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The PEOPLE, Plaintiff and Respondent, v. Maria E. NASALGA, Defendant and Appellant.
Maria E. Nasalga pled guilty to grand theft (Pen.Code, § 487, subd. 1 (now subd. (b)(3); all further section references are to that code) in return for a 16–month base term sentence and submitted to a court trial on the truth of an “excessive taking” allegation (§ 12022.6). The court found the amount taken to be $124,000 and added a two-year enhancement pursuant to section 12022.6, subdivision (b).
After the offense was committed but before Nasalga was sentenced, the excessive-taking section was amended to require a loss of over $150,000 to trigger the two-year enhancement. Nasalga appeals, claiming that she is entitled to retroactive application of the change. We disagree and affirm.
BACKGROUND
Nasalga was charged with having committed the grand theft between April 1990 and July 1991. The excessive-taking allegation was that she took funds in excess of $100,000 for purposes of section 12022.6, subdivision (b). The negotiated disposition was that she would plead guilty to the theft, receive the mitigated base term of 16 months, waive jury trial and submit to a court trial on the excessive-taking allegation, understanding that her sentence would be enhanced by either one or two years, depending on the amount found by the court to have been taken.
At trial on the amount, Nasalga admitted taking only $90,000 worth of checks from her employer. The court found, however, that she took about $124,000 and sentenced her to an added two years under the excessive-taking provisions as they existed when the thefts were committed. At that time, section 12022.6 provided for an added one year if the value of property found to be taken was over $25,000 (subd. (a)) and two years if the value was over $100,000 (subd. (b)).1
Effective June 30, 1992, the Legislature raised the tier structure of the section so that the value had to exceed $50,000 to invoke subdivision (a)'s one-year enhancement and $150,000 for subdivision (b)'s two-year enhancement. (Stats.1992, ch. 104, § 1, No. 5 West's Cal. Legis. Service, pp. 298–299.) Nowhere does the record indicate whether the parties were aware that the section had been amended between the time of the offense and the time of trial. In any event, Nasalga was sentenced in accordance with the former statute, receiving a two-year enhancement for a theft greater than $100,000.
APPEAL
Nasalga claims to be entitled to the benefit of the amendment enacted after she committed the offense but before sentence was imposed.2 She relies on Estrada (In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948), where the Supreme Court announced that “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.” (Id., at p. 748, 48 Cal.Rptr. 172, 408 P.2d 948.) The amendment in Estrada came after the crime was committed and took effect before conviction; the defendant was held entitled to the benefit of the mitigated punishment as long as there was no final judgment. (Id., at pp. 743–744, 48 Cal.Rptr. 172, 408 P.2d 948.) The court recently restated, “ ‘[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’․” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434, quoting Estrada, supra, 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948; People v. Figueroa (1993) 20 Cal.App.4th 65, 69, 24 Cal.Rptr.2d 368 [provision against drug trafficking near schoolyards amended to require that school be in session or use]; People v. Vasquez (1992) 7 Cal.App.4th 763, 767–768, 9 Cal.Rptr.2d 255 [section revised to preclude enhancement for use of BB or pellet guns].)
The Estrada rule rests on a “ ‘ “presumed legislative intent” ’ ” to pardon for past acts—an “assumed” legislative determination that a new, lesser penalty suffices to meet the penal ends of the law. (People v. Vasquez, supra, 7 Cal.App.4th 763, 768, 9 Cal.Rptr.2d 255.) In truth, however, it is not a “presumption” but a “rebuttal” of a presumption. It describes a reduced penalty, with no other indications, as rebutting a common-law presumption that the Legislature intends new statutes “to operate prospectively and not retroactively.” (Estrada, supra, 63 Cal.2d at p. 746, 48 Cal.Rptr. 172, 408 P.2d 948; Tapia v. Superior Court, supra, 53 Cal.3d at p. 301, fn. 18, 279 Cal.Rptr. 592, 807 P.2d 434.) That common-law presumption is reflected in part in section 3, which declares that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.”
Estrada itself honors that presumption, explaining: “That rule of construction, however, is not a straitjacket. Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent. In the instant case there are, as will be pointed out, other factors that indicate the Legislature must have intended that the amendatory statute should operate in all cases not reduced to final judgment at the time of its passage.” (Estrada, supra, 63 Cal.2d 740, 746, 48 Cal.Rptr. 172, 408 P.2d 948.) Those “other factors” proved to be few—only a mitigation of penalty without explanation. However, this was deemed enough to imply a current legislative satisfaction that the new, lowered penalties were enough to punish and deter the conduct at issue, regardless of when it occurred. Estrada in effect fashions an assumption of “default”: without contrary “clues” as to legislative intent, an unexplained reduction of penalty rebuts the common-law presumption that amendments apply only prospectively. One contrary clue, of course, would be the inclusion of a savings clause—an irrefutable indication that the new law was not meant to apply retroactively. However, we do not read Estrada as saying that such a blatant expression of legislative intent is always needed—only that a savings clause obviously defeats the default assumption which Estrada fashions from legislative silence. Estrada did not create an intractable mandate for savings clauses; that would have marked an unprecedented intrusion into legislative affairs.3 Rather, Estrada rested on the customary judicial search for intent—“the transcendent canon of statutory construction that the design of the Legislature be given effect. [Citation.]” (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587, 128 Cal.Rptr. 427, 546 P.2d 1371.) “Consistent with Estrada 's mandate, we must address ‘all pertinent factors' when attempting to divine the legislative purpose. A wide variety of factors may illuminate the legislative design, ‘such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’ [Citations.]” (Ibid.) Courts since Estrada have not stopped at the lack of a savings clause in their search for that intent; they have examined all available factors and denied retroactive effect where appropriate. (See, e.g., Talley v. Municipal Court (1978) 87 Cal.App.3d 109, 113, 150 Cal.Rptr. 743; People v. Alcala (1977) 74 Cal.App.3d 425, 427, 141 Cal.Rptr. 442.) Estrada itself condemns applying rules of construction “blindly in complete disregard of factors that may give a clue to the legislative intent.” (Estrada, supra, 63 Cal.2d 740, 746, 48 Cal.Rptr. 172, 408 P.2d 948.) 4
Thus the absence of a savings clause here does not end our inquiry. We must examine any other available indicia of intent, for it is only “in the absence of clear legislative intent to the contrary” that a defendant receives retroactive benefit. (People v. Rossi (1976) 18 Cal.3d 295, 299, 134 Cal.Rptr. 64, 555 P.2d 1313.)
Here, there are clear indicia of contrary intent, and we must therefore find the presumption of prospective application unrebutted. A committee analysis explains the raised tier adjustments as based on inflation: “The enhancements specified in existing law (1 year for taking over $25,000 and 2 years for taking over $100,000) became operative in 1977. According to the Commission on State Finance, the California Consumer Price Index [CCPI] has approximately doubled since that time. [¶] In order to account for inflation since 1977 this bill increases the values for those tiers to $50,000 and $150,000, respectively.” (Sen.Com. on Judiciary, Analysis of Assem. Bill No. 939 (1991–1992 Reg.Sess.) as amended June 22, 1992.)
In raising the threshold for the two-year enhancement, the Legislature recognized the economic reality that the dollar was worth less in 1992 than it was in 1977 when section 12022.6 was first enacted. The change effects a lessening of punishment for a limited class of future offenders, although some offenders will not have punishment altered at all. For the limited class for whom the amendment has a lessening effect, we may infer that the Legislature did deem the old threshold too harsh for future cases if not amended. However, we cannot infer from the full circumstances an intent to grant retroactive benefit.
First, the legislation was as much concerned with increasing penalties as it was lessening levels to account for inflation. It did not reduce the old penalties themselves but kept them at one and two years. It also increased punishment for two new classes of offenders, those who take more than $1 million (three years) and $2.5 million (four years). (Stats.1992, ch. 104, § 1, No. 5 West's Cal. Legis. Service, pp. 298–299, adding subds. (c) and (d) to section 12022.6.) Next, it increased penalties even within the two-year enhancement tier at issue in this case. Had lawmakers adjusted completely for the 100 percent inflation they saw in the CCPI, they would have raised the old level of $100,000 to $200,000, not the $150,000 they chose. By choosing $150,000, they actually in creased punishment for many offenders, reducing the trigger 25 percent in after-inflation terms. Thus, for example, one who took $80,000 in 1977 got an extra year. One who took $160,000 after the 1992 amendment gets two years, even though the Legislature deems the amount the same when adjusted for 100–percent inflation. Many, perhaps most, offenders do not benefit.
More importantly, we see no legislative intent to assist prior offenders who might be benefited. The amending statute sets up an inflation review, sunsetting the section by January 1998 unless legislators by that time re-examine the threshold levels again for inflationary distortion. This periodic review necessarily implies an intent to let levels remain fixed for five years at a time, regardless of inflation.5 The amendment did not set up more frequent review or any automatic indexing to a source like the CCPI. An intent to leave levels fixed for a set number of years supports the usual, common-law presumption that no retroactive benefit was intended. The Legislature is content to let infrequent amendments cure any built-up distortion created by inflation. This is evident as well from the Legislature having amended the section, with no tier-level adjustments, less than two years earlier. (See fn. 5, ante.)
Finally, Estrada 's “rule” of retroactive benefit rests on the logic that, ordinarily, a lessening of punishment reflects a policy decision—based on a weighing of deterrence needs, imprisonment costs, etc.—that the lessened punishment adequately serves justice across the spectrum of pending cases. No matter when the crime was committed, the new punishment is enough, and it makes sense to surmise that the old punishment no longer fits the crime. However, we cannot say that about an amendment spurred by inflationary concerns. Inflation is incremental and usually ongoing, making the timing of the offense critical to the Legislature's implied concern about the equity of a punishment. Perceptions about fairness will vary from case to case. Suppose, for example, that an offender took $160,000 in late 1992, meriting a two-year enhancement under the newly adjusted threshold of $150,000. However, he or she is not apprehended and charged until late 1995; the conviction and appeal come in late 1996; and the appeal is still pending in January 1998, when the Legislature next readjusts the level for interim inflation, let us assume to a level of $165,000. Applying the new level to benefit the offender on those facts makes no sense. The amount taken in 1992 fully justified the two years under a just-amended tier structure, and any intervening inflation pending the case's prosecution and finality caused no inequity at all. By contrast, the equities may seem different on the facts of a case like Nasalga's. Her taking occurred just a year or more before an amendment corrected years of unadjusted inflationary effect. Hers is a stronger case equitably.
Those equitable variations make it illogical to assume that the Legislature intended to give retroactive benefit in all cases, and Estrada does not permit us to divine one intent for one case and a different intent for another. It requires a uniform application for all cases, regardless of circumstances. Retroactive application “obviously cannot be decided on the basis of the particular facts of this or any other individual case.” (People v. Francis (1969) 71 Cal.2d 66, 76–77, 75 Cal.Rptr. 199, 450 P.2d 591.)
We hold that an Estrada -like finding of retroactive intent does not apply to the punishment-lessening amendment in this case. The common-law presumption of prospective application is therefore not rebutted, and Nasalga is not entitled to the benefit of the 1992 amendment. We acknowledge but respectfully disagree with the contrary result recently reached in another district. (People v. Roberts (1994) 24 Cal.App.4th 1462, 1465–1466, 29 Cal.Rptr.2d 771 [§ 12022.6, subd. (a) ], petn. for review denied Aug. 11, 1994 (S040521).) The opinion acknowledged the inflationary concerns driving the amendment but then adopted the Estrada result without analyzing how an inflation-driven amendment differs from an ordinary penalty-reducing amendment.
DISPOSITION
The judgment is affirmed.
The majority opinion rewrites the settled rule announced nearly 30 years ago in In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 so as to create a presumption exactly the opposite of that established by the Supreme Court.
Estrada holds “that when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature. ” (People v. Francis (1969) 71 Cal.2d 66, 75–76, 75 Cal.Rptr. 199, 450 P.2d 591, italics added.) The rule—which applies to penalty enhancements of the sort with which we are here concerned (Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434)—has been repeatedly reaffirmed. (See, e.g., People v. Babylon (1985) 39 Cal.3d 719, 216 Cal.Rptr. 123, 702 P.2d 205; People v. Rossi (1976) 18 Cal.3d 295, 134 Cal.Rptr. 64, 555 P.2d 1313; People v. Francis, supra, 71 Cal.2d 66, 75–76, 75 Cal.Rptr. 199, 450 P.2d 591; In re Fink (1967) 67 Cal.2d 692, 693, 63 Cal.Rptr. 369, 433 P.2d 161; People v. Enriquez (1967) 65 Cal.2d 746, 56 Cal.Rptr. 334, 423 P.2d 262; In re Ring (1966) 64 Cal.2d 450, 452, 50 Cal.Rptr. 530, 413 P.2d 130; In re Corcoran (1966) 64 Cal.2d 447, 449, 50 Cal.Rptr. 529, 413 P.2d 129; In re Kirk (1965) 63 Cal.2d 761, 48 Cal.Rptr. 186, 408 P.2d 962.)
The majority rejects this impressive line of authority by holding that despite the absence of any express declaration of legislative intent to do so, a court may deny retroactive application by looking behind the statute for an unexpressed intention to that effect. This holding is unsound on several grounds, not the least of which is that it exceeds the constitutional powers of this intermediate appellate court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) In effect, the majority resurrects People v. Harmon (1960) 54 Cal.2d 9, 4 Cal.Rptr. 161, 351 P.2d 329, the case explicitly overruled by Estrada, “which permit[ted] the ascertainment by a court of the legislative intent from a consideration of other relevant factors, where no intent as to retroactivity [was] expressed in the new law.” (Estrada, supra, at p. 751, 48 Cal.Rptr. 172, 408 P.2d 948, dis. opn. of Burke, J.)
A.
The majority concludes that appellant is not entitled to the benefit of the 1992 amendment because she failed to rebut “the common law presumption of prospective application.” (Maj. opn. at p. 5.) The majority thus baldly bases its determination on precisely the presumption Estrada repudiates. Justice Peters, the author of Estrada, was required to address the presumption of prospective application because it is codified in section 3 of the Penal Code, which provides that no part of that code “is retroactive, unless expressly so declared.” After considerable discussion, Estrada declares that this rule of construction “is not a straitjacket” and does not apply to the amendment of penal statutes that lessen punishment. (63 Cal.2d at p. 746, 48 Cal.Rptr. 172, 408 P.2d 948.)
The majority eviscerates Estrada through transparent sleight-of-hand. Estrada does not create a “ ‘presumption’ of retroactivity,” we are told, but rather “a ‘rebuttal’ of a presumption.” (Maj. opn., at p. 2.) The putative distinction is meaningless. Whether labeled “a presumption of retroactivity” (People v. Roberts (1994) 24 Cal.App.4th 1462 at p. 1466, 29 Cal.Rptr.2d 771), an “inevitable inference” (In re Estrada, supra, 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948), or the “rebuttal of a presumption,” the rule remains the same: a statute mitigating punishment applies retroactively in the absence of a legislative declaration to the contrary. The majority's determination that “the presumption of prospective application [is] unrebutted” in this case (maj. opn. at p. 4) underscores its belief that the defendant must come forward with affirmative evidence of an intent to apply the amendment retroactively, which flatly contradicts the Estrada rule.
The majority says “Estrada did not create an intractable mandate for savings clauses” because “that would have marked an unprecedented intrusion into legislative affairs.” (Ibid.) This dilution of the saving clause requirement is achieved by distorting the Estrada opinion into a Catch–22. The language in Estrada the majority uses to justify its search for extrastatutory “clues” was employed by the Supreme Court to explain why the general rule of construction set forth in Penal Code section 3—i.e., the rule against retroactive application—is not controlling. Estrada explains that this rule “should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.” (63 Cal.2d at p. 746, 48 Cal.Rptr. 172, 408 P.2d 948.) The Estrada court found “other factors” indicating that the Legislature intended amendatory statutes mitigating punishment to apply retroactively despite the rule set forth in Penal Code section 3.1 What the majority has done is to use the rationale of the Estrada rule as the basis upon which to renounce it. The majority says, in effect, that if the Supreme Court can look beyond Penal Code 3 to find a legislative intent to apply an amendatory act retroactively, then we should be able to look beyond the amendatory act to find a legislative intent to apply it only prospectively. The trouble with this analysis, of course, is that it converts the Estrada opinion into a rationale for ignoring the Estrada rule, rendering the holding in that seminal case utterly meaningless.
The majority's emasculation of Estrada 's saving clause requirement appears motivated, at least in part, by the unjustified belief that it imposes too onerous a duty upon the Legislature. The statement that it would be “an unprecedented intrusion into legislative affairs” to “intractably mandate” such a “blatant” and “irrefutable” expression of legislative intent suggests that a saving clause is somehow different from run-of-the-mill expressions of legislative intent. It is not. A saving clause need not conform to any rigid formula, as the majority seems to think, and may be express or implied. (Estrada, supra, 63 Cal.2d at p. 747, 48 Cal.Rptr. 172, 408 P.2d 948.) For purposes of statutory interpretation, there is no distinction between a saving clause and an ordinary statutory proviso. (2A Sutherland Statutory Construction (5th ed. 1992 rev.) § 47.12, at p. 170.) A saving clause is substantively unique only in that it appears in an amendatory statute and relates to application of a new law; it “saves”—in the sense of “excepts,” “reserves” or “exempts”—the new statute from an effect it would otherwise have.2 As stated in Black's Law Dictionary, a “saving clause” is simply “a restriction in a repealing act, which is intended to save rights, pending proceedings, penalties, etc., from the annihilation which would result from an unrestricted repeal.” (Black's Law Dictionary (6th ed.) at p. 1343.) The Legislature commonly includes such restrictions when it amends penal statutes it wishes to save. (See, e.g., Talley v. Municipal Court (1978) 87 Cal.App.3d 109, 150 Cal.Rptr. 743 and People v. Alcala (1977) 74 Cal.App.3d 425, 141 Cal.Rptr. 442, discussed, post, at pp. 8–9.) The requirement is therefore neither “intractable” nor unduly “intrusive.”
Moreover, it is not Estrada but the different rule fashioned by the majority that potentially usurps the power of the Legislature. By identifying the simple and dependable way in which the Legislature can compel or prevent retroactive application, Estrada leaves the Legislature in complete control of that determination. By downgrading the saving clause requirement and asserting judicial power to look behind the statute, the majority actually diminishes the Legislature's control, because it permits the determination to be made on the basis of a speculative judicial assessment. The bright-line interpretational test set forth in Estrada also avoids both the uncertainty that would otherwise result and the expenditures of scarce judicial resources such uncertainty would provoke.
The majority argues that the Legislature cannot be deemed to have been aware of the holding in Estrada because Estrada “is not the usual case where a decision concerns some particular area of substantive or procedural law and so would presumably be considered by lawmakers who acted in that area.” (Maj. opn., at p. 3, fn. 3.) This theory of legislative ignorance is highly original.
It is well established that courts “generally presume the Legislature is aware of appellate court decisions.” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155, 278 Cal.Rptr. 614, 805 P.2d 873; Viking Pools, Inc. v. Maloney (1989) 48 Cal.3d 602, 609, 257 Cal.Rptr. 320, 770 P.2d 732; Estate of McDill (1975) 14 Cal.3d 831, 839, 122 Cal.Rptr. 754, 537 P.2d 874; 2A Sutherland, Statutory Construction, supra, § 48.04, pp. 324–325.) Our own court has presumed legislative awareness of, and acquiescence to, intermediate appellate holdings far more obscure than the rule in Estrada. (People v. Bradley (1967) 248 Cal.App.2d 887, 890, 57 Cal.Rptr. 82.) The fact that Estrada does not pertain to a narrow area of substantive or procedural law hardly provides a reason to presume the Legislature was unaware of it. The relevance of Estrada to all statutes mitigating punishment across the entire area of the criminal law makes it harder, not easier, to think the Legislature does not know of the rule in that case. The majority's theory that the Legislature is presumptively ignorant of a Supreme Court decision announcing an important rule of statutory interpretation having wide application is, in short, another breathtaking departure from a settled rule.
The clear holding in People v. Roberts (1994) 24 Cal.App.4th 1462, 29 Cal.Rptr.2d 771, an indistinguishable case the majority refuses to follow, is that the failure of the Legislature to include a saving clause when it amended Penal Code section 12022.6 compels the “inevitable inference” of an intent to allow retroactive application. The court ordered that enhancements for takings over $25,000 must be stricken because a subsequent amendment of section 12022.6 eliminated any enhancement unless the value of the property taken was at least $50,000. The court reasoned as follows: “An amendment to a criminal statute which mitigates punishment operates retroactively so that the lighter punishment is imposed, unless there is a savings clause. [Citations.]․ This ‘principle is based on presumed legislative intent’ [Citation.] Where a criminal statute is amended to ․ modify the elements of a penalty enhancement, an offender of the law that has been so amended is entitled to the benefit of the amendment unless the Legislature indicates a contrary intent.” (Id., at p. 1466, 29 Cal.Rptr.2d 771, citing Estrada, supra, 63 Cal.2d at pp. 748–749, 48 Cal.Rptr. 172, 408 P.2d 948, italics added.) Applying this principle, Justice Grignon concluded that the defendants in Roberts were entitled to the benefit of the amendment of section 12022.6 because “the legislation contains no savings clause and a legislative history indicates no evidence of intent contrary to the presumption of retroactivity.” (Ibid., italics added.)
The majority cites Talley v. Municipal Court, supra, 87 Cal.App.3d 109, 150 Cal.Rptr. 743 and People v. Alcala, supra, 74 Cal.App.3d 425, 141 Cal.Rptr. 442 in support of its statement that “[c]ourts since Estrada have not stopped at the lack of a savings clause in their search for [legislative] intent; they have examined all available factors and denied retroactive effect where appropriate.” (Maj. opn. at p. 3.) The cited cases refute rather than support this erroneous statement.
In Talley the court refused to allow the defendant the benefit of an alcohol treatment program provided for in a 1977 amendment to chapter 890 of the Vehicle Code in 1977 because “the Legislature has expressly stated that chapter 890 applies only to offenses committed after January 1, 1978.” (87 Cal.App.3d at p. 113, 150 Cal.Rptr. 743, italics added.) Similarly, in People v. Alcala, supra, the court concluded that the defendant was not entitled to the benefits of the Uniform Determinate Sentencing Act that became effective on July 1, 1977 because, by its own express terms, “[t]he act precludes determinate sentencing by the court in those cases where the crime was committed prior to July 1, 1977.” (74 Cal.App.3d at p. 427, 141 Cal.Rptr. 442.) As the court pointed out, “[t]he cases relied upon by defendant, such as In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ․, involve ameliorative enactments in which the Legislature made no express statement as to its intent regarding prospectivity or retroactivity. In those cases an implied intent for retroactivity to judgments not final was found. Here the Legislature has spoken.” (Ibid., italics added.) Retroactive application was properly denied in Talley and Alcala simply because, unlike the present case, the amendatory enactments contained saving clauses. The majority's reliance on cases that so obviously conflict with its novel thesis is unfathomable.
B.
The majority also attempts to justify its departure from Estrada by suggesting that the purpose of the amendment in question is as much to increase as it is to lessen punishment.
Thus, for example, the majority suggests it is important that the amendment had a lessening effect on punishment only for a “limited class of future offenders” and that it increased or did not alter punishment for others. (Maj. opn. at p. 4.) The fact that an amendment applies differently to different classes, and indeed that it may even increase punishment for some, is irrelevant under Estrada, which asks only whether the amendment mitigates punishment for the defendant claiming its benefit. For example, in People v. Figueroa (1993) 20 Cal.App.4th 65, 24 Cal.Rptr.2d 368, the amendment that lessened the defendant's punishment also “expanded [the amended penal statute] to apply to a wide range of narcotics offenses․” (Id., at p. 69, 24 Cal.Rptr.2d 368.) The defendant in Figueroa nonetheless received the benefit of the amendment, which was deemed retroactive to the limited extent that it mitigated punishment. (Compare In re Griffin (1965) 63 Cal.2d 757, 48 Cal.Rptr. 183, 408 P.2d 959.)
The majority's persistent characterization of the amendment as “inflation driven” misses the point. The fact that, as the majority says, the amendment was “spurred by inflationary concerns” relates to the phenomenon that stimulated the Legislature to act, the devaluation of money over time. The act itself consisted of the lessening of punishment by increasing the dollar amount of the loss that triggers certain penalty enhancements. When it made this change, the Legislature was as cognizant as we are of the continuing and incremental effect of inflation—which is why it provided that the new punishments “be reviewed within five years to consider the effects of inflation on the additional terms imposed” and included a sunset provision. The certainty that the Legislature was aware of the relevance of inflation to the degree of punishment, as well as the incremental aspect of inflation, suggests it was not unconscious of, but intended, the consequences of omitting a saving clause.
In any event, Estrada leaves no room for judicial speculation. Legislative silence has induced the Supreme Court to infer an intent to allow retroactive application in cases in which the inference was much more difficult to draw than it is here. In In re Fink, supra, 67 Cal.2d 692, 63 Cal.Rptr. 369, 433 P.2d 161, for example, the court applied the lessened penalty retroactively to cover a defendant eligible for the benefit only because of delay created by his escape from custody and other subsequent criminal acts. (See also People v. Francis, supra, 71 Cal.2d 66, 75–76, 75 Cal.Rptr. 199, 450 P.2d 591 [Legislature did not eliminate the greater penalty but merely granted trial court discretion to impose a lesser penalty; case remanded for resentencing pursuant to Estrada ].)
Despite its evident awareness of the nature and effect of inflation, the Legislature declined to include a saving clause barring retroactive application of its amendment to Penal Code section 12022.6, preferring alternative mechanisms for inflationary adjustments. There is no proper basis in this case for refusing to draw the “inevitable inference” that the Legislature intended the amendment to apply retroactively. Estrada can be overruled and the rule in People v. Harmon, supra, 54 Cal.2d 9, 4 Cal.Rptr. 161, 351 P.2d 329 restored, but not by this court.
Accordingly, I would modify the abstract of judgment to reflect conviction pursuant to Penal Code section 12022.6, subdivision (a), and reduce appellant's sentence by one year.
FOOTNOTES
1. Until June 30, 1992, section 12022.6 read (Stats.1990, ch. 1571, § 1, No. 13 West's Cal. Legis. Service, pp. 6356–6357): “When any person takes, damages, or destroys any property in the commission or attempted commission of a felony, with the intent to cause that taking, damage, or destruction, the court shall impose an additional term as follows:“(a) If the loss exceeds twenty-five thousand dollars ($25,000), the court shall in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted impose an additional term of one year.“(b) If the loss exceeds one hundred thousand dollars ($100,000), the court shall in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted impose an additional term of two years.“․”
2. Whether this claim is waived by not raising it below is an issue not briefed by the parties. We assume, without deciding, that it is preserved.
3. Even if Estrada could be read that way, we would strain to the breaking point the judicial fiction of presumed legislative knowledge of judicial decisions were we to presume that lawmakers are aware that a savings clause is the only way to avoid retroactive effect. This is not the usual case where a decision concerns some particular area of substantive or procedural law and so would presumably be considered by lawmakers who acted in that area. (See, e.g., Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155–1156, 278 Cal.Rptr. 614, 805 P.2d 873.) Estrada is not tied to any particular subject matter and thus could easily be overlooked. Nor is Estrada a case whose effects lawmakers could be expected to counter by statute, so that we might presume acquiescence from legislative inaction. (Cf. id., 52 Cal.3d at p. 1156, 278 Cal.Rptr. 614, 805 P.2d 873.)
4. The Supreme Court appears set to decide whether factors surrounding the sunsetting of a three-year increase in auto theft penalties may, without a savings clause, nevertheless support a non-retroactive intent under Estrada. (People v. Vaughan (1993) 20 Cal.App.4th 1134, review granted 21 Cal.Rptr.2d 71, 854 P.2d 721.)
5. Subdivision (e) of section 12022.6 was amended to its present form: “It is the intent of the Legislature that the provisions of this section be reviewed within five years to consider the effects of inflation on the additional terms imposed. For that reason, this section shall remain in effect only until January 1, 1998, and as of that date is repealed unless a later enacted statute, which is enacted before January 1, 1998, deletes or extends that date.” (Stats.1992, ch. 104, § 1, No. 5 West's Cal. Legis. Service, p. 299.)
1. The court pointed out that “if the old statute in existence when the crime is committed is thereafter amended so as to increase the punishment, and there is no saving clause, all prosecutions not reduced to final judgment are also barred. This is so because the accused cannot be punished under the new law since 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. [Citation.] But this last mentioned rule is not applicable where there is a saving clause․ Then the presumed intent of the Legislature to grant a legislative pardon is rebutted. The Legislature has stated that the accused shall be punished despite the repeal or amendment of the old law. It has not stated under what law the accused shall be punished, but, since the accused cannot be punished under the amendatory law that increases the punishment, he must be punishable under the old law because that is the only law under which he can constitutionally be punished, and the Legislature, by the saving clause, has expressed its intent that he be so punished. [Citation.]“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 law 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.”
2. Which is why it is properly referred to as a “saving” rather than a “savings” clause. Although a few authorities sometimes use the term “savings clause” (see, e.g., 1 Witkin & Epstein, California Criminal Law (2d ed.) § 38, at p. 47; but see § 69, at p. 87), “saving clause” is much more widely favored. (See, e.g., Black's Law Dictionary, supra, at p. 1343; 2 Bouvier's Law Dictionary (3d rev.) at p. 30007; 2A Sutherland, Statutory Construction, supra, § 47.12, at p. 47.11.) As one legal lexicographer has pointed out, “Savings clause” is not the preferred form of this phrase “for it (1) suggests financial savings, and (2) makes saving a nominal rather than a participial adjective when the latter is more specific.” (Garner, A Dictionary of Modern Legal Usage (1987) at p. 490.) At least one appellate court gets a bit testy on this point. (See Territory of Alaska v. American Can Co. (9th Cir.1957) 246 F.2d 493, 494.)
SMITH, Associate Justice.
PHELAN, J., concurs.
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Docket No: No. A063101.
Decided: July 29, 1994
Court: Court of Appeal, First District, Division 2, California.
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