People v. Rossi

Decision Date10 November 1976
Docket NumberCr. 19292
Citation555 P.2d 1313,134 Cal.Rptr. 64,18 Cal.3d 295
CourtCalifornia Supreme Court
Parties, 555 P.2d 1313 The PEOPLE, Plaintiff and Respondent, v. Sheila I. ROSSI, Defendant and Appellant. In Bank

Fleishman, McDaniel, Brown & Weston and Stanley Fleishman, Beverly Hills, for defendant and appellant.

Roland & Wright, Thomas V. Roland, Alton L. Wright, II, Berkeley, Fred Okrand, John D. O'Loughlin, Jill Jakes, Daniel C. Lavery and Mark Rosenbaum, Los Angeles, as amici curiae on behalf of defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent. TOBRINER, Justice.

Defendant appeals from a judgment of conviction entered after a nonjury trial in which the court found her guilty of five counts charging violation of section 288a of the Penal Code. Defendant contends that her conviction should be reversed because, before the conviction became final, the Legislature amended section 288a of the Penal Code so as to legalize her conduct. We conclude that in light of the intervening amendment the conviction must be reversed.

The relevant facts are undisputed. Defendant, a part-time instructor in psychology at UCLA, is a married woman with two children. During the filming of several low-budget movies, she committed several sexual acts which constituted violations of former section 288a. 1 After the trial court rendered its judgment of conviction, it suspended proceedings and placed defendant on probation for three years. Defendant has appealed.

At the time defendant committed the charged acts, Penal Code section 288a broadly proscribed all oral copulation, even between consenting adults. 2 On January 1, 1976, after the rendition of judgment but before its finality by the lapse of the period for appeal, amended section 288a took effect. (Stats.1975, ch. 71, § 10, p. 147; Stats.1975, ch. 877, § 2, p. 2247.) The People concede that the acts which defendant committed are not criminal under section 288a as amended. 3

At common law, a statute mitigating punishment applied to acts committed before its effective date as long as no final judgment had been rendered. (See People v. Hayes (1894) 140 N.Y. 484, 35 N.E. 951.) Similarly, when a statute proscribing certain designated acts was repealed without a saving clause, all prosecutions for such act that had not been reduced to final judgment were barred. (United States v. Schooner Peggy (1801) 1 Cranch 103, 110, 2 L.Ed. 49 (Marshall, C.J.).) Until a decade ago, however, a line of California cases--primarily Court of Appeal decisions--had interpreted the general saving clause embodied in Government Code section 9608 4 and its predecessors as completely abrogating these common law rules. 5

In In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, this court undertook an extensive review of this entire line of authority and concluded that the earlier cases had improperly extended the application of Government Code section 9608 far beyond its intended scope. In Estrada we observed that at common law when a statute was passed that Increased the punishment for a crime, a defendant who committed the proscribed acts prior to the effective date of the new law could not be punished under the old law because it no longer existed, and he could not be punished under the new law because its attempted application would render it an ex post facto law. (See Sekt v. Justice's Court (1945) 26 Cal.2d 297, 159 P.2d 17.)

Section 9608, we explained in Estrada, was enacted simply to authorize prosecutions under the former statute in order to avoid this technically absurd result by which a defendant could be prosecuted under no law, simply because the Legislature had decided to Increase the punishment for his crime. (See People v. McNulty (1892) 93 Cal. 427, 437, 26 P. 597.) We concluded, however, that the provision was not intended to abrogate the well-established common law rule which, in the absence of clear legislative intent to the contrary, accorded a criminal defendant the benefit of a mitigation of punishment adopted before his criminal conviction became final. Thus, we held that '(w)here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.' (63 Cal.2d at p. 748, 48 Cal.Rptr. at p. 177, 408 P.2d at p. 953.) 6

The Estada court's conclusion as to the limited reach of Government Code section 9608 finds direct support in a line of United States Supreme Court decisions construing the comparable language of the general federal 'saving' provision. (1 U.S.C. § 109.) 7 In Hamm v. Rock Hill (1964) 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, for example, the Supreme Court concluded that, notwithstanding the general saving provision, the Civil Rights Act of 1964, by removing criminal sanctions for 'sit-in' demonstrations in public accommodations, would mandate the abatement of any federal trespass conviction rendered, but not finawlized, prior to the passage of the Civil Rights Act. As the Hamm court explained: 'The federal saving statute was originally enacted in 1871, 16 Stat. 432. It was meant to obviate mere technical abatement such as that illustrated by the application of the rule in Tynen (United States v. Tynen (1871) 78 U.S. (11 Wall.) 88, 95, 20 L.Ed. 153) decided in 1871. There a substitution of a new statute with a greater schedule of penalties was held to abate the previous prosecution. In contrast, the Civil Rights Act works no such technical abatement. It substitutes a right for a crime. So drastic a change is well beyond the narrow language of amendment and repeal (of the federal saving statute). It is clear, therefore, that if the convictions were under a federal statute they would be abated.' (Emphasis added.) (379 U.S. at p. 314, 85 S.Ct. at 390. See also United States v. Chambers (1934) 291 U.S. 217, 224, 54 S.Ct. 434, 78 L.Ed. 763.) Estrada teaches that section 9608 must properly be accorded a similar limited scope, and thus is inapplicable in the instant case.

The People contend, however, that the case at bar is distinguishable from Estrada, pointing out that in the instant case the intervening amendment has entirely eliminated any criminal sanction for defendant's acts while in Estrada the intervening amendment merely reduced the punishment for the conduct. Although it is true that Estrada and recent California cases applying Estrada have involved intervening enactments which merely reduced, rather than entirely eliminated, penal sanctions (see, e.g., People v. Francis (1969) 71 Cal.2d 66, 75 Cal.Rptr. 199, 450 P.2d 591; In re Fink (1969) 67 Cal.2d 692, 693, 63 Cal.Rptr. 369, 433 P.2d 161; In re Ring (1966) 64 Cal.2d 450, 452, 50 Cal.Rptr. 530, 413 P.2d 130), numerous precedents demonstrate that the common law principles reiterated in Estrada apply a fortiorari when criminal sanctions have been completely repealed before a criminal conviction becomes final.

In Spears v. County of Modoc (1894) 101 Cal. 303, 35 P. 869, for example, defendant was convicted in justice court of violating a local penal ordinance prohibiting 'the keeping of a saloon where spiritous liquors were sold' and was fined $500. Pending his appeal to the superior court, the local ordinance was repealed but the superior court nonetheless affirmed the conviction. In subsequent proceedings, this court determined that the superior court had been in error and explicitly held that the repeal of the ordinance before the judgment became final invalidated the conviction.

Citing numerous respected authorities, the Spears court explained its conclusion at some length: '(T)he effect of repealing a statute is 'to obliterate it as completely from the records of the parliament as if it had never passed; and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded while it was an existing law.' This principle has been applied more frequently to penal statutes, and it may be regarded as an established rule that the repeal of a penal statute without any saving clause has the effect to deprive the court in which any prosecution under the statute is pending of all power to proceed further in the matter. 'The repeal of a statute puts an end to all prosecutions under the statute repealed, and to all proceedings growing out of it pending at the time of the repeal.' (Sedgwick's Statutory and Constitutional Law, 130. . . . 'If a penal statute is repealed pending an appeal, and before the final action of the appellate court, it will prevent an affirmance of a conviction, and the prosecution must be dismissed, or judgment reversed.' (Sutherland on Statutory Constitution, sec. 166.)' (101 Cal. at p. 305, 35 P. at p. 870.)

The opinion specifies when this general principle applies. 'The proceeding is arrested at the very point where it is at the date of the repeal; if before indictment no indictment can be found; if after indictment, and before trial, no conviction can be had; if after conviction and before judgment, no judgment can be rendered. If the judgment is appealed from, and its enforcement is suspended until the determination of the appeal, the power to enforce the judgment falls with the repeal of the statute, and the appellate court will direct a dismissal of the proceedings. Until the determination of the appeal, the proceeding is pending in court, and the judgment does not become final until affirmed by the appellate court. If, during the interim, the legislature repeals the statute under which the prosecution is had, it operates as a discharge of the defendant. 'The repeal of the law imposing the penalty is of itself a remission.' (Per Taney, C.J., State v. R.R. Co., 3 How. 534, 522, 11 L.Ed. 714.)' (101 Cal. at pp. 305--306, 35...

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