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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Joaquin Garduno RODRIGUEZ, Defendant and Appellant.

No. G011981.

Decided: June 28, 1993

B. Kay Shafer, North Hollywood, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., and Barry J.T. Carlton, Deputy Atty. Gen., for plaintiff and respondent.


Joaquin Garduno Rodriguez appeals the imposition of a four-year sentence.


In July 1991, Rodriguez was stopped after two undercover officers observed him driving a stolen car.   He first told the officers a friend had loaned him the car, but later admitted his girlfriend had told him the car was stolen.   Rodriguez was convicted of felony joyriding (Veh.Code, § 10851) and was sentenced to the aggravated term of four years.

II *


 Effective January 1, 1993, the maximum punishment for the unlawful taking of a vehicle pursuant to Vehicle Code section 10851 was reduced from four years to three years.   Rodriguez, relying on People v. Vasquez (1992) 7 Cal.App.4th 763, 9 Cal.Rptr.2d 255 and In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, maintains retroactive application of the statute is mandated.   Indeed, those cases held “[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act.”  (In re Estrada, supra, 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.)

Recently, several cases have addressed whether Estrada is applicable to our facts.   For reasons we now discuss, we agree with the line of authority which holds it is not.

In In re Pedro T. (1993) 14 Cal.App.4th 453, 17 Cal.Rptr.2d 564, the court noted the Legislature, in 1989, concerned with the rise in car theft, increased the maximum penalty for that crime from three to four years.2  (Id. at pp. 464–465, 17 Cal.Rptr.2d 564.)   The change was self-terminating;  the maximum term was to revert to three years on January 1, 1993.   The court determined “[t]he reduction in punishment effective January 1, 1993, cannot reasonably be understood as reflecting a legislative determination that the earlier punishment was too severe;  the increase was enacted deliberately, in reaction to a perceived crisis involving vehicle thefts.”  (Id. at p. 465, 17 Cal.Rptr.2d 564.)   The court continued, “[T]he punishment must be applicable to all offenses committed within that period.   To hold otherwise provides the canny criminal—and the dedicated defense attorney—with an enormous loophole” (ibid.) and encourages “maximum delay at every stage, in the hope of postponing the finality of judgment until the lesser punishment goes into effect.”  (Id. at p. 466, fn. 11, 17 Cal.Rptr.2d 564.)   Simply stated, the In re Pedro T. court concluded the predetermined decrease in punishment did not equate to an after-imposed statutory amendment resulting in a lighter sentence.

Recently, the court in People v. Vaughan (1993) 15 Cal.App.4th 1124, 19 Cal.Rptr.2d 152, disagreed with In re Pedro T., finding Estrada compelling.   The Vaughan court relied on Bell v. Maryland (1964) 378 U.S. 226, 230, 84 S.Ct. 1814, 1817, 12 L.Ed.2d 822, Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434, footnote 18, and People v. Rossi (1976) 18 Cal.3d 295, 304, 134 Cal.Rptr. 64, 555 P.2d 1313.   But none of the cases, upon which Vaughan relies, is apt here.   Our Supreme Court in Tapia and Rossi based its conclusions upon the inference that absent a savings clause, the Legislature intended the benefits of change to apply to cases not yet final.  (Tapia v. Superior Court, supra, 53 Cal.3d at pp. 300–301, 279 Cal.Rptr. 592, 807 P.2d 434;  People v. Rossi, supra, 18 Cal.3d at pp. 302–304, 134 Cal.Rptr. 64, 555 P.2d 1313.)   The United States Supreme Court in Bell merely stated the general rule in discerning that Maryland common law might obviate any necessity to reach constitutional issues.  (Bell v. Maryland, supra, 378 U.S. at pp. 237–240, 84 S.Ct. at pp. 1820–1822.)   Here the Legislature specifically denominated the time during which the punishment for auto theft was to be raised and the point at which it was to be reduced to its prior level absent further legislative action.

 The “sunset” feature of the legislation we consider here is sufficient to rebut any presumption the Legislature intended any benefit to criminals who were fortunate enough to wangle a conviction date after the lower sentence structure was reimplemented.   It is tantamount to a savings clause.   We disagree with the Vaughan court that the absence of an express savings clause demonstrates a legislative intent for retroactivity.  (People v. Vaughan, supra, 15 Cal.App.4th at p. 1129, 19 Cal.Rptr.2d 152.)   When a law is prospectively amended to raise the punishment for crime for a given time and then it is reduced on a certain date, the Legislature has expressly stated its will on how that punishment should be administered.   No specific “savings clause” is necessary.

As explained in People v. Michaels (1993) 16 Cal.App.4th 459, ––––, 20 Cal.Rptr.2d 121 “the addition of a sunset clause to a statute with a declared purpose of its amendment, such as the one here, constitutes a ‘savings clause’ within the meaning of In re Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, and should not be applied retroactively.”

“Given the history of the amendment, we do not find ourselves compelled to give the [defendant] the benefit of the more lenient term.”  (In re Pedro T., supra, 14 Cal.App.4th at p. 466, fn. 12, 17 Cal.Rptr.2d 564.)

The judgment is affirmed.


FOOTNOTE.   See footnote, ante.

2.   The increase was effective January 1, 1990, through December 31, 1992.

SONENSHINE, Associate Justice.

MOORE, Acting P.J., and WALLIN, J., concur.