Brief Bank # B-572
NOTE: The text of the footnotes appear at the end of the document.
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA No. F000000
Plaintiff and Respondent, (Fresno County
v. Superior Court
Defendant and Appellant.
PETITION FOR REVIEW
CHARLES M. BONNEAU
Attorney at Law
2631 K Street
Sacramento, CA 95816
Attorney for Appellant
I. PENAL CODE SECTION 206 IS UNCONSTITUTIONALLY VAGUE.
Penal Code section 206 reads as follows:
"Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose 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."
Even a cursory review of the statute reveals that its language was lifted from murder cases and creates an imperfect fit when used as a definition of a separate crime. The statute definition provides, "The crime of torture does not require any proof that the victim suffered pain." This language finds its genesis in torture murder cases in which the victim may have lapsed into unconsciousness during the torture and before the victim’s death. (See People v. Leach (1985) 41 Cal. 3d 92, 110 and People v. Davenport (1985) 41 Cal. 3d 247, 268.) When used as part of the crime of torture, wherein the victim survives, the "no pain" provision is nonsense. It is inconceivable that a victim could suffer great bodily injury, survive, and yet experience no pain. Other terms of the statute carry an uncertainty which relates directly to this defendant and which deny him the specific notice which is constitutionally required.
1. "Cruel or extreme pain or suffering." This language also arises out of very old murder decisions of this Court. The term "cruel suffering" appears in People v. Tubby (1949) 34 Cal. 3d 72, 77, as part of a definition of torture murder. The term "intent to cause cruel pain and suffering" thereafter appeared in an old jury instruction (former CALJIC 8.24) defining torture murder. In People v. Wiley (1976) 18 Cal. 3d 162, 167-168, this language was upheld against an argument that the victim felt no pain; the Wiley Court held that the victim’s actual awareness of pain is not an element of torture murder. (Id. at 173.) The use of the term "cruel" has not been challenged for vagueness in any torture murder decision of this Court, and this Court has not defined it.
However, the use of the term "cruel" was successfully challenged in People v. Superior Court (Engert) (1982) 31 Cal. 3d 797. The Engert decision held that the term "heinous, atrocious, and cruel," when used as a death penalty special circumstance, is unconstitutionally vague. The Court directed particular attention to the term "cruel":
". . .Cruel is defined as "[d]isposed to give pain to others; willing or pleased to hurt or afflict; savage, inhuman, merciless.’ . . .The terms address the emotions and subjective, idiosyncratic values. While they stimulate feelings of repugnance, they have no directive content . . .
"None of these terms meets the standards of precision and certainty required of statutes which render persons eligible for punishment, either as elements of a charged crime or as a charged special circumstance . . ."
(Id. at 802.)
The language of the Engert decision has yet to be reconciled with the use of the term "cruel pain and suffering," either in the death penalty special circumstance or in Penal Code section 206. [FOOTNOTE 1] It cannot be known whether this defendant intended to cause "cruel pain," because no one knows what "cruel pain" is. Accordingly, the statute is vague and the conviction must be reversed.
2. "Extortion." Extortion has a settled meaning, and could be defined by the use of standard jury instructions. See CALJIC 14.70, 14.71, 14.72, 14.73, and 14.74. These instructions were not read in the present case. The distinction between robbery and extortion is critical to the conviction in this case. (Appellant was also convicted of robbery, but intent to rob is not an element of Penal Code section 206.) The trial court had a duty to define extortion since the definition is an issue closely and openly associated with the evidence before the jury. (People v. Sedeno (1974) 10 Cal. 3d 703, 715-716.)
Left undefined, the term "extortion" has no common or settled meaning, and certainly not one which would be agreed upon by the average jury. "Extortion is the obtaining of property from another, with his consent, . . .induced by a wrongful use of force or fear. . . ." (Penal Code section 518; emphasis added.) The crucial decision for this jury was whether appellant intended to rob the victim, in which case he was guilty of robbery but not of the crime of torture, or whether he intended to extort the victim, in which case he was guilty of torture and subject to a life term.
The distinction between robbery and extortion is extremely subtle. An extortion occurs when the victim gives consent to a taking of property, which is induced by force or fear. Robbery is the taking of property by force or fear without consent. A jury cannot reasonably be expected to make this distinction without instruction on the elements of extortion. Left undefined, the term extortion is unconstitutionally vague.
3. "Any sadistic purpose." This term may have a settled meaning, but it is a meaning which is not commonly known and which certainly has no application to these facts because it contains a strong sexual element.
In People v. Raley (1992) 2 Cal. 4th 870, 900, this Court quoted dictionary definitions to arrive at a "settled meaning" for the term "sadistic purpose":
". . . ‘love of cruelty, conceived as a manifestation of sexual desire’ . . . ‘the infliction of pain upon a love object as a means of obtaining sexual release’ . . . ‘the getting of sexual pleasure from demonstrating, mistreating, or hurting one’s partner’ . . . ‘sexual gratification gained by causing pain or degradation to others.’"
There was no sexual aspect of this case, which involved a violent confrontation between grown men and boys. Under the settled meaning established by the Raley decision, "sadistic purpose" has no relevance to the present case. However, there is a danger in the vagueness of the term. A reasonable juror may have taken "sadistic purpose" to include the infliction of pain for any purpose of gratification to the perpetrator, not limited to sexual purposes. Appellant could have been convicted under this broader definition of the term, which is not authorized by the definition of the Raley opinion. [FOOTNOTE 2] The vagueness in the term creates the real possibility on these facts that the jury could not arrive at a settled meaning of the term used to convict appellant of torture.
4. "Torture." The term torture itself appears in the definition of the offense. There is a divergence in the various definitions attached to torture which factually undermines the definition of the term in section 206. The "torture" special circumstance in the 1977 death penalty law included as an element "proof of an intent to inflict extreme and prolonged pain." (Former Penal Code section 190.2 subdivision (c) (4).) This intent has long been an element of torture murder, based on a construction of Penal Code section 189. (See CALJIC 8.24.) "Extreme and prolonged pain" is an aspect of the common definition of torture: infliction of extreme and prolonged pain was the purpose of a torture chamber, after all.
Intent to inflict extreme and prolonged pain was removed from the special circumstance definition by the 1978 initiative, and it also does not appear in section 206. Nevertheless, there is reason to conclude that this element should be read into the statute. First, the mens rea element of torture murder is a product of judicial construction, and has been read into Penal Code section 189. Second, this Court has held that in adopting the torture murder special circumstance the electorate intended to incorporate as much of the judicial meaning of torture as is not inconsistent with its specific language. (People v. Leach (1985) 41 Cal. 3d 92, 110.) Third, since torture murder contains the premeditation element, it should be construed to apply to section 206 as well. "Where the same term or phrase is used in a similar manner in two related statutes concerning the same subject, the same meaning should be attributed to the term in both statutes unless countervailing indications require otherwise. [Citation.]" (Dieckmann v. Superior Court (1985) 175 Cal. App. 3d 345, 356.) Fourth, a statute must be interpreted in light of existing judicial construction unless its language clearly and unequivocally discloses an intent to depart from such judicial precedent. (Theodor v. Superior Court (1972) 8 Cal. 3d 77, 92.)
Since the common sense definition of torture requires the premeditated infliction of extreme and prolonged pain, and since this is an element of torture murder which has long been applied by the courts, it should have been part of the definition of torture read to the jury. In the absence of a definition of "torture" in either statute or jury instructions, the term is unconstitutionally vague.
A criminal statute which fails to define a crime with sufficient certainty violates the constitutional guarantee of due process of law. (Connally v. General Construction Co. (1926) 269 U.S. 385, 391. See People v. Mirmirani (1981) 30 Cal. 3d 375.) Section 206 is riddled with vague terms which fail to give fair notice and fail to guide the jury in its decision-making process. It is unconstitutionally vague, and this Court should so declare.
Footnote 1: In People v. Talamantez (1985) 169 Cal. App. 3d 443, 456-457, the court of appeal rejected an attack on the torture murder definition for vagueness of the term "cruel." Talamantez was relied upon by the court below. (p.9.) Talamantez was incorrectly decided. Although that opinion claimed that the Engert language is limited to the use of the term "especially . . . cruel," it is clear from the quote above that Engert disapproved the case of the term "cruel" itself. This discrepancy has yet to be resolved.
Footnote 2: In People v. Healy (1993) 14 Cal. App. 4th 1137, the court of appeal recently held that "sadistic purpose" does not carry, a sexual aspect. That opinion fails to cite this Court’s opinion in People v. Raley, supra, however.