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People v. Kozlowski3/4/2002
ubstance. (See People v. Dalton (1959) 172 Cal.App.2d 15, 17.)
Both the defendant and the third party were convicted of procuring a substitute for narcotics. On appeal, the defendant argued that the trial court erroneously admitted evidence of the conversation between the agent and the third party against the defendant. The appellate court ruled that the evidence was admissible for two independent reasons: because it was not hearsay and because the acts and declarations of the third party form part of the transaction which is a fact in dispute. (People v. Dalton, supra, 172 Cal.App.2d at p. 18.)
Discussing the non-hearsay ground of its ruling, the appellate court appreciated the purpose of the hearsay rule to prevent "the use of a repeated assertion of an absent party as proof of the truth" (People v. Dalton, supra, 172 Cal.App.2d at p. 19) of the matter asserted. However, it found that this concern was not implicated on the facts before the court because the statement that the third party would get the agent some heroin was not offered for the truth of the matter asserted. The third party's statement was not proffered to prove the fact that he would procure heroin or that he intended to do so. The defendant and the third party were charged with procuring a substitute for heroin. Thus, the court ruled that the statement was not hearsay because it "was not offered as a demonstration of the truth of its own subject matter." (Ibid.) A statement introduced to prove a fact other than that expressed in its content is admissible. (Id. at p. 20.)
The court in Dalton found that the third party's statement was not hearsay as to the defendant. As the statement in that case was properly admitted against the defendant, so Gatson's statements that he had been identified in court before was admissible against Kozlowski even if the latter had been absent when the statements were made. We also observe that because Kozlowski and Gatson were clearly acting in concert and the statements were made during the course of the kidnapping, the statements were admissible even if one declarant was not in the immediate presence of the other. (See Evid. Code, § 1223.) Finding no error affecting the jury's convictions of Kozlowski and Gatson, we affirm each of them.
V. SENTENCING
A. Life Imprisonment Without Possibility of Parole
1. Disparate Sentences
Kozlowski and Gatson raise four challenges to the sentences imposed by the trial court. First, they contend that a sentence of life imprisonment without possibility of parole for kidnapping for extortion violates substantive due process because conviction of kidnapping for robbery-a conviction that they reason is almost indistinguishable from kidnapping for extortion under the facts of this case-carries only a sentence of life imprisonment with possibility of parole. They argue that the prosecutor's decision to charge them with kidnapping to extort the victims' PIN codes resulted in a substantially higher sentence than they would have been eligible to receive if they had been charged with kidnapping to commit robbery of the victim's ATM cards, based on almost identical conduct. (See U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 15.)
We reject this claim of error, for several reasons. First, the facts of this case demonstrate that the higher sentence imposed was warranted because Lisa and Robyn suffered bodily harm in connection with the acts of Kozlowski and Gatson during the commission of the kidnappings. One convicted of kidnapping to commit robbery must be sentenced to a term of life imprisonment with possibility of parole. (See former § 209, subd. (b)(1), as amended by Stats.
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