PEOPLE v. VAUGHAN

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Norman L. VAUGHAN, Jr., Defendant and Appellant.

D016380.

Decided: May 10, 1993

John Leis Staley, Poway, 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., Keith I. Motley and Janelle B. Davis, Supervising Attys. Gen., and Pamela A. Ratner, Deputy Atty. Gen., for plaintiff and respondent.

Norman L. Vaughan, Jr. (Vaughan), appeals his conviction by jury of unlawfully taking a vehicle (Veh.Code, § 10851, subd. (a)) and possessing burglary tools (Pen.Code, § 466).   Vaughan also admitted previous felony convictions.   He was sentenced to the three-year middle term for vehicle theft as provided for by the law then in effect, with a concurrent six-month term for the burglary tools.

Vaughan argues various matters concerning the trial court's exercise of discretion, none of which has merit.   He also argues, however, that his sentence must be reduced because the mid-term for the Vehicle Code section 10851, subdivision (a) offense is now two years rather than three.   We find this contention has merit.   Thus we order modification of the abstract of judgment, and otherwise affirm.

BACKGROUND *

DISCUSSION

I.–IV **

V. APPLICATION OF MELIORATED PUNISHMENT TO THIS CASE

Vaughan's last contention revolves around the fact that as of January 1, 1993, Vehicle Code section 10851 no longer provides for a sentencing range of two, three, or four years.   Statutes 1989, chapter 930, section 11, pages 3258–3259, in what is commonly known as a “sunset” law, provided for a three-year period in which the former sixteen-month, two- and three-year terms were to be increased.  (At all times the offense has been alternatively punishable as a misdemeanor.)   Following the expiration of this three-year period, in the absence of other enactments the former lower penalties were to be, and now have been, restored.

 While conceding that legislative reductions in penalty, absent a savings clause, must be applied to all cases not yet final, the Attorney General argues that a “sunset” enactment should be subject to a different rule, because the “sunset” feature is “a time-limited experiment in longer sentences.”   The legislature thus must have intended that enhanced penalties be applicable to every offense committed within a “sunset” period, it is argued, because otherwise the experimental data would be skewed, and to hold otherwise would open the door to dilatory tactics by many defendants seeking to obtain the benefits of a lesser punishment.

 Division Two of this district has agreed:  “While we are not privy to the reasons for which the increased punishment was allowed to expire, common sense tells us that where the Legislature increases the punishment for an offense for a limited period—perhaps as a test of its efficacy as a deterrent—the 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, where the Legislature signals its intention to reduce punishment several years in advance.”  (In re Pedro T. (1993) 14 Cal.App.4th 453, 465, 17 Cal.Rptr.2d 564.)   For the reasons which follow, however, we cannot join our brethren in their analysis of this question.

The Attorney General argues mitigation only applies if penalty reduction is a “new” enactment, supporting the argument by citing the legislative history which declared the temporary increase was “in the best interest for public safety.”   The fundamental problem is that we are asked to accept as a positive legislative intent that the temporary increase in punishment be applied to every offense committed before January 1, 1993, as if there had been a savings clause enacted so directing, but in the total absence of any such language in the enactment itself.   If the cited legislative history were more informative it would still be a weak basis for construction;  the absence of information here renders it largely useless.2

An examination of precedent reveals that limitation of mitigation to “new” enactments, as suggested by the Attorney General, is without foundation.   The controlling principle is “the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct ” the meliorated punishment must be applied to all cases not yet final on appeal.  (Bell v. Maryland (1964) 378 U.S. 226, 230, 84 S.Ct. 1814, 1817, 12 L.Ed.2d 822, italics added.) 3

Bell v. Maryland has been cited on this precise point by the California Supreme Court both in People v. Rossi (1976) 18 Cal.3d 295, 304, 134 Cal.Rptr. 64, 555 P.2d 1313, and again most recently in Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, footnote 18, 279 Cal.Rptr. 592, 807 P.2d 434.4  Unless we are to assume such citation was inadvertent, the context and foundations of Bell v. Maryland are thus of much weight.

As any recourse to Bell v. Maryland itself reveals, the determination reached therein was based upon reference and citation to Keller v. State (1858) 12 Md. 322, a case where “the statute under which the appellant had been indicted and convicted was repealed by the legislature after the case had been argued on appeal in the Court of Appeals but before that court's decision.”   (Bell v. Maryland, supra, 378 U.S. at p. 230, 84 S.Ct. at p. 1817.)   That is the procedural posture of this case.

Thus in 1964 the United States Supreme Court cited to a century-old formulation of the rule:  “ ‘It is well settled, that a party cannot be convicted, after the law under which he may be prosecuted has been repealed, although the offense may have been committed before the repeal․  The same principle applies where the law is repealed, or expires pending an appeal on a writ of error from the judgment of an inferior court․’ ”  (Bell v. Maryland, supra, 378 U.S. at pp. 230–231, 84 S.Ct. at pp. 1817, quoting Keller v. State, supra, 12 Md. at pp. 325–326, italics added.)   Insofar as the California Supreme Court's citation to Bell necessarily encompasses the situation where, as here, the harsher punishment “expires,” Bell must be read as mandating our rejection of the position urged by the Attorney General in this matter.5

Nor is the discussion in Bell v. Maryland limited only to the common law of Maryland.   Noting that the principle in question “has also been consistently recognized and applied by this Court” (Bell v. Maryland, supra, 378 U.S. at p. 231, fn. 2, 84 S.Ct. at p. 1817), in that same footnote Bell cited to the opinion of Chief Justice Marshall, in the case of United States v. Schooner Peggy (1801) 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49, 51: 6

“It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not.   But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.   If the law be constitutional, and of that no doubt in the present case has been expressed, I know of no court which can contest its obligation․  In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.”

Perhaps the judicial learning so well summarized in Bell v. Maryland has been rendered meaningless by enactment of criminal laws by a “sunset” method.   It may be the “common sense” relied on by Division Two in its analysis leads only to this conclusion.   These propositions, however, run afoul of yet another fundamental rule:  “The Legislature, of course, is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof.”  (People v. Harrison (1989) 48 Cal.3d 321, 329, 256 Cal.Rptr. 401, 768 P.2d 1078, italics added;  see also People v. McGuire (1993) 14 Cal.App.4th 687, 694, 18 Cal.Rptr.2d 12.)

This means quite simply that the Legislature was aware of the general proposition that, absent a savings clause, a reduction in penalty would be applied to all cases not yet final.   Had they desired a contrary result they could have enacted a savings clause, and had they at any subsequent time come to be of the opinion that the harsher penalties were efficacious, they could have, at any time prior to January 1, 1993, continued the harsher penalties in effect.

We may not, however desirable we might deem the result, rewrite legislation to accomplish that which the legislature might have done, but clearly did not do.   Thus, absent a positive statement to that effect, or a savings clause which could readily have been enacted at the same time enhanced punishments were enacted, it is not the proper province of an intermediate appellate court to declare that adherence to a settled and fundamental view of procedural regularity may be now disregarded merely on our suppositions as to a wholly unstated legislative intent.

Thus we have determined that Vaughan's sentence must be reduced in accord with the present law.   Having done this, however, we must also state that we deem the result neither just 7 nor economical, but simply one compelled by the law.   The hundreds of cases to which this holding will be applied represent wasted trial and appellate court resources in what would otherwise, as here, have been relatively uncomplicated proceedings.   The waste of resources will also extend to the Department of Corrections, who will be required to alter and update records and adjust parole dates in all these cases.

A final, but non-trivial, consideration is the problem arising from the fact the result may readily be perceived as unjust, both by inmates not receiving the melioration, and by the public, who ultimately bear the expenses associated with this endeavor which need not have been undertaken.   For all of these reasons, we urge the Legislature to recognize these unnecessary consequences, and in future enactments to declare whether a melioration in punishment should, or should not, be applicable to offenses committed prior to the effective date of the meliorated statute.

In this case, however, the arguments of the Attorney General may not be accepted by us, as the Legislature is the proper body to which his concerns also should be addressed.   Chief Justice Marshall's observation on this question in 1820 remains a concise formulation of the controlling rule:  “It is the legislature, not the court, which is to define a crime, and ordain its punishment.”  (United States v. Wiltberger, supra, 18 U.S. (5 Wheat.) at p. 95, 5 L.Ed. at p. 42.)

Further, if the authorities set out above are to be rejected or limited now, as urged by the Attorney General, it is for our Supreme Court, not us, to so declare.   Because we are until that time, under the unchallenged compulsion of stare decisis, bound by the contrary authority that now exists, we thus must reject the Attorney General's arguments, and order Vaughan's sentence modified to reflect the punishment set forth under the law now in effect.

DISPOSITION

The abstract of judgment is ordered modified to reflect imposition of a sentence of two years as the principal term.   The superior court is directed to furnish copies of the modified abstract to the Department of Corrections.   The judgment is in all other aspects affirmed.

I concur in the affirmance of the judgment.   I respectfully dissent, however, in the majority's modification of the sentence to reflect a two-year principal term rather than the three years imposed by the trial court.

I have no quarrel with the logic represented by the majority opinion.   The problem is that I am equally persuaded by the reasoning of In re Pedro T. (1993) 14 Cal.App.4th 453, 17 Cal.Rptr.2d 564, and In re Pedro T. was in print when we were considering the case now before us.   It is accepted learning that one district of the Court of Appeal is not bound by an opinion from another district, and divisions within the same district may also freely publish conflicting opinions (see 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, §§ 772, 773, pp. 740–743).   Even within the same court an earlier precedent may be abandoned if later wisdom reveals error (seePeople v. Yeats (1977) 66 Cal.App.3d 874, 879, 136 Cal.Rptr. 243;  Saucedo v. Mercury Sav. & Loan Assn. (1980) 111 Cal.App.3d 309, 315, 168 Cal.Rptr. 552).

The desirability of predictability in the law strongly argues, however, for the proposition that conflicting decisions of the Courts of Appeal should be published only for good reason and in a context within which the variability of opinions may produce some benefit.   Without belaboring the point with particularized examples, review of the many cases referenced in the Witkin citation, above, indicates that published disagreement among the Courts of Appeal generally surfaces when the issue in question is substantial, and when the precedent to be set will have an enduring effect.   The existence of an erroneous opinion on an important subject, which will last forever unless challenged, admittedly is a valid reason for printing an opposing opinion.

That is not our situation here.   Of course, to the person facing either two or three years in prison, it cannot be said that the choice is trivial.   However, in terms of evolution of the law this decision is, I suggest, generally bereft of anything important.   The Legislature admittedly had the power to make its sunset reduction of the penalty in issue here either applicable or inapplicable to persons in the defendant's shoes.   Nothing of an earthshaking nature would have happened had the Legislature specified either result.   Having alternatively selected the terms of two and then three years for the crime of vehicle theft, the Legislature considered both appropriate.

Since the Legislature failed, however, to make its intentions clear, it falls to the judiciary to do so.   Good arguments can be made on both sides of the issue, as is obvious from the majority opinion in this case and the opinion in In re Pedro T.   Again, however, nothing of a monumental nature will occur regardless of the argument eventually selected as the winner.   Whatever we say will only affect a small group of hapless convicts.   The important thing to do, I contend, is to settle the issue.   This is best done by allowing one branch of our Court of Appeal to come up with a reasoned conclusion, and then asking the other branches to line up behind it in concurrence.

Had this been done with respect to the Pedro T. decision, the trial courts—at least in this southernmost venue of California—would have some clear direction as to how to handle the matter.   Very possibly the Supreme Court would have accepted a reasoned resolution of the question, assuming no disagreement among the Courts of Appeal.   With the publication of the majority's opinion we will now presumably have wholesale inconsistency in trial court handling of the issue, leading to invariable appeals of all decisions, leading then again to additional conflicting appellate decisions.   The upshot of this is either that the Supreme Court will ignore the problem on the theory that it should not dabble in temporary tempests;  or it will accept one of the several cases presently in the appellate process and write its own conclusion.   I respectfully submit that the Supreme Court does not need this kind of work.

I would therefore retreat to the reliable shelter of the doctrine of stare decisis, accepting our Second Division's reasoned treatise on the subject, and as a result would affirm the trial court in all respects.

FOOTNOTES

FOOTNOTE.   See footnote 1, ante.

FOOTNOTE.   See footnote 1, ante.

2.   “The greatest defect of legislative history is its illegitimacy.   We are governed by laws, not by the intentions of legislators.   As the Court said in 1844:  ‘The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself․’  Aldridge v. Williams, 3 How. 9, 24 [11 L.Ed. 469] (emphasis added).   But not the least of the defects of legislative history is its indeterminacy.   If one were to search for an interpretive technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history.   And the present case nicely proves that point.”   (Conroy v. Aniskoff (1993) 507 U.S. 511, 113 S.Ct. 1562, 123 L.Ed.2d 229 (conc. opn. of Scalia, J.)).

3.   The next year the California Supreme Court held that a reduction in penalty “represents a legislative judgment that the lesser penalty of the different treatment is sufficient to meet the legitimate ends of the criminal law.”  (In re Estrada (1965) 63 Cal.2d 740, 745, 48 Cal.Rptr. 172, 408 P.2d 948.)   The Estrada court did not, however, cite or refer to Bell v. Maryland.

4.   See People v. Vasquez (1992) 7 Cal.App.4th 763, 767–768, 9 Cal.Rptr.2d 255.

5.   In People v. Vasquez, supra, 7 Cal.App.4th at p. 767, 9 Cal.Rptr.2d 255, we stated that application of mitigated punishment was “permissible because the restricted definition generally favors defendants.”   This principle of construction is more venerable than the mitigation rule itself:“The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.   It is founded on the tenderness of the law for the rights of individuals;  and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.   It is the legislature, not the court, which is to define a crime, and ordain its punishment.”  (United States v. Wiltberger (1820) 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37, 42.)

6.   United States v. Schooner Peggy, supra, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 was also relied upon in Keller v. State, supra, 12 Md. at pages 324, 326 in support of the result there reached, which was thereafter quoted in the cited portions of Bell v. Maryland.

7.   Vaughan will receive the benefit of the new law because his case is not final.   It is simply impossible to say this result is “just” as to Vaughan, who appealed from his conviction following a trial, while also being “just” as to a person identically situated, who either did not appeal after a jury trial, or who admitted culpability and entered a plea of guilty, but whose case was final before January 1, 1993, and who thus does not benefit from the provisions of the meliorated statute.

NARES, Associate Justice.

BENKE, Acting P.J., concurs.