Ellis C., In re

• Decision Date: 19 July 1993
• Docket Number: No. C014213,C014213
• Citation: 17 Cal.App.4th 279,21 Cal.Rptr.2d 258
• Parties: Previously published at 17 Cal.App.4th 279, 22 Cal.App.4th 618, 27 Cal.App.4th 1264, 32 Cal.App.4th 1259 17 Cal.App.4th 279, 22 Cal.App.4th 618, 27 Cal.App.4th 1264, 32 Cal.App.4th 1259 In re ELLIS C., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. ELLIS C., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 258

21 Cal.Rptr.2d 258

Previously published at 17 Cal.App.4th 279, 22 Cal.App.4th 618, 27 Cal.App.4th 1264, 32 Cal.App.4th 1259

17 Cal.App.4th 279, 22 Cal.App.4th 618, 27 Cal.App.4th 1264,

32 Cal.App.4th 1259

In re ELLIS C., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. ELLIS C., Defendant and Appellant.

No. C014213.

Court of Appeal, Third District, California.

July 19, 1993.

Review Granted Oct. 14, 1993.

Review Transferred to the Court of Appeal March 23, 1995.

[17 Cal.App.4th 1261] Debra L. Samuels, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Maureen A. Daly and Gregory W. Baugher, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

This case presents the issue of whether a defendant, who is sentenced under a statute that increases the punishment for felony vehicle theft and contains a sunset provision, but no saving clause, should receive the benefit of the ameliorated punishment after the harsher punishment is repealed by operation of the sunset provision before his judgment is final. As we shall explain, applying fundamental rules of statutory construction, we conclude that in enacting Vehicle Code section 10851 with a sunset provision, but no saving clause, we must presume the Legislature intended to provide the ameliorated punishment to all defendants convicted of felony vehicle theft whose judgments of conviction did not become final until after the increased punishment expired by operation of the sunset clause.

FACTUAL AND PROCEDURAL BACKGROUND

A petition filed in juvenile court alleged the minor Ellis C. came within the provisions of Welfare and Institutions Code section 602 in that he committed vehicle theft, a felony (Veh.Code, § 10851, subd. (a); count one), fled from a peace officer, a felony (Veh.Code, § 2800.2; count two), failed to stop at the scene of an accident, a misdemeanor (Veh.Code, § 20002, subd. (a); count three), and resisted arrest, a misdemeanor (Pen.Code, § 148; count four). The court sustained count one as alleged and count two as a misdemeanor following the minor's no contest plea on these two counts. The remaining counts were dismissed.

The minor was committed to the California Youth Authority for a maximum confinement period of five years and ten months. This period consisted of the upper term of four years on the vehicle theft, a two-month consecutive term on the misdemeanor, and consecutive terms of eight months and one year, respectively, on the allegations of receiving stolen property (Pen.Code, § 496.1) and felony vehicle theft (Veh.Code, § 10851, subd. (a)) that had been sustained in previous petitions in 1991.

The two vehicle thefts for which the minor was committed occurred in 1991 and 1992. At that time, the sentence for felony vehicle theft was two, three, or four years. (Stats.1989, ch. 930, § 11, pp. 3258-3259; Stats.1990, ch. 1564, § 2.) The amendment increasing the punishment for vehicle theft contained a sunset provision, which read: "(g) This section shall remain in effect only until January 1, 1993, and as of that date is repealed, unless a later enacted statute, which is enacted before January 1, 1993, deletes or extends that date." (Stats.1989, ch. 930, § 11, p. 3260; Stats.1990, ch. 1564, § 2.) The Legislature failed to enact a later statute by that date, so after January 1, 1993, the punishment for a violation of Vehicle Code section 10851, subdivision (a) reverted to "imprisonment in the county jail for not more than one year or in the state prison...." (Stats.1989, ch. 930, § 11.1, p. 3260.) The prison sentence for felony vehicle theft was thus reduced from two, three, or four years to 16 months, two or three years. (Pen.Code, § 18.)

The minor contends that since his judgment is not final, his maximum period of confinement should be reduced to reflect the change in Vehicle Code section 10851. He claims the principal term of four years should be reduced to three years, and the additional term of one year for the previous violation of Vehicle Code section 10851, subdivision (a) should be reduced to eight months in accordance with the punishment scheme now in effect. We agree.

DISCUSSION

The issue presented in this case is whether the increased punishment applies after the statute authorizing such punishment has expired by operation of a sunset provision in the absence of a saving clause. To resolve this question, we turn first to an analysis of cases pertaining to the role of saving clauses.

The interplay of a change in the law and a general saving statute was considered by the United States Supreme Court in Bell v. Maryland (1964) 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822. The defendants had been convicted of trespassing after they engaged in a sit-in demonstration at a Maryland restaurant that refused to serve blacks. While their convictions were on appeal to the Supreme Court the law in Maryland changed. A new public accommodations law made it unlawful for any restaurant owner to refuse service to a customer on the basis of race. In determining the effect of this intervening legislative enactment upon defendants' convictions, the court began with "the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct. The rule applies to any such proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it." (Id. at p. 230, 84 S.Ct. at p. 1817, 12 L.Ed.2d at p. 826.)

This common law rule, however, was not dispositive because Maryland had a general saving statute, which served to "save" convictions from later enactments accomplished by " 'the repeal, or the repeal and reenactment, or the revision, amendment, or consolidation of any statute....' " (Bell v. Maryland, supra, 378 U.S. at p. 232, 84 S.Ct. at p. 1818, 12 L.Ed.2d at p. 827.) The court found a substantial question whether this saving statute would apply to this case since the change was effected by adoption of a new law, not a repeal of or amendment to the trespassing statute. (Id. at pp. 232-237, 84 S.Ct. at pp. 1818-1820, 12 L.Ed.2d at pp. 827-830.) Since the task of determining the intent of the state Legislature in interpreting a state statute was properly that of the state court, the high court remanded the case. (Id. at pp. 237-241, 84 S.Ct. at pp. 1820-1822, 12 L.Ed.2d at pp. 830-832.)

Like Maryland, California has a general saving statute. Government Code section 9608 provides: "The termination or suspension (by whatsoever means effected) of any law creating a criminal offense does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so terminated or suspended, unless the intention to bar such indictment or information and punishment is expressly declared by an applicable provision of law."

In In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, the California Supreme Court was required to interpret this statute in deciding whether a statute mitigating punishment should be given retroactive application. Estrada had been convicted by escape without force or violence at a time when the escape statute made no distinction between forcible and nonforcible escapes. Subsequent to his conviction the escape statute was amended, reducing the punishment for escape without force or violence. (Id. at p. 743, 48 Cal.Rptr. 172, 408 P.2d 948.) In determining which penalty applied, the court framed the problem as that of determining legislative intent: "did the Legislature intend the old or new punishment to apply?" (Id. at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.) If the Legislature had expressed its intent, the application of either punishment would be legal and constitutional. Absent an express declaration, the court must determine the intent. (Ibid.)

The court found one paramount consideration answered the question. "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." (Id. at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.)

The court rejected the argument that a different conclusion was compelled by application of Penal Code section 3 and Government Code section 9608. Penal Code section 3 codified the general rule of statutory construction that absent an indication to the contrary, a statute is presumed to operate prospectively only. The court found that rule inapplicable because the factors surrounding the enactment of the statute lessening the punishment indicated an intent for retroactive application. (In re Estrada, supra, 63 Cal.2d at p. 746, 48 Cal.Rptr. 172, 408 P.2d 948.)

The Estrada court found the purpose of the general saving clause of Government Code section 9608 is understood by considering the common law rule that when a statute is repealed, all prosecutions not reduced to final judgments are...