# People v. Harmon > California Supreme Court · April 8, 1960 · 54 Cal. 2d 9 URL: https://www.frixlaw.com/law-library/cases/9789995 ## Case - **Full name:** The PEOPLE, Respondent, v. ROBERT S. HARMON, Appellant - **Court:** California Supreme Court - **Decided:** April 8, 1960 - **Citations:** 54 Cal. 2d 9; 4 Cal. Rptr. 161; 351 P.2d 329; 1960 Cal. LEXIS 139 - **Precedential status:** Published - **Opinion:** Concurring in part by Peters - **Judges:** Schauer, Peters - **Cited by:** 56 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled by In Re Estrada, 63 Cal. 2d 740 (1965). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9789995 ## Opinion text PETERS, J., Concurring and Dissenting. I agree with the majority opinion insofar as it holds that the evidence sustains the finding of guilt, and I further agree that there were no prejudical errors in the trial of that issue. But I am of the view that the portion of the proposed opinion that holds that Harmon is not entitled to have his punishment fixed under section 4500 of the Penal Code as it now reads is erroneous. The majority opinion correctly points out that, when this crime (assault likely to produce bodily harm committed by one under a life sentence) was committed, and when Harmon was tried, convicted, and judgment was entered, section 4500 of the Penal Code made the death penalty mandatory. The majority opinion also correctly points out that while this appeal was pending, there became effective an amendment to section 4500 by which it is now provided that where, as here, the victim does not die as a result of the assault, the trier of the fact, in its discretion, may impose a penalty less than death. The question thus presented is, under what statute is Har *28 mon to be punished—-the old severe one, or the one mitigating the punishment? The majority opinion holds that Harmon must be punished under the old superseded statute. With this I disagree. It is my conviction that under settled principles of interpretation Harmon is entitled to the benefit of the amended statute. This conclusion follows from a consideration of the general law applicable to the repeal or amendment of penal statutes imposing punishment. It is well settled that, where the old statute, in existence when the crime was committed, is repealed pending appeal, and there is no saving clause, all prosecutions not reduced to final judgment are barred. The accused, in such a situation, must go free. This is the rule at common law and is the rule in this state. (Spears v. County of Modoc, 101 Cal. 303 [ 35 P. 869 ].) This same result follows where the old statute in existence when the crime was committed is amended, without a saving clause, pending appeal, so as to increase the punishment. In such a situation the offender cannot be punished under the new law because to do so would be ex post facto, and he cannot be punished under the old law, because it has been repealed without a saving clause. At common law, and under the law of this state, all prosecutions for acts committed before the amendment and not reduced to final judgment are barred. (.Sekt v. Justice’s Court, 26 Cal.2d 297 [ 159 P.2d 17 , 167 A.L.R. 833 ].) In both of the situations above described it is presumed that the Legislature intended to grant a legislative pardon. But a saving clause, such as is found in Government Code, section 9608, rebuts the presumption of an intent to pardon. In both of the situations above discussed, if there is a saving clause, the offender may be punished under the old law. This is so because the saving clause has expressed the intent that, even though the old statute has been repealed or amended, the offender is to be punished, and since the only law under which he can be punished is the old law, he is to be punished under that law. The third situation when an amendment to the punishment provision of a penal statute is involved is where the old statute, in existence when the crime was committed, is amended pending appeal so as to mitigate the punishment. If there is no saving clause the weight of authority, and the rule in California, is that punishment must be imposed under the new *29 law. The majority opinion recognizes that this is the proper rule, and cites Sekt v. Justice’s Court, 26 Cal.2d 297 [ 159 P.2d 17 , 167 A.L.R. 833 ], in support of it. That case undoubtedly so held. At page 305 this court stated: “In such a case the problem is not complicated by the prohibition against ex post facto laws, since it is well settled that beneficial legislation is not within the prohibition of the constitutional provision. . . . Where the later statute reduces the punishment the cases quite uniformly hold that the offender may be punished under the new law . . . [Citing many cases.] All these cases, and the cases cited in them, base their conclusion that the offender who commits an offense before the amendment of the statute imposing the lighter sentence gets the benefit of the lighter punishment, upon the ground that it must have been the intention of the Legislature that the offender should be punished, and, since he can be constitutionally punished under the new statute, that should be d on e.’’ This rule is well settled, even though its result is to give retrospective operation to the amendment mitigating punishment. The reasoning is that, without a saving clause, the offender cannot be punished under the old statute, and if he is to be punished at all, as the Legislature has clearly indicated, he must be punished under the new law. Therefore, the general rule that statutes should ordinarily be construed to operate prospectively, and should not be construed to operate retroactively, a principle codified as to penal statutes in section 3 of the Penal Code, is not applicable. That is so because the intent to operate retroactively can be spelled out of the amending statute, and its practical application. The majority opinion holds that this common sense and well-settled rule does not apply when there is a saving clause. The saving clause relied upon is section 9608 of the Government Code. It provides: ‘ ‘ The termination or suspension (by whatsoever means effected) of any law creating a criminal offense does not constitute a bar to the . . . punishment of an act already committed in violation of the law so terminated or suspended, unless the intention to bar such . . . punishment is expressly declared by an applicable provision of law.” It will be noted that this saving clause does not say a word about what statute shall apply to the offender—whether the old or the new. It simply expresses the intent that the offender shall be punished. How can a statute that simply expresses such an intent be distorted into an expression of intent that *30 the old statute shall apply? If the rule is that, where the amendment mitigates punishment and there is no saving clause, the amendment shall operate retroactively so as to apply the lighter punishment, how does such a saving clause change that rule to make the old law applicable? The simple answer is that it does not. It is true that the majority opinion cites some appellate court decisions which so hold. They are: In re Crane, 4 Cal. App.2d 265, 266-267 [ 41 P.2d 179 ] ; People v. King, 136 Cal. App. 717, 721 [ 29 P.2d 870 ]; People v. Williams, 24 Cal.App. 646, 650 [ 142 P. 124]; People v. Davis, 67 Cal.App. 210, 215 [ 227 P.2d 494]; People v. Pratt, 67 Cal.App. 606, 608 [ 228 P. 47 ]; People v. Edwards, 72 Cal.App. 102, 119 [ 236 P. 944 ] ; People v. Lindsay, 75 Cal.App. 115, 121 [ 242 P. 87 ]; People v. Fowler, 175 Cal.App.2d 808, 812 [ 346 P.2d 792 ]; see also 45 California -Jurisprudence 2d, Statutes, section 66, page 588. All of these cases, and the holding in the majority opinion, are based, fundamentally, on an erroneous premise. They are based on the erroneous reasoning that, because the saving clause permits punishment under the old law where the statute is amended after conviction and pending appeal so as to increase the punishment, the same rule must be applied where the amendment mitigates the punishment. It is only by blind adherence to this concept that the appellate court decisions or the views accepted by the majority can be sustained. It is significant that all of the appellate court decisions are either based on this concept or simply cite each other. In both situations, that is, where the amendment increases or decreases the punishment, we are required to ascertain the legislative intent. The saving clause tells us that the Legislature intended that the offender be punished, but it offers no clue as to what statute shall be applied. Where the amended statute increases the punishment the amended statute cannot constitutionally be applied to the punishment of crimes already committed, because of the constitutional inhibition against ex post facto laws. Therefore, it is obvious that the saving clause must be interpreted as disclosing an intent that the offender shall be punished under the old law because that is the only law, constitutionally, under which he can be punished. In such a situation the saving clause is the conclusive factor. But that is not so where the amendment mitigates the punishment. In such a situation the offender, constitutionally, can he punished under either the *31 old or tho amended law. Now the saving clause is of no help at all. It simply tells us that the Legislature intended that the offender should be punished, but it gives no indication at all as to which statute shall apply. Thus, the reliance on the rule applicable where the amendment increases the punishment by the appellate courts in the cases cited above, and a similar reliance in the majority opinion, is unwarranted. This brings us back to trying to ascertain the legislative intent. This is not an easy task. As was said by Judge Learned Hand in United States v. Klinger, 199 F.2d 645 , 648: “When we ask what Congress ‘intended,’ usually there can be no answer, if what we mean is what any person or group of persons actually had in mind. Flinch as we may, what we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion. He who supposes that he can be certain of the result is the least fitted for the attempt.” As difficult as it is to ascertain the legislative intent the court should not shirk its task by blindly following the so-called rules of construction, and by disregarding the realities of the situation before the court. The majority adheres strictly to the general rule of construction 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. But this rule of construction is not a strait jacket. It is not to be followed blindly in complete disregard of other factors that may give a clue to the presumed legislative intent. It is to be applied only when the presumed legislative intent cannot reasonably be ascertained from other factors. In the instant case there are considerations that indicate that the Legislature intended the amended statute to operate retroactively. This being so, the so-called rule of construction should not be followed. In the instant case, we have two statutes-—the old and the amended one—under either of which the offender may be punished. The Legislature has not indicated which statute shall apply. The only thing that supports applying the old law is the general rule of construction that an amended statute is presumed to operate prospectively and not retroactively, the rule relied upon in the majority opinion. But, as already pointed out, that rule is not inflexible. It does not apply where a contrary intent is reasonably ascertainable. We know, for *32 example, as already pointed out, that it has been disregarded in those situations where the amended statute, as here, mitigates the punishment and there is no saving clause. Since the saving clause adds nothing in determining which law shall be applied, why should the same rule not apply whether there is or is not a saving clause? It should. The majority opinion disregards a most compelling consideration that indicates that the Legislature must have intended this statute to operate retroactively. That consideration is that, when the Legislature amended this law, it must have intended the new punishment to apply to all cases to which it can apply. The Legislature has considered the punishment that should be imposed for the offense in question. It has come to the conclusion that the new punishment fixed by the amendment is the proper punishment to be imposed for that offense. It certainly is reasonable to assume that the Legislature intended that the amended law, setting forth the punishment the Legislature now feels fits the crime, should apply to all cases to which it can constitutionally apply. There is no logical or rational reason to presume, as does the majority opinion, that the Legislature, in such eases, intended the old law to apply. Such a presumption can only be predicated on the theory that punishment is intended as vengeance against the wrongdoer. This violates all the modern theories of penology. These views were forcefully expressed in a fairly recent New York case—People v. Oliver, 1 N.Y.2d 152 [ 134 N.E.2d 197 , 151 N.Y.S.2d 367 ]. There, after holding that the defendant was entitled to the benefit of the mitigated punishment the court stated (p. 373 [151 N.Y.S.2d]): “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 *33 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. ’ ’ For these compelling reasons, I believe that the presumption that amended laws are to operate prospectively and not retroactively has been rebutted, and that, for reasons already stated, a contrary legislative intent appears. In my opinion Harmon should be retried on the issue of penalty under the amended statute. Gibson, C. J., and Traynor, J., concurred. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9789995. Public record. Not legal advice.