People v. Collins, Cr. 19934

• Court: United States State Supreme Court (California)
• Writing for the Court: MOSK; CLARK; BIRD
• Citation: 21 Cal.3d 208,145 Cal.Rptr. 686,577 P.2d 1026
• Parties: , 577 P.2d 1026 The PEOPLE, Plaintiff and Respondent, v. Michael Jay COLLINS, Defendant and Appellant.
• Docket Number: Cr. 19934
• Decision Date: 03 May 1978

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145 Cal.Rptr. 686 21 Cal.3d 208, 577 P.2d 1026 The PEOPLE, Plaintiff and Respondent,
v.
Michael Jay COLLINS, Defendant and Appellant. Cr. 19934. Supreme Court of California, In Bank. May 3, 1978.

[21 Cal.3d 211]

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[577 P.2d 1027] James A. Hutchens, San Diego, under appointment by the Supreme Court, and Hutchens & Rounds, San Diego, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth and Keith I. Motley, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant Michael Jay Collins appeals from a judgment of conviction, claiming the conduct which produced his conviction was no longer a crime at the time the trial judge imposed sentence. He was indicted in November 1974 on 15 separate felony counts, including one count of attempted burglary (Pen.Code, §§ 664, 459), six counts of burglary (Pen.Code, § 459), two counts of forcible rape (Pen.Code, § 261), three counts of assault with intent to commit rape (Pen.Code, § 220), and three counts of forcible oral copulation (Pen.Code, § 288a, as effective in 1975). A previous felony conviction was also alleged.

Pursuant to a plea bargain, defendant entered a plea of guilty to one count of oral copulation; in return, the allegations of commission of that crime by means of force and of a prior felony conviction were stricken, and the other 14 counts were dismissed. After a hearing in February 1975 the court suspended criminal proceedings, found the defendant to be a mentally disordered sex offender and committed him to Patton State Hospital for an indefinite period (Welf. & Inst.Code, § 6316).

While defendant was at Patton, the Legislature repealed Penal Code section 288a and enacted a new section of the same number which became effective on January 1, 1976. Although forcible oral copulation is still proscribed under the new section, the act of oral copulation between consenting, nonprisoner adults is not.

Criminal proceedings were reinstated in April 1976 when it was determined that defendant was no longer a danger to the health and safety of others. At that time he objected to the court's jurisdiction to

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[577 P.2d 1028] sentence him because of the repeal of former section 288a. The court [21 Cal.3d 212] overruled the objection and sentenced him to state prison for one to fifteen years, which it deemed to be "the term prescribed by law." Defendant was given credit for 556 days served at Patton. I

Defendant insists the court erred in imposing sentence because the conduct which he admitted in pleading guilty was no longer punishable at the time of sentencing. On the basis of our decision in People v. Rossi (1976)18 Cal.3d 295, 134 Cal.Rptr. 64, 555 P.2d 1313, we agree and accordingly reverse the conviction.

In Rossi the defendant was convicted of nonforcible oral copulation under old section 288a; before the judgment became final by lapse of the period for appeal, however, new section 288a took effect. In reversing the conviction, we held that when the Legislature repeals a criminal statute or otherwise removes state sanctions from conduct formerly deemed criminal its action requires the dismissal of pending criminal proceedings charging such conduct. Our holding in Rossi derived from the common law rule, early recognized in Spears v. County of Modoc (1894) 101 Cal. 303, 305, 35 P. 869, and often reaffirmed by this court, that the repeal of a criminal statute without a saving clause terminates all criminal prosecutions not reduced to final judgment. In Sekt v. Justice's Court (1945) 26 Cal.2d 297, 304, 159 P.2d 17, we discussed the rule's theoretical basis: it presumes the Legislature, by removing the proscription from specified conduct, intended to condone past acts.

In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, dealt with the impact on the common law rule of Government Code section 9608, the general saving clause. 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."

Estrada distinguished between amendments to criminal statutes that increase and those that mitigate the penalty imposed. We held that section 9608 defeats the presumption that the Legislature intended to pardon past acts when penalties are increased; in such cases, the saving [21 Cal.3d 213] clause expresses the Legislature's intent that the defendant be punished under the old law rather than avoid punishment for conduct proscribed both before and after amendment of a penal statute. In the event of amendments mitigating punishment, however, we held that section 9608 does not alter the common law rule giving defendants the benefit of the mitigation; section 9608 is intended not to allow punishment beyond that which the Legislature has determined is appropriate for the conduct in question, but rather to prevent a defendant from escaping punishment when his conduct has been and remains within the condemnation of the law.

The intervening amendment discussed in Rossi did not merely mitigate punishment but removed all sanctions for conduct previously proscribed. We noted, however, that it would be untenable to give defendants the benefit of a reduction in punishment while denying them the benefit of a complete remission of punishment. Section 9608 does not compel such a result. Just as an amendment reducing punishment is a sufficient declaration under section 9608 to bar punishment beyond the reduced term, an amendment eliminating criminal sanctions is a sufficient declaration of the Legislature's intent to bar all punishment for the conduct so decriminalized. Rossi represents a logical extension of the principles developed in the line of cases dealing with the common law rule, as we recognized in reaffirming its holding in Governing Board v. Mann (1977) 18 Cal.3d 819, 829, 135 Cal.Rptr. 526, 558 P.2d 1.

This case is clearly controlled by Rossi. Defendant's conviction had not been reduced

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[577 P.2d 1029] to final judgment when new section 288a became effective...