IN RE: Jack Stewart FINK

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Court of Appeal, Third District, California.

IN RE: Jack Stewart FINK, on Habeas Corpus.

Cr. 4438.

Decided: June 15, 1967

Philip P. Marskey, Court Appointed Counsel, Sacramento, for petitioner. Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., Sacramento, for respondent.

While awaiting sentence on a charge of escape from a state prison facility, petitioner escaped from the county jail. He invokes In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, to achieve the reduced penalty prescribed by statutory amendments enacted while he was absent from state custody. The Estrada case articulates the following general rule: upon the amendment of a penal statute to mitigate punishment, that punishment in effect at the time of the final conviction should apply, not that prevailing on the date of the offense.

Petitioner escaped from a state prison forestry camp on June 7, 1961. At that time, Penal Code section 4531 fixed the penalty for that offense at not less than one year in a state prison, the term to be consecutive with that being served at the time of the escape. Petitioner was returned to custody within a few days and charged with the violation of section 4531 and with a burglary, pleading guilty to both offenses. On July 12, 1961, after his plea of guilty and while awaiting sentence, he escaped from the Glenn County jail. Apparently then stole an automobile, for he was arrested and committed to a federal prison for four years upon a Dyer Act charge. After completion of his federal sentence, he was returned to the custody of the California authorities. On December 22, 1964, the Glenn County Superior Court sentenced him to concurrent terms for the crimes of burglary and escape from a state forestry camp.

Effective in September 1963, during petitioner's absence from state custody, the Legislature repealed Penal Code section 4531 and amended section 4530. As a result of the amendment, subdivision (b) of the latter section fixed the sentence for nonviolent escape from a state prison facility at ‘not less than six months nor more than five years' and eliminated the demand for consecutive sentencing.

The general proposition voiced in Estrada does not decide this concrete case. Estrada rests upon a general appraisal of the intent of the State Legislature, stating (63 Cal.2d at p. 744, 48 Cal.Rptr. at p. 175, 408 P.2d at p. 951): ‘The problem, of course, is one of trying to ascertain the legislative intent—did the Legislature intend the old or new statute to apply? Had the Legislature expressly stated which statute should apply, its determination, either way, would have been legal and constitutional. It has not done so. We must, therefore, attempt to determine the legislative intent from other factors.’

Touching the same problem, Sekt v. Justice's Court, 6 Cal.2d 297, 306, 159 P.2d 17, 167 A.L.R. 833, declares that ‘legislative intent is the test.’

The courts are obliged to effectuate legislative intent, whenever they can find it.1 In Estrada the court had before it an escapee whose recapture occurred before the September 1963 amendments and who was in custody, awaiting prosecution and conviction, when the amendments became law. In another case, the applicant's appeal was pending when the 1963 amendments became effective. (In re Corcoran, 64 Cal.2d 447, 50 Cal.Rptr. 529, 413 P.2d 129.) In a third case the applicant had escaped in 1961, lived in decency in another state for three years and was brought back in 1964, at which time the escape prosecution was instituted. (In re Ring, 64 Cal.2d 450, 50 Cal.Rptr. 530, 413 P.2d 130.) In each of these cases it might fairly be said that the Legislature intended the softened statute to apply. In none of these cases had the offender's wrong extended a pending prosecution past the effective date of the new law. In none of these cases had the offender deferred his prosecution for the first escape by indulging in a second escape.

Since legislative intent is the heart of the matter, it is necessary to assess that intent relative to one in petitioner's position. A truism of statutory construction stresses reasonable and commonsense construction. one consistent with wise policy rather than absurdity. (45 Cal.Jur.2d, Statutes, § 116, pp. 625–626.) Judgment of conviction for petitioner's first escape could not be imposed upon him in absentia. (Cal.Const., art. I, § 8; Pen.Code, § 1200.) By his second escape he forced deferment of his final conviction until he could be returned to custody.2 The second escape was itself a felony, a violation of Penal Code section 4532, subdivision (b), a companion provision of the very statute at issue. It is said that one who flees, thereby preventing imposition of sentence within the time provided by law, will not be permitted to reap an advantage from his own unlawful act. (People v. Palmer, 49 Cal.App.2d 567, 574, 122 P.2d 109.) Other decisions declare that reasonable statutory construction avoids placing a premium upon the act of escape. (People v. Mangan, 87 Cal.App.2d 765, 768, 197 P.2d 781; People v. Carkeek, 35 Cal.App.2d 499, 502, 96 P.2d 132.) We do not impute to the Legislature an intent to ameliorate the escape statutes for the benefit of the one who had postponed their operation by committing a second escape.

The petition for habeas corpus is denied and the order to show cause discharged.

I dissent.

I dissent from the majority opinion by reason of the holding in In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948. There, the court said (at pp. 742, 747–748, 48 Cal.Rptr. at p. 174, 408 P.2d at p. 950):

‘A criminal statute is amended after the prohibited act is committed but before final judgment by mitigating the punishment. What statute prevails as to the punishment—the one in effect when the act was committed or the amendatory act? That is the question presented by this petition. In People v. Harmon, 54 Cal.2d 9, 4 Cal.Rptr. 161, 351 P.2d 329, this court in a 4-to-3 decision held that the punishment in effect when the act was committed should prevail. We have determined to reconsider the holding in that case. Upon such reconsideration we have come to the conclusion that on this point that decision should be disapproved. We hold that in such situations the punishment provided by the amendatory act should be imposed.’ (P. 742, 48 Cal.Rptr. at p. 174, 408 P.2d at p. 950)

‘The fact that the offender can be punished under the old law when the new law increases the punishment where there is an express or implied saving clause, certainly is not conclusive on the legislative intent where the new statute mitigates the punishment. If there is no saving clause he can and should be punished under the new law [Citation.] In such a situation the rule of construction that statutes are normally to be interpreted to operate prospectively and not retroactively (a rule embodied in section 3 of the Penal Code) has been rebutted. The existence of a saving clause does not invalidate this conclusion. As already pointed out, if the saving clause expressly provided that the old law should continue to operate as to past acts, so far as punishment is concerned that would be the end of the matter. But that is not what the Legislature has done in section 9608. A reading of that section demonstrates that the Legislature, while it positively expressed its intent that an offender of a law that has been repealed or amended should be punished, did not directly or indirectly indicate whether he should be punished under the old law or the new one. As has already been pointed out, where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed. Neither a saving clause such as section 9608 of the Government Code nor a construction statute such as section 3 of the Penal Code changes that the rule. This is the rule followed by a majority of the states, and by the United States Supreme Court. [Citation.]’ (Pp. 747–748, 48 Cal.Rptr. p. 177, 408 P.2d p. 953.)

Here, petitioner committed an act of escape prior to the amendment of the statute. The statute was amended, however, prior to final judgment. The fact that petitioner's second escape deprived the court of the opportunity to sentence petitioner is the only distinguishing feature of this case from Estrada. The court in Estrada, however, does not consider the reasons why there is no final judgment, but merely points out that the key date is the date of final judgment. Furthermore, as noted in Estrada, ‘[i]t is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penaly now deemed to be sufficient should apply to every case to which it constitutionally could apply.’ (In re Estrada, supra, 63 Cal.2d at p. 745, 48 Cal.Rptr. at p. 175, 408 P.2d at p. 951.) There is no constitutional bar present in this case. Thus, since petitioner appears to fall within the rule enunciated in Estrada, that case impels the conclusion that it is applicable here.

Petitioner could have been prosecuted and imprisoned as a punishment for his second escape. That this was not done does not concern us here. Such punishment would be pursuant to section 4530 of the Penal Code enacted by the Legislature in 1963, and is the punishment provided by the Legislature for an act of escape. The majority opinion in denying petitioner the ameliorating effect of said section 4530 is in effect imposing a penalty not now provided by statute.

I would order that the Adult Authority fix petitioner's sentence as provided in section 4530 of the Penal Code and determine his eligibility for parole accordingly.

FOOTNOTES

1.  In Redevelopment Agency of City of Sacramento v. Malaki, 216 Cal.App.2d 480, 487, 31 Cal.Rptr. 92, 97 this court observed: ‘Many authorities term the search [for legislative intent] illusive when, as here, the lawmakers did not foresee the existing contingency; when, if they had an intent on the point presented, they would have expressed it. (Curtis, A Better Theory of Legal Interpretation (1950) 3 Vanderbilt L.Rev. 407–437; Gray, The Nature and Sources of the Law (2d ed. 1924) pp. 124–125, 171–172; see Patterson, Jurisprudence: Men and Ideas of the Law (1953), pp. 198–204.)’

2.  Provisions were added to the Penal Code effective September 1963 obliging California authorities to seek the return of an inmate in a federal or out-of-state prison upon the prisoner's request that he be tried on California charges. (Pen.Code, §§ 1381.5, 1389–1389.7.) Contrary to petitioner's argument, the California authorities had no other obligation to seek his return to state jurisdiction before the completion of his federal imprisonment.

FRIEDMAN, Associate Justice.

PIERCE, P. J., concurs.