*1 761 original applica- and (which done), has insisted that his upon. accepting the passed Thus, tion be while parole by accepting it, petitioner old law under also insists amendatory act he entitled the benefits without be. This court must This cannot determine detriments. increased whether the or decreased the con- penalty. petitioner, As hold that when we realistically whole, and sidered applicable punishment, increased the and so cannot be made petitioner. petition discharged, order to show cause is and the writ denied. Peek, J., J., J., and Tobriner,
Traynor, C. J dissenting For thereasons stated BURKE, . ante, page 172, 740 Estrada, In re opinion in [48 order within case. 948], I P.2d concur J.,* concurred. Schauer, Dec. 9195. In Bank. 1965.] No.
[Crim.
Corpus.
KIRK on Habeas
ROLLIN
re LOY
Supreme
assign-
under
Associate
the Judicial Council.
Chairman of
Loy
pro.
per.,
Beechinor,
Rollin
and Robert N.
appointment by
Supreme Court,
for Petitioner.
Lynch, Attorney General,
Maier,
Thomas C.
Doris H.
*2
Attorney General,
Assistant
Turner, Deputy
Edsel W. Haws and Richard K.
Attorneys
General,
Respondents.
for
PETERS,
presents
problem
This case
the same
involved
Estrada, ante, p.
Cal.Rptr. 172,
in
re
408 P.2d
948],
day
problem,
this
That
as
to this
decided.
case,
petitioner
is whether
is entitled to the benefits of a
punishment passed
ameliorating
statute
act was committed but before the
the
after the criminal
judgment
of conviction
case, supra,
final. In the Estrada
we held
an
became
that
ac-
entitled to the benefits of the
cused man was
act.
petitioner
the rule there announced
in the
Under
instant case
to the benefit of the
is also entitled
act.
presently
Petitioner is
confined in Folsom State Prison
judgments.
pursuant
guilty
to three
Two of them
him
found
degree robbery in
of first
violation of section 211 of the
third,
Code. The
which is the
in
pro
Penal
ceeding,
one involved
this
issuing checks, totaling
$75,
is for
without sufficient
funds in violation of section 476a of the Penal Code.1
judgment
At
time of rendition of
the
the
of conviction
issuing
checks,
(b)
the
for
subdivision
of section
of
476a
the
provided that,
Penal Code
if the total amount of all checks
issuing
that the defendant is convicted of
$50,
does not exceed
originally charged
issuing
1Petitioner was
in three counts with
three
judgment,
29, 1962,
peti
$25 cheeks. The
entered on June
stated that
guilty
counts,
was found
tioner
of each of the
and that
three
he was
by
provided
January
sentenced to the
22, 1964,
for
term
On
state
the
law.
a corrected
was filed which stated that
the three
counts were consolidated into one.
original
There is another matter
that should be mentioned.
In both the
judgments
issuing
petitioner
and corrected
for
cheeks it
is found that
separate
prior
finding
served two
made
this was done.
terms for
convictions. No such
judgments
robbery
why
in
It
the
for the
convictions.
is not clear
issuing
A conviction
for
cheeks without sufficient funds
may
is not one of those convictions which
lead to habitual criminal status
Code,
prior
under section
of the Penal
and the
convictions are not
among
require
in
those enumerated
section 476a of that code which
a
special penalty. Therefore,
finding
prior
the
of
convictions as to this
may
meaningless.
hand, robbery
offense is
It
be noted that
the other
on
may
is
the crimes
one of
enumerated
section
to
644 which
lead
habitual
status.
criminal
county
imprisonment in the
by
only
punishable
is
the offense
(a) of
year.
subdivision
Under
jail
more than one
for not
im-
section
of the
violations
penalty for other
section the
prisonment
or
year
than one
jail
not more
county
for
in the
Prior
years.
more than 14
prison for not
in the state
of
increasing
by
the conviction
of
affirmance
in
by
amended
(b) was
April
1964, subdivision
present
Under
from
$50
$100.
the amount
issuing checks
petitioner
is convicted
who
person such as
county
subject
imprisonment
totaling
be
would
$75
subject
imprisonment
state
jail only
not be
would
prison.
one involved
precisely
same as the
problem
is thus
penalty
imposing the
supra. The
ease,
in the Estrada
prior to final
issuing
amended
the checks was
ameliorating
rule announced
punishment. Under the
is entitled to
that case
amendatory statute.
long
held
as he is
Petitioner is not entitled to release
judgments
for his other crimes. He
under valid
of conviction
issuing
judgment of conviction for
is entitled to have the
complete
imprison-
corrected,
checks
but he must
his terms of
for the robberies before he is entitled to his release.
*3
granted.
Appeal,
The writ is
The District
Second
Appellate District,
One,
Division
is directed to recall
its
People
judg-
remittitur in
v.
Crim.
vacate
Superior
ment, and to reverse the
Court of
County
Angeles
directions to enter
Los
with
expressed
the views
herein and
accordance with
entry
after such
return
authorities to com-
plete
robbery.
his terms for
Traynor,
J., Tobriner, J., Peek, J., and
Dyke,
C.
Van
pro tem.,* concurred.
BURKE, J.
I dissentfor the
reasons stated
the dis-
opinion
senting
Estrada, ante, page
in In re
172,