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People v. Kozlowski3/4/2002
1997, ch. 817, § 2; last amended by Stats. 2000, ch. 287, § 3.) One who kidnaps for purposes of extortion is typically given the same sentence-life imprisonment with possibility of parole. When-as here-the victim suffered bodily harm, the defendant must be sentenced to a term of life imprisonment without possibility of parole. (See former § 209, subd. (a).) In this case, the jury found that Lisa and Robyn suffered bodily harm during the commission of the kidnappings in connection with or as a result of acts committed by Kozlowski and Gatson. On these facts, the defendants themselves are responsible for the greater sentences imposed.
Even if this were not so, to the extent that this claim of error assumes that the prosecutor made an improper "tactical decision" to charge the offense as kidnapping for extortion rather than kidnapping to commit robbery, it fails. A prosecutor is under no duty to charge a lesser offense if a greater charge is supported by the evidence. In this case, the bodily harm inflicted on the victims created the possibility of a greater sentence if Kozlowski and Gatson were charged with one form of aggravated kidnapping rather than another.
Kozlowski and Gatson's argument is also unpersuasive for other reasons. First, the case authority that Kozlowski and Gatson rely on in support of their substantive due process argument is a call to the Legislature to reconsider its sentencing schemes, not a substantive due process case. (See People v. Ibrahim, supra, 19 Cal.App.4th at pp. 1698-1699.) Second, this message to the Legislature is dicta and thus, not controlling. (See ibid.) Third, our reading of Ibrahim satisfies us that its comments were rooted in its belief that kidnapping for extortion cannot be committed without a secondary victim-a conclusion with which we disagree. (See ibid.; see also pt. II.B.2., ante.) For all these reasons, we find no merit in this substantive due process challenge to any of the sentences of life imprisonment without possibility of parole imposed for the four kidnapping for extortion convictions.
2. Failure to Allege Bodily Harm
Kozlowski and Gatson also argue that their sentences violate due process and the right to a jury trial because the fact of bodily harm in the commission of kidnapping for extortion pursuant to former section 209 was never alleged in the information. They contend that the imposition of a sentence of life imprisonment without possibility of parole when the information failed to specifically allege this fact violates their constitutional rights to notice and to have a jury determine these matters. Thus, they reason that these sentences must be reversed and the matters remanded for resentencing. (See U.S. Const., 5th, 6th & 14th Amends.; Cal. Const., art. I, §§ 15-16.)
When a defendant kidnaps a person in order to commit extortion and the victim suffers bodily harm, the defendant must be sentenced to life imprisonment without possibility of parole. If no victim suffered bodily harm, the sentence is life imprisonment with possibility of parole. (§ 209, subd. (a).) The United States Supreme Court recently held that in order to increase a state criminal penalty as the result of any fact other than a prior conviction, federal constitutional rights to due process, to notice and a jury trial require that the pertinent fact be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466, 476; see Jones v. United States (1999) 526 U.S. 227, 243 fn. 6 [federal offense]; People v. Neal (1984) 159 Cal.App.3d 69, 73 [defendant's right to notice that prosecution seeks enhanced penalty].) The verdict form specifically asked the jury w
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