People v. Floyd, No. S105225.

• Court: United States State Supreme Court (California)
• Writing for the Court: BAXTER, J.
• Citation: 31 Cal.4th 179,72 P.3d 820,1 Cal.Rptr.3d 885
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andre Rene FLOYD, Defendant and Appellant.
• Docket Number: No. S105225.
• Decision Date: 21 July 2003

1 Cal.Rptr.3d 885
31 Cal.4th 179
72 P.3d 820

The PEOPLE, Plaintiff and Respondent,
v.
Andre Rene FLOYD, Defendant and Appellant

No. S105225.

Supreme Court of California.

July 21, 2003.

1 Cal.Rptr.3d 886

Conrad Petermann, Beverly Hills, under appointment by the Supreme Court, for Defendant and Appellant

Marylou Hilberg for Tommy Lee Fryman as Amicus Curiae on behalf of Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stan Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

In this case we must decide whether Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, applies to defendants who were sentenced prior to the act's effective date of July 1, 2001, but whose judgments were not yet final as of that date. We conclude that the act's saving clause—which states that "[e]xcept as otherwise provided, the provisions of this act shall become effective July 1, 2001, and its provisions shall be applied prospectively" (Prop. 36, § 8, as approved by voters, Gen. Elec. (Nov. 7, 2000) (Prop.36), reprinted at 51 West's Ann. Pen.Code (2003 supp.) foll. § 1210, p. 221)—indicates the act was not intended to apply retroactively to this subset of cases. We also reject defendant's alternative claim that the failure to accord retroactive effect to Proposition 36 would violate his state and federal right to equal protection. We therefore affirm the Court of Appeal.

Background

On April 30, 2000 Bakersfield police responded to the reported natural death of defendant's long-term girlfriend. Defendant was distraught and crying. At some point, while standing near the body of his girlfriend, defendant began a sustained bout of coughing. Officer Damacio Diaz saw a small plastic baggie fly out of defendant's mouth and land on the deceased. As soon as it landed, defendant grabbed the baggie and shoved it underneath the body. Officer Diaz retrieved the baggie, which contained 0.25 grams of cocaine.

A jury convicted defendant of possession of cocaine (Health & Saf.Code, § 11350, subd. (a)) and found he had five prior felony convictions within the meaning of the "Three Strikes" law: two attempted robberies and an assault with a deadly weapon causing great bodily injury on October 21, 1981; a burglary on October 30, 1984; and a burglary on January 7, 1985. On November 9, 2000, the trial court sentenced defendant to a third strike term of 25 years to life.

A divided panel of the Court of Appeal affirmed in an opinion published in part.

Proposition 36

On November 7, 2000, two days before defendant was sentenced, California voters passed Proposition 36, the Substance Abuse and Crime Prevention Act of 2000. Proposition 36 amended state law to require that certain adult drug offenders receive probation, conditioned on participation in and completion of an appropriate drug treatment program, instead of receiving a prison term or probation without drug treatment. (Pen.Code, § 1210.1.)

Under new Penal Code section 1210.1, subdivision (a), a defendant convicted of a nonviolent drug possession offense "shall"

1 Cal.Rptr.3d 887

receive probation, provided the defendant is not rendered ineligible under subdivision (b). A court may not impose incarceration as an additional condition of probation for defendants eligible under the statute. (Pen.Code, § 1210.1, subd. (a).) The new law also created the Substance Abuse Treatment Trust Fund, with an initial $60 million appropriated for the 2000-2001 fiscal year and $120 million appropriated for each of the following five years. (Health & Saf.Code, §§ 11999.4, 11999.5.)

In uncodified section 8 (Section 8), entitled Effective Date, the initiative stated: "Except as otherwise provided, the provisions of this act shall become effective July 1, 2001, and its provisions shall be applied prospectively." (Prop. 36, § 8, reprinted at 51 West's Ann. Pen.Code, supra, foil. § 1210, p. 221.)

Discussion

Defendant contends that because Proposition 36 is an ameliorative statute and his conviction is not yet final, he is entitled to the initiative's benefits under our rule in In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (Estrada). Under the Estrada rule, an amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date. (Id. at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.) In the alternative, he contends that it would violate principles of equal protection to deny him the ameliorative benefits of the initiative. We reject both contentions.

A

The parties agree that Proposition 36 ameliorates the punishment for those persons convicted of nonviolent drug possession offenses who are eligible for its programs and that defendant might be eligible for those programs if Proposition 36 applies here. Defendant argues that Proposition 36 should apply to him because his conviction was not yet final at the time Proposition 36 became effective. He relies on Estrada, supra, 63 Cal.2d at page 744, 48 Cal.Rptr. 172, 408 P.2d 948, where we held that "[i]f 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 Attorney General, on the other hand, points out that Estrada does not apply "when there is a saving clause" (id. at p. 747, 48 Cal.Rptr. 172, 408 P.2d 948) and finds such a saving clause in Section 8 of the initiative, which states, "Except as otherwise provided, the provisions of this act shall become effective July 1, 2001, and its provisions shall be applied prospectively."

Whether Proposition 36 applies here requires us to "ascertain the legislative intent—did the [voters] intend the old or new statute to apply?" (Estrada, supra, 63 Cal.2d at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948; People v. Nasalga (1996) 12 Cal.4th 784, 791, 50 Cal.Rptr.2d 88, 910 P.2d 1380 (Nasalga) (plur. opn. of Werdegar, J.); id. at p. 799, 50 Cal.Rptr.2d 88, 910 P.2d 1380 (cone. opn. of Kennard, J.).) Since the voters legally and constitutionally could have chosen either one (Estrada, supra, 63 Cal.2d at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948), we must decide which one was intended.

We begin with section 3 of the Penal Code. That section embodies the general rule of statutory construction that "when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively." (Estrada, supra, 63 Cal.2d at p. 746, 48 Cal.Rptr. 172, 408 P.2d 948.) We found a contrary intent in Estrada where a criminal

1 Cal.Rptr.3d 888

statute had been amended to lessen the punishment after the prohibited act was committed but before final judgment had been entered in the case. Although the Legislature did not expressly state whether the old or new statute should apply in that circumstance, we found one consideration of "paramount importance" (id. at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948): "`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.'" (Id. at p. 745, 48 Cal. Rptr. 172, 408 P.2d 948.) From this, "[i]t 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 defendant of the act is not final." (Ibid.) Thus, "[i]f there is no saving clause ... the rule of construction that statutes are normally to be interpreted to operate prospectively and not retroactively (a rule embodied in section 3 of the Penal Code) has been rebutted." (Id. at p. 747, 48 Cal.Rptr. 172, 408 P.2d 948, italics added.)

The problem for defendant is that Section 8 of Proposition 36 does include a saving clause, which states that the act "shall be applied prospectively." We need not range far to discover what "prospectively" means, since we have used the term ourselves with regularity. (See People v. Weidert (1985) 39 Cal.3d 836, 845-846, 218 Cal.Rptr. 57, 705 P.2d 380.) We used the term in Estrada to refer to the general rule of construction, embodied in Penal Code section 3, that an amended statute should not be applied retroactively to cases not yet reduced to final judgment. (Estrada, supra, 63 Cal.2d at pp. 746-747, 48 Cal.Rptr. 172, 408 P.2d 948.) We used the term in Nasalga for the same purpose: "The rule in Estrada, of course, is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of an express saving clause or its equivalent." (Nasalga, supra, 12 Cal.4th at p. 793, 50 Cal.Rptr.2d 88, 910 P.2d 1380 (plur. opn. of Werdegar, J.), italics added.) We therefore conclude that this language, at least when read in isolation, reveals an intent to avoid the Estrada rule. (In re Pedro T. (1994) 8 Cal.4th 1041, 1049, 36 Cal.Rptr.2d 74, 884 P.2d 1022 ["what is required is that the Legislature demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it"]; see Nasalga, supra, 12 Cal.4th at p. 793, 50 Cal.Rptr.2d 88, 910 P.2d 1380 (plur. opn. of Werdegar, J.).)

As defendant points out, however, the two main clauses in Section 8 cannot be read in isolation but are preceded by an introductory clause: "Except as otherwise provided...." Defendant reasons that the phrased exception necessarily refers to the Estrada rule and concludes that Proposition 36 does apply prospectively except to...