In Re Estrada

BURKE, J., Dissenting.

In People v. Harmon, 54 Cal.2d 9 [ 4 Cal.Rptr. 161 , 351 P.2d 329 ], this court held that when there is nothing to indicate a contrary intent it will be presumed that the Legislature intended a statute to operate prospectively and not retroactively. As to criminal statutes, this rule is codified in section 3 of the Penal Code, enacted in 1872, and unamended since that date. This section is but a restatement of a general rule of statutory construction. (Von Schmidt v. Huntington (1850) 1 Cal. 55, 65 .) The principle of nonretroactivity is also clearly expressed, in section 9608 of the Government Code (see ante, p. 746), with respect to the punishment of an act presently committed in violation of a law subsequently terminated, unless the intention to bar such punishment is expressly declared by an applicable provision of the law.

The majority opinion overrules Harmon and a host of decisions of our appellate courts which have faithfully applied these basic rules of statutory construction and permits the ascertainment by a court of the legislative intent from a consideration of other relevant factors, where no intent as to retroactivity is expressed in the new law (ante, p. 744). The opinion concedes that had “the Legislature expressly stated which statute should apply [the old or new], its determination, either way, would have been legal and eonstitutional.[ 1 ] It has not done so. ’ ’

The former rule for determining the legislative intent was based on the proposition that if the Legislature desired a statute to have retroactive effect it would have so stated. As was said by Mr. Justice Sehauer in Harmon ( 54 Cal.2d at p. 22 ), “This view of the legislative intent is confirmed by the *752 fact that the Legislature, when it desires to make an ameliorating amendment retrospective in effect, knows how to do so and does so expressly.” (Citing examples.)

It was further declared in Harmon (pp. 23-24) : ” [W]e find no basis for implying an intention of the California Legislature that amendments ameliorating punishment should have retroactive operation in the face of the general saving clause. It is true that there is no express statement in such clause (Gov. Code, § 9608 . . . ) as to whether the offender should be punished under the old or the new law. But consideration of its history impels the conclusion that it was intended to save the old law as applicable to offenses committed before the effective date of the new law. As recounted in Sekt [Sekt v. Justice’s Court, 26 Cal.2d 297, 300 ( 159 P.2d 17 , 167 A.L.R. 833 )], the predecessor of section 9608 of the Government Code was enacted in 1853 to repudiate the common-law rule of complete remission of prosecution by outright repeal of a penal law, and it was properly and consistently (beginning with People v. Barbour (1858) 9 Cal. 230, 231, 234 ) held to have that effect. Thereafter, when cases advancing the contention that a statutory mitigation of punishment effected a total remission arose in California, it was consistently, and in our opinion properly, held that the saving clause preserved the former punishment, when penal statutes were amended to mitigate punishment, so that such mitigation did not apply to those who had offended before the ameliorating amendment. That is, the Legislature was considered to have intended that such clause (which of course was expressly directed to the question of saving) should save all that was possible in the absence of contrary legislative expression directed to the specific new, mitigating statute. Now defendant would have us find a newly arisen, contrary legislative intent in an amendatory statute such as the one with which we are here concerned (the 1959 amendment of Pen. Code, § 4500 . . . ) although that amendment says nothing about the subject of saving. If the Legislature at some unspecified time between 1853 and 1959 acquired an intent to silently do all it could to mitigate punishment by an amendatory statute which says nothing as to whether such mitigation shall be prospective or retrospective, it could also have acquired a similar tacit purpose to remit all it could by a repealing statute. We cannot accede to the view that the Legislature has evidenced an intention that the long standing saving clause shall be or has become of less or of no effect.

*753 “Rather, the amending (and amended) statute defining the crime and prescribing the punishment (Pen. Code, § 4500) and the general saving clause (Gov. Code, § 9608) are to be read together as one act. ’ ’

The certainty of punishment has always been considered one of the strongest deterrents to crime. That certainty is best afforded when the punishment described by the law existent at the time of commission of the crime is promptly and inexorably meted out to those who violate the law. By changing the rules to make punishment uncertain the risk assumed by those contemplating committing a crime is substantially reduced. It is never enhanced since the ex post facto principles apply. Thus those contemplating and subsequently committing crime have all to gain and nothing to lose by seeking every avenue of delay through appeals and legal maneuvers of all kinds, for, who knows, the Legislature might in the meantime reduce the punishment. If in the meantime the Legislature reduces the punishment, even though it does not state any intention to make the new statute applicable retroactively, as long as such a beneficent act takes place before their judgments of conviction become final the decision in the case at bench will extend to them the benefits of the new statute ameliorating punishment.

But what of the defendant who pleads guilty to an offense ? His conviction promptly becomes final, thereby effectively shutting the door to his ever receiving any benefit under the majority decision in this case. Unless the Legislature in any subsequent amendment of the law prescribing his punishment expressly states that it is its intention to ameliorate punishments theretofore meted out to previous violators of the law, there is no way in which he may benefit from the reduced penalty. As often as not, when compared with the person who pleads not guilty, the one pleading guilty may be the more deserving of the two.

Thus the majority opinion creates a situation which will result in what will certainly appear to those in prison, whose judgments have become final, as a gross inequity and as an unequal treatment under the law. It has the effect of encouraging appeals and delays not related to guilt or innocence but employed solely to keep open the possibility of subsequent windfalls effected by the combination of an ameliorating legislative act and the application of the opinion of the majority in this case.

*754 Each of the arguments advanced by the majority supporting their decision is applicable with equal force to one whose judgment of conviction has become final but who is still serving a portion of his sentence. To extend the benefits of this new method of giving force to an undeclared legislative intent to one group of prisoners and not to another does nothing to earn respect for the law.

As was pointed out in Harmon , it is the responsibility of this court to uphold and enforce the law—exactly as enacted by the Legislature—and not to read into the law an intent not expressly stated therein, particularly when in order to do so we must override the rules expressly established by the Legislature that its laws are not to be given retroactive effect unless expressly so declared.

For these reasons I dissent.

McComb, J., and Schauer, J., * concurred.

Respondent’s petition for a rehearing was denied January 19, 1966. Mos-k, J., did not participate therein. McComb, J., Burke, J., and Schauer, J.,* were of the opinion that the petition should be granted.

As noted in the majority opinion, there is one exception to this general rule, and that is that a new statute cannot be made to operate as an ex post facto law increasing a penalty, making an act a crime which was not previously a crime, imposing more burdensome rules of evidence, etc. (Calder v. Bull, 3 U.S. (3 Dall.) 386 , 390 [ 1 L.Ed. 648 ].)

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.