor and the California District Attorney’s Association told the voters in that statement. It would be untenable to now find out that what they really meant is that all acts of conscious brutality, particularly when combined with an emotional “crime du jour” such as spousal abuse, would result in a “torture” conviction and a life in prison.
It is important to recall how the proposition was represented at the time of its enactment, particularly since the California Supreme Court has yet to definitively rule on these issues.
Regarding the criminal act requirement, the legislative analysis attached hereto as Exhibit G notes succinctly, at page 413, that “The term ‘great bodily injury’ is defined in Section 12022.7 as ‘a significant or substantial bodily injury.’ It has been construed to include bone fractures and knife wounds requiring extensive suturing.”
The Attorney General’s analysis, Exhibit H (at 154-155) is a bit lengthier:
Section 206 requires the infliction of “great bodily injury as defined in Section 12022.7,” clearly a reference to Penal Code section 12022.7, an enhancement statute. Section 12022.7 defines “great bodily injury” as a “significant or substantial physical injury.” Minor or moderate injuries of a temporary nature do not constitute great bodily injury. (People v. Caudillo (1978) 21 Cal.3d 562, 581)
Examples of great bodily injury include a bone fracture (People v. Johnson (1980) 104 Cal.App.3d 598, 608-610), use of a hot knife which burned the shoulder of the victim (People v. Farmer (1983) 145 Cal.App.3d 948, 951, and a nasal bone fracture (People v. Villarreal (1985) 173 Cal.App.3d 1136, 1140). Other kinds of trauma constituting great bodily injury include prolonged loss of consciousness, a severe concussion, protracted loss of any bodily member or organ, protracted impairment of function of any bodily member or organ or bone, a wound requiring extensive suturing, and serious disfigurement. (People v. Villarreal, supra, at p. 1140; People v Nava (1989) 207 Cal.App.3d 1490, 1496)
The legislative analysis (Exhibit G) is essentially silent regarding the intent element of the proposed law, but the Attorney General’s analysis (Exhibit H, pp. 152-53) is multifaceted:
The requirement of new section 206 that the perpetrator intend to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion or for a sadistic purpose derives from the California Supreme Court’s definition of the intent required for murder by torture.
Furthermore, like murder by torture, the gravamen of the crime is the calculated nature of the defendant’s act, not the victim’s actual suffering. [citations omitted.] * * *
The Wiley [People v. Wiley (1976) 18 Cal. 3d 162, 173] court’s description of murder by torture is equally applicable to section 206, ” ‘it is not the amount of pain inflicted which distinguishes a torturer from another murderer, as most killings involve significant pain [citation]. Rather, it is the state of mind of the torturer — the cold blooded intent to inflict pain for personal gain or satisfaction. . . .'” ***
Since violating section 206 requires an intent over and above that required merely to commit great bodily injury, section 206 describes a specific intent crime. The perpetrator must specifically intend to cause cruel or extreme pain and suffering for the purpose of extortion, revenge, persuasion or other sadistic purpose. (italics in original.)
As for the specific purposes listed in the new statute, the Attorney General’s analysis merely notes that the determination as to their existence depends on the facts of the particular case and provides dictionary definitions; as relevant to the instant case they are:
Persuasion may be defined as influencing the mind by arguments or reasons offered, or by anything that moves the mind or passions, or inclines the will to a determination (Black’s Law Dictionary, at page 1030), and
Sadistic purpose is a form of satisfaction, commonly sexual, derived from inflicting harm to another (Id. at 1198)
The conclusion of the Attorney General’s analysis, not surprisingly, is that there are no significant problems with this new law, predicated on the presumption that prosecutors will exercise their discretion wisely and keep this new weapon in the war against crime in its proper, narrow, confines. The unbiased Legislative analysis, however, notes:
“The proposed new crime of torture may impose a disproportionately high sentence. Every intentional stabbing for the purpose of revenge could be subject to life imprisonment. In contrast, current law punishes such conduct as an assault with a deadly weapon punishable by a 2, 3, or 4 year prison term (or a 1 year jail term) and a 3 year enhancement for intentionally inflicting great bodily injury. * * * In that the proposed crime appears to be very broad, its enactment could result in very significant correctional expenditures to house the new inmates. (Exhibit G, at page 81, italics added)
The case law on section 206 is still limited, so it is yet to be finally determined what the practical parameters of this law are. This case of apparent first impression may be the beginning of that process.
II.
CASE LAW
The only case to date in which the crime of torture has reached the California Supreme Court is People v. Masbruch (1996) 13 Cal.4th 1001, 55 Cal.Rptr.760, 920 P.2d 705, and in that case the Court had no reason to discuss the parameters of section 206 since the defendant, wisely, did not challenge his conviction on those two counts:
Defendant then blindfolded the [2] women. Mary noticed that ‘[i]t was quiet for awhile.’ Defendant then turned Mary on her side. ‘[Ilt felt like he had taken a butcher knife and started at [her] knee and just ran it as slow as he could all the way down to [her] ankle. (She] was screaming, because it was . . . the most excruciating pain you could think of. It was like to the bone. [She] kept waiting to feel the fluid of the blood coming out and (she] didn’t feel it and [she] didn’t know what he had done.’ Defendant had apparently spliced several electrical cords together and shocked Mary with this makeshift instrument. Defendant also shocked Marietta’s right arm. After he finished, Defendant said, ‘That’s a warning to show you what I can do to you.’
(13 Cal.4th at 1004)
Various Courts of Appeal have also not had to discuss the parameters of the crime when cases which including torture counts reached their dockets; People v. Burks (4th DCA, 1995) 51 CA4th 180 is such a case:
At about 8 a.m. on December 29, 1992, Burks attacked 84-year old Phyllis as she stood outside a National City Church less than a quarter of a mile from the area where he had attacked Ofelia. Choking Phyllis with his arm around her neck, Burks dragged and carried her to a spot about 261 feet away. When Phyllis prayed, Burks told her to shut up or he would kill her. Grabbing Phyllis’s head by the hair, Burks repeatedly slammed her head and body against the cement, pounded his fists against her pelvic area, taped her eyes so she could not see, removed her clothing, put his mouth on her breast, digitally penetrated her vagina, and covered her head with her scarf. * * * Burks wrapped tape around Phyllis’s neck, suffocating her until the tape broke. * * * Phyllis suffered a concussion, brain contusions, a perforated eardrum, bumps on her head and chest, scrapes, bruises and vaginal tears. (51 CA4th at 185)
Again, the defendant did not challenge the sufficiency of this horrific evidence to constitute torture.
In fact, none of the appellate decisions discovered by counsel actually discuss the sufficiency of the evidence on the torture convictions being reviewed. Each and every case seems to concede that the conduct of the defendant constituted torture (except in the Jenkins case, infra, in which the facts surrounding the torture allegations were so atrocious that the Court dealt with the insufficiency claim in an unpublished portion of the opinion) and challenged the conviction on other grounds.
It thus appears that this is a case of first impression.
The earliest published opinion found is People v. Healy (2nd DCA, Div. 6, April 1, 1993) 14 Cal.App.4th 1137, in which the facts are succinctly recited: “Healy was also charged with torturing Laura L. in violation of section 206. * * * Over a period of approximately two weeks Healy battered Laura L. daily. He split her lips, broke her ribs, and stomped on her. He struck her in the jaw, back, arms, neck repeatedly. He flung her in the air so that she landed on the back of her head on the floor. She sustained a fractured jaw, ankle fractures, multiple rib fractures and bruises to her face and torso.” (Id. at 1139) Healy’s appellate contention was that the evidence was “insufficient to show that he acted for persuasive or sadistic purposes.” (Id. at 1140)
Two weeks later, on April 15, 1993, the Fifth District Court of Appeal issued People v. Barrera (1993) 14 Cal.App. 1555, in which a slew of broad constitutional challenges were raised, and rejected, as to section 206. As relevant to this Petition, the initial factual recital ranges on for three full pages (1560-1562), but for our purposes a summary at page 1567 will suffice:
“Barrera shot Rodarte at close range as a means of inflicting enough pain upon the victim to gain the victim’s cooperation and property. The bullet broke the victim’s leg and he bled profusely. The life of the victim’s son was threatened in the victim’s presence and the immediate capability of carrying out that threat was evident: a sawed-off shotgun was held against his son’s head. Again, the cooperation of the victim was behind the threat. The victim was forced to walk on his broken leg, described as an open fracture, in order to assist Barrera in locating the money he sought. Barrera’s brief continually attempts to minimize the offense, labeling it merely an aggravated assault, but under these facts his conduct was manifestly more than that. His actions were cold-blooded, calculated, motivated by financial gain, and resulted in a great cost to his victim.”
Perhaps the most egregious facts of torture are contained in People v. Jenkins (2d DCA, 1994) 29 Cal.App.4th 287. The published appellate issues dealt with instructional error; the issue of sufficiency did not, as previously noted, even merit being published! (Id. at 287, footnote, and 296-297) Again, the factual recital is lengthy (pages 291-296), but the Court itself has provided a short summary:
The jury was instructed it could find Jenkins guilty of two counts of torture if he inflicted great bodily harm on Hines with the specific intent to cause cruel or extreme pain for a coercive purpose on two specified occasions, May 14, 1992 and May 28, 1992.
On May 14, 1992, Jenkins hit Hines with an iron or steel pipe, beat her in the face with a two-by-four board, kicked her with his mountain-climbing boots, choked her, pistol-whipped her and then fired a .357 magnum revolver next to her head. On May 28, 1992, Jenkins repeatedly beat Hines with a hammer, pole and brick. He dragged her outside and choked her into unconsciousness.
(29 Cal.App.4th at 298)
These are the types of cases that section 206 was designed to address, and as awful as Petitioner’s conduct may have been, and as unacceptable as it is, it does not rise to the level of “Singleton torture,” and strict parameters must be set by this Court before “every intentional stabbing for the purpose of revenge” is prosecuted as “torture.” (Exhibit G, p.81)
FOOTNOTE:
Footnote 1: This Petition is not addressing broad constitutional issues such as vagueness or overbreadth; such issues may well be presented if this Petition is denied and an appeal eventually brought. Such issues are specifically reserved rather than waived.
EXHIBIT G
SENATE COMMITTEE ON JUDICIARY
Bill Lockyer, Chairman
ASSEMBLY PUBLIC SAFETY COMMITTEE
John Burton, Chairman
ANALYSIS OF CRIME VICTIMS.JUSTICE REFORM ACT
As Proposed for the June 1990 Ballot
COUNSEL
James Provenza
Project Coordinator
Theresa Taylor
Gene Wong
Patricia Wynne
Crime Victims Justice Initiative
December 11, 1989
X. New Crime of Torture: Life Sentence
Under existing law, murder by torture is first degree murder and is punishable by a 25 years to life sentence with the possibility of parole. This offense requires the deliberate and premeditated intent to inflict extreme and prolonged pain. If special circumstances are found, murder by torture is punishable by death.
New Section 206 would be added to the Penal Code, making it a felony punishable by life imprisonment to inflict great bodily injury upon another, with the intent to cause cruel or extreme pain for the purpose of revenge, extortion, persuasion, or any sadistic purpose. As drafted, the provision does not require the death of the person tortured or an intent to kill. Nor does the provision require proof that the victim suffered pain.
The term “great bodily injury” is defined in Section 12022.7 as “a significant or substantial bodily injury.” It has been construed to include bone fractures and knife wounds requiring extensive suturing.
The proposed new crime of torture may impose a disproportionately high sentence. Every intentional stabbing for the purpose of revenge could be subject to life imprisonment. In contrast, current law punishes such conduct as an assault with a deadly weapon punishable by a 2, 3, or 4 year prison term (or I year jail term) and a 3 year enhancement for intentionally inflicting great bodily injury.
In that the proposed crime appears to be very board, its enactment could result in very significant correctional expenditures to house the new inmates.
INTRODUCTION
This work is a collective effort on the part of the attorneys of the Division of Criminal Law to review and analyze Proposition 115, the Crime Victims Justice Reform Initiative. The provisions of the initiative are divided into subject areas, the discussion of which includes the text of the constitutional or statutory change, the law existing before Proposition 115, any legal principles that bear on the effort of the changes made by Proposition 115, the anticipated defense claims, and our responses to those claims. Also addressed are principles relating to retroactivity and the state constitutional amendment
Understandably, the full implications of a measure as ambitious and complex !s Proposition 115 are not always obvious. We therefore make no claim that cur review is exhaustive or that our analysis is infallible. Some issues will emerge only as the initiative is applied; others as it is litigated. Definition and resolution ultimately will come from the courts. We do believe, however, that the process of comprehending and implementing Proposition 115 will benefit from our analysis, and that the views expressed in this work will find acceptance in the courts.
If necessary and feasible, the Department of Justice will provide updating material as the effects of Proposition 115 develop. As always, the Division of Criminal Law stands ready to assist in every practical way with the implementation of these new laws.
JOHN H SUGIYAMA
Senior Assistant Attorney General
IX. NEW CRIME OF TORTURE
TEXT
Section 13 of Proposition 115 adds section 206 to the Penal Code, as follows:
“Every person who, with the intent to cause cruel or extreme pain and suffering for the purposes of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defmed in Section 12022.7 upon the person of another, is guilty of torture.
“The crime of torture does not require any proof that the victim suffered pain.”
Section 14 of Proposition 115 adds Penal Code section 206.1 which provides:
“. . . the crime of torture is punishable by imprisonment in the state prison for a term of life.”
ANALYSIS
1. Existing Law
Sections 206 and 206.1 add a new crime of torture to the Penal Code Section 189 already establishes the crime of murder by torture. (Attempted murder by torture might be chargeable in some circumstances now covered by section 206.)
2. Effect of Proposition 115
A. Elements of the Crime
The crime of torture proscribed in section 206 requires the infliction of great bodily injury, as defined in section 12022.7, and the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for a sadistic purpose.
(1) Intent
(a) Background
Penal Code section 189 punishes murder by torture as first degree murder. To commit that crime “. . . the defendant must commit such act or acts with the intent to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion or for any other sadistic purpose.” (People v. Wiley (1976) 18 Cal3d 162, 168; People v. Davenport (1985) 41 Cal.3d 247, 267; People v. Birtaker (1989) 48 Cal.3d 1046, 1101.)
The requirement of new section 206 that the perpetrator intend to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion or for a sadistic purpose derives from the California Supreme Court’s definition of the intent required for murder by torture.
Furthermore, like murder by torture, the gravamen of the crime is the calculated nature of the defendant’s act, not the victim’s actual suffering. (People v. Davenport, supra, 41 Cal.3d at pp. 267-268; People v. Wiley, supra, 18 Cal.3d at pp. 172-173; see also People v. Leach (1985) 41 Cal.3d 92, 109-111 (murder by torture special circumstance does not require proof victim was aware of pain].) As noted in People v. Wiley, supra, 18 Cal.3d at p. 173:
“Attempts to measure the amount of pain, if any, suffered by victims of torturous acts, some of whom like William (the victim], may have been rendered insensitive to pain by alcohol or drugs, others of whom mercifully may have been quickly rendered unconscious at the outset of the homicidal assault not only promises (sic] to be futile, but are unnecessary. The Legislature did not make awareness of actual pain an element of torture-murder. Although it has been assumed in past opinions that torture-murder cases that the victim probably felt pain, it does not follow that awareness of pain is an element of the offense. The murderer who exhibits ‘the cold blooded intent to inflict pain for persona1 gain or satisfaction’ may not assert the victim’s condition as a fortuitous defense to his own deplorable acts.”
The Wiley court’s description of murder by torture is equally applicable to section 206, “‘it is not the amount of pain inflicted which distinguishes a torturer from another murderer, as most killings involve significant pain [Citation). Rather, it is the state of torturer – the cold blooded intent to inflict pain for personal gain or satisfaction. . . . .'” (People v. Wiley, supra, 18 Cal.3d at p. 173, quoting People v. Steger (1976) 16 Cal.3d 539, 546 (emphasis added).)
(b) Specific Intent
When the definition of a crime refers to a defendant’s intent to do some further act or achieve some additional consequence, the crime is one of specific intent. (People v. Hernandez (1988) 46 CaL3d 194, 202; People v. Hood (1988) 1 Cal.3d 444, 457.) Since violating section 206 requires an intent over and above that required merely to commit great bodily injury, section 206 describes a specific intent crime. The perpetrator must specifically intend to cause cruel or extreme pain and suffering for the purpose of extortion, revenge, persuasion or other sadistic purpose.
Section 206 does not require the specific intent to commit great bodily injury; by its express language the statute requires only that the actor intend to cause cruel or extreme pain. and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. If statutory language is clear and unambiguous, judicial construction is not necessary. (People v. Phillips (1989) 208 Cal.App.3d 1120, 1123.) Had the framers wished to include an intent to inflict great bodily injury as an element of the offense of torture, they would have done so explicitly, as in Penal Code section 12022.7, which requires a specific intent to inflict great bodily injury: “Any person who, with the intent to inflict such injury, personally inflicts great bodily injury on any person . . . in the commission . . . of a felony shall in addition and consecutive to the punishment prescribed for the felony . . . of which be has been convicted be punished by an additional term of three years, unless infliction of great bodily injury is an element of the offense of which he is convicted.”
(2) The Act
Under a literal interpretation of the statute, any act committed with the specific intent required by section 206 resulting in great bodily injury would support a conviction under that section. This could lead, however, to disproportionate results. (See section C, infra.)
It may be argued that since the crime of torture derives from the crime of murder by torture, some of the elements of the latter offense must apply as to a violation Of section 206. For example, for murder by torture, the prosecution must show the act committed was likely to cause death and showed a conscious disregard for life (i.e., implied malice). (People v. Mattison (1971) 4 Cal.3d 177, 182.) The rnere fact the defendant committed an act which happened to cause great bodily injury would not violate section 206.
By analogy, the same issue has arisen with regard to the infliction of great bodily injury. The minority view is that a violation of Penal Code section 120022.7 occurs when a defendant intentionally commits a violent act or intends to commit a battery which results in great bodily injury; the specific intent requirement of the statute is met when the injury is caused by the defendant’s deliberate act and not by accident. (People v. Bass (1983) 147 Cal.App.3d 448, 454.) The majority of courts have held the defendant must have intended to commit great bodily injury. (People v. Phillips, supra, 208 Cal.App.3d at p. 1123.) This conclusion is based on the statutory language, which expressly requires that the defendant intend to inflict such injury. (Id., at p. 1123.)
While it could be argued that section 206 applies only to acu likely to cause great bodily injury, the plain language of the statute does not support this interpretation. By contrast, section 12022.7 expressly requires that the defendant intend to inflict great bodily injury. (See People v. Simpson (1987) 192 Cal.App.3d 1360, 1367.) Similarly murder requires malice (whether express or implied); implied malice requires that the act be committed with certain consequences in mind. (See People v. Marrison, supra, 4 Cal.3d at p. 182.) Thus, on the kinds of act which will sustain a conviction of murder by torture are limited.
By contrast, section 206 does not require that the act have a likelihood or high probability of causing great bodily injury. Moreover, no policy statement or ballot argument imposes such a requirement. In the absence of any express language in enactment or any external evidence of intent that a violation of section 206 requires an act that has a high probability it will cause bodily injury, such a limitation cannot be read into the provision. (See People v. Cole (1982) 31 Cal.3d 568, 572.)
The plain language of section 206 punishes any deliberate act done with the specific intent described in that section, which act causes great bodily injury, whether or not great bodily injury — or death — was foreseeable.
(3) Great Bodily Injury
Section 206 requires the infliction of “great bodily injury as defined in Section 12022.7,” clearly a reference to Penal Code section 12022.7, an enhancement statute. Section 12022.7 defines “great bodily injury” as a “significant or substantial physical injury.” Minor or moderate injuries of a temporary nature do not constitute great bodily injury. (People v. Caudillo (1978) 21 Cal.3d 562, 581.)
Examples of great bodily injury include a bone fracture (People v. Johnson (1980) 104 Cal.App.3d 598, 608-610), use of a hot knife which burned the shoulder of the victim (People v. Farmer (1983) 145 Cal.App.3d 948, 951), and a nasal bone fracture (People v. Villarreal (1985) 173 Cal.App.3d 1136, 1140.) Other kinds of trauma constituting great bodily injury include prolonged loss of consciousness, a severe concussion, protracted loss of any bodily member or organ, protracted impairment of function of any bodily member or organ or bone, a wound requiring extensive suturing, and serious disfigurement. (People v. Villarreal, supra, at p. 1140; People v. Nava (1989) 207 Cal.App.3d 1490, 1496.)
(4) Extortion, Revenge, Persuasion, Sadistic Purpose
Extortion has been defined as obtaining property from another by wrongful use of actual or threatened force, violence, or fear, or under color of right. (Black’s Law Dict., p. 525.)
Persuasion may be defined as influencing the mind by arguments or reasons offered, or by anything that moves the mind or passions, or inclines the will to a determination. (Id., at p. 1030.)
Sadistic purpose is a form of satisfaction, commonly sexual derived from inflicting harm to another. (Black’s Law Dict. (5th ed. 1979) p. 1198.)
Revenge is the seeking of vengeance for a perceived wrong done to oneself or another. (Webster’s 3rd. Int Dict, p. 1942.)
Whether any of these elements is present depends on the facts of the individual case.
B. Penal Code Section 206 and Related Offenses
Issues may arise regarding the relationship between torture, assault, mayhem, battery, murder by torture and other crimes.
Mayhem is committed when a person unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or silts the nose, ear, or lip. Mayhem is punishable by imprisonment for two, four or eight years. (Pen. Code, §§ 203-204.)
Aggravated mayhem occurs when a person unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or members of his body. Intent to kill is not required. The crime carries a term of life with possibility of parole. (Pen. Code, § 205.)
Mayhem could not be charged in all torture cases, since it is limited to situations where the victim is disabled, disfigured, or deprived of a body part. It is conceivable that an individual could be severely tortured without being disabled, disfigured, or having suffered the loss of a body member. Moreover, mayhem carries a maximum term of only eight years. Aggravated mayhem carries a life term, but also is limited to situations where the person is disabled, disfigured, or deprived of a limb, organ, or member of his or her body. Thus, the crime of torture will be appropriately charged when the victim has suffered great bodily injury and the defendant has the requisite intent.
One who tortures another individual would, of course, also commit battery. However, the most aggravated battery carries a maximum term of only four years. (Pen. Code, §§ 18, 243.) Similarly, one who violates section 206 would also commit an assault. (Pen. Code, § 240.) However, regular assault even in the most egregious situations, carries a maximum term of three years. (See Pen. Code, §§ 18, 24G-241.)
A violation of section 206 also could include an assault by means of force likely to produce great bodily injury (Pen. Code, § 245(a)(1)) since section 206 expressly requires that great bodily injury actually be inflicted upon the victim. However, such a violation of section 245(a)(1) carries a maximum term of four years. The crime of torture conceivably might be charged when a victim is stabbed several times or shot several times, although the assailant did not intend to kill the victim. This crime also carries a maximum term of four years. (Pen. Code, § 245(a)(1).)
Thus, the crime of torture, which carries a life term, may be charged when severe injuries have been inflicted on the victim and the requisite intent is present.
Murder by torture would be chargeable if the defendant killed the victim. (Pen. Code, § 189.) Presumably, attempted murder by torture could also be charged, but would not carry an express life term unless it also was alleged that the murder was wall, deliberate, and premeditated. (Pen. Code, § 664, subd.(1).)
Penal Code sections 273a and 273d may come into play when the victim is a child. Section 273a proscribes cruelty or unjustifiable punishment of children, and carries a maximum term of six years. Penal Code section 273d proscribes corporal punishment or injury of a child; it carries a maximum term of six years. Section 273.5 punishes corporal injury to a spouse or cohabitant, and carries a maximum term of four years.
The crime of torture will include certain lesser offenses. The standard test for included offenses is that one offense is included within another offense if the greater offense cannot be committed without also committing the lesser one. (People v. Anderson (1975) 15 Cal.3d 806, 809-810.)
It is evident that crimes such as assault and battery are lesser included offenses of torture, because it is impossible to violate section 206 without committing an assault or a battery.
However, assault with a deadly weapon per se is not a lesser included offense as it is possible to torture someone without using a deadly weapon. Nor would assault by means of force likely to produce great bodily injury be an included offense. The statute does not require that the act committed be likely to cause great bodily injury. (See section III-B, ante.) Thus, not every violation of section 206 constitutes an assault by means of force likely to produce great bodily injury.
Nor is mayhem an included offense. It is possible to torture someone without committing mayhem. The offenses described by sections 273a and 273d also are not included; not every violation of section 206 involves children. By a parity of reasoning, section 273.5 also is not an included offense, since it involves only spouses or cohabitants.
While assault with a deadly weapon, assault by means of force likely to produce great bodily injury, and mayhem might not be included offenses as a matter of law, they could constitute lesser related offenses under the facts of a given case.
Related issues may arise from claims that a more specific statute precludes prosecution under section 206. However, the rule that a specific statute precludes prosecution under a general statute is designed to fulfill legislative intent. The Legislature’s enactment of a speci5c statute punishing much the same conduct as a more general law is a powerful indication the Legislature intended the more specific provision to apply. (People v. Jenkins (1980) 28 Cal.3d 494, 505; see also Mitchell v. Superior Court (1989) 49 Cal.3d 1230.)
Penal Code section 206 was enacted, however, in response to a perceived need to punish torture that does not result in death. Thus, it is more specific than other provisions of the Penal Code carrying lesser terms.
Moreover, for a specific statute to pre-empt use of a more general law it must be shown that each element of the general statute corresponds to in element on the face of the special statute, or that a violation of the special statute will necessarily or commonly result in a violation of the general statute. (People v. Watson (1981) 30 Cal.3d 290, 296-297.)
Thus lesser crimes such as assault, assault with a deadly weapon, assault by means of force likely to produce great bodily injury, or battery are not more specific and do not preempt application of section 206 because the elements are different. Commission of these crimes does not necessarily constitute torture, since section 206 requires that the victim suffer great bodily harm and requires a specific intent not essential to these other offenses. Similarly, crimes such as mayhem and cruelty to children or spouses would not preempt use of section 206 because of the specific intent required for torture. For the same reasons, violation of these other provisions of the Penal Code will not necessarily or commonly result in a violation of section 206.
C. Punishment
A defendant sentenced to a life term for torture may contend that his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Under relevant United States Supreme Court authority, which now sets the appropriate standard of review (see Section II-L, ante), such a claim would almost certainly fail.
Under Eighth Amendment principles, a sentence must be proportionate to the crime committed. (Solem v. Helm (1983) 463 U.S. 277, 290.) When reviewing a sentence, however, a court must “grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes. . . .” (Ibid.) “Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” (Rummel v. Estelle (1980) 445 U.S. 263, 272.)
The court should be guided by objective factors relevant to the Eighth Amendment claim. (Solem v. Helm, supra, 463 U.S. at pp. 290, 292, Rummel v. Estelle, supra, 445 U.S. at p. 275.) These factors fall into three areas of inquiry: 1) an examination of the gravity of the offense and the harshness of the penalty; 2) a comparison of the sentences imposed on other criminals in the same jurisdiction, e.g., whether more serious crimes are subject to the same penalty or to less serious penalties; and 3) a comparison of the sentences imposed for the same crime in other jurisdictions. (Solern v. Helm, supra, 463 U.S. at pp. 290-292.) The court must conduct its analysis in the context of what society as a whole views as its evolving standards of decency. (Stanford v. Kentucky (1989) 109 S.Ct 2969, 2974-2975.) The court may not substitute its personal preferences for the standards set by society. (Ibid.)
When examining the gravity of the offense and the harshness of the penalty, the court may compare the harm caused or threatened to the victim or society, and the culpability of the offender. (Solem v. Helm, supra, 463 U.S. at p. 292.) Torture is certainly a serious crime: the defendant must intend to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion or any sadistic purpose, and must actually inflict great bodily injury on the victim. The accused likely represents a significant danger to society. A life term is not unreasonable in these circumstances.
When compared to the punishment imposed in California for equally serious or more serious crimes, the punishment for torture is not excessive. Other crimes that carry a life term include kidnapping for robbery (Pen. Code, § 209), kidnapping for ransom where the victim is not harmed (Pen. Code, § 209), aggravated mayhem (Pen. Code, § 205), and attempted murder where there is a finding that the attempt was willful, deliberate and premeditated (Pen. Code, §§ 664/189). In a kidnapping for ransom or robbery, the victim might not suffer any physical harm. Torture, by contrast, requires a finding that the defendant inflicted great bodily injury.
Torture carries a punishment that is comparable to the punishment for first degree murder, 25 years to life. (Pen. Code, § 190.) This does not necessarily render the punishment for torture excessive, however. Under the statutory scheme, a defendant sentenced to a life term may be paroled after serving a minimum of seven years. (Pen. Code, § 3046.) A defendant serving a sentence of 25 years to life may be paroled after serving a minimum of 16 years and eight months. (Pen. Code, §§ 190, subd. (a), 2930-2935.) Although parole is not a “right” that may be enforced, and thus a presumptive parole term may not be treated as the equivalent of the sentence imposed, a proper assessment of a life term cannot ignore the possibility that the defendant will not actually serve the full term. (Rummel v. Estelle, supra, 445 U.S. at pp. 280-281.)
In Rummel, the United States Supreme Court rejected an Eighth Amendment attack on a life sentence imposed under a Texas recidivist statute that permitted parole. The life sentence followed the defendant’s third felony conviction: obtaining $120.75 by false pretenses. His two previous convictions involved check and credit card frauds amounting to $28.36 and $80. In light of the precedent of Rummel, a life term for the crime of torture would not likely offend Eighth Amendment principles.
Under the California Constitution’s previously independent standard of cruel or unusual punishment (Cal Const, art. I, § 17), the result would be essentially the same. In assessing the validity of the life term, three factors must be addressed: 1) the nature of the offense and/or the offender, with particular regard to the degree of danger presented to society; 2) whether the punishment imposed is greater than the punishment that may be imposed in the same jurisdiction for offenses that are deemed more serious; and 3) whether the punishment imposed is greater than that imposed for the same offense in other jurisdictions that have an identical or similar constitutional provision. (In re Lynch (1972) 8 Cal.3d 410, 425-427.) Where a statute encompasses conduct reflecting a wide range of culpability, it may be found constitutional on its face even though, in particular situations, it may be unconstitutionally applied. (See In re Rodriguez (1975) 14 Cal.3d 639, 647-648 (section 288, which encompasses conduct for which a life term might be permissible in some cases but excessive in others, held constitutional on its face].)
3. Retroactivity
Since section 206 describes a new crime of torture, the statute’s application to acts occurring before its effective date violates ex post facto prohibitions. (See People v. Smith, (1983) 34 Cal.3d 251, 259; People v. Sobiek (1973) 30 Cal.App.3d 458, 472.)
