People v. Superior Court (Du)

California Court of Appeal, Second District, 1992.

5 Cal.App.4th 82, 7 Cal.Rptr.2d 177.

Dressler, 49-52.


Facts: The Du family ran a liquor store.The defendant didnít usually work the counter at the store, but was working there on the day of the crime.The defendant thought the victim was shoplifting, and tried to stop her.There was a struggle, and the victim punched the defendant in the eye twice.As the victim apparently prepared to pay for the item the defendant thought she was stealing, the defendant first threw a chair and then shot the victim in the back of the head.The defendant made various claims at trial about not remembering firing the gun and not intending to kill the victim.The jury found her guilty, so it implicitly must have found that these claims were untrue.


The probation officer said Mrs. Du was unlikely to commit another crime but recommend she be sentenced to prison.


Issue: How much punishment is it just for Du to receive?


Rule: A just punishment should: 1) protect society, 2) punish the defendant for wrongdoing, 3) encourage the defendant to be good in the future, 4) deter other crimes, 5) incapacitate the defendant, 6) make restitution for the victim, and 7) be comparable to punishments for similar crimes.


Analysis: The court reasons that of these frequently used justifications for punishment, most either donít give any guidance or suggest Mrs. Du should not be punished.The court says that there is value in punishing Mrs. Du for wrongdoing.


The court also argues that even though a firearm was used, this is an ďunusual caseĒ for three reasons:


1.     The statute is intended to apply to criminals who arm themselves to go out and commit crimes, as opposed to shopkeepers who keep firearms for self-defense.

2.     The defendant has no criminal record.

3.     The defendant was under duress.


The court found that the act was partially excused by the fact that the victim had attacked the defendant with her fists.


Conclusion: The court suspended a ten-year sentence and put Mrs. Du on probation.


Notes and Questions


1.     I debated between sentencing the defendant to the maximum term and letting her off on probation.The only reason I could see for sentencing the defendant would be to try to deter similar behavior in the future.I think even a death sentence may fail to bring about general deterrence, and of course the cost to Mrs. Du would be enormous.Therefore, since even the maximum penalty allowed by law would probably fail to deter, I would let her off on probation.

2.     A judge should consider the effect of a verdict on the community, but most of the time, the effect on the community will be small compared to the possible long-lasting impact of a profoundly unfair, unjust, or simply illegal verdict.If returning a patently unjust verdict would save hundreds or thousands of lives that are immediately threatened, then this should be taken into account.This goes for the case of adjusting later verdicts based on public reaction to earlier ones.If the next completely legal verdict will cause a thousand people to die but an unjust verdict will kill one person now and five hundred in the next five hundred years, the court should announce the unjust verdict.

3.     Mercy is inefficient because it creates uncertainty of information in the criminal justice system.Certainty of information ensures that at least in the macro sense, people will make rational decisions about committing crimes.If we set up the right system of carrots and sticks, and itís swift and sure, we hope to be able to deter most crime.


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