In Re Rodriguez

*657RICHARDSON, J.

I fully concur in the judgment ordering petitioner released from confinement. The facts as set forth in the majority opinion reflect that the Adult Authority clearly abused its discretion in imprisoning petitioner for a period of 22 years without parole. I also fully concur in that portion of the majority opinion which upholds the constitutionality of Penal Code section 288, encompassing as it does a broad range of conduct for which life imprisonment might be proper under some circumstances.

I respectfully dissent, however, from both the premises assumed and the conclusions reached in that portion of the majority opinion which, while confirming the constitutionality of both the Indeterminate Sentence Law and Penal Code section 288, nonetheless mandates the Adult Authority “promptly” to fix an immutable maximum term for each prisoner now or hereafter committed to the Department of Corrections under an indeterminate sentence. While professing to defer to legislative primacy in consideration of the indeterminate sentence system and goals, and to focus, in the constitutional sense, only on a narrow punishment issue, the majority, nonetheless, in my view ignore such modest intentions. In doing so the majority, among other things, raise for the first time serious doubts as to the constitutionality of the long established term fixing practices under which the penal system of California has functioned for many years.

According to the majority such a startling and wholly novel conclusion is required because (1) in two habeas corpus proceedings, namely, In re Lynch (1972) 8 Cal.3d 410 [105 Cal.Rptr. 217, 503 P.2d 921], and in the present matter, the authority was found to have abused its discretion; (2) a policy statement was issued by the authority to the effect that in its term setting function, it makes punishment fit the criminal rather than the crime; and (3) the authority has taken a certain position in the instant case. These discoveries, both singly and in the aggregate, constitute in my view a very flimsy foundation on which to rest a constitutional conclusion of such sweeping import.

The majority argument ignores the time honored concept that unconstitutionality will not be presumed, but rather that legislative acts and administrative decisions taken pursuant thereto are presumed to be constitutional. (In re Ricky H. (1970) 2 Cal.3d 513, 519 [86 Cal.Rptr. 76, 468 P.2d 204]; In re Smith (1949) 33 Cal.2d 797, 801 [205 P.2d 662].) It relies on two isolated examples, In re Lynch, supra, 8 Cal.3d 410 and the instant case, from the vast stream of administrative dispositions made *658since inception of the law, from which two examples a broad conclusion of unconstitutionality is then extrapolated. I find it incongruous that the Indeterminate Sentence Law is suddenly rendered invalid because the authority has abused its discretion in failing to release Lynch and Rodriguez. Stranger still is the majority’s treatment of In re Schoengarth (1967) 66 Cal.2d 295, 302 [57 Cal.Rptr. 600, 425 P.2d 200], a fairly recent unanimous opinion of this court. Schoengarth is directly in point on the issue of the authority’s power to impose sentences at less than maximum and is totally contrary to the theses of the present majority which relegate Schoengarth to a footnote while enfolding it within a very revealing context. In the footnote the majority first surmise that Schoengarth has accounted for the small number of cases permitting review of the authority’s term fixing practices. While conceding that such a conclusion is the purest speculation, they then add conjecture to speculation and secondly, conclude that Schoengarth “doubtless” has both inhibited prisoner petitions and encouraged their denial. Nothing whatever before us either in the record or otherwise supports such a broad conclusionary generalization.

My disagreement with the majority while relatively simple is, nonetheless, fundamental. Sharing as I do the majority’s conclusion that both the Indeterminate Sentence Law and Penal Code section 288 are constitutional on their face, I would examine the propriety of the authority’s action by measuring the application of the Indeterminate Sentence Law, as in the past, on a case by case basis, finding in the matter before us, as in Lynch, a clear abuse of discretion. Such an approach I suggest more nearly accords with the concern properly voiced by the majority for the application of laws which on their face are constitutional. The majority on the other hand conclude, for reasons above described, that the entirety of the authority’s practice in its term fixing function is now, and has been, of doubtful validity. They therefore proceed on their own to fashion an administrative formula which will satisfy the constitutional demands as they view them. In doing so, they embark on a new course, armed with enthusiasm but neither compass nor chart. Such a course, in my view, is wholly unnecessary.

With all due deference I suggest the majority opinion underscores precisely the dangers and weaknesses inherent in the majority approach first enunciated in People v. Wingo (1975) ante, page 169 [121 Cal.Rptr. 97, 534 P.2d 1001]. In Wingo, the majority removed flexibility from the Indeterminate Sentence Law by requiring the authority to fix a sentence *659maximum which it could not thereafter increase. Wingo constitutes a substantial amendment of the law. The majority, having in Wingo committed themselves to such a formulation, in Rodriguez now expand on it by invention of what they denominate a “primary term” commensurate with the offense, giving to the authority thereafter by means of its parole function, the power to reduce the primary term or, alternatively, to hold the prisoner for duration of the primary term, but not to exceed it, depending upon prison behavior.

No authority, of course, is cited for such a proposition which is as novel as it is interesting. Only time will tell whether the majority’s new formula is well or ill conceived. As noted by Justice Clark in his dissent in Wingo, the Legislature both in its enactment of the Indeterminate Sentence Law and in its many subsequent amendments thereto has experimented with various formulae expanding and contracting the powers of the authority. The Legislature could have imposed on the authority a present limitation of the type required by the majority. It didn’t. It may require it. It hasn’t. Such a formulation whether reached, as here, piecemeal in quick installments, or in a single judicial quantum leap, is both unnecessary and unwise. It is unnecessary because, as noted in my dissent in Wingo, the habeas corpus remedy is fully available (In re Sturm (1974) 11 Cal.3d 258, 269 [113 Cal.Rptr. 361, 521 P.2d 97]) as always to measure and test the authority’s discretion, as amply demonstrated in Lynch and the instant case. I am unpersuaded that there is a general unawareness of the availability of habeas corpus remedy for this purpose. Such availability of the remedy constitutes in my view a full answer to the majority’s major premise that the present system deprives certain prisoners of their constitutional rights. It is unwise because, innovative as the majority’s formulation is, it is only one of several alternatives. Nothing in the record before us suggests in any way that the Legislature is inattentive to, or oblivious of, the apparent necessity for the kind of major changes in the law worked by the majority. On the contrary, we are advised of intense legislative and administrative activity in this area.

I cling to the view that the Legislature, through its traditional investigative process—hearings, enlistment of informed views, weighing of alternatives and debate, is far better equipped than are we, to develop the kinds of procedural changes contemplated by the majority. In this process I would stay our judicial hands no matter how inviting the prospect. My conclusion that we should eschew any judicial tinkering *660with the law is reached from no lack of awareness of the importance of the matter but from my conviction that the greater wisdom lies in judicial restraint.

McComb, J., and Clark, J., concurred.

Respondent’s petition for a rehearing was denied July 30, 1975. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.