Dapper, In re, Cr. 12720

• Citation: 77 Cal.Rptr. 897,454 P.2d 905,71 Cal.2d 184
• Decision Date: 28 May 1969
• Docket Number: Cr. 12720
• Court: United States State Supreme Court (California)
• Parties: , 454 P.2d 905 In re Johnny B. DAPPER on Habeas Corpus.

Page 897

77 Cal.Rptr. 897

71 Cal.2d 184, 454 P.2d 905

In re Johnny B. DAPPER on Habeas Corpus.

Cr. 12720.

Supreme Court of California In Bank.

May 28, 1969.

Rehearing Denied June 25, 1969.

Johnny B. Dapper, in pro. per.

Edward T. Butler, City Atty., Kenneth H. Lounsbery, Chief Deputy City Atty., and J. David Franklin, Deputy City Atty., for respondent.

PETERS, Justice.

Johnny B. Dapper petitions for a writ of habeas corpus.

In August 1966, he was charged with five counts of violating the San Diego Municipal Code: Count 1 (§ 55.30.10), permitting combustible material and debris to accumulate; count 2 (§ 55.36), allowing rubbish to remain without a permit; count 3 (§ 55.30.7(c)), storing lumber without a permit; count 4 (§ 44.0350), accumulating debris so as to afford a shelter for rats; and count 5 (§ 55.35), allowing dangerous weeds.

Dapper pleaded guilty to and was sentenced on counts 1 and 5. The other counts were dismissed 'in furtherance of justice.' Upon Dapper's petition, the court granted a petition for a writ of error Coram nobis, including in its order a stipulation by the district attorney and Dapper's court-appointed counsel that the dismissed counts be reinstated.

A jury trial was held, and Dapper was found guilty on all five counts. On count 1, he was sentenced to pay a fine of $500 and serve 180 days in jail; execution of judgment was stayed, and he was placed on probation for three years. On count 5, he was sentenced to 180 days in jail; except for three days, execution of sentence was stayed, and he was placed on probation for three years. The sentences were to run consecutively. As a condition of probation, he was required 'to clean up his property.'

Dapper contends that he could not be validly prosecuted under counts 2, 3, and 4, because section 1387 of the Penal Code bars the refiling of misdemeanor complaints which have been dismissed. ¹ He argues that the stipulation to the reinstatement of the dismissed counts is invalid, because it was made over his objection, and shows incompetence of counsel. However, even assuming that Dapper objected to the stipulation at the time it was made and that because of his objection it was improper for counsel to enter into the stipulation, Dapper may not in this proceeding attack the stipulation, and the stipulation does not show incompetence of counsel.

The granting or denying of a petition for writ of error Coram nobis is an appealable order, governed by the same procedural rules that apply to appeals from a judgment of conviction. (People v. Griggs, 67 Cal.2d 314, 316, 61 Cal.Rptr. 641, 431 P.2d 225; In re Horowitz, 33 Cal.2d 534, 537, 203 P.2d 513.) The reinstatement of the dismissed charges may have been an integral part of the order granting the writ, and had Dapper attacked the order on the basis of the part reinstating the charges, the entire order may have been held inseverable. (Cf. Hamasaki v. Flotho, 39 Cal.2d 602, 608--610, 248 P.2d 910; People v. Dominguez, 256 Cal.App.2d 623, 629, 64 Cal.Rptr. 290; People v. Williams, 247 Cal.App.2d 394, 409--410, 55 Cal.Rptr. 550; People ex rel. Dept. of Public Works v. Mascotti, 206 Cal.App.2d 772, 778--779, 23 Cal.Rptr. 846, 24 Cal.Rptr. 679; People v. Mason, 184 Cal.App.2d 182, 187, 7 Cal.Rptr. 525.) He did not appeal the order granting the writ or move to set aside the order and vacate the writ. He has attacked only the portion of the order which, based on the stipulation, directed reinstatement of the dismissed charges. He has never urged that the order should be set aside in its entirety. Instead, he has taken advantage of the order by withdrawing his guilty pleas and proceeding to trial on the merits of all of the charges. We are satisfied that in the circumstances of this case he may not be permitted at this time to attack the order granting the writ after he has taken advantage of those portions which are favorable to him.

The decision of the attorney to enter into the stipulation, even if beyond his authority, does not show that he was incompetent. The record does not show that counsel was unaware of the facts or the law applicable to the Coram nobis proceeding, and, so far as appears from the record, the determination to enter into the stipulation may have been the wisest course to follow to secure the vacation of defendant's convictions. (Cf. In re Hawley, 67 Cal.2d 824, 828--829, 63 Cal.Rptr. 831, 433 P.2d 919.)

Dapper further contends that the municipal court had no jurisdiction to prosecute him under San Diego Municipal Code sections 55.30.10, 55.36, 55.30.7(c), and 55.35 because, although the provisions were in effect when the violations were allegedly committed, 'on or about' June 30, 1966, the sections were repealed June 20, 1967, before the prosecution of Dapper had been reduced to final judgment in October 1967. This contention does not apply to count 4, accumulating debris so as to afford a shelter for rats, because that section has not been repealed.

The law is well-established that 'the outright repeal of a criminal statute without a saving clause bars prosecution for violations of the statute committed before the repeal.' (Sekt v. Justice's Court of San Rafael, 26 Cal.2d 297, 304, 159 P.2d 17, 21, 167 A.L.R. 833.) The rule applies equally to local ordinances. (Spears v. County of Modoc, 101 Cal. 303, 304, 307, 35 P. 869.)

Respondent contends that the San Diego Municipal Code contains such a saving clause. The clause on which respondent relies reads: 'Neither the adoption of this Code nor the repeal Hereby of any Ordinance of this City shall in any manner effect (sic) the prosecution for violation of Ordinances, Which violations were committed prior to the effective date hereof, * * *' (San Diego Mun.Code, § 11.04; italics added.) It is patently clear that the savings clause refers to ordinances repealed By the code, and not to ordinances comprising the code which are subsequently repealed. It is equally clear that the 'violations' referred to, prosecution for which is preserved, are violations occurring before the adoption of the code and not violations like those involved here which occurred after adoption. In brief, prosecution under the repealed ordinances in this case is not saved by section 11.04 of the San Diego Municipal Code. ²

Respondent next contends that, even absent a valid savings clause, Dapper can be prosecuted under the repealed municipal code sections because San Diego Municipal Code Ordinance 9651 (new series), which repealed the challenged sections, simultaneously enacted the Uniform Fire Code, which, respondent asserts, contains substantially the same provisions as those in the repealed sections.

It is established that the rule which bars prosecution under a repealed law for offenses occurring before repeal does not apply 'where there is an outright repeal and a substantial reenactment,' because it will be presumed that the legislative body 'did not intend that there should be a remission of crimes not reduced to final judgment.' (Sekt v. Justice's Court of San Rafael, Supra, 26 Cal.2d 297, 306, 159 P.2d 17, 22.) 'When a statute, although new in form, re-enacts an older statute without substantial change, even though it repeals the older statute, the new statute is but a continuation of the old. There is no break in the continuous operation of the old statute, and no abatement of any of the legal consequences of acts done under the old statute. Especially does this rule apply to the consolidation, revision, or codification of statutes, because, obviously, in such event the intent of the legislature is to secure clarification, a new arrangement of clauses, and to delete superseded provisions, and not to affect the continuous operation of the law.' (Sobey v. Molony, 40 Cal.App.2d 381, 385, 104 P.2d 868, 870; see also, Steamship Company v. Joliffe (1864) 69 U.S. 450, 458, 2 Wall. 450, 17 L.Ed. 805; Cort v. Steen, 36 Cal.2d 437, 440, 224 P.2d 723; Perkins Mfg. Co. v. Clinton Const. Co., 211 Cal. 228, 236, 295 P. 1, 75 A.L.R. 439; Carter v. Stevens, 208 Cal. 649, 651, 284 P. 217; San Joaquin etc. Irr. Co. v. Stevinson, 164 Cal. 221, 234, 128 P. 924; Wayne v. Bureau of Private Investigators & Adjusters, 201 Cal.App.2d 427, 438--439, 20 Cal.Rptr. 194; Orange County Water Dist. v. Farnsworth, 138 Cal.App.2d 518, 524--525, 292 P.2d 927; People v. Atkinson, 115 Cal.App.2d 425, 426--427, 252 P.2d 67; Jones v. City of South San Francisco, 96 Cal.App.2d 427, 432--433, 216 P.2d 25.)

Preliminarily, we note that the entire San Diego Municipal Code--both the repealed sections and the portions of the Uniform Fire Code which replaced the repealed sections--are subject to section 11.12 of that code, captioned 'Violations--A Misdemeanor,' which states: 'It shall be unlawful for any person to violate any provision or to fail to comply with any of the requirements of this Code.' The punishment provided by the section for either violating a provision or failing to comply with any mandatory requirement is a fine of not more than $500 or imprisonment in jail for not more than six months, or both.

Section 11.12 makes clear that an act is subject to punishment whether the language be, for example, 'It is unlawful to * * *' or, 'No person shall * * *' Since section 11.12 was neither amended nor repealed, it is clear that the punishment is the same for violation of either the repealed or the new sections.

A comparison of the repealed sections and the new sections based on, or incorporated by reference to, the Uniform Fire Code, convinces us that, as respondent contends, section 55.36 (count 2) has been substantially reenacted and may be considered to be continuous in operation from the date the section was originally adopted; but contrary to respondent's contention, section 55.30.10 (count 1), section 55.30.7(c) (count 3) and section 55.35 (count 5) have not been substantially reenacted, and therefore no prosecution may be validly maintained against Dapper...