PEOPLE v. COLLINS (1977)

Defendant Michael Jay Collins has appealed from a judgment imposing sentence, contending the act which he committed was no longer a crime at the time the trial judge imposed sentence.

In an indictment returned by the Grand Jury of San Diego County, Collins was charged with 15 separate felony counts, including one count of attempted burglary (Pen.Code §§ 664, 459), six counts of burglary (Pen.Code § 459), two counts of forcible rape (Pen.Code § 261), three counts of assault with intent to commit rape (Pen.Code § 220), and three counts of oral copulation, with the allegation in each of those three counts that he compelled his victim to engage in the acts by means of force, violence, duress, menace and threat of great bodily harm. It was further alleged Collins had been convicted of a previous felony.

On January 28, 1975, pursuant to a plea bargain, Collins withdrew his plea of not guilty and entered a plea of guilty¹ to one count of oral copulation in violation of Penal Code section 288a. The other 14 counts were dismissed, and the allegation in the count pleaded to of commission by means of force was stricken.

The guilty plea was made on the day when a jury was to have been selected. In earlier proceedings on the date set for trial, witnesses had been sworn in connection with defendant's motion to exclude voice identifications made by the alleged victims. That motion was denied, as well as defendant's motion to set aside the indictment under Penal Code section 995. For that reason, to the extent it may be relevant, testimony before the Grand Jury is not necessarily to be excluded from consideration.

Defendant had also admitted, prior to his plea of guilty, a 1974 conviction of burglary, the allegation concerning which was stricken from the indictment as a part of the plea bargain.

On February 27, 1975, a finding was made that Collins was a mentally disordered sex offender and he was committed to the Department of Health, Patton State Hospital, for care and treatment. On April 28, 1976, he was found no longer to be a mentally disordered sex offender and no longer in that sense a danger to the health and safety of others. He was remanded to the Superior Court of San Diego County for further proceedings on the criminal charge of which he was convicted. He challenged, by motion and later by writ of habeas corpus, the trial court's jurisdiction, which challenges were both denied. Criminal proceedings were reinstated; probation was denied and Collins was sentenced to prison for the term prescribed by law, with credit for 556 days' time previously served. In accordance with the plea bargain, the sentence was made to run concurrent with that of the prior conviction, should probation for that conviction be revoked.

Penal Code section 288a was amended, the amendment to take effect January 1, 1976 (Amended Statutes 1975, c. 71, art. X; c. 877, art. 2, infra).

Since the appeal is stated to be based solely upon ground occurring after the entry of the plea it does not challenge the validity of the plea. For reasons stated hereafter, the effect of the appeal may not be so restricted.

The offense pleaded to, as revealed by the Grand Jury transcript, was that on October 3, 1974 at 3 a. m., Collins entered the victim's apartment and forced her to orally copulate him. That transcript was before the trial judge who passed upon the section 995 motion and accepted the guilty plea.

The record also indicates that during two separate interviews on February 25, 1975, with two psychiatric medical examiners, Collins admitted forcing the victim to orally copulate him.

Collins contends the act which he committed, and of which he pleaded guilty, of oral copulation in violation of Penal Code section 288a on January 28, 1975, was no longer a crime at the time the trial court imposed sentence on May 19, 1976, since at that time no statute provided any penalty for the act to which he pleaded guilty. He argues that an act of oral copulation, unless it falls within one of the enumerated subsections of section 288a as effective after January 1, 1976, is not punishable.

Among other things, the amended section 288a removed from criminal prohibition the act of oral copulation between consenting adults. The old section 288a provided:

‘Any person participating in an act of copulating the mouth of one person with the sexual organ of another is punishable by imprisonment in the state prison for not exceeding 15 years, or by imprisonment in the county jail not to exceed one year; provided, however, whenever any person is found guilty of the offense specified herein, and it is charged and admitted or found to be true that he is more than 10 years older than his coparticipant in such an act, which coparticipant is under the age of 14, or that he has compelled the other's participation in such an act by force, violence, duress, menace, or threat of great bodily harm, he shall be punished by imprisonment in the state prison for not less than three years. The order of commitment shall expressly state whether a person convicted hereunder is more than 10 years older than his coparticipant and whether such coparticipant is under the age of 14. The order shall also state whether a person convicted hereunder has compelled coparticipation in his act by force, violence, duress, menace, or threat of great bodily harm.’

The amended section 288a provides:

‘(a) Oral copulation is the act of copulating the mouth of one person with the sexual organ of another person.

‘(b)(1) Any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison for a period of not more than five years or in a county jail for a period of not more than one year.

‘(2) Any person over the age of 21 who participates in an act of oral copulation with another person who is under 16 years of age shall be guilty of a felony.

‘(c) Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or who has compelled the participation of another person in an act of oral copulation by force, violence, duress, menace, or threat of great bodily harm, shall be punished by imprisonment in the state prison for a period not less than three years.

‘(d) Any person who, while voluntarily acting in concert with another person, either personally or by aiding and abetting such other person, commits an act of oral copulation by force or violation and against the will of the victim shall be punished by imprisonment in the state prison for a period of five years to life.

‘(e) Any person who participates in an act of oral copulation while confined in any state prison, as defined in Section 4504 or in any local detention facility as defined in Section 6031.4, shall be punished by imprisonment in the state prison for a period of not more than five years, or in a county jail for a period of not more than one year.’

Collins contends since his judgment was not final on the effective date of the amendment, the new statute should be applied to his act, under which it would not have been illegal, citing In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, and Weissbuch v. Board of Medical Examiners, 41 Cal.App.3d 924, 116 Cal.Rptr. 479.

People v. Rossi (1976), 18 Cal.3d 295, 134 Cal.Rptr. 64, 555 P.2d 1313, disposes of the question whether not only the judgment but the conviction must be set aside. The Court in Rossi specifically disposed of all contentions made by the Attorney General except that based upon the amendment to Penal Code section 290. In Rossi, the Court held that the statutory amendment to section 288a which eliminates from criminal sanction certain sexual conduct, previously defined as criminal in nature, in addition operates to invalidate a conviction under the old law, which was not final when the amendment was enacted and became effective.

Penal Code section 290 was reenacted to require that a person previously convicted of oral copulation with another consenting adult must register with the police as a sex offender. Since the sweep of Rossi is that the conviction itself must be reversed, that seems to apply to the plea of guilty. The Court in Rossi stated it could find nothing in the new legislation suggesting the Legislature intended to preserve criminal sanctions for acts committed prior to repeal.

We apply the language of Rossi literally to mean that the conviction itself must be reversed. The Court there quoted from a number of authorities, stating:

‘In Spears v. County of Modoc (1894) 101 Cal. 303, 35 P. 869 . . . this court . . . explicitly held that the repeal of the ordinance before the judgment became final invalidated the conviction.

‘[T]he Spears court [held] . . . “If a penal statute is repealed pending an appeal, and before the final action of the appellate court, it will prevent an affirmance of the conviction, and the prosecution must be dismissed, or judgment reversed.’ (Sutherland on Statutory Constitution, sec. 166.)'

‘. . .

‘As the United States Supreme Court has observed, it is ‘the universal commonlaw 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.’ (Bell v. Maryland (1964) 378 U.S. 226, 230, 84 S.Ct. 1814, 1817, 12 L.Ed.2d 822.) In the instant case, this ‘universal commonlaw rule’ mandates the reversal of defendant's conviction.' (People v. Rossi, 18 Cal.3d 295, 301, 304, 134 Cal.Rptr. 64, 67, 555 P.2d 1313, 1316.)

In Rossi the conviction was by jury verdict. In the case at bench the conviction was by a plea of guilty.

Penal Code section 689 declares:

‘No person can be convicted of a public offense unless by verdict of a jury, accepted and recorded by the court, by a finding of the court in a case where a jury has been waived, or by a plea of guilty.’

In Stephens v. Toomey, 51 Cal.2d 864, 869, 338 P.2d 182, 184, the Court stated: ‘A plea of guilty constitutes a conviction. [Citations.]’

In the sense in which the word ‘guilty’ is used in the criminal law, there can be no plea of guilty to non-criminal conduct.

It follows that the plea of guilty must be set aside. We next consider the consequences of the setting aside of that plea.

It has been held that the failure of the court or of the district attorney to observe the terms of a plea bargain permit a withdrawal of the plea at the instance of a defendant (People v. Delles, 69 Cal.2d 906, 910, 73 Cal.Rptr. 389, 447 P.2d 629; People v. West, 3 Cal.3d 595, 610, 91 Cal.Rptr. 385, 477 P.2d 409; People v. Pinon, 35 Cal.App.3d 120, 124–125, 110 Cal.Rptr. 406).

In effect, in such cases there has been a partial or perhaps a total failure of consideration for which the defendant agreed to plead guilty. And in such cases where the plea has been set aside, that with which the prosecution has parted, in the way of dismissing additional counts and striking allegations, may be restored.

In People v. Kirkpatrick, 7 Cal.3d 480, 487, 102 Cal.Rptr. 744, 748, 498 P.2d 992, 996, the Court said:

‘Reversal must be ordered, as hereinabove indicated, for repleading. Since by granting this relief we are in effect permitting Kirkpatrick to withdraw his guilty pleas the ends of justice require that the status quo ante be restored by reviving the dismissed counts and requiring defendant to plead to the counts as originally charged as well as to the count added by amendment in Action No. A—581416.’

The consideration for the district attorney's recommendation the guilty plea be accepted was a plea to a crime carrying a maximum of 15 years' imprisonment. Collins' plea bargain was made by his express understanding he could serve a sentence of up to 15 years.

Here, the setting aside of the conviction is the necessary result of Collins' appeal based solely upon the non-criminal nature of the conduct to which he pleaded guilty. Consequently, the trial court, upon remand, has the right to restore the dismissal charges and the stricken allegations of the indictment (In re Sutherland, 6 Cal.3d 666, 671–672, 100 Cal.Rptr. 129, 493 P.2d 857; People v. Kirkpatrick, supra, 7 Cal.3d 480, 487, 102 Cal.Rptr. 744, 498 P.2d 992).

The judgment imposing sentence is reversed, and the cause remanded to the trial court to take such proceedings consistent with this opinion as in its discretion it deems proper.

FOOTNOTES

FOOTNOTE.  

1.  The notice of appeal signed by defendant as in propria personam, but apparently prepared by his attorney, speaks of ‘Conviction entered upon a plea of guilty or Nolo Contendere.’ There was no reason to mention Nolo Contendere.

WHELAN,* Associate Justice. FN* Retired Associate Justice of the Court of Appeal, sitting under assignment by the Chairman of the Judicial Council.

AULT, Acting P. J., and COLOGNE, J., concur.