Dewoody v. Superior Court

• Decision Date: 25 May 1970
• Court: California Court of Appeals Court of Appeals
• Parties: Marion Francis DE WOODY, Petitioner, v. SUPERIOR COURT of the State of California In and For the COUNTY OF SACRAMENTO, Respondent. Civ. 12610.

Page 210

87 Cal.Rptr. 210

8 Cal.App.3d 52

Marion Francis DE WOODY, Petitioner, v. SUPERIOR COURT of the State of California In and For the COUNTY OF SACRAMENTO, Respondent.

Civ. 12610.

Court of Appeal, Third District, California.

May 25, 1970.

Hearing Denied July 22, 1970.

Donald G. McCallum, Sacramento, for petitioner.

Thomas C. Lynch, Atty. Gen., by Edward A. Hinz, Jr., and Roger E. Venturi, Deputy Attys. Gen., Sacramento, for respondent.

FRIEDMAN, Associate Justice.

Petitioner seeks a writ of prohibition to restrain the superior court from trying him on a felony charge of driving while under the influence of intoxicating liquor. (Veh.Code, § 23101.) He charges violation of his substantial rights through the ex post facto application of a new statute utilizing blood-alcohol test results as the basis of a presumption that he drove under the influence of intoxicating liquor.

At its 1969 regular session, the Legislature adopted a bill to add section 23126 to the Vehicle Code, creating a presumption of driving under the influence of intoxicating liquor upon evidence of a prescribed quantum of alcohol in the driver's blood. ¹ The bill was signed by the Governor and filed with the Secretary of State on June 24, 1969, as Statutes of 1969, chapter 231. The legislative session adjourned on September 10, 1969. By force of the referendum provisions of the State Constitution, chapter 231 did not take effect until the 61st day after adjournment, that is, November 10, 1969. (See Cal.Const., art. IV, §§ 8(c), 23.)

The accident giving rise to petitioner's prosecution occurred on September 4, 1969, after the new presumption law had been approved but before its effective date. The criminal complaint was filed October 22, 1969. At defendant's preliminary examination on January 27, 1970, the prosecution produced the testimony of a criminalist that defendant's blood contained 0.12% By weight of alcohol after the accident. Over a defense objection, the prosecutor invoked and the magistrate applied the presumption of influence of intoxicating liquor established by subdivision (a)(3) of the new statute. Petitioner was then bound over for trial and a felony information filed.

An information must be set aside if the defendant has not been legally committed by the magistrate. (Pen.Code, § 995). An illegal commitment results when the defendant has been denied a substantial right during the preliminary examination. (Jennings v. Superior Court (1967) 66 Cal.2d 867, 874, 59 Cal.Rptr. 440, 428 P.2d 304). Petitioner contends that ex post facto invocation of the new presumption permitted the prosecution to dispense with evidence of his impaired driving ability, thus depriving him of a substantial right.

Article I, section 10, of the federal Constitution prohibits the states from passing ex post facto laws. Article I, section 16, of the California Constitution declares that no ex post facto law 'shall ever be passed.' An ex post facto law is a retrospective law applying to crimes committed before its enactment 'which by its necessary operation and 'in its relation to the offense, or its consequences, alters the situation of the accused to his disadvantage. '' (Thompson v. Utah (1898) 170 U.S. 343, 351, 18 S.Ct. 620, 623, 42 L.Ed. 1061; People v. Ward (1958) 50 Cal.2d 702, 707, 328 P.2d 777.) Both the federal and state prohibitions are aimed at the Passage of legislation. Conceivably, Vehicle Code, section 23126 was not retrospective in relation to petitioner's alleged offense because it had been 'passed' prior to that offense, that is, the last act necessary to its passage had occurred on June 24, 1969, when the Governor signed the bill and filed it with the Secretary of State.

California's 60-day deferment in the effective date of non-urgency legislation preserves the electors' opportunity to mount a referendum before the legislation goes into effect. The constitutional ex post facto prohibitions were framed, of course, long before the advent of the referendum system. Without reference to crimes committed during such a period of deferment, the decisions refer variously to an ex post facto law either as one passed or one which become effective after the crime. (16A C.J.S. Constitutional Law § 435, pp. 142--143.)

In relation to the ex post facto restriction, we have concluded that the statute was passed not when the Governor signed it but when it became an effective law. Where the Legislature amends a criminal law without specifying an effective date, it does so in contemplation of the effective date fixed by the State Constitution. (People v. Righthouse (1937) 10 Cal.2d 86, 88, 72 P.2d 867.) Until the effective date, the law-making power (including the people acting under the referendum) has not exercised a final choice in the matter. '(A) statute has no force whatever until it goes into effect pursuant to the law relating to legislative enactments. It speaks from the date it takes effect and not before. Until that time it is not a law and has no force for any purpose.' (Ibid., p. 88, 72 P.2d p. 867.)

A change in the rules of evidence or procedure is not ex post facto unless it deprives the defendant of a substantial protection. (Beazell v. State of Ohio (1925) 269 U.S. 167, 171, 46 S.Ct. 68, 70 L.Ed. 216; People v. Ward (1958) 50 Cal.2d 702, 709--710, 328 P.2d 777.) Thus a new rule of evidence which admits evidence not previously admissible or which extends competency to a witness may validly operate in the trial of a prior offense. (Thompson v. Missouri (1898) 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204; People v. Bradford (1969) 70 Cal.2d 333, 343--344, 74 Cal.Rptr. 726, 450 P.2d 46, fn. 5.) Nevertheless, a law is ex post facto which permits the defendant's conviction upon 'less proof, in amount or degree,' than was required at the time of the offense. (Thompson v. Missouri, supra, 171 U.S. at p. 387, 18 S.Ct. 922; Hopt v. Utah (1884) 110 U.S. 574, 588--589, 4 S.Ct. 202, 28 L.Ed. 262; see People v. Osaki (1930) 209 Cal. 169, 197, 286 P. 1025; People v. Guzman (1930) 209 Cal. 783, 286 P. 1037.)

Applied in defendant's prosecution, section 23126 permitted the prosecution to produce 'less proof, in amount or degree' than the law prevailing at the time of the offense. Its implicit but obvious purpose is to facilitate proof of the crime. Under the former law the prosecution had the burden of proving beyond a reasonable doubt every element of the crime, including alcohol-impaired driving ability. (See People v. Haeussler (1953) 41 Cal.2d 252, 261--263, 260 P.2d 8; People v. Clark (1962) 202 Cal.App.2d 513, 516, 20 Cal.Rptr. 803.) Where it relied upon a chemical test for alcohol, the prosecution had to produce, in addition to the test result, evidence of impaired faculties. That state of the law gave the defendant an option of silence. Instead of supplying evidence of sobriety, he could argue to the jury that the prosecution has failed to prove his insobriety...