Estrada, In re

• Decision Date: 19 January 1966
• Docket Number: Cr. 8524
• Court: California Supreme Court
• Parties: , 408 P.2d 948 In re George Ramirez ESTRADA on Habeas Corpus. . Dec. 23 1965. Rehearing Denied

Page 172

48 Cal.Rptr. 172

63 Cal.2d 740, 408 P.2d 948

In re George Ramirez ESTRADA on Habeas Corpus.

Cr. 8524.

Supreme Court of California, In Bank.

Dec. 23 1965.

Rehearing Denied Jan. 19, 1966.

George Ramirez Estrada, in pro. per., and Robert N. Beechinor, San Francisco, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., and John F. Kraetzer, Deputy Attys. Gen., for respondents.

PETERS, Justice.

A criminal statute is amended after the prohibited act is committed but before final judgment by mitigating the punishment. What statute prevails as to the punishment the one in effect when the act was committed or the amendatory act? That is the question presented by this petition. In People v. Harmon, 54 Cal.2d 9, 4 Cal.Rptr. 161, 351 P.2d 329, this court in a 4-to-3 decision held that the punishment in effect when the act was committed should prevail. We have determined to reconsider the holding in that case. Upon such reconsideration we have come to the conclusion that on this point that decision should be disapproved. We hold that in such situations the punishment provided by the amendatory act should be imposed.

The problem arises in the instant case under the following circumstances. In October of 1962 petitioner was convicted of a violation of section 11721 of the Health and Safety Code (under the influence of narcotics, a misdemeanor). The criminal proceedings were suspended and addiction proceedings under section 6450 of the Penal Code were instituted. In February of 1963 defendant was committed as an addict to the California Rehabilitation Center. In June of that year he escaped from the center, was captured and prosecuted for the escape. In October of 1963 he pleaded guilty to escape 'without force or violence,' although the statute in effect when the escape was committed made no distinction as to punishment between escapes with and without force or violence. He was convicted of 'escape * * * without force or violence' in violation of section 4530 of the Penal Code. The superior court, in November 1963, terminated the addiction proceeding, and the sheriff was ordered to return petitioner to the Department of Corrections to carry out the sentence previously imposed. The petition alleges that the Adult Authority is confining him because it feels bound by the provisions of section 3044 of the Penal Code providing for a two-year minimum from return to prison before parole may be granted in case of an escape conviction, whereas before finality of his judgment, the pertinent code sections were amended.

The sections involved are sections 4530 and 3044 of the Penal Code. In June of 1963, when petitioner escaped from the rehabilitation center, section 4530 provided that an escape or attempt to escape was punishable by at least a one-year period of imprisonment to commence from the time the prisoner would otherwise be discharged from prison. At that time, section 3044 of the Penal Code provided that no person convicted of an escape 'may be paroled until he has served at least two calendar years from and after the date of his return to the prison after such conviction.'

One month before petitioner's sentence and conviction, that is in September of 1963, but several months after the act of escape was committed, these two sections were amended so as to reduce the penalties formerly provided in those cases where, as here, the escape was without force or violence. By the amendments, section 4530 was divided into two subdivisions. Subdivision (a) provides that every prisoner who escapes or attempts to escape 'is punishable by imprisonment in a state prison for a term of not less than one year.' Subdivision (b) provides that an escape or attempt to escape 'without force or violence, is punishable by imprisonment in the state prison for a term of not less than six months nor more than five years.'

Prior to September of 1963 section 3044 of the Penal Code provided, as already pointed out, that no prisoner found guilty of an escape may be paroled unless he has served at least two calendar years from the date of his return to prison after the date of his conviction for the escape. In September of 1963 the section was amended to provide that persons convicted of a violation of section 4530, subdivision (a), of the Penal Code could not be paroled for two years, but the amended section said nothing about parole for persons convicted under subdivision (b) of the section, that is as to escapes 'without force or violence.'

As a result of these amendments, since September of 1963, it is conceded that persons convicted under subdivision (b) of section 4530 are eligible for parole in less than two years. In other words, by these amendments both the term of imprisonment and the time necessary to spend in prison to be eligible for parole have been reduced. It is alleged that petitioner is being held under the statutes as they read prior to September of 1963, but that he is entitled to the ameliorating benefits of the statutes as amended in that month. This contention is sound.

This case factually presents a stronger case for relief than did the Harmon case, supra, 54 Cal.2d 9, 4 Cal.Rptr. 161, 351 P.2d 329. In Harmon the amendatory act lessening the punishment did not become effective until after Harmon was tried, convicted and sentenced. It became effective while the appeal was pending. In the instant case the amendatory act, although passed after the criminal act was committed, became effective before trial, conviction or sentence. But while this case thus presents a stronger case factually than did Harmon for applying the amendatory statute, legally the problem is the same. The key date is the date of final judgment. If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies.

The problem, of course, is one of trying to ascertain the legislative intent did the Legislature intend the old or new statute to apply? Had the Legislature expressly stated which statute should apply, its determination, either way, would have been legal and constitutional. It has not done so. We must, therefore, attempt to determine the legislative intent from other factors.

There is one consideration of paramount importance. It leads inevitably to the conclusion that the Legislature must have intended, and by necessary implication provided, that the amendatory statute should prevail. 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. This same problem was presented to the Court of Appeals in New York in the case of People v. Oliver (1956) 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197. In that case, the court first held that the accused there should be punished under the new statute mitigating punishment (even though New York has a saving clause substantially similar to section 9608 of the Government Code, hereafter referred to) and concluded (151 N.Y.S.2d at pp. 373-374, 134 N.E.2d at pp. 201-202):

'This application of statutes reducing punishment accords with the best modern theories concerning the functions of punishment in criminal law. According to these theories, the punishment or treatment of criminal offenders is directed toward one or more of three ends: (1) to discourage and act as a deterrent upon future criminal activity, (2) to confine the offender so that he may not harm society and (3) to correct and rehabilitate the offender. There is no place in the scheme for punishment for its own sake, the product simply of vengeance or retribution. (See Michael & Wechsler on Criminal Law and its Administration (1940), pp. 6-11; Note, 55 Col.L.Rev., pp. 1039, 1052.) A legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law. Nothing is to be gained by imposing the more severe penalty after such a pronouncement; the excess in punishment can, by hypothesis, serve no purpose other than to satisfy a desire for vengeance. As to a mitigation of penalties, then, it is safe to assume, as the modern rule does, that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts.' (See also In re Smigelski (1959) 30 N.J. 513, 154 A.2d 1.) These sentiments have generally been approved by legal writers. (Gerald H. Gottlieb in 34 So.Cal.L.Rev. 268, at p. 275; Gerhard O. W. Mueller in 36 N.Y.U.L.Rev. 110, at p. 117; J. Walter McKenna in 31 N.Y.U.L.Rev. 1378, at p. 1381.)

It is argued that this reasonable conclusion cannot be reached because of the provisions of section 3 of the Penal Code ¹ and section 9608 of the Government Code. ² These sections, it is contended, compel a holding that the Legislature intended the old law to apply. The argument is unsound.

First as to section 3 of the Penal Code. That section simply embodies the general rule of construction, coming to us from the common law, that when there is nothing...