IN RE: ELLIS C.

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Court of Appeal, Third District, California.

IN RE: ELLIS C., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. ELLIS C., Defendant and Appellant.

No. C014213.

Decided: July 19, 1993

Debra L. Samuels, Sacramento, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Maureen A. Daly and Gregory W. Baugher, Deputy Attys. Gen., for plaintiff and respondent.

 This case presents the issue of whether a defendant, who is sentenced under a statute that increases the punishment for felony vehicle theft and contains a sunset provision, but no saving clause, should receive the benefit of the ameliorated punishment after the harsher punishment is repealed by operation of the sunset provision before his judgment is final.   As we shall explain, applying fundamental rules of statutory construction, we conclude that in enacting Vehicle Code section 10851 with a sunset provision, but no saving clause, we must presume the Legislature intended to provide the ameliorated punishment to all defendants convicted of felony vehicle theft whose judgments of conviction did not become final until after the increased punishment expired by operation of the sunset clause.

FACTUAL AND PROCEDURAL BACKGROUND

A petition filed in juvenile court alleged the minor Ellis C. came within the provisions of Welfare and Institutions Code section 602 in that he committed vehicle theft, a felony (Veh.Code, § 10851, subd. (a);  count one), fled from a peace officer, a felony (Veh.Code, § 2800.2;  count two), failed to stop at the scene of an accident, a misdemeanor (Veh.Code, § 20002, subd. (a);  count three), and resisted arrest, a misdemeanor (Pen.Code, § 148;  count four).   The court sustained count one as alleged and count two as a misdemeanor following the minor's no contest plea on these two counts.   The remaining counts were dismissed.

The minor was committed to the California Youth Authority for a maximum confinement period of five years and ten months.   This period consisted of the upper term of four years on the vehicle theft, a two-month consecutive term on the misdemeanor, and consecutive terms of eight months and one year, respectively, on the allegations of receiving stolen property (Pen.Code, § 496.1) and felony vehicle theft (Veh.Code, § 10851, subd. (a)) that had been sustained in previous petitions in 1991.

The two vehicle thefts for which the minor was committed occurred in 1991 and 1992.   At that time, the sentence for felony vehicle theft was two, three, or four years.  (Stats.1989, ch. 930, § 11, pp. 3258–3259;  Stats.1990, ch. 1564, § 2.)   The amendment increasing the punishment for vehicle theft contained a sunset provision, which read:  “(g) This section shall remain in effect only until January 1, 1993, and as of that date is repealed, unless a later enacted statute, which is enacted before January 1, 1993, deletes or extends that date.”  (Stats.1989, ch. 930, § 11, p. 3260;  Stats.1990, ch. 1564, § 2.)   The Legislature failed to enact a later statute by that date, so after January 1, 1993, the punishment for a violation of Vehicle Code section 10851, subdivision (a) reverted to “imprisonment in the county jail for not more than one year or in the state prison․”  (Stats.1989, ch. 930, § 11.1, p. 3260.)   The prison sentence for felony vehicle theft was thus reduced from two, three, or four years to 16 months, two or three years.  (Pen.Code, § 18.)

The minor contends that since his judgment is not final, his maximum period of confinement should be reduced to reflect the change in Vehicle Code section 10851.   He claims the principal term of four years should be reduced to three years, and the additional term of one year for the previous violation of Vehicle Code section 10851, subdivision (a) should be reduced to eight months in accordance with the punishment scheme now in effect.   We agree.

DISCUSSION

 The issue presented in this case is whether the increased punishment applies after the statute authorizing such punishment has expired by operation of a sunset provision in the absence of a saving clause.   To resolve this question, we turn first to an analysis of cases pertaining to the role of saving clauses.

The interplay of a change in the law and a general saving statute was considered by the United States Supreme Court in Bell v. Maryland (1964) 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822.   The defendants had been convicted of trespassing after they engaged in a sit-in demonstration at a Maryland restaurant that refused to serve blacks.   While their convictions were on appeal to the Supreme Court the law in Maryland changed.   A new public accommodations law made it unlawful for any restaurant owner to refuse service to a customer on the basis of race.   In determining the effect of this intervening legislative enactment upon defendants' convictions, the court began with “the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct.   The rule applies to any such proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it.”   (Id. at p. 230, 84 S.Ct. at p. 1817, 12 L.Ed.2d at p. 826.)

This common law rule, however, was not dispositive because Maryland had a general saving statute, which served to “save” convictions from later enactments accomplished by “ ‘the repeal, or the repeal and reenactment, or the revision, amendment, or consolidation of any statute․’ ”  (Bell v. Maryland, supra, 378 U.S. at p. 232, 84 S.Ct. at p. 1818, 12 L.Ed.2d at p. 827.)   The court found a substantial question whether this saving statute would apply to this case since the change was effected by adoption of a new law, not a repeal of or amendment to the trespassing statute.  (Id. at pp. 232–237, 84 S.Ct. at pp. 1818–1820, 12 L.Ed.2d at pp. 827–830.)   Since the task of determining the intent of the state Legislature in interpreting a state statute was properly that of the state court, the high court remanded the case.  (Id. at pp. 237–241, 84 S.Ct. at pp. 1820–1822, 12 L.Ed.2d at pp. 830–832.)

Like Maryland, California has a general saving statute.  Government Code section 9608 provides:  “The termination or suspension (by whatsoever means effected) of any law creating a criminal offense does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so terminated or suspended, unless the intention to bar such indictment or information and punishment is expressly declared by an applicable provision of law.”

In In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, the California Supreme Court was required to interpret this statute in deciding whether a statute mitigating punishment should be given retroactive application.   Estrada had been convicted by escape without force or violence at a time when the escape statute made no distinction between forcible and nonforcible escapes.   Subsequent to his conviction the escape statute was amended, reducing the punishment for escape without force or violence.  (Id. at p. 743, 48 Cal.Rptr. 172, 408 P.2d 948.)   In determining which penalty applied, the court framed the problem as that of determining legislative intent:  “did the Legislature intend the old or new punishment to apply?”   (Id. at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.)   If the Legislature had expressed its intent, the application of either punishment would be legal and constitutional.   Absent an express declaration, the court must determine the intent.  (Ibid.)

The court found one paramount consideration answered the question.  “When 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.   It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.   The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.   This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.”  (Id. at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.)

The court rejected the argument that a different conclusion was compelled by application of Penal Code section 3 and Government Code section 9608.   Penal Code section 3 codified the general rule of statutory construction that absent an indication to the contrary, a statute is presumed to operate prospectively only.   The court found that rule inapplicable because the factors surrounding the enactment of the statute lessening the punishment indicated an intent for retroactive application.  (In re Estrada, supra, 63 Cal.2d at p. 746, 48 Cal.Rptr. 172, 408 P.2d 948.)

The Estrada court found the purpose of the general saving clause of Government Code section 9608 is understood by considering the common law rule that when a statute is repealed, all prosecutions not reduced to final judgments are barred.  (63 Cal.2d at pp. 746–747, 48 Cal.Rptr. 172, 408 P.2d 948.)   In the case where the Legislature amends the statute to increase the punishment, all prosecutions not reduced to final judgments would be barred.   They could not be prosecuted under the new statute because it would be an ex post facto law.   They could not be prosecuted under the old law absent a saving clause.  Government Code section 9608 avoids this absurd technical result by providing a general saving clause that rebuts the presumption that the Legislature intended to grant a legislative pardon.  (Id. at p. 747, 48 Cal.Rptr. 172, 408 P.2d 948.)  Section 9608 indicates a legislative intent that the defendant should be punished, despite the repeal or amendment of the old law.   Since he cannot be punished under the new law with increased punishment, he must be punished under the old law.   This result, however, is not conclusive of legislative intent where the new law mitigates the punishment.  Section 9608 indicates only a legislative intent to punish;  it does not direct whether such punishment should be under the old law or the new law.  (Id. at pp. 747–748, 48 Cal.Rptr. 172, 408 P.2d 948.)   Where the new law reduces the punishment without an express or implied saving clause, this legislative action rebuts the presumption that statutes apply prospectively only.   The defendant can and should be punished under the ameliorated statute.  (Id. at p. 747, 48 Cal.Rptr. 172, 408 P.2d 948.)

The effect of this general saving statute was again considered in People v. Rossi (1976) 18 Cal.3d 295, 134 Cal.Rptr. 64, 555 P.2d 1313.   The court was faced with the amendment of a criminal statute that completely repealed the section under which the defendant had been convicted.   The amendment occurred before her judgment of conviction was final.   Following Estrada, the court held Government Code section 9608 did not “save” the conviction.   That section did not abrogate the common law rule that a criminal defendant receive the benefit of any mitigation of punishment adopted before his conviction became final.   It applied only to permit conviction and punishment under a repealed statute where the new statute increased the punishment.  (People v. Rossi, supra, 18 Cal.3d at p. 299, 134 Cal.Rptr. 64, 555 P.2d 1313.)   In other situations the “universal common law rule” of Bell v. Maryland, supra, required dismissal or reversal.  (18 Cal.3d at p. 304, 134 Cal.Rptr. 64, 555 P.2d 1313.)

The continued vitality of this “universal common law rule” was recognized recently.   The California Supreme Court cited the rule in holding the provisions of Proposition 115 that were favorable to criminal defendants could be applied retroactively.  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, fn. 18, 279 Cal.Rptr. 592, 807 P.2d 434.)   The court noted the presumption that new statutes operate prospectively only did not apply to a statute changing the law to the benefit of criminal defendants.  (Id. at p. 301, 279 Cal.Rptr. 592, 807 P.2d 434.)

Significantly for this case, the common law rule of Estrada was applied to a statute with a sunset provision in Charrot v. Municipal Court (1968) 260 Cal.App.2d 208, 66 Cal.Rptr. 903.   The defendant had been charged in 1968 with a misdemeanor for representing a cosmetical establishment as a barbershop.   The statute creating this misdemeanor provided:  “ ‘․ this act shall remain in effect until two years from the effective date of this act, and shall have no force or effect after that date.’ ”  (Id. at p. 209, 66 Cal.Rptr. 903.)   The act became effective September 17, 1965, and expired September 16, 1967.   The appellate court applied the general rule that a prosecution is abated once the law is repealed or expires.   The court considered whether the general saving clause of Government Code section 9608 directed a different result but concluded it did not.  Government Code section 9608 only applies if there is no expressed intent to abate a prosecution.   The statute expressly stated that after the expiration date, the act was to have no force or effect.   The court found this language to be an explicit declaration of legislative intent to bar punishment after the act expired.  (Id. at p. 210, 66 Cal.Rptr. 903.)

In the present context, Charrot is significant.   It establishes that the general common law rule of abatement applies where the ameliorating statutory change is caused by the expiration of the statute under a sunset provision, as well as by subsequent legislative action of an amendment or repeal.

From this review of the case law on changes in criminal statutes and saving clauses, a salient point emerges.   There is no constitutional principle operating in this adjudication.   There is no constitutional bar to imposing either the old or new punishment for vehicle theft.   The constitution permits whichever punishment the Legislature intended.   Our task is simply to determine that legislative intent.  (In re Estrada, supra, 63 Cal.2d at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.)   The foregoing authorities, in the absence of an explicit saving clause, applied the ameliorated punishment of the new law to all cases not final because it was presumed the Legislature had determined the former punishment was too severe and an ameliorated punishment was now appropriate and adequate to serve the legitimate ends of criminal law.  (Tapia v. Superior Court, supra, 53 Cal.3d at p. 301, 279 Cal.Rptr. 592, 807 P.2d 434;  In re Estrada, supra, 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.)   We must determine whether the same legislative intent may be presumed in the enactment in question, which increased the punishment for felony vehicle theft for a certain finite period, with this increased punishment automatically to expire at the end of that period absent further legislative action.1

Our inquiry is governed by certain well-established canons of statutory construction.  “The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.  [Citations.]”  (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672.)

In enacting the increased punishment for a violation of Vehicle Code section 10851, subdivision (a), the Legislature made an express statement of legislative intent:  “The Legislature finds and declares that the rapid increase in motor vehicle theft has reached crisis proportions within the state, and that there is a lucrative vehicle theft industry which has spawned the development of sophisticated criminal operations.   The Legislature further finds that the escalating problem of vehicle theft is nurtured by the lack of any serious deterrent to this crime, and that vehicle thieves consider sanctions under existing law merely as routine operating costs.

“Therefore, the Legislature believes that it is in the best interest for public safety to enhance the penalties for the crimes of vehicle theft and receiving stolen vehicles.   Moreover, the Legislature believes that existing laws should be utilized to the fullest extent possible to actively pursue innovative programs to deter vehicle theft and to improve the recovery of stolen vehicles, including the vigorous application of the asset forfeiture provisions of the criminal profiteering laws (Chapter 9 (commencing with Section 186) of Title 7 of Part 1 of the Penal Code).”  (Stats.1989, ch. 930, § 1, pp. 3246–3247.)

This declaration of legislative intent, coupled with the sunset provision for the increased penalties, indicates the Legislature was conducting an experiment on the deterrent effect of harsher penalties for vehicle theft.2  However, it does not answer our question of which punishment the Legislature intended to apply to cases not final when the time period for the experiment expired.   We turn to other rules of statutory construction to resolve this question.

 The Legislature is presumed to know both the statutes and case law already in existence and to enact statutes in light thereof.  (People v. Harrison (1989) 48 Cal.3d 321, 329, 256 Cal.Rptr. 401, 768 P.2d 1078.)   In reliance on this rule, it has been suggested the Legislature must have intended the common law rule of Estrada to apply and must have intended the ameliorated punishment would be available to all defendants whose judgments were not final by January 1, 1993, absent subsequent legislative action.   We find this argument compelling.   Established case law mandated that a statutory change mitigating punishment be applied to all cases not final at the time the mitigating legislation took effect, unless there was a saving clause.   This common law rule applies not only where the ameliorative effect occurred by subsequent legislative action, but also where it was the result of operation of a sunset clause.  (Charrot v. Municipal Court, supra, 260 Cal.App.2d 208, 66 Cal.Rptr. 903.)   We are aware of no authority to the contrary.   We presume the Legislature was aware of the common law rule and its application to statutes containing sunset clauses.   If the Legislature intended the temporary increased punishment for vehicle theft to apply to all vehicle thieves who committed their offenses between 1989 and 1993, it could easily have so provided by including a saving clause either in the enactment or at the time of the statute's expiration.   From its failure to do so, we must presume the Legislature intended the “universal common law rule” giving defendants the benefit of the ameliorated punishment to apply once the sunset provision took effect.

 Another canon of statutory construction recognizes that when a statute is reasonably susceptible of two interpretations, we will adopt that which is most favorable to the defendant.  (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186.)   This canon applies only where there is a realistic doubt as to the application of a statute.  (People v. Anderson (1987) 43 Cal.3d 1104, 1145, 240 Cal.Rptr. 585, 742 P.2d 1306.)   Here, given the Legislature's failure to enact a saving clause in light of entrenchedauthority requiring one, we have at least a realistic doubt that the Legislature intended the harsher penalties to survive the sunsetting of the legislation.   In the circumstances, the minor is entitled to the benefit of that doubt.

The minor's maximum period of confinement must be reduced in accordance with the sentence for felony vehicle theft now in effect.   His commitment shall be modified to reflect a maximum principal term of three years for vehicle theft and an eight month term for the vehicle theft committed in May of 1991.   His maximum period of confinement is therefore reduced from five years and ten months to four years and six months.   As modified, the judgment (order) is affirmed.   The trial court is directed to prepare an amended commitment reflecting this modification and to furnish a copy thereof to the Director of the Youth Authority.

FOOTNOTES

1.   We recognize that other courts of appeal have considered this issue and have reached different conclusions.  (In re Pedro T. (1993) 14 Cal.App.4th 453, 17 Cal.Rptr.2d 564;  People v. Michaels (1993) 16 Cal.App.4th 459, 20 Cal.Rptr.2d 121;  People v. Rodriguez (1993) –––Cal.App. 4th ––––, 20 Cal.Rptr.2d 699;  People v. Avila (1993) ––– Cal.App. 4th ––––, 20 Cal.Rptr.2d 867.)   Since these cases are not final, we do not discuss them.   This issue is pending in the Supreme Court.  (People v. Vaughan (1993) 15 Cal.App.4th 1124, 19 Cal.Rptr.2d 152 review granted July 2, 1993 (S033325).)

2.   The minor has requested that we take judicial notice of certain materials pertaining to the legislative history of this enactment.   Because the tendered materials do not constitute properly cognizable legislative history, we decline the request for judicial notice.

SIMS, Associate Justice.

PUGLIA, P.J., and BLEASE, J., concur.