*1 No. 19934. May 1978.] [Crim. PEOPLE,
THE Plaintiff and Respondent, COLLINS, Defendant and
MICHAEL JAY Appellant.
Counsel Court, Hutchens, under
James A. and appointment Supreme & for Defendant Hutchens Rounds Appellant. General, Winkler,
Evelle J. Jack R. Chief Assistant Younger, Attorney Kremer, General, General, Alan Daniel J. Assistant S. Attorney Attorney General, Plaintiff and Meth Keith I. Motley, Deputy Attorneys Respondent.
Opinion MOSK, J.Defendant Michael Collins from a of Jay appeals judgment conviction, the conduct which his conviction was no claiming produced a crime at the time the trial sentence. He was longer judge imposed in counts, indicted 1974 on November fifteen separate felony including count Code, one of six counts of (Pen. 459), §§ burglary attempted Code, Code, two of (Pen. 459), counts forcible burglary (Pen. § rape three 261), of assault Code, § counts with intent to commit (Pen. rape 220), Code, three counts of 288a, § forcible oral (Pen. § copulation effective in A 1975). conviction was also previous felony alleged.
Pursuant to a entered of to one plea bargain, return, count oral in of commission of that copulation; allegations crime stricken, means of force and of a conviction were felony prior and the other 14 counts were After a dismissed. in hearing February the court criminal found the defendant to be a suspended proceedings, sex disordered offender and committed him Patton State mentally Code, for an Inst. indefinite & (Welf. 6316). Hospital § period Patton, While was at Penal Code Legislature repealed section 288a and enacted a new section of the same number which became effective on 1976. forcible oral January copulation Although section, the new still under of oral between proscribed copulation adults is not. consenting, nonprisoner
Criminal were reinstated in when it was proceedings April determined that defendant was no the health and longer danger of others. At that time he to the court’s safety objected jurisdiction sentence him former because section 288a. The court repeal
overruled and sentenced him to state for one to objection prison fifteen which it to be “the law.” deemed term years, prescribed at Defendant was credit for served Patton. given days
I Defendant insists the court erred in sentence because imposing which he in was conduct admitted no pleading guilty longer at the time of On the of our basis decision sentencing. punishable v. Rossi Cal.3d 295 reverse the conviction. agree accordingly oral In the defendant was convicted of nonforcible Rossi copulation 288a; final under old section before the became by lapse however, new section 288a took effect. reversing period appeal, conviction, a criminal we held that when repeals Legislature conduct statute—or otherwise removes state sanctions from formerly criminal criminal—its the dismissal of deemed action requires pending from conduct. in Rossi derived such Our holding proceedings charging rule, Modoc the common law v. County recognized early Spears *5 303, court, 305 101 Cal. P. and often reaffirmed this (1894) 869], by [35 a a clause terminates all that the criminal statute without repeal saving not criminal reduced to final Sekt v. Justice's prosecutions judgment. 17, 297, 304 P.2d 167 A.L.R. 833], Court (1945) [159 discussed the rule’s theoretical the basis: it Legislature, by presumes conduct, the condone from intended to removing specified proscription acts. past
In re 740 Estrada Cal.2d Code dealt with the on the common law rule of Government impact “The the Section 9608 section clause. general saving provides: law effected) means termination or whatsoever (by suspension or not a bar to the indictment a criminal offense does constitute creating in violation of an act committed information and already punishment such the to bar or unless intention law so terminated the suspended, an declared or information and indictment punishment expressly of law.” provision applicable statutes that to criminal amendments
Estrada between distinguished that We held that the and those increase mitigate penalty imposed. intended the that the 9608 defeats section Legislature presumption increased; cases, the are in such acts when saving penalties pardon past the that the be clause intent punished expresses Legislature’s under the law rather than avoid for conduct old punishment proscribed a In the event of both before after amendment of statute. penal however, that amendments we held section 9608 mitigating punishment, law rule the does not alter common defendants benefit of giving intended section 9608 is allow mitigation; punishment beyond which the has determined is for the in conduct Legislature appropriate but rather to a defendant from question, prevent escaping punishment within when his conduct has been remains the condemnation of law.
The amendment in discussed Rossi did not intervening merely mitigate but all removed sanctions for conduct punishment previously proscribed. noted, however, We that it would be untenable to defendants give benefit of a reduction in while them benefit of a punishment denying remission of Section 9608 does not such complete punishment. compel result. Just an amendment is a sufficient reducing punishment under declaration section to bar the reduced beyond punishment term, an amendment criminal sanctions is a sufficient eliminating declaration intent bar all Legislature’s conduct so decriminalized. Rossi extension of the represents logical in the line of cases with common law principles developed dealing rule, as we its recognized Board reaffirming holding Governing Mann 1].
This case is controlled Rossi. Defendant’s con clearly viction had not been reduced to final when new section 288a *6 became effective—and under the admitted, new that section the act he and which based, his and conviction were was no upon guilty plea longer It follows that the sentence cannot be allowed to stand. punishable.1 1The contend that Rossi is not People because the conduct of the controlling herein remained under new section illegal 288a. the of force was Although allegation stricken, it is the argued, facts defendant’s underlying the court must guilty plea—which review to determine if his was conduct indeed that criminal—demonstrate the act of oral force, was committed means of and copulation forcible oral is still by copulation merit; under the new This is proscribed section. it argument without patently suggests both the substance of defendant’s the ignore and nature of his conviction. With the plea stricken, of force allegations defendant was with charged forcible—oral simple—not he When entered his of he was asked the court what had copulation. plea he by done, and “Placed in her mouth.” There hint in my is no this responded, penis response that force was used. Thus the the admitted ultimately charged by People, by defendant, rests, and which the conviction is upon oral act that is simple copulation—an newby section 288a. proscribed
II remains, however, to this An issue as the of proper disposition Defendant that we do not reverse his conviction but rather appeal. urges “correct” the sentence to “no he desires to avoid penalty”; apparently of the 14 counts to the reinstatement dismissed bargain. pursuant plea that he is not to withdraw or in other Defendant insists way seeking rule, his and hence is not the discussed disturb guilty plea, governed by below, that dismissed counts be restored when may however, conclude, that attacks such a We successfully plea. proper dismiss is to reverse the with directions to the count remedy it A when rests involved herein. conviction cannot stand on appeal upon reversed It is this that we conduct is no sanctioned. for reason longer of conviction in v. Rossi (1976) supra, judgments People 303. This is the Modoc Cal. County Spears supra, of nature relief when a defendant relies on noncriminal of appropriate his conduct.
III all of 14 dismissed counts of some or Since reinstating question remand, us address this issue on it is to is to arise likely appropriate the effect of trial To determine now for the court. guidance counts, we examine the reversal herein on the dismissed our briefly We v. Orin of summarized the nature plea bargaining. process “The process 193]: of has authorization which received judicial bargaining statutory plea of criminal contem an method prosecutions appropriate disposing and the defendant and an agreement plates negotiated to the defendant the court.... Pursuant this- procedure approved benefit, in order obtain a agrees plead guilty reciprocal generally could if less severe than that which result he consisting convicted of all offenses were charged.” benefits. is
Critical
reciprocal
concept
bargaining
or the defendant
When
either
deprived
prosecution
*7
lie from
it
relief will
for which
has
benefits
bargained, corresponding
906,
69 Cal.2d
Thus,
v. Delles (1968)
we held in
concessions made.
People
to the
389,
a
447
629],
P.2d
contrary
910
Cal.Rptr.
[73
without
not be
affording
of a
terms
may
bargain
imposed
also Pen.
(See
to withdraw his
an
defendant
guilty plea.
opportunity
Cal.3d 868
10
Code,
1192.5;
v. Johnson (1974)
Cal.Rptr.
[112
§
People
556, 519
666, 672
P.2d 604].) And we held in In re
6 Cal.3d
Sutherland(1972)
129, 493 P.2d
that when the defendant withdraws Ms
857],
Cal.Rptr.
[100
it,
or otherwise succeeds in
counts dismissed
guilty plea
attacking
to a
be restored.
v.
also
(See
pursuant
plea bargain may
People
480,
7
744,
Cal.3d
487
(1972)
498
In
Kirkpatrick
992];
Cal.Rptr.
[102
re
463,
770,
9 Cal.3d
469
(1973)
The a a entering plea bargain, generally contemplates certain result; ultimate to its is the defendant’s vulnera bargain integral to a term of We this in above bility punishment. recognized quoted 937, 942, from v. Orin (1975) Cal.3d and in passage People supra, 595, v. 385, West Cal.3d (1970) 477 P.2d People when we first to the gave explicit approval process plea bargaining: “Both the state and the defendant a from The may profit plea bargain. benefit to the defendant from a lessened does not need elaboration .. ..” When a (Italics added.) defendant total gains sentence, relief from his is the state vulnerability substantially deprived benefits which it to enter the Whether the agreed bargain. immaterial; seeks to withdraw his or not is formally guilty plea it his from to sentence that alters escape vulnerability fundamentally the character of the bargain.
Defendant seeks to relief from the sentence but gain imposed otherwise leave the intact. This is in excess of that to plea bargain bounty which he is entitled. The in decriminal intervening Legislature the conduct for which he was izing convicted reversal of justifies defendant’s conviction and a direction that his conduct may support further criminal on that but it also proceedings subject; destroys fundamental assumption underlying plea bargain—that would be vulnerable to a term of The imprisonment. state therefore seek to reestablish defendant’s may vulnerability by the counts dismissed.2 reviving counts, 2The statute of limitations will not bar on dismissed prosecution the indictment be amended section 1009 of the Penal Code to reinstate may pursuant 463, 469; (1974) (See those counts. re v. Hill Crumpton supra, 769; Cal.3d Daniels
supra, 677].) 43 A.L.R.3d As we our stated in order to show cause In re Zurica *8 herein, however, the defen Under the circumstances posed is not a case in of his This is to the benefit dant also entitled bargain. the his the defendant has attacking which bargain by repudiated *3 of does on the basis external the and so he attacks only judgment, plea;* 288a—that have rendered reenactment of section events—the repeal that the state This court has the long recognized insupportable. v. Henderson no erroneous has interest judgments (People preserving 77, 482, 386 P.2d and that 677]) Cal.2d Cal.Rptr. [35 events noncriminal conduct. Here external should not rest on convictions undermined this not defendant’s agree repudiation plea bargaining to the state we must fashion a that restores the ment. remedy Accordingly, it without defendant for which benefits bargained depriving to which he remains entitled. bargain one or more
This be the state to revive best effected may by permitting counts, sentence to not of dismissed but defendant’s the limiting potential set than three in state term of more years punishment prison, to the Release Board determinate sentencing Community pursuant Service, 4752, No. 6 Cal. ch. No. West's (Stats. Legis. p. Service, Adv. 300).4 Deering's Legis. p. of
We find for the result in a line cases based on precedent foregoing of double Our concern there was to principles jeopardy. specifically to vindictiveness and more avoid generally preclude penalizing a successful v. Ali (1967) appeal. pursuing “a defendant that 277, 281 348, 424 932], we stated retrial on a not be to risk should being given greater required v. Hood And to his for the exercising right appeal.” privilege held, “had 444, 459 his term would have been 14 defendant not maximum years. appealed, the court not him for To may impose preclude penalizing appealing, he found if on retrial is maximum sentence more than again years 28, 1971), the court “order amended to June (Crim. may accusatory pleading were but of which were charges initially charged offenses recharge dismissed.” subsequently to into whether the defendant noted above it not useful inquire 3Although if the state has been the benefit deprived his when determining guilty plea repudiated to when whether determining ought it is a inquiry of its bargain, significant events. undermined external enforce a bargain be permitted sentence, in his cannot bind trial judge imposition bargain 4Since the parties sentence, actual sentence vulnerability imposed pursuant relates to defendant’s court’s discretion. *9 . . . .” also (See Henderson (1963) 482; 60 Cal.2d People supra, v. Schueren 560-561 People The concerns addressed 833].) in these cases as well to our apply decision herein. The defendant should not be penalized properly Rossi to overturn his erroneous conviction and invoking sentence rendered vulnerable to more severe being than under his plea bargain.
The herein restores the disposition substantially agreement previously It the defendant negotiated. realize the permits benefits he derived from the while bargaining also agreement, receive that for which approximately they bargained.
The is reversed and the cause remanded for further in accordance with the views proceedings herein. expressed Tobriner, J., Richardson, J., Manuel, J., Newman, J., concurred. CLARK, J. I dissent I from reversal of the and from judgment, part for the reasons majority opinion, expressed my dissenting opinion v. Rossi 304-307 P.2d 1313].
Bird, J.,C. concurred.