*1 Feb. S041974. [No. 1996.] PEOPLE,
THE Plaintiff and v. Respondent, NASALGA, MARIA E. Defendant and Appellant.
Counsel Court, Defendant E. Evans under Young, appointment by Supreme and Appellant. Williamson, General, Chief Assistant E. Attorney George
Daniel Lungren, General, Bass, General, E. Ronald Attorney Ronald A. Assistant Attorney General, Chinn-Yu, and for Plaintiff Niver and J. Margo Deputy Attorneys Respondent.
Opinion
section
amended Penal Code1
WERDEGAR, J.
the Legislature
30, 1992,
12022.6,
June
to increase
(a)
(b),
subdivisions
and
effective
from
for a
enhancement
amount of the
loss required
one-year
property
$25,000
$50,000
enhance-
and to increase the loss
two-year
required
104,
$100,000
$150,000.
1992,
(Stats.
1.) In this case we
ment from
ch.
487,
$124,000 (§
stole
address the
of whether a
who
person
question
12022.6,
conviction
(b)(3))
of section
but whose
before
1992 amendment
is entitled to the
was not final at the time the amendment became operative,
is, therefore,
for the
benefit of the
amendment and
eligible only
(1965)
1Unless otherwise all references Background
Factual and Procedural 1993, defendant, E. On Maria January Nasalga, charged (1) (now theft violation of section subdivision subdivi- felony grand 12022.6, (b), (b)(3)). Pursuant to section subdivision the information sion $100,000. also the victim’s loss exceeded offense was alleged charged 25, 1990, time committed between 1991. April July During defendant, who was as the office for a manager employed bookkeeper rent checks into bank her management company, deposited personal property account. Pursuant to a defendant negotiated guilty disposition, pleaded theft on 1993. As she waived grand February part plea bargain, trial and to a court trial on the truth of the enhancement. jury agreed $90,000 checks, Defendant admitted worth of but the taking prosecution $124,000. evidence the checks she took were worth The court presented $124,000 9, 1993, found she had stolen worth of checks. On August court sentenced defendant to the lower base term of sixteen months for grand theft, 12022.6, a consecutive enhancement under section plus two-year (b), subdivision for a total state term of three and four months. prison years offense, 25, 1990, At the time of defendant’s between and July April (b) “If the loss subdivision provided pertinent part: ($100,000), exceeds one hundred thousand dollars the court shall in addition and consecutive to the felony attempted punishment prescribed of which the defendant has been convicted an additional term felony impose *5 30, 1992, of two Effective June the amended the statute years.”2 30, 1992, takes, damages, provided, any person 2Until June section 12022.6 in “When full: destroys any property attempted felony, or in the commission or commission of a with the destruction, taking, damage impose intent to cause that or the court shall an additional term as follows: “(a) ($25,000), twenty-five If the loss in exceeds thousand dollars the court shall addition punishment prescribed felony attempted felony and consecutive to the or of which for the the impose year. the defendant has been convicted an additional of one term “(b) ($100,000), If the loss exceeds one the court shall in addition hundred thousand dollars felony punishment prescribed felony attempted consecutive to the for the or of which the impose years. defendant has been convicted an additional term of two destruction, any accusatory pleading involving multiple charges taking, damage, “In of or provided aggregate the may imposed additional terms in this section be if the losses to the specified pleadings victims from all in All under felonies exceed the amounts this section. this subject joinder section remain to the rules of and severance stated in Section 954. provided “The in imposed additional terms this section shall not be unless the facts of the taking, damage, provided charged or destruction in excess of the amounts in this section are accusatory pleading by the and admitted or to be true the trier of fact. found to, to, taken, destroyed “This applies property damaged, section but is not limited or (b) violation of Section 502 or subdivision of Section 502.7. 1, 1992, “(c) only July This section shall remain in effect until and as of that date is statute, repealed July unless a later deletes or enacted which is enacted before (Stats. 1990, 1571, 1, 7492-7493.) extends that pp. date.” ch. § threshold enhancement from required two-year increase the loss to $150,000 $100,000 the to and the threshold loss required one-year $25,000 $50,000.3 Even at the time defendant though, from to enhancement sentenced, $124,000 a theft of made defendant for a only was a eligible enhancement, court, a the trial without one-year objection, imposed two-year is under the former version of the statute. The record silent as enhancement whether the knew the section had been amended between the time parties We of offense and time of trial. review to granted defendant, is not final at time the decide whether a whose conviction law is entitled to the benefit of the lesser in the changed, provided (b).4 of section amended version subdivision
Discussion
I Defendant because section 12022.6 was argues case,5 amended to final her and because prior judgment the amendment $124,000 reduces one, for stealing from two she years is addition, 3In permit aggregation section 12022.6 was amended to continue to of losses if losses arose plan (originally, permitting from common scheme or the subdivision aggregation 1992), July losses “sunsetted” unless a new statute enacted was before three-year (subd. (c)) $1 add a new enhancement for losses in excess million and a new four-year (subd. (d)). (e) $2.5 enhancement for losses in excess million Subdivision added, providing: “(e) It is the provisions intent that the of this section be reviewed within years reason, five consider effects of inflation on the imposed. additional terms For that 1, 1998, this shall remain in effect until only January repealed and as of date is statute, 1, 1998, unless a later January enacted which enacted before deletes extends that (Stats. 1992, 104, 1).) date.” ch. 4The issue of waiver has not parties, been raised or briefed either in this court or in However, defendant, agree Court of Appeal. if we it follows that her sentence under section 12022.6 was unauthorized. A sentence is lawfully unauthorized when it could not be *6 imposed any under particular “[L]egal circumstance in the resulting case: error an commonly unauthorized mandatory sentence occurs where provisions the court violates governing 331, length (People (1994) of confinement.” v. Scott 9 Cal.4th 354 [36 627, 1040], Cal.Rptr.2d omitted.) reaffirmed, recently 885 P.2d fn. As we the concept of an unauthorized sentence constitutes exception “general requirement an established to the that only those properly preserved claims parties raised and appeal.” are on reviewable (Ibid.) 5In that, In re T. approval Pedro we cited holding a purpose case for the determining statute, application judgment retroactive anof amendment a criminal a is not final until the time petitioning for writ Supreme of certiorari in the United States Court (In passed. (1994) 1041, 74, has 1022], re Pedro T. Cal.Rptr.2d 8 Cal.4th 884 1046 P.2d [36 citing 593, In re 718]; Pine 66 Cal.App.3d 594 see also Bell v. [136 Maryland (1964) 378 U.S. 230 L.Ed.2d 84 applies S.Ct. rule 1814] [“The any which, such proceeding at the the supervening legislation, [criminal] time of has not yet disposition reached highest final it.”].) court authorized to review
790 entitled to the benefit of the statute. She notes the amendatory statute contains no clause and that in its saving nothing indicates history an intent to make its application prospective only. of her support Estrada, defendant this case is position, argues In re governed by supra, Estrada), Cal.2d 740 where we held the amendatory statute lessening “[i]f becomes effective punishment date the prior judgment conviction then, it, becomes final in our and not the old statute in when opinion, effect committed, (Id. 744.) act was prohibited Defendant also applies.” Kirk, asserts her case is identical to In re factually 63 Cal.2d supra, Kirk, (Kirk), a case we decided the same as Estrada. In after defendant day funds, was convicted of checks with insufficient issuing but before the final, was judgment amended the statute prescribed 476a, (§ (b)), the offense the dollar amount raising for a maximum of one required in the year’s imprisonment from county jail $100, $50 to a state term for the eliminating crime. We held the prison defendant, convicted of $75 checks for a total of issuing without sufficient funds, amendment, was entitled to the benefit of the and could be subject in the imprisonment only (Kirk, not to confinement in county jail state prison. 762-763.) supra, Cal.2d at pp. maintain the absence of a People clause is not saving determinative. T., In re argue Pedro 8 Cal.4th
They supra, (Pedro T.), rather than should, therefore, and we governs, defendant the benefit of the deny amended statute. At issue in Pedro T. was a statute temporarily enhancing for vehicle theft. the statute Although increasing punishment offense, was in effect at the time of the minor’s it before his expired final, conviction former, in reinstatement of the resulting more lenient (See Code, Veh. sentencing provision. 10851.) In whether the determining § minor could be sentenced properly under the increased temporarily penalty we looked provision, to legislative intent. Central to our analysis was the Legislature’s statement explicit that its enacting experimental “ statute was to punish offenders more ‘The finds and harshly: declares that the increase in motor rapid vehicle theft has reached crisis .... proportions of vehicle theft is escalating problem [T]he nurtured by the lack of any serious deterrent to this crime. . . . ture believes that it is in the best interest for . . . Legisla [<JD [T]he to enhance the
public safety penalties crimes of vehicle theft and stolen vehicles.’” receiving (Stats. 3246-3247, T., ch. as in Pedro pp. quoted Cal.4th 1046.) at p. From this we concluded the Legislature’s intent in sentence enacting increases was temporary “to more plain: punish, before, than severely who committed persons within a three- vehicle-taking (Pedro year period.”
We distinguished this stated intent from the intent in legislative discerned cases observed, governed Estrada: by we “when an “Ordinarily,” amend- ment lessens the punishment for a crime one infer the may reasonably on offenders imposition determined a lesser has Legislature (Pedro T. interest.” supra, will serve sufficiently public thereafter contrast, 1045.) Here, “[fjar that a from lesser determining Cal.4th at by p. interest, the Legislature vehicle theft would serve the public is not were Estrada necessary. declared increased penalties expressly 8 Cal.4th at first italics (Pedro on these facts.” implicated p. intent, Thus, we held the added.) in Pedro T. effectuate the Legislature’s (Id. more not be at retroactively. lenient statute should penalty applied Therefore, 1052.) who committed the offense of vehicle theft person convic- enhanced but whose during three-year experiment penalties, date, tion did not become final until after the statute’s sunset could be sentenced under the statute because requiring stricter punishment, “[appli- . . cation of the advances the temporarily increased . penalties (Ibid.) Legislature sought to achieve.” mind,
With the we now to the contentions in turn parties’ respective 12022.6 defendant’s offense. application
II Our case analysis begins instant consideration of necessarily Kirk, At holdings Pedro T. issue Estrada was an amendment reducing the statutory punishment crime of At escape. the time the in Estrada the offense was at petitioner escaped, punishable by least one year to start when prison, the defendant would otherwise be addition, (Former 4530.) from discharged prison. the time peti- tioner in Estrada former section escaped, no convicted provided person of an could be he escape paroled until had served least two calendar years after his return (Estrada, prison following conviction. escape offense, Cal.2d at 742-743.) After the commission of the pp. petitioner’s but sentence, before his conviction and amended sections 3044 and 4530 to reduce the committed force or penalties without escapes violence. The in Estrada petitioner he was entitled to the benefit of argued the ameliorative amendments. decision,
We agreed. an earlier Disapproving v. People Harmon 329], Cal.2d 9 351 P.2d we held the punishment provided act should be amendatory (Estrada, Cal.2d at imposed. supra, 63 stated, 742.) “The we “is problem,” one of to ascertain trying (Id. intent, intent.” p.at an statement of found Lacking express we one consideration “When the paramount importance: amends a statute so as to lessen the it has punishment, determined obviously expressly that its former penalty was too severe and that a lighter punishment proper
792 as the commission of act. It punishment prohibited is an inevitable inference that the must have Legislature intended that the new statute the new to imposing lighter now deemed be sufficient penalty should apply (Id. 745; to case to which it could every constitutionally apply.” see p. T., 1045.)6 also Pedro 8 Cal.4th at We supra, found the p. legislative intent “obvious, the ameliorative apply act amendatory because to retroactively hold otherwise would be to conclude that the Legislature motivated a desire for a conclusion vengeance, not in view permitted of modem (Estrada, theories of 745.)7 penology.” supra, 63 Cal.2d at p.
Thus, that, Estrada stands for the “where the proposition amendatory clause, statute and there is no mitigates punishment the rule is that saving amendment will so that operate retroactively lighter punishment (Estrada, 748.) 63 Cal.2d at imposed.” supra, To ascertain p. whether a statute should be applied intent is the retroactively, legislative “paramount” consideration: when an amendment “Ordinarily, lessens the for a crime, one infer the may reasonably has Legislature determined imposition of a lesser on offenders thereafter will serve the sufficiently (Pedro T., interest.” public 1045.) supra, Cal.4th at p.
The rule in Estrada has been applied statutes en- governing penalty hancements, as well as to statutes governing substantive offenses. (Tapia v. (1991) 282, Court Superior 592, 53 Cal.3d 807 P.2d [279 circumstances]; penalty special 434] [death see also v. People Figueroa (1993) 65, 20 Cal.App.4th 69-71 near Cal.Rptr.2d [dmg [24 trafficking 368] school 1724, yards]; People (1994) v. Todd 1729-1730 Cal.App.4th [same]; Cal.Rptr.2d v. People 774] Vasquez Cal.App.4th 6We noted in presented stronger Harmon, Estrada the facts case for relief than the in facts reducing punishment because the amendment did not become until effective the defend after tried, convicted, sentenced, ant in Harmon was whereas the ameliorative amendment Estrada, committed, although passed trial, after the crime was became effective before (Estrada, supra, conviction or sentence. Cal.2d The facts of the instant case closely theft, more although passed resemble Estrada: after grand defendant committed amended course, statute had been in effect for six charged. months before she was Of legal issue is the Legislature same: did the intend the old or new statute to when the reducing punishment amendment judgment became effective before the of conviction was final. 7As we noted in Pedro development “the of penology modem theories has continued unfold,” and, California, expressly has purpose impris declared the (Pedro T., punishment. onment for crime to be citing 8 Cal.4th at fn. (a)(1).) argument At oral Attorney General invited us to reconsider Estrada light change in the philosophy of imprisonment reflected in section (a)(1). years subdivision In the 31 since this court decided companion its case, Kirk, action, 63 Cal.2d has taken no easily as it could have done, abrogate We Estrada. therefore decline the invitation.
793 not gun considered pellet 767-768 Cal.Rptr.2d [gas-pressured [9 255] relevance, courts Of particular firearm for 12001 purposes].)8 amendments, here, the one mitigate that such as at issue that have held the for crimes or enhance increasing dollar amount certain by ments, in the absence of a clause should be retroactively, saving applied at (Kirk, indicia of a intent. 63 Cal.2d legislative supra, other contrary 476a, checks]; “not (b), People Enriquez 763 sufficient funds” v. p. [§ 746, 334, [same]; (1967) Cal.2d P.2d 65 749 423 [56 262] 1462, (1994) Roberts 24 1466 v. People Cal.App.4th Cal.Rptr.2d 771] 12022.6].) [§ Kirk, the increased the of loss
In Cal.2d level supra, $50 to elevate the offense to a it from petitioner’s felony, necessary raising does the of $100. Kirk not discuss the there Although legislation issue, the reasonable inference is the acted in response effects of inflation. Decided the on the we out the court same set by day Estrada, of in Kirk we “The is stated: thus principles retroactivity problem case, the same one as the involved in the Estrada statute precisely supra, The the checks for the was amended to final imposing penalty issuing prior the Under the rule in that judgment ameliorating punishment. announced case the petitioner is entitled to the benefits of the statute.” amendatory (Kirk, 63 Cal.2d at No further was supra, p. Kirk analysis necessary because we viewed the issue as identical to what we resolved in Estrada. course,
The rule in is not where the Legis implicated lature clearly its intent to the signals make amendment the prospective, by T., inclusion either an clause or its express Pedro saving equivalent.9 clause, we determined the absence of an express saving emphasized (“If Estrada there is no can saving clause he and should be under punished [Estrada, the new law.” supra, 63 Cal.2d at Sekt citing v. Justice’s Court (159 Cal.2d 833)]), P.2d 167 A.L.R. does not “Rather, end “our for quest intent.” what is legislative is that required Legislature demonstrate its intention with sufficient that a clarity reviewing T., court can discern (Pedro and effectuate it.” 8 Cal.4th at supra, omitted.) Thus, T., italics in Pedro in where amendment temporarily clause, vehicle creasing for theft contained penalty no we none saving that, theless found Estrada inapplicable: “We have found no facts to suggest offense, as of time of the . .. aim original legislative deterring [of vehicle theft through harsher had punishment] somehow ceased to operate, T., 1054-1055, Arabian, 8See Pedro J.) pages (dis. opn. Cal.4th footnote 3 Estrada. comprehensive a list of applied cases have Pedro Arabian, J.) 9See page (dis. 8 Cal.4th at footnote 4 opn. of comprehensive list of statutory change only. cases where the prospective deemed if at what any, during period to discern point, and it impossible to let its have determined Legislature might exper- inactivity terminate as to all criminal not proceedings yet iment in enhanced penalties believe, we is a final .... Much truer to original legislative purpose, shall to all vehicle for enhanced penalties determination provision *10 thefts, T., (Pedro effective committed its stated during period.” 1048.) Cal.4th at p.
Ill issue, 12022.6, the statute here at section contains no Because clause, consistent with the of Estrada and Pedro express saving principles intent. we we must look for other indications of any legislative Specifically, decision to must to discern whether try Legislature’s “reduce[] [the] $50,000 breadth of tiers” “the values for those tiers to existing by increasing $150,000, was intended to to all cases not final yet and respectively,” to offenses committed after at the time the amendment was enacted only (Sen. on Assem. Bill No. its enactment. Com. on Judiciary, Rep. Sess.) 3.) (1991-1992 Reg. p. (a) indicates the amendment of subdivisions and history
The legislative 12022.6, (b) threshold loss was increasing of section requirements, of when the tiers intended to account for the effects inflation since 1977 1976, 1139, 305.5, 5162, 1,1977, (Stats. were first set ch. July p. operative § 29, 1977, as amended Stats. ch. eff. June by p. 1, 1977): “The enhancement law operative July specified existing $25,000 $100,000) (one over and two for over taking year taking years Finance, on became in 1977. to the Commission State operative According the California Consumer Price Index has doubled since that approximately time. order to account for inflation since this bill increases the $50,000 $150,000, (See values for those tiers to and Sen. respectively.” (1991-1992 Sess.) Com. on on Assem. Bill Judiciary, Rep. Reg. No. 3.) enhancements, (c) The new three- and added in subdivisions and four-year 12022.6, enacted, contrast, (d) of section were to deter white collar by $1 crimes more theft of worth more than by punishing severely property million: $2.5 million and collar “The of this bill is to deter white criminals additional loss suf- terms based imposing upon property (Sen. (1991-1992 fered.” Com. on on Assem. Bill No. Judiciary, Rep. Sess.) more bill is intended ... to Reg. Specifically, provide “[T]his trust, severe to those of such as a bank or positions savings executives, (Ibid.) and loan who steal amounts of The Legis- large money.” lature also stated its intent that all 12022.6 “be section express provisions to consider the effects within five of inflation on addi- years reviewed end, (§ (e).) To tional terms that amendment imposed.” 1,1998, clause, the statute as of a January includes a sunset unless repealing {Ibid.) that date. new statute or extends repeals that Attorney argues The General because stated Legislature expressly (a) (b) 12022.6 its aim subdivisions amending inflation, account for the effects of we must discern intent legislative tiers We only. disagree. make new state- prospective Legislature’s ment intent amendments indicates its consider- regard only value its ation decline in the dollar’s since attempt adjust $50,000 $150,000 downward the theft between penalties decline, and its concern with future consider- approximate *11 inflation, ation of the effects of evidenced the ongoing inclusion of (See in five-year (e). sunset subdivision provision Sen. Com. on Judiciary, (1991-1992 on Assem. Bill Sess.) 2-3.) No. 939 Rep. Reg. pp.
Unlike Pedro in nothing legislative section 12022.6 history defendant, demonstrates an intent to such as punish persons, whose theft amendment, occurred before more than others whose statutory harshly amendment, theft the same amounts occurred after the commensurate with what the amounts stolen were prior worth to for the adjustment inflation that fact, occurred in the 15 between 1977 and years the amendments in 1992. $124,000 defendant to punishing reflect the value of as to opposed value, her to reflect that amount’s punishing current contravenes Legis- lature’s determination explicit that punishment enhancement should be commensurate with the dollar’s current worth and that such punishment should be to adjusted reflect fluctuations in the periodically dollar’s value. 12022.6, (See Thus, (e).) the inferred intent legislative raising $100,000 amount $150,000 for a necessary from two-year enhancement offenders, an intent to mitigate defendant, such as to reflect the dollar’s decline in value. As we stated in Estrada: “It is an inevitable inference that the must Legislature have intended that the new statute the new imposing lighter now penalty deemed be sufficient should apply to every case to which {Estrada, it constitutionally could apply.” Cal.2d at p. intent,
The dissent asserts the its and intent expressed to address the effects of inflation. If by “intent” the dissent means or motivation, however, we agree. The question, is not the motivation for the Rather, is the legislation. question Legislature’s intent concerning the adjustment whether for inflation should apply prospectively only whether the committed, adjustment here, should to offenses apply as little
more than one before the enactment. In this we year observe that regard, action, has taken no it amending easily as done, that, could have to indicate its intent contrary amend- ments should Nor does in the only. prospectively anything legislative such an intent. history suggest
That the at the same time it Legislature, reduced defendant, such as also amended section 12022.6 persons subdi by adding (c) (d) visions more certain white collar criminals punish harshly (such not, as errant executives) loan does savings as the Attorney General contradict the of retroactive argues, presumption application ameliorative of the statute.10 Different amendments to the provisions same statute reduce may for one class of defendants while penalties simulta treatment, neously for another increasing penalties class. Such differences in in the absence of discernible intent to the do not alter contrary, Thus, of Estrada. of a statute that principle provisions have an amelio effect, rative effect must be retroactive given even where other provisions (See same statute do not have such clearly an effect. v. Tapia Superior Court, 300-301; Cal.3d at see also v. pp. People Figueroa, supra, 69-71.) Cal.App.4th pp. *12 the did not
Similarly, Legislature the one- and change two-year terms (a) (b) for enhancement under subdivisions and of section 12022.6 does not indicate, asserts, as the General an Attorney intent “to increase or to keep at a penalties fixed level.” the one- Although and re- two-year penalties fixed, stolen; thus, mained these if amounts penalties apply only greater are $124,000 effect the amendment reduced for a theft of from punishment two to one based on that amount’s years year decline in value approximate T., since 1977. In Pedro the indicated that its Legislature intent in clearly the statute in effect when the enacting minor committed the crime towas offenders more in order to the punish harshly address threat to the public an increase in posed by vehicle thefts. 8 Cal.4th at p. {Pedro Here, 1046.) we discern no with comparable legislative intent to regard defendant, $50,000 such as persons convicted of between and stealing $150,000. Nor the does inclusion of a clause the entire statute in “sunsetting” to for future provide consideration of the effects of inflation our change The retroactivity analysis. inclusion of a review be- mandatory five-year rattier, an intent speaks, the to by Legislature ensure under punishment regard (c) (d) 10With to punishable defendants whose thefts are under subdivisions of clearly expressed punish persons its intent such more harshly than under the old statute: bill is provide “[T]his intended ... more severe trust, punishment executives, positions to those in savings of such as a bank or and loan who (Sen. large money.” steal amounts of Judiciary, Com. on Rep. on Assem. Bill No. 939 (1991-1992 Sess.) 2.) Reg. p. will to be commensurate terms culpability section 12022.6 continue review in years, of value of the dollar. five By the “real” requiring of for intends to enhancements theft clearly imposition prevent If to reflect the effects of inflation. this unadjusted requirement amounts tells of the us retroactive regarding prospective application anything intent, here, a with the amendments at issue it consistent suggests sunset that the amendments intent five-year provision, underlying of the is so that the enhancements retroactively severity proportionate value of the amounts stolen.11
The dissent maintains “the ameliorative on is apparent impact as a matter of economic had no effect.” only; reality, change mitigatory (Dis. 799.) at its the dissent opn., post, p. Endeavoring point, prove $50,000 observes: who stole person in 1993 deserving “[T]he $25,000 same enhancement as the who stole not to person mitigate because were but the crimes in ‘real dollar’ terms.” punishment, equivalent Id.., 801.) But application amendments defendant would plainly statute, ameliorate her under the new she punishment: would be eligible $124,000, a only one-year enhancement theft of rather than a enhancement under old two-year statute.
The also dissent writes the Legislature’s account for the purpose—to effects of inflation—“had no relation to goals. concerns or The penological inevitable effects time inflationary nothing are more than matter of a economic reality; they entirely are neutral on question how to measure criminal (Dis. assess culpability commensurate punishment.” opn., cannot, however, post, We avoid Estrada rule of applying the superficial expedient of declaring amendments have “no relation to when, penological concerns or goals.” statement cannot true simply be here, as eligibility additional made to on *13 explicitly depend the value of the stolen goods. therefore, of Kirk and light, Legislature’s acquies and,
cence in these opinions most its failure section especially, amending 12022.6 to its intent that express amendments apply only, prospectively we adhere to the well-established that “where the principle amendatory statute clause, mitigates and there is no the rule is that the saving amendment will so operate retroactively lighter punishment (Estrada, 748; Kirk, imposed.” 63 at supra, Cal.2d supra, 63 Cal.2d pp. 752-763; 1041; cf. Pedro 8 Cal.4th also supra, see People v. Rossi 18 1313]; Cal.3d 304 P.2d Tapia Superior v. 12022.6, We do not subsequent (a) address whether amendments of section subdivisions (b) given and should prospective be application. retroactive
Court, Cal.3d at p. we find the Consequently, 1992 amend- ments of (a) (b) subdivisions apply retroactively defendant.
IV General Attorney in the requests, event we find the amend retroactive, ments that we not reward the “the automatically defendant with end, windfall” of a sentence reduction. To that General Attorney sug we remand the case for gests To resentencing. this support argument, 65, where, cite v. People People Figueroa, because Cal.App.4th evidence of certain elements of an amended enhancement punishing drug trafficking near schools (such was not introduced at trial evidence was irrelevant under statute), the unamended the Court of Appeal remanded the (Id. Here, matter. 71-72.) contrast, pp. there is additional to nothing under prove the amended version of the enhancement that was not already at trial. The proved have People met successfully their burden of proving $124,000 defendant checks; stole therefore, worth of she is eligible, only A one-year enhancement. remand under the circumstances would serve no purpose.
The Attorney General also claims that because defendant was sentenced to a pursuant plea bargain, a remand is required.12This argument ignores the record: defendant’s sentence on the enhancement was not part any plea bargain. Only substantive offense of theft grand was included in the terms of the plea bargain: for her exchange plea defendant guilty, received a low term of 16 months for that crime. The section 12022.6 was the allegation of a court subject and, trial to determine the amount stolen evidence, after the taking the court determined defendant had stolen $124,000 worth of checks. Again, and, there is no basis for resentencing thus, circumstances, under these no would be served aby remand.
Disposition The judgment of the Court of is reversed. Appeal Lucas, J., Baxter, J., C. concurred.
KENNARD, J., Concurring.
I
agree
*14
plurality
under In re
opinion
(1965)
Estrada
799
172,
(1965)
408 P.2d
and In re Kirk
The
this court’s recent
plurality opinion attempts
distinguish
decision in
In re
(1994)
Pedro T.
Cal.2d T, is still good In re Pedro notwithstanding Cal.4th ante, (Plur. 797; 1041. opn., dis. at this post, Because opn., page.) here, unlike the plurality opinion in Pedro has majority correctly applied Estrada’s case, to the facts of this I concur principles in its result.
Mosk, J., concurred.
ARABIAN, J., Dissenting.
I
Although
harbor no
hostility
concept
ameliorative legislation and the
rule articulated in In
corresponding
re
(1965)
Estrada
expression legislative contrary, to effec- tuate it. Estrada,
In
63 Cal.2d
the court
supra,
rejected the
set forth
principle
in
v. Harmon
now sufficient to meet ends of criminal law.’ legitimate deemed] (Estrada, 745.) 63 Cal.2d at This inference supra, assumed p. “paramount (id. ) at importance” 744 in that the finding mitigated punishment should even to those crimes committed to its effective date: “to prior hold otherwise be to would conclude that the was Legislature motivated aby desire for a conclusion not of modem vengeance, permitted view theories [<j|] of . . . . . . ‘There is no in the of penology. scheme place sake, for its own of product vengeance or retribution. simply [Cita ” (Id. Since the of a vengeance” tion.]’ “desire hypothesis record, the only consideration countervailing court deter implied by mined the must have intended the lesser penalty operate retroactively notwithstanding constmction principles statutory supporting (Id. a 746-748.)1 contrary result. pp. rationale Estrada when applies only amendatory have changes
mitigated here punishment, premise assumes from the majority2 simply fact the enhancement term for this defendant would decrease. In particular T„ 1, noted, supra, in In re Pedro majority 1As the page Cal.4th at footnote however, , “Since words those were written . . . development modem theories of Code, penology (See (a)(1) has continued to unfold. Pen. [‘The finds and declares imprisonment punishment.’].)” crime is 2Although concurring opinion in her exception plurality’s Justice Kennard takes discussion of In re Pedro agrees analysis by 8 Cal.4th she with the which the plurality applicable find 63 Cal.2d circumstances these afford *16 the no evidence the of the amendment contains actuality, history as of or intended the threshold amounts ameliorative. higher conceived Rather, of inflation on the impact sole purpose acknowledge the enactment of value of dollar the 15 since during years 12022.6 and to maintain economic with the levels deemed parity originally (See to warrant sentence Sen. sufficient enhancement. Com. on Judiciary, (1991-1992 Sess.) of Assem. Bill No. 939 as amended June Analysis Reg. 22, 1992; 12, 1992.) Sen. Com. on Mins. June The fact the Judiciary, Hg. amendment included a review five-year for future infla- provision adjust (e).) tion confirms this narrow (§ objective. such had no relation to
Manifestly,
concerns or
penological
goals.
The inevitable
effects of time are
more
inflationary
than a matter of
nothing
economic
are
neutral on
reality; they
of how to
entirely
measure
question
Indeed,
criminal
and assess a commensurate
culpability
com
punishment.
schemes,
paring
pre-
it is clear the
postamendment statutory
Legis
lature did not effect an overall
(Cf.
reduction in
In re
punishment.
Griffin
On this no forgiveness To penalty we appears. contrary, may deduce the reasonably was of the view that due to inflation the increased amounts now reflect the same level of as the lesser criminality amounts had in terms of originally on the victim and impact threat to society. words, $50,000 other who person stole in 1993 was deserving same $25,000 enhancement as the who person stole in 1989 not to mitigate but because the crimes were in “real equivalent dollar” terms. “ Unlike the case in we are not dealing with an inference ‘that the lesser ... penalty sufficient to meet the [now ends of legitimate deemed] Thus, defendant the benefit of penalty. the reduced notwithstanding separate opinions, majority of the court have reached the upon same result based the same rationale. Since I disagree concurrence, plurality both the and the for convenience I will refer to their position collective as “the majority.” ” (Estrada, the criminal law.’ 63 Cal.2d at From an economic one relevant to perspective—the only theft such as defend crimes—persons ant are not more being punished it is the same harshly: penalty same *17 ante, (See 795.) ameliorate, crime. plur. opn., at Absent an intent p. to T., is not (In ‘‘‘’Estrada on these facts.” re Pedro 8 implicated Cal.4th 1046.)3 at p. limited,
The of this majority explain inflation-driven import motiva tion as follows: “The statement of Legislature’s intent with to the regard amendments indicates its of only consideration the decline in the dollar’s 1977, value since its to downward the attempt adjust ... to penalties decline, that and approximate its concern with future consider legislative ante, 795, ations of the (Plur. effects of inflation . . .” ongoing . at opn., p. added.) us, italics As it relates to the now before this observation inquiry to begs question: describe action in simply legislative terms a state intent, context, ment of without it in the assessing does not assist the larger effort to discern its on significance the issue of it retroactivity. Alternately, too proves much: the Legislature clearly its unequivocally expressed 12022.6, in which its amending own terms was unrelated mitigation The punishment. this majority’s analysis ignores essentially fact even though in Estrada reasoning remains in the funda grounded mental of deference to principle (Estrada, intent. legislative 63 Cal.2d 744.) at p. is the on
Equally unpersuasive
(1965)
reliance
In re Kirk
Given the lack of in this analysis proffered explanation conjecture best; it is quite probably incorrect. The entirely set Legislature originally threshold felony $50 amount at (Stats. ch. p. § 3457) and increased it (Stats. 1448, 1, $100 3003). ch. 3At least two additional considerations against militate an mitigate punishment: intent to The amended version of section provision 12022.6 retains the allowing aggregation of losses imposition penalties. additional four-year also added three- and large-scale enhancements for (§ (c) (d).) thefts. subds. & the California consumer During intervening eight-year period, price index rose not 100 as the approximately percent, percent majority spec- D-12, Thus, (See 60.)4 in the ulate. Cal. Statistical Abstracts table absence the more any specifics, likely change explanation amounts was a determination the classification original felony low, i.e., $50 calculated at had been too was too severe circumstance, to the crime. such a the rule of Estrada would extent this court of amelio- determined its rationale should embrace a range rative not reductions in legislation just punishment. Contrary implica- tion of the Kirk stands for no more than this now unremarkable majority, 1041, 1054, (See (dis. In re Pedro proposition. supra, Cal.4th fn. opn. *18 Arabian, Moreover, J.).) Kirk, whatever the result Estrada clearly counsels that each case must be evaluated on its own merits with evidence of legislative intent the and determinative factor. in the ab- controlling Only sence of some indication otherwise the court default may presumption retroactivity.
On the basis I conclude foregoing the majority invoke the rule erroneously of Estrada both because the amendment in is not ameliorative question because the legislative retroactive I would purpose negates application. affirm the judgment Court of Appeal. J.,
George, concurred. 4According Abstracts, to the 1995 California Statistical price consumer index was 25.7 30.4 in 1963.