*1 Apr. S016614. 1991.] [No. TAPIA, Petitioner, v.
ROBERT ALAN COUNTY, OF Respondent; COURT TULARE THE SUPERIOR PEOPLE, in Interest. Party THE Real
Counsel Defender, Bazar, Defender, Public Pereira, Tim Assistant Public
Neal Petitioner. Loza for Hugo Cantrall, Denvir, Gonzales, E. Michael Tito T. Quin
John Philipsbom, Havlena, Amici Robertson, R. Sternberg and Jean F. Thomas Linda Curiae on behalf of Petitioner. for
No Respondent. appearance General, Richard Attorneys Daniel E. Lungren, John K. Van de Kamp General, Overoye, Daniel O. Attorney Assistant B. Chief Iglehart, Jibson, General, and Karen J. Robert Ward Attorney Campbell Assistant General, Ziskind, in Interest. Party for Real Attorneys L. Deputy Castle, as Amicus Curiae Attorney (Kern), District Patricia Toole Deputy Party for Real Interest.
Opinion Act,” 115, Reform the “Crime Victims Justice PANELLI,J.—Proposition We criminal on June 1990. granted law in several respects changed to should be applied whether the measure’s provisions review to determine We conclude that its effective date. of crimes committed before prosecutions trials, certain other provi- the conduct of provisions addressing certain defendants, such may be applied the to the benefit of sions law changing may not. of the measure’s provisions The remainder prosecutions.
Facts Alan of committing Robert Tapia
The have accused petitioner February on 1989. circumstances first murder with degree special Voir dire County. Court of Tulare the pending Superior prosecution commenced. yet has not 6, 1990, day after the voters June 115 took effect on thereafter, court ruled that it Shortly superior the measure.
approved and, before it to the case the measure’s provisions would apply procedural The new voir dire under the new statute. conduct voir dire accordingly, conduct the attorneys than the “shall that the court rather statute provides the examination “shall be con- and that jurors” examination of prospective 115, 7, for cause.” challenges (Prop. ducted in aid of the exercise of § Proc., court’s superior Civ. to have the 223.) Seeking codified as Code vacated, of mandate. the Court of for writ petitioned Appeal order Tapia relief. We review and summarily granted The Court of denied Appeal stayed directed an alternative We also proceedings issuance of writ. our decision. court superior pending
Discussion stated, As whether we review determine granted crimes committed prosecutions should before its date. To effective answer this must address two issues. question The first is whether this initia presumption prospectivity applies tive. (See Evangelatos (1988) Court Cal.3d 1206-1209 Superior 629, 753 P.2d Cal.Rptr. (Evangelatos).) The second concerns the 585] meaning the terms do not “prospective” “retrospective.” We address any other issue or concerning validity of measure’s applicability provisions.1
I. We may of the first issue. It is quickly dispose well settled that a new statute is absent an presumed operate declaration of prospectively express electorate, clear retrospectivity indication that the or the Legislature, intended otherwise. (See People Hayes (1989) 783 P.2d 719]; Evangelatos, 1206- 1209; Aetna Cas. Surety & Co. v. Ind. Acc. Com. P.2d (Aetna Casualty); Jones v. Union Oil Co. 218 Cal. 77
5, 740, In re 5]; P.2d cf. Estrada 63 Cal.2d 746 (1965) Cal.Rptr. [25 [48 172, 408 P.2d Both 948].)2 the text of 115 Proposition and the related ballot arguments entirely Thus, are silent on the of as to question retrospectivity. most of 115’s Proposition see no provisions we reason to from the depart ordinary rule of construction that new statutes are intended to operate prospectively.3 Deukmejian (1990) 326, 1In Raven v. 52 Cal.Rptr. 1077], Cal.3d 336 P.2d 801 [276 (Id., held 346-349; that 115 did single-subject not violate the pp. rule. see Cal. Const., II, 8, (d).) art. We subd. also held that 3 of purport section which § ed to amend the state require provisions Constitution to courts to construe certain of its in a Constitution, manner consistent with the federal was invalid for comply failure to with the
procedural requirements (52 349-356; for constitutional revisions. see Cal. Const., XVIII, 1, 2.) art. §§ 2 codify Proc., Various (See, statutes this rule interpretation. e.g., of Code Civ. 3§ [“No retroactive, part Code, of expressly declared.”]; is unless so [same].) [this Pen. 3 code] § explain, As we shall other considerations affect the of certain (See which pt. benefit V.C.,post.) defendants.
II. “retro of what the terms “prospective” There remains the question if it a is retrospectively that law argues being applied mean. spective” Tapia law’s effective a crime committed before the to the of is applied prosecution laws, clearly is of the test which Tapia some proposes date. For types is if it conduct past a law defines Certainly retrospective appropriate. conduct, a crime, for or eliminates such as a increases punishment law, on Such a as applied based such conduct. defense to a criminal charge crime, act an consequences completed a “change[s] legal past date,” behavior. namely the defendant’s criminal before effective [the law’s] (Weaver 17, 24, 24, 31 101 S.Ct. 450 U.S. L.Ed.2d v. Graham (1981) [67 836, 851 (1985) Cal.Rptr. also Weidert 960]; see [218 Graham, Aetna Casualty, supra, cf. 380], supra; 705 P.2d Weaver quoting if it “the effects retrospective changes legal law is Cal.2d 394 [a violate crimes would also past of such a law events”].) Application I, Const., art. against legislation. (U.S. the constitutional rule Const., I, 1; Cal. art. cl. § however, is not for laws test appropriate, Tapia’s proposed take rather than yet of trials which have place, address the conduct Even though taken already place. criminal behavior which has date, a law before the law’s effective of a crime committed prosecution is future. This still addresses conduct conduct trials addressing a consistently Such recognized. in this state have courts principle “ facts exist merely not because it draws upon statute ‘is made retroactive [Instead,] .... effect of such statutes to its enactment ing prior [t]he to the nature since relate actually procedure prospective (1980) Cal.App.3d in the Court (Strauch followed future.” Superior v. Weiner 552], Cal.App.2d Olivas quoting reason, said that “it is P.2d For this we have 476].) 600-601 [274 effect.” (Mor as having retrospective misnomer to designate [such statutes] 276].) P.2d Ry. ris v. Co. Electric Pacific 155 Cal. Estate Patterson (1909) We this issue in addressed previously destroyed P. The case involved the of a will was proof 941]. *7 that year, of 1906. The testatrix died later the San Francisco fire great 1907, In amended the Civil was the Legislature unaware that her will gone. “ calamity ... by have been public of a ‘shown to Code to will permit proof ” testator, . .’ his . . knowledge without in lifetime of the destroyed the Patterson, 634, Civ. former Code 155 Cal. at (Estate p. quoting supra, 100, 1907, 1, new Proc., the 122.) Holding ch. p. added Stats. § a the is mistake to characterize we stated that statute applicable, “[i]t It to what wholly a law. relates of section 1339 as retrospective amendment
289 shall be the trial of the for done the upon application probate, proof must be furnished and the facts which must be established. It applies trials enactment. It can have which take after its no effect whatever on place trials or enactments. It is in its nature.” previous prospective only (Estate of Patterson, 155 Cal. at supra, p. 638.)
Courts came to the same conclusion in In decisions. Strauch subsequent Court, 107 the court held to be Superior supra, Cal.App.3d prospec tive a statute which on in suits the imposed plaintiffs malpractice require merit, ment of a certificate of even as filing causes of action that applied accrued before the statute’s effective date. The new statute operated pro because it did not “create a new cause of action or a spectively deprive defendant of defense on the merits or malpractice any affect vested rights.” at in (Id., 49.) Similarly, Andrus v. 143 p. Court Municipal Cal.App.3d on other Cal.Rptr. (disapproved grounds 341] Evangelatos, 44 Cal. 3d at fn. supra, p. 11), immediately court applied new statute eliminating right to from certain orders of appeal court superior denying extraordinary relief. Noting “[Retroactive word, course,” not an apt the court found it “absurd” to “subscribe the notion that the Legislature desired to the demise of a postpone proce Court, . dural . . .” loophole (Andrus at Municipal supra, 1047.) Once p. again, court in Court Republic Corp. (1984) 160 Superior Cal.App.3d new, immediately applied mandatory statute dismissal for requiring failure to prolonged prosecute making plain tiff’s irrelevant. diligence The court observed that the new statute to a case filed before its enactment was not “retroactive” because the “ ” statute’s effect was . . . ‘actually nature .’ prospective (Id., at p. Court, quoting Strauch v. Superior supra, Cal.App.3d 48-49.) pp. cases, From these it is evident that a law governing conduct of trials is being when applied “prospectively” it is to a trial after occurring date, the law’s effective regardless of when the crime was com underlying mitted or the underlying cause of action arose. this conclu Tapia challenges sion, that we arguing it in Aetna previously rejected Casualty, supra, 388, in Cal.2d Evangelatos, supra, v. Hayes, however, 49 Cal. 1260. supra, 3d Those do not opinions, his support argu ment. each we refused opinion, a statute so apply as to change legal of the consequences conduct. In parties’ past whether determining such statutes “the effects changed legal events” (Aetna Casualty, supra, Cal.2d at p. 394) we sometimes used the terms “substantive” and “procedural.” (Id., 395; Evangelatos, p. Cal.3d at fn. However, 26.) effect, we also made it clear that it is the law’s not its form or label, which is important. (Aetna Casualty, 394; Cal.2d at Evan gelatos, 1225-1226, fn. *8 of the 30 Cal.2d we annulled an award Casualty,
In Aetna supra, erroneously had Commission. The commission Industrial Accident in a the amount of for disabilities compensation a statute which increased had to effective which occurred the statute’s involving injuries prior case court, the before the commission that argued date. its award this Defending remedy.” solely (30 in to matters of or procedure statute question “relate[d] Estate the rule in acknowledged Cal.2d at We both articulated p. 393.) of “ Patterson, ‘it is a and our observation that Cal. supra, previous to changes] having retrospective misnomer designate [procedural ” at Morris effect.’ 30 Cal.2d (Aetna Casualty, supra, p. quoting Co., We 768.) at offered the further Ry. p. Electric Cal.2d supra, Pacific not statutory changes apply such cases the are said explanation “[i]n con statutory an to the rule of they exception general because constitute are not in but because [i.e., struction the presumption prospectivity], no Legislature fact There is then as whether the retroactive. problem at (Aetna, the Cal.2d retroactively.” intended changes operate supra, However, at issue reasoning we did not this the statute 394.) apply p. effect, and its would because the statute was “substantive in its operation retroactive, substantially liability a new additional and since it imposes 395.) The law in existing obligations.” (Id., question affects rights thus, and, for liability changed increased industrial disabilities employers’ of their conduct. legal past consequences 1188. situation Evangelatos, supra, We confronted a similar in case, an individual The initiative at issue limited Proposition to his share of tortfeasor’s for noneconomic liability damages proportionate Patterson, rule Estate fault. derived from Misconstruing Cal. several amici curiae contended that the measure should be applied “sub that it was rather than ground “procedural” on retrospectively We because “retroactive argument stantive.” rejected very would definite 51 to causes of action have Proposition preexisting both plaintiffs (Evangelatos, supra, substantive effect” on and defendants. 1225-1226, Casualty, fn. at issue Aetna 26.) Like the law of the changed consequences supra, Proposition legal parties’ amount conduct. 51 reduced the which damages Specifically, Proposition recover from a defendant made it particular impossible could plaintiff for defendants to recover contribution for noneconomic damages.4
Thus, Casu- it is clear that neither Aetna contrary argument, Tapia’s nor rule that statutes alty, Evangelatos, general supra, repudiated procedural provisions, opinion While 51 also included we did dis not our Instead, single provision. cuss a such our entire discussion was to Civil Code section directed 1431.2, proportionate damages, on heart of limitation noneconomic we called “the (Evangelatos, 51.” fn.
291 Instead, the trials are in each case we conduct of addressing prospective. held the rule to statutes which changed legal consequences inapplicable such conduct new or different liabilities based past imposing upon (Aetna Casualty, 395; Evangelatos, conduct. Cal.2d at supra, supra, Cal.3d at fn. also our in
Tapia Hayes, interprets opinion supra, 1260, as his It does In supporting Hayes not. we considered the position. effect of Evidence Code section the exclusion of requires prehyp- notic unless testimony statutory certain were at the procedures followed cases, time of As in our we hypnosis. previous began by reaffirming presumption new statutes operate to de- prospectively proceeded termine what “prospective” meant the case before us. We did operation not, not hold that the statute would based apply, the date the upon Instead, crime alleged was committed. we looked to the date of the conduct regulated by statute. Because the evidence in prehypnotic question statute, predated we held that invoke section 795 to exclude such “[t]o . . evidence . would be tantamount to the statute retroactive effect.” giving v. Hayes, Cal. (People 3d at supra, p. 1274.) conduct to which the statute attached legal was the use of consequences the date of hypnosis; the offense was irrelevant.
III. next Tapia argues that a definition of “retrospective law” for- originally mulated in American States W. S. Co. v. Johnson (1939) Cal.App.2d P.2d (American States), thus encompasses—and prohibits—the of a application new law to the prosecution crimes committed before the States, law’s effective date. American the Court of defined a Appeal law retrospective acts, one which affects rights, obligations, transac- “[as] tions and conditions which are performed or exist to the prior adoption the statute.” We th&American States repeated formulation in Evangelatos, and in Aetna page Casualty, formulation, 391. page Based this upon that a law Tapia argues addressing trials, the conduct of such as the new voir dire “affects provision, right[] [a] . . . . which . . statute,” to the of the prior adoption right exist[ed] question being to have supposed right voir dire conducted under the law at the existing time of the offense.
As the demonstrates, however, foregoing examination of our opinions have not invoked the American States formulation to such justify a result.5 States, opinion Nor does the justify in American such a result. The court upheld case increasing of a percent new law from 2 to 4 the tax rate on busi- effort to into the definition incorporate to be an
Tapia’s argument appears *10 It of “substantial protections.” the now obsolete concept “retrospectivity” the constitutional prohibition against held that a law violated formerly was a “substantial whether if it eliminated protection,” post legislation However, time of the offense. at the existing substantive or procedural, analysis. (Collins has States Court repudiated United Supreme _ _ 2715, 30, 39, 110 S.Ct. L.Ed.3d U.S. Youngblood (1990) [111 of “sub have the federal employed concept we (Collins).) Although under the ex facto clause in deciding questions stantial protections” 251, 692, 667 P.2d 34 Cal.3d Smith (People 777, A.L.R.2d P.2d v. Ward 149]; People IV, formed a of the definition has never 911]; part see pt. post), concept of construction. statutory of in the context “retrospectivity”
IV. Smith, in supra, that our Finally, Tapia argues opinion result. In Smith we held that contrary Cal.3d 251 dictates a (Smith), only Bill apply the “Victims’ of would Rights,” provisions Proposition We committed after the measure’s effective date. of offenses prosecutions addressed the defendant’s not between distinguish provisions did the conduct of trials. criminal behavior and which addressed court in after the trial robbery The defendant Smith was found guilty defendant argued his motion to a confession. On appeal, denied suppress Consti- in violation of the California that his confession had been obtained after the long 8 took effect after we review and granted tution. Proposition measure amended the defendant’s crime and trial. One of that provision not be ex- that “relevant evidence shall California Constitution to provide Const., I, subd. We (d).) art. any (Cal. cluded criminal proceeding.” trial court’s not to validate the held that could made, the motion to denying suppress. erroneous at the time it was ruling, Thus, truly us in Smith was one of immediately the narrow before question is, “the rule should be applied change that whether new retrospectivity, 394; see (Aetna Casualty, effects of events.” legal Graham, 24- 30-31 L.Ed.2d at pp. also Weaver v. U.S. at 25].) case, Smith, also held that Proposi- the facts of the we beyond going after the mea- 8 in to crimes committed entirety only
tion its would apply 8, includes like sure’s effective date. Because Proposition already paid, prior year applied to a business which had nesses’ net income for the date, (31 doing business in 1935. privilege a nominal tax for the the law’s effective pp. 608-609.) Cal.App.2d at the same should follow that we Tapia argues various types provisions, However, our decision reasons supporting case. this approach before us. in the case now the same result do not dictate Smith stated “primary for our decision was The first reason we gave (Smith, of crimes.” to deter the commission of Proposition purpose [was] con- Based on that purpose, italics added.) “must have intended the measure apply cluded that the electorate deterred, i.e., been committed already could be that had not offenses that *11 258- 34 Cal.3d at pp. the time 8 was adopted.”6 (Smith, supra, Proposition contrast, 259, in In the voters in adopting Proposition italics original.) unnecessary their were to reduce the declared that expressly purposes criminal is swift system justice and to “create a in which “costs cases” 115, 1, this . . . .” subds. We can best effectuate (b), (c).)7 and fair (Prop. § to reforms by designed the earliest purpose giving possible application accelerate the of criminal cases. adjudication
The second reason
for our decision in Smith was the desire to
gave
avoid
doubts about the initiative’s
from
resolving
constitutionality arising
the rule
ex
facto
Cal.3d at
against
post
legislation. (Smith, supra,
p. 259.)
1983,
Smith,
even
when we decided
some authorities
suggested
reforms
violate the rule
ex
facto
procedural
might
against
legislation
post
unless
left “untouched all the substantial
with which exist-
protections
law
the
the
the crime
ing
accused
crime” at
time
person
surround[ed]
343,
was committed.
v. Utah
170 U.S.
L.Ed.
(Thompson
(1898)
[42
Smith,
1061, 1061,
added;
The United States
Court has
facto
Supreme
greatly
law
simplified
post
Collins,
U.S._
30,110
since Smith. In
2715],
L.Ed.2d
S.Ct.
supra,_
[111
court endorsed its earlier
v. Bull
high
formulation of
law Calder
3 U.S.
(3
390 L.Ed.
and Beazell v.
Dall.)
(Calder),
[1
650]
216, 217-218,
Ohio
269 U.S.
169-170
L.Ed.
46 S.Ct.
[70
committed,
already
While it is true that one cannot deter
have
been
one
crimes which
may
certainty
able
increasing
speed
to deter future crimes
of conviction in
pending cases.
In further contrast to
concept
refers
once to the
of de
hereby
terrence: “We the people
penalty
of the State of California
find that.
. . the
death
115, 1,
(a).)
deterrent to murder . . . .” (Prop.
subd.
understanding”
of the
knowledge
original
as “faithful to our best
(Beazell),
L.Ed. 2d at
at
(Collins,
p._
the ex
facto clause.
supra,_U.S.
post
“
formulation,
‘any
Under that exclusive
2719].)
110 S.Ct. at p.
statute
[1]
which punishes
as a crime
an act
previously
committed,
was innocent when
done;
[2]
which makes more burdensome
punish
ment for a
crime,
after its
commission,
[3]
which deprives
one charged
to law at the time when
any
according
crime of
defense available
with
”8
committed,
U.S.
as ex
(Collins, supra,_
act
is prohibited
post
was
facto.'
Beazell,
2719],
110 S.Ct. at p.
quoting
L.Ed.2d at p.
p._
217].)
In Collins the
Court
Supreme
a “substantial
because it eliminates
violates the ex
facto clause
post
simply
to the
According
at the time an oifense was committed.9
existing
protection”
court,
“to ‘substantial
references
its earlier cases
protections’
high
an
read to
without explanation
should not be
rights’
adopt
‘personal
(Collins,
of the
undefined enlargement
clause].”
[ex
*12
_
41,
While
2721].)
110 S.Ct. at
the
p.
U.S. at
L.Ed.2d at
p._
p.
[111
electorate,
scrutiny
immunize a law from
under
or the
cannot
Legislature,
“the
clause
it
by labelling “procedural,”
prohibition
the ex
facto
post
simply
by
categories.” (Ibid.
be evaded is the one defined
the Calder
may
which
not
41,
right impairs Instead, can resolve such 260.) challenges (Smith, Colder categories. the exclusive applying that we should “substantial Lastly argues on this point, Tapia perpetuate We it as a matter of state law. decline analysis by protection” adopting do so. While have the power interpret provision we unquestionably Const., federal differently (Cal. the state Constitution than its counterpart I, ex history art. neither the nor the state 24), language post § clause a different supports interpretation. in of the state and federal clauses is identical relevant language part: Const.,
each declares that no “ex facto law” shall be art. passed. (Cal. post I, Const., I, 10, 9; U.S. art. cl. The state clause was first 1.) proposed § the constitutional convention of 1849 as an amendment to a committee I, draft of article the “Declaration of as an after- Rights,” apparently of the Debates in the of California on the For- thought. Convention (Rep. Constitution, mation of the State and Oct. 1849 Sept, The record of the debates does not discussion of the amend- any include ment.10In to the second constitutional convention voted delegates without recorded preserve language adopted again any debate on its meaning.11 of an of constitu- part ongoing project reform, tional the Constitution Revision Commission proposed change of the clause from the ... . . . wording (“No ex facto law negative post shall ever be to the . . . passed”) (“A[n]... may facto law positive *13 However, not be the passed”). any commission did not substantive propose reworded, The voters the as in change.12 the November approved provision, 1974 General Election. 10 I, 16, adopted, As provided article section of the at Constitution of 1849 that: “No bill of
tainder,
law,
contracts,
post
impairing
obligation
ex
facto
or
passed.”
law
shall ever be
dissent,
According
delegates
adopt
to the
to the 1849 convention must have intended to
protection” analysis
already
“substantial
part
(Dis.
because it had
of federal law.
become
ofMosk,
opn.
'¡.¡post,
pp. 308-309.)
argument
misinterpretation
at
The dissent’s
is based on a
84, 86,
(C.C.D.
1809) (No. 15,285)
of United States v. Hall
high
Pa.
26 F. Cas.
which the
Collins,
43,
(See
supra,_U.S.
court corrected in Collins.
p._
p.
at
L.Ed.2d at
2722-2723].)
pp.
S.Ct. at
I,
only
11The
recorded
proposal
prohibit
debate on article
section
concerned a
stat
limitation,
rejected. (1
Proceedings
utes of
which the convention
Debates and
of the Consti
Sacramento,
City
Saturday,
tutional Convention of the State of California Convened at the
Sept.
(1880)
p. 268.)
at
change wording
drafting
12Wedo not
significant.
view
in
Part of the “task of the
modem,
rephrase
committee
of the
in
article
more
concise lan
[was]
[each
Constitution]
guage
necessary
organize
logical
(Assem.
and if
it in a more
framework.”
Interim Com. on
Amendments, Special Rep.
Legis.,
Constitutional
Rep.
on Constitutional Revision:
to the
Reg.
(1969)
11.)
Sess.
report
Legislature,
its
to the
proposal
In.
commission had
this comment on its
I,
I,
(now
9):
post
amend article
section
of the former Constitution
article
“An
section
ex
an
for the state ex
facto clause
meaning
post
Nor does
independent
state
this court has often cited the
Although
from our own
emerge
opinions.
federal,
an
have never
the state clause
given
clause
with the
we
together
held,
case,
in
that the state clause re
any
independent interpretation
Moreover,
in our
a different result than the federal clause.
nothing
quired
an
analysis
the notion that “substantial
has
protection”
opinions supports
in
The United States
the state Constitution.
independent footing
Supreme
in 1883
analysis
Court
“substantial
with its opinion
introduced
protection”
Missouri,
California, however,
v.
Before this court’s of the rule Kring, understanding against us in analysis. laws was inconsistent with “substantial Before protection” statute Mortimer Cal. was new People giving prosecu- tion, time, to the for the first and to close the right open argument by criminal cases. The issue was whether the trial court had erred jury the statute to the trial of a crime committed before the statute’s applying (Id., effective We the claim of error under 116.) date. considered 6,13 Penal section said was “intended ... to steer clear of Code laws, from the enactment of ex which are any difficulty arising post facto But changing the Constitution of the United States. laws prohibited mere forms of in a criminal action” do not fall within the ex post procedure facto clause’s We also stated prohibition. (46 p. 118.) “[i]t . . . difficulty clear that no constitutional would be encountered requir- . . .” offenses to be tried under forms of . ing past procedure (Ibid.) new Constitution, We did it dictated not even cite the state let alone suggest a different result or us to consider whether the particular procedur- required al law in As men- already eliminated a “substantial question protection.” tioned, analysis for clearly we would not follow “substantial protection” Ward, another 75 years. (See *14 _ _ Collins,
As the court’s recent in U.S. high supra, opinion demonstrates, L.Ed.2d 110 S.Ct. our reluctance 2715], apparent retroactively legal application . . . The of these relationships. facto law is one which affects attainder, laws, prohibitions [against post impairing and law the obli- classic bills of ex facto litigation. The Commis- gation changing of in fact situations is a source of chronic contracts] Com., of they (Cal. Proposed Revision sion recommends that be retained.” Const. Revision Const., p. 27.) pt. the Cal. “[a]ny provides, part, Penal in relevant act or omission commenced Code section of, may prior [January inquired the Penal Code took the date on which effect] prosecuted, punished passed.” in the same manner as if this code had not been and had Federal law analysis justified. was “substantial employ protection” an ex never free to adopt since we were analysis, us to follow that compelled After the federal rule.14 to the defense than rule less favorable facto post of the Collins, understanding return to the original is no reason not to there in and both federal facto laws expressed of the rule against post scope state Constitutions. in Smith was the desire for our decision
The third reason we gave of adverse to the administration a number of consequences “avoid practical (Smith, As we 262.) 34 Cal.3d at p. and the of fair trial.” justice right supra, discussed, of ex facto law already intervening simplification post have in Smith. that we foresaw difficulty eliminates the administrative major concerning avoid further litigation Proposi- we cannot Although altogether cases, must that administrative weigh tion 115’s we application particular of the benefits that immediate against burden substantial hearings, measure time in voir dire and preliminary offers reducing spent balance, efficiency, other On considerations of administrative among things. delay unnecessary as and well the electorate’s stated of goals reducing cost, favor the earliest giving Proposition possible application.
V. may It remains to be determined which of 115’s provisions may not be to the of crimes committed before the applied prosecution measure’s effective date. The fall into four (A) categories: provi sions which behavior to the change legal criminal consequences defendants; trials; detriment of which address the conduct of (B) provisions defendants; benefit (C) provisions clearly (D) single provision which codifies law. existing
A.
The first
conse
change
legal
those which
category
provisions,
defendants,
cannot be
criminal behavior to the detriment of
quences
to crimes
before the measure’s effective date. These
committed
Smith,
14Although
supra,
we cited the
34 Cal.3d at
California Constitution
Constitution;
page
give
interpretation
we did not
it a different
than the federal
we
prop
post
support
discussed the two ex
facto clauses as if
were one and the same. To
“
”
principles prohibited
right,’
osition that ex
substantial
‘[alteration
Graham,
cited
pages
Weaver
crimes Code, which add new 190.2) Pen. 10 (amending of section those portions § Code, Pen. 10 at (codified of section circumstances; that portion special felony-murder a 190.2, an for accomplice, that (d)), provides subd. which § true, major have been a participant be found must circumstance to special 11 life;16 section (adding to human acted reckless indifference and have with felony- of a Code, delicti that corpus Pen. which 190.41), provides § of the defend- independently circumstance need not proved based special Code, 190.5), 12 Pen. statement; section (amending ant’s extrajudicial § of life 18 the penalty of 16 and ages between the subjects which persons circum- murder with special for first degree without possibility parole Code, which 206.1), 206 and 14 Pen. stances; (adding sections 13 and §§ Code, 26 Pen. torture; (adding and section the new crime of define circumstance from a striking special a judge which 1385.1), precludes § or found to be true. has been admitted the measure’s before to crimes committed of these provisions
Application
legal
change
because each would
effective date would be “retrospective”
Graham,
v.
conduct. (Weaver
of the defendant’s past
consequences
Weidert,
39
see also
24];
450 U.S. at
L.Ed.2d
p.
p.
[67
Graham;
Casualty, supra,
cf. Aetna
Weaver
Cal.3d at p.
quoting
the rule
likely
against
violate
Such
would also
Cal.2d at p.
to define
appears
since each of these provisions
ex
legislation,
crime,
a
crime,
a
or to eliminate
increase
for
conduct as a
punishment
39, 110 S.Ct.
L.Ed.2d at p.
U.S. at
defense.17(Collins,
p._
supra,___
[111
115.
undesignated
are to
All
section references
U.S.
conformity
v. Arizona
Tison
brings state law into
with
16This subdivision
and, thus,
127, 144-145,
1676],
changes state law to the detri
L.Ed.2d
107 S.Ct.
[95
ibid,
1104, 1147
(1987) 43 Cal.3d
People v. Anderson
(Compare
with
ment of defendants.
1306].)
Cal.Rptr.
742 P.2d
[240
requires further
provisions but
as to most of the enumerated
This conclusion is obvious
explanation as to sections
and 26.
Code,
felony-
of a
190.41), provides
corpus
“the
delicti
(adding Pen.
Section 11
§
extra-ju-
independently of a defendant’s
proved
. . . need not be
special
based
circumstance
change
may,
general,
Legislature
Although the electorate or the
dicial statement.”
(Collins, supra,_U.S.
against
post facto laws
violating the rule
rules of evidence without
they may
the de-
3]),
fn.
not “alter
p.
110 S.Ct. at
p._,
fn. 3
L.Ed.2d at
necessary to convictions
proof
was made
gree,
or measure of the
or lessen the amount
Utah,
L.Ed. at
U.S. at
588-599
(Hopt
the crime was committed.”
when
change the definition
analogous
laws which
268].)
an effect are
Laws which have such
offenses.
Code,
dismiss
judge shall not strike or
1385.1) provides that “a
(adding
Pen.
Section
is found
contendere or
plea
guilty
a
or nolo
any
is admitted
special circumstance which
in Peo-
opinion
to our
response
a direct
by jury
appears
. . .” This section
to be
or court.
1029],
held
in which we
637 P.2d
(1981)
299 to may only be applied prosecu- these provisions 2719].) Accordingly, at 6, 1990. on or after June crimes committed tions of B. of trials the conduct address
Other of provisions for, of, crimes. These or defenses to rather than the definition punishment I, Const., art. which 14.1), Cal. include section (adding provisions § Cal. (adding section hearings; preliminary eliminates postindictment Const., I, and a to due right process art. which 29), gives § Const., I, art. which trial; 30), provides section Cal. (adding speedy § hearsay makes joinder, shall be construed to prohibit the Constitution not discovery and makes hearings, recipro evidence admissible at preliminary 223.5, 6, 7, Proc., 223 and and cal; sections and 7.5 Code Civ. (repealing §§ Proc., dire; sections Civ. which reform voir 223), a new Code adding § 1203.1, Code, 15, 16, 17, Code, Pen. amending and 18 Evid. (adding §§ § 859, 866, Code, which reform 871.6), prelimi and and Pen. adding § Code, Pen. which nary (adding §954.1), section 19 hearing procedures; for sever cross-admissibility that the absence of is not a ground provides Code, ance; section 20 Pen. 987.05), which (adding requires appointment § Code, 1049.5), of counsel who is to section 21 Pen. ready (adding proceed; § days which trials take felony arraign shall within provides place Code, ment; authorizes continu section Pen. which (adding 1050.1), § Code, ances to maintain Pen. joinder; (adding sections and §§ 1054.7, Code, 1102.5, 1102.7, 1054 to and 1430), Pen. repealing §§ discovery; which reform for discovery procedures provide reciprocal Code, and section Pen. for (adding 1511), provides appellate review of trial dates and continuances. has in an effort to show that advanced several
Tapia arguments applica- case, to tion of such in his even addressed on their face provisions though behavior, trials will neverthe- conduct of future and not to criminal First, less be to him. he that the new voir argues as “retrospective” applied ability jurors’ dire will limit his counsel’s to explore potential rule, If counsel had known of the new exposure pretrial publicity. on a motion he have an earlier complete argument, might sought ruling venue of voir dire. The flaw rather than for the results change waiting believe that the new voir this is the There is no reason to argument premise. information to any dire rules will be counsel of deprive Tapia’s which voir the new “the dire is directed. Under legitimately provisions, cause, may court permit showing good supplement parties, upon the examination further it or shall itself by such deems inquiry proper, modify imprisonment possibility parole. tice” in order to of life sentence without light history, arguably punishment of this section 26 could be said to increase the for crime. *17 submit to the such a jurors such additional prospective upon showing, by the as it deems codified as Code Civ. questions parties proper.” (§ Proc., §
Next, the for Tapia argues discovery that new provisions reciprocal would be him to because his counsel has conducted retrospective applied his based the that not be investigation upon assumption discovery would In this case the objection is because the reciprocal. purely hypothetical has informed the trial court that he does not intend to utilize the prosecutor curiae, however, discovery All and amici have reciprocal provisions. parties stressed the an early resolution of issues importance concerning Proposi- tion 115’s and have asked us to address such issues this case. of the
Application discovery to of evidence provisions compel production by obtained defense counsel before 115’seffective date would be Proposition retroactive under already we have discussed. This is because principles counsel can only be while an the dis- guided, investigation, by conducting contrast, covery rules then in force. In the date on which the crime was committed has no on the bearing discoverability of the results of counsel’s Discovery rules address trial investigation. not criminal behav- preparation, determine, ior. Trial courts are able to if necessary, camera whether evidence claimed to be particular subject discovery was obtained before or after 115’s effective Proposition date.
Finally, that counsel Tapia argues not have the trial to might permitted be continued if counsel had known that to do so would have him to required defend the case under the new 115 intro- provisions In duced. this way, to the new complete argument, change provisions view, of counsel’s legal consequences conduct. our this argument does not demonstrate that the new are In view of provisions retrospective. continuance, many reasons that can affect the decision to seek a to say any such decision was motivated reliance on the of the by state law Moreover, unaffected by is in the it speculative extreme. always has been understood this state that the rules the con- governing electorate, duct of trials are subject or the change Legislature, Mortimer, insofar as the Constitution 46 Cal. at permits. (People pp. 118-119.) above
Accordingly, provisions may enumerated pending cases of when the offense is have regardless charged occurred. alleged
C. The third of new consists of category clearly those which provisions benefit defendants. Each of these in section 10. contained judge, of a killing prosecutor the section provides Specifically, circumstance, codified at (§ must be intentional. constitute special that an Code, 190.2, The section also provides (a)(ll), (12).) Pen. subd. § true, to be found circumstance non-felony-murder for a special accomplice, 190.2, Code, subd. kill. codified at Pen. must have had the intent to (§ (c).) *18 before Prop to trials of crimes committed of these
Application provisions of a defend may change legal consequences osition 115’s date operative however, criminal because ant’s Such is permissible, conduct. usually that new favor defendants. provisions Although presume “is not presumption statutes are intended to operate prospectively, Estrada, re cases we straitjacket.” (In supra, p. to the benefit have not to statutes law applied presumption changing Instead, the Legislature of defendants. we have assumed that “[w]hen obviously amends a statute so as to lessen the it has expressly punishment determined that its former was too severe and that a lighter punish penalty ment is for the commission of the act” and prohibited proper punishment “ ” 745, ‘sufficientto at (Id., meet the ends of the criminal law.’ legitimate p. 367, v. 134 Oliver N.Y.2d N.Y.S.2d quoting People (1956) [151 We have the same applied 197, N.E.2d 201-202].) redefine, defendants, to statutes which to the benefit of conduct reasoning subject to criminal sanctions. v. Rossi Cal.3d 295 (People (1976) 64, 555 P.2d These authorities the conclusion Cal.Rptr. 1313].)18 compel that the listed above be cases. provisions may applied pending
D. Anderson, Finally, section 10 also codifies the rule of People supra, killer, 43 Cal.3d to the effect that an actual for a circumstance special true, to be found need not have had the intent to kill unless the applicable Code, circumstance so codified at Pen. special specifically requires. (§ Anderson, 190.2, subd. see at (b); People supra, p. overruling Carlos v. Superior Court Cal.3d 672 P.2d (1983) Cal.Rptr. 584, 596, see also v. Hendricks fn. 3 862]; Cal.3d 66, 737 P.2d This which does not 1350].) provision, change interpreted 18We have not Penal Code require section 3 to a different conclusion because simply general, presumption oper that section embodies the statutes common law new Estrada, prospectively. (In 746; Evangelatos, ate re cf. “ pp. 1207-1208.) legislature repeals It is also a ‘universal common-law rule that when the a criminal statute or otherwise removes the State’s condemnation from conduct that was ” criminal,’ formerly legislation presumed apply pending (People deemed such cases. Rossi, Maryland quoting Bell v. 378 U.S. 230 [12 822, 826, 1814].) L.Ed.2d 84 S.Ct. law, before 115’s be to crimes committed may existing applied effective date.
Disposition of the Court of The alternative writ is discharged. judgment Appeal is affirmed. Baxter, J.,
Lucas, J., Kennard, J., Arabian, J., concurred. C. MOSK,J. dissent. —I 115 should
The issue on review is “whether the before its effective date.” of crimes committed prosecutions *19 majority it be difficult to discern from the Although may opinion, intend in and indeed is what did the electorate dispositive question primary statutory The settled in both and deci- here—long this regard. presumption in its entirety sional law—is that the voters determined that the measure on or only to offenses apply specifically, occurring would prospectively, subject, its effective the voters did not on the that after date. Since speak remains unrebutted. presumption
It is inconceivable that the electorate could have been as subtle simply the voters could have majority and indeed as the perverse suggest—that and words intended that certain sections and clauses and specific phrases and that others not. would would apply prospectively, in of the intent that is not that Manifestly, majority opinion appears the electorate—but that of the majority. their error a callous lack of con- majority by continuing, compound II, for of the California (d),
cern the rule of article section subdivision as Constitution. That initiative measures—such prohibits Propo- provision states, In sition 115—from more than one our sister embracing subject. v. State rule is not a dead letter. Porten Sullivan single-subject (Cf. Corp. [sustaining single-subject 318 Md. 403-409 A.2d [568 1111] Sewerage v. Milw. Wis.2d statute]; to a challenge Brookfield is here. it [same].) Regrettably, 921-922 N.W.2d. however, I confirm the view belatedly the majority
Perhaps unwittingly, in Raven v. Deukmejian (1990) dissent expressed 115 does in fact violate the 801 P.2d 1077]—that Indeed, rule. now all but concede the single-subject expressly point, still within larger groups within individual of their distinction did in hold, this court majority To as a reveals. categories plainly broader strains subject one Raven, comprises measure such a “grabbag” By now the constitutional mockery prohibition. and makes credulity and sub- and subparts discrete parts the multitudinous recognizing Raven’s admit that measure, here majority impliedly of the subparts interest was erroneous. challenge of the rejection single-subject candor, quoted of the aphorism The words they should do so explicitly. 25, 47 338 U.S. v. Colorado (1949) in his dissent Rutledge Justice Wolf too often 1782, 1795, “Wisdom are 1359], appropriate: L.Ed. 69 S.Ct. late.” because it comes comes, merely not to it reject and so one ought never I
Petitioner, Tulare Superior accused Robert Alan stands Tapia, 12, 1989, including February crimes on committed certain having Court circumstances. first murder under degree special Election, an initiative the voters Primary approved At the June ballot as on the designated constitutional amendment and statute was On Justice Reform Act.” self-styled 115—the “Crime Victims II, Const., Cal. art. (See June 6 the measure became effective. purportedly *20 XVIII, 10, id., 4 subd. art. (a) [statutory provisions]; § [constitutional § provisions].) moved the court for an order that Proposi-
Subsequently, Tapia superior measure oper- 115 in his case. He that the argued tion was not applicable or after its only to crimes committed on ated prospectively, specifically, on 115 as a whole. He also focused effective date. He addressed Proposition sections, discovery. relate to voir dire and reciprocal certain which specific Procedure section 6 115 former Code of Civil Section of Proposition repeals Service, 1988, 1245, 2, 3153 11 West’s Cal. Legis. 223 ch. No. (Stats. § Service, which the 4674]), granted parties 5 Adv. Deering’s Legis. [No. of Civil Procedure voir dire. Section 7 adds a new Code the to conduct right 23, 24, 5, 15, 223, of that Sections right. section deprives parties 25, with the directly indirectly, separate 27 or in deal whole part, Their the motion. The discovery. responded subject reciprocal later They repre- voir dire solely was directed to the argument provisions. discovery provisions. sented that not invoke the reciprocal would motion, 115 was applica- ruling court denied superior voir dire. entirety, relating ble in its including specifically provisions Thereafter, the Fifth District Court of Appeal submitted to Tapia 115 against Proposition for writ of mandate prohibition petition and/or 304 included, others,
with a for a Its request stay. grounds among claim prospectivity to the court. The presented superior Court of Appeal summarily denied relief solely on the procedural ground this court was forum. appropriate here,
Coming review and a Tapia sought stay proceedings court superior stayed lite. We pendente proceedings prayed. Shortly thereafter, we review granted as to “whether the 115 should be of crimes prosecutions committed before its effective date.” We then an caused alternative writ of mandate to issue.
II consideration, After careful I would resolve the on issue review in the negative and award the relief he seeks. To Tapia my rea- properly explain sons, I must first set out the pertinent legal and factual background.
There is a
long-standing presumption
California—and generally (see
70,
United States v. Security Industrial Bank
459 U.S.
(1982)
79-80 [74
235, 243-244,
L.Ed.2d
“Prospective means that operation” the measure in question applies only occurs, arise, to conduct that or conditions that on or after its effective date. Court, (See, v. e.g., Evangelatos 44 Superior 1206; Cal.3d at supra, Aetna p. Com., Cas. & Surety Co. v. Ind. Acc. 30 391; Cal.2d at Russell v. supra, p. Court Superior 185 (1986) 814 Cal.App.3d see also Cal.Rptr. 102]; contrast, v. People Hayes, 49 at supra, By Cal.3d p. 1274.) “retroactivity” such implicates conduct or conditions in prior some significant way. (See, Court, Evangelatos v. e.g., 44 Superior 1206; Cal.3d at Aetna Cas. supra, p. Com., & Surety Co. v. Ind. Acc. 391; 30 Cal.2d at supra, Russell v. p. Court, Superior 814; 185 supra, at see also v. Cal.App.3d p. Hayes, Cal. supra, 49 3d at p.
The presumption is not prospectivity narrowly cabined constitu effects, tional concerns about ex facto post but is broadly based on policy
305 Court, 185 v. supra, Russell (See Superior fairness. involving considerations disfavored because generally are at laws Cal.App.3d p. [“Retroactive conduct. affecting new law past no notice of the affected have parties see also transactions.”’]; security laws disturb feelings ‘[S]uch L.Ed. (lead opn. v. 3 U.S. (3 Dall.) Calder Bull Chase, but necessarily must retrospective; law J.) [“Every post facto . . . This .”].) proposi an ex law law is not every retrospective post facto Otherwise, results would follow. For untenable firmly tion is established. the ex prohibition— be reducible to would example, prospectivity Also, could not be in itself. nothing prospectivity and would therefore be mandated as a result of constitutional but would fact be “presumed” compulsion. Will- (see, e.g.,
The arises the law is constitutional whether presumption statutory P. or 276]) (see, e.g., cox v. Edwards 162 Cal. Com., 393), Cas. v. Acc. 30 Cal.2d at Surety p. Aetna & Co. Ind. supra, Court, v. (see, Evangelatos whether the is the lawgiver people e.g., Superior Aetna (see, or their supra, 1205-1209) representatives e.g., pp. Com., 393). Cas. & Co. v. Ind. Acc. 30 Cal.2d at Surety p. supra, The (E.g., extends to law as well as substantive. presumption procedural Com., 393-394; Aetna Cas. & Co. v. Ind. Acc. 30 Cal.2d at Surety pp. supra, Court, Witkin, 815; Russell v. at Superior supra, Cal.App.3d p. supra, Court, Law, 495, see, 686; Evangelatos Constitutional at v. p. e.g., Superior 44 Cal.3d at This is because both supra, 1205-1206.) procedure pp. Cas. Surety substance can considerations of fairness. Aetna & implicate (See Com., v. 393-394; Co. Ind. Acc. 30 Cal.2d at Russell v. supra, Superior pp. Court, Moreover, at supra, 814-815.) presumption Cal.App.3d pp. not automatically satisfied whenever law is procedural applied proceed- Cal. 3d Hayes, on after its effective date. ings (See, e.g., People supra, Court, 1205-1206; 1274;Evangelatos 44 Cal.3d at pp. Superior supra, Com., Aetna Cas. & Co. v. Ind. Acc. 30 Cal.2d at Surety 393-394.) Such in futuro conduct or conditions in may nevertheless affect 1274; Aetna Cas. (See, Hayes, past. e.g., People Com., & Co. v. Surety Ind. Acc. p.394.) course, “in an is not irrebuttable. But the absence of presumption, retroactivity retroactively will not be express provision, [law] it is or the very *22 unless clear from extrinsic sources that the Legislature voters must have intended a retroactive application.” (Evangelatos Supe- Court, accord, 1209; Surety rior at Aetna Cas. & Co. Cal.3d p. Com., Ind. Acc. that “statutes are not to [stating clearly be unless it is made given retrospective operation appear such was the intent”].) legislative Election, an initiative approved the voters Primary
At the June
on the ballot as
designated
statute that was
constitutional amendment and
Bill of
On June 9 the
self-styled
Rights.”
8—the
“Victims’
Proposition
Const.,
II,
Cal.
art.
subd.
(See
became effective.
measure purportedly
§
XVIII,
id.,
provisions].)
art.
(a) [statutory provisions];
§ [constitutional
several
some
enactment containing
provisions,
was
Proposition
complex
substantive, some
and some both.
procedural,
692, 667 P.2d
Our first reason was to effectuate the intent of 8 is to stated purpose Proposition could ascertained. primary “[T]he at “It is obvious that (34 258.) deter the commission of crimes.” Cal.3d reform, effective, criminal behavior or no such no matter how can deter if has taken already place avert of life that behavior or disruption disruption the .... to be by Accordingly, declaring purpose Proposition the measure to deterrence of crime the voters must have intended apply deterred, i.e., not been already to offenses that could be that had 258-259, (Id. committed the time was adopted.” italics in original.) clearly
Our second—and was to interpret Proposition dispositive—reason under the ex way constitutionality such a as to avoid doubts as to its facto clause of the state charter. post context,
“In constitutional defect present potential its it 8 is that if construed to to crimes committed before adoption, apply Constitution, Our state which we may upon amount to an ex facto law. post Const., I, such laws. art. rely, (Cal. general guidelines prohibits known, for are well but its specific enforcing post prohibition difficult may questions.” (34 p.259.) applications present an act that “Beyond criminalizing two manifest constraints [against [the] a crime after its done and for increasing punishment was innocent when clear.” (34 p. 259.) is much less commission], picture . . facto legislation,. “As to all but the most obvious of ex examples rule. Each new statute challenged rule is that there is no general general scales, in on this must be the constitutional individually weighed ground case, the outcome will often on matters depend context of a specific .... degree *23 when, as usual- consistency with to enough perform is difficult “This task act multisection a time or a at occurs, one statute adopts ly Legislature even more problematic It is all ‘procedural.’ all ‘substantive’ that is either both of of mixture random seemingly is a the legislation when Cal. 3d (34 a composite.” 8 is such functionally, Proposition kinds. Viewed 260.) to uncertainties, litigation, minimize of multiplicity . . . “To avert cases, and general close results in the inevitable inconsistency forestall under the ex post measure constitutionality of this as to the to avoid doubts to criminal clause, only proceed- 8 to apply we construe Proposition effect.” (34 date it took on or after the committed out of offenses ings arising p.262.) “avoid a line that would to draw third and final reason was simply Our justice to the administration adverse number of practical consequences trial.” (34 p.262.) and the of fair right Court, 1188, 1205-1209, Next, 44 Cal.3d Evangelatos Superior elaborate review “on an we reaffirmed the presumption prospectivity Law, Witkin, at p. the case law.” Constitutional (7 115 set out what become Proposition the drafters of would Subsequently, Pro- “50 (Ballot Pamp., their They comprised prosecutors.” to do work. Stats, Amends, Const, voters, Primary Cal. arguments with posed 115, 35, “prose- to argument against Prop. Elec. rebuttal (June 1990), cutors” emphasized original.) 5, 1990, noted, the voters Primary ap- Election at the June
Finally, 115. proved Proposition viz., review, of Propo- the provisions
I turn now to the issue on “whether before its of crimes committed sition 115 should be applied prosecutions and factual back- the legal effective date.” Considering question against above, must be negative. set I believe that the answer out ground Smith, with, As controlling. To begin stated, a com- Bill of Rights”—was 8—the so-called “Victims’ substantive, some proce- some measure several containing provisions, plex Jus- dural, “Crime Victims 115—the so-called and some both. Proposition more than measure containing tice Reform Act”—is an even more complex substantive, many many procedural, three times as many provisions, Smith, both. In we concluded many case, In this under on or after its effective date.
crimes committed *24 308 Smith,
authority of we should come to the same conclusion as to Proposi- tion 115. Certainly, in Raven v. 52 346 Deukmejian, supra, Cal.3d at pages of this majority court held that 8 and 115 Proposition Proposition were virtually indistinguishable—at least for of re- purposes single-subject view. Consistency would seem similar them to require adopt interpreta- no, tion on the issue before us. But are of a contrary view this time. Curiously, majority now claim in substance that Smith is not control- ling because its reasoning is not applicable.
Specifically, majority assert that Smith’s “intent” is absent ground because “the stated of primary 115 is not purpose” “to deter the Smith, commission of crimes.” v. 34 (People supra, Cal.3d at But p. 258.) clearly, one of the primary of the measure is such. purposes As declared subdivision 1 (c) of section of Proposition among the of express “goals this people enacting measure” was “to create a ... system in which society as a homes, whole can be free from the fear of crime our neigh borhoods, and schools.” Whether or not deterrence was “the stated primary Smith, v. purpose” 34 (People italics seems added) of no here. consequence
The majority next assert that Smith’s ’’constitutional construction” 21, 1990, ground absent because—on June more than two weeks after 115 was approved—the law under the ex facto clause post was by the simplified United States Court in Collins v. Supreme Youngblood _ _ U.S. (1990) L.Ed.2d 110 S.Ct. (hereafter [111 2715] Youngblood).
In Youngblood, I acknowledge, court did indeed the law simplify under the ex facto post clause the United States Constitution. (U.S. of Const., I, 10, art. cl. It1.) generally repudiated 19th-century interpre tation of the ultimate provision—the source of “the . . . general rule that Smith, there is no rule” general (People Cal. 3d at 260)—p. which traces its roots to the century, if not beginning (See before. United States v. Hall (C.C.D.Pa. 84, 86, 1809) (No. 26 F. 15,285) Cas. affd. 10 U.S. (1810) (6 Cranch) L.Ed. facto law is one post [3 189] [“An which, . offence, . . in relation to the or its alters consequences, the situa Bull, tion of a party, to his see also Calder v. disadvantage.”]; 3 U.S. (3 Dall.) Chase, L.Ed. at p. (lead opn. J.) [Ex laws are “those that create or crime; aggravate increase the punish evidence, ment, or the rules change conviction.” purpose (Italics for addition, added.)].) it overruled two of its own decisions that reflected interpretation, Kring Missouri U.S. L.Ed. 1061, L.Ed. U.S. 343 Utah 443], Thompson S.Ct. S.Ct. 620]. simply were *25 majority’s Smith—contrary implication—we
But in Constitu- States of the United facto clause the ex post not concerned with clause Rather, the ex facto relied on post expressly tion. we California of I, (See People alone. Const., on that clause art. 9)—and (Cal. Constitution § Smith, 259.) 34 Cal.3d and state provi- that the federal reason to believe is no sufficient There 24, I, instrument Indeed, of the state section article are coterminous. sions on are not Constitution by dependent this “Rights guaranteed declares: States Constitution.” the United those guaranteed state 1879—our present Constitution of The framers of the California Constitution of 1849— clause from the their ex facto post charter—derived Const, 16, 1879, I, art. reprint- Cal. our law. original organic (Compare § Swindler, States Constitutions Documents of United in 1 Sources and ed Const, I, 16, 1849, art. with Cal. Swindler), (1973) p. (hereafter Swindler, of the Constitution The framers in 1 reprinted turn, consti- their clause from evidently adopted derived previously Fritz, “Shreds and More Than (See tutions of sister states. generally L.Q. Const. Rights Hastings First Bill Patches”: California’s 16-20.) sure, facto of the understanding post
To be seeking original Constitution, 19th-century cannot neglect clause of the California origi- There is no evidence that the of its federal counterpart. interpretation inter- 19th-century to the contrary of our was understanding provision nal the subsequent is there evidence that any of the federal. Nor pretation by the construction of the former was somehow “compelled” construction of the latter. believe that the ex evidently post the majority
In of the spite foregoing, are in fact of States and California Constitutions facto clauses of the United if, state the framers of the they But as suggest, similar and content. scope own, they must the federal as their provision instruments simply adopted de ex rel. Van State (Cf. have it then adopted interpreted. of California Texaco, 1147, 1162 Inc. (1988) Kamp Act, inference to the regard Cartwright such an with [making P.2d 385] however, That, seek very is the fact 984-987].) ch. Stats. 19th-century as noted above the Contrary to their implication, to disprove. clause traces its roots to the of the federal ex post interpretation century, Youngblood, only of the not its end. In the court held beginning not have arisen—not that it did not. that this should interpetation concerns” assert that Smith’s “administrative majority finally is absent because has the law ground essentially Youngblood simplified under the ex facto clause of the United States Constitution. But as above, such recent is irrelevant. explained simplification event, Smith, if any even arguendo People were not I believe that 115 must be controlling, Indeed, crimes committed on or after its effective date. and factual legal above background virtually conclusion. presented compels *26 law, It is that any axiomatic when we set about to construe our first and last is to effectuate the intent of the insofar as we are obligation lawgiver In many able to determine its and to its circum- object accomplish goal. stances, Here, that it task is difficult to and uncertain of result. is perform not.
When those who drafted what would become 115 com- Proposition labor, menced their did so with notice of the they presumption prospec- Court, which had been in tivity, recently Evangelatos reaffirmed Superior 44 Cal.3d and also with notice of the prospective application Smith, which had been Proposition adopted case, 251. In the we would have to be content to declare that the typical drafters had constructive of these matters. in this case—in knowledge But which the measure was “written” “50 Pro- (Ballot prosecutors” Pamp., Stats, Amends, Const, voters, to Cal. posed arguments Primary with Elec. rebuttal to (June 1990), “writ- argument against Prop. ten” and can infer “prosecutors” original)—we confidently emphasized that those who framed the language had actual knowledge. labor,
On their the drafters of 115 had completing Proposition produced noted, a measure 8. that was similar to As the latter was a Proposition substantive, measure several some some complex containing provisions, and some both. The former is an even more measure procedural, complex substantive, many more than three times as containing many provisions, many many both. procedural, facts,
In view of these conclusions are following practically inescapable.
First, it must be was intended to presumed Proposition operate only to crimes committed on or after its effective prospectively, specifically, date. 115 con
Second, if can be rebutted this presumption clear from extrin very or if “it is retroactivity provision” tains “an express (Evangelatos Superior indeed intended. retroactivity was sic sources” Court, final, in fact not rebutted:
Third and presumption extrinsic and the retroactivity any provision, does not contain express intent in that otherwise—any regard. reveal—clearly sources do not sure, they recognize are of the view. To majority opposite Again, not and concede that it is that the of prospectivity operates presumption that the “prospec- rebutted. But then on to state substance go on whether the solely legal consequences distinction turns tive/retroactive” of a procedural conduct are and that the changed, after its effective date is ipso on or provision proceedings prospective. however, discussion, analysis does not meet the of intent majority’s Therefore, sound, above. even if it were it would nevertheless be
presented *27 insufficient.
But the fact is that the discussion is not sound. Both of majority’s simply the on which it is based are premises unsupported. ’
It is not the case that the distinction turns ‘‘prospective/retroactive’ solely on whether the of are If it legal conduct consequences past changed. did, would be reducible to the ex facto prospectivity post prohibition—and in in surely would therefore be itself. The are nothing majority right stating that a in the of conduct is a change legal consequences sufficient they surely condition of But are as in that retroactivity. just wrong implying such a is a must change necessary “Every condition. law post facto necessarily be but law not an ex every is retrospective; retrospective Bull, . . . .” v. 3 U.S. L.Ed. at (Calder (3 Dall.) law supra, p. facto Chase, (lead of opn. J.).) 650] Neither is it the case that the of a application procedural provision Indeed, or after its on effective date is proceedings ipso prospective. settled is to the contrary. Hayes, law 49 Cal. 3d at (See People Court, 1274; 1205-1206; Evangelatos Cal. 3d at Superior Com., Surety Aetna Cas. & Co. v. Ind. Acc. pp. 393-394.) The text of Aetna which is the Casualty, authority on this leading point, the I majority’s undermines it below extenso. premise. quote to be that statutes are not “It is an established canon interpretation made that such clearly it is to appear unless given retrospective operation . . . this rule of It is contended was the intent. legislative [Citations.] .... no statutes statutory procedural construction has Com., [(1926) page Industrial 198 Cal. “Davis & McMillan v. Acc. ... effect that 1095], P. 46 A.L.R. to the language contains does to stat- construction not retrospective apply the presumption against A utes to remedies and modes relating merely procedure. [Citation.] to reach same result Morris theory different is offered Pacific court 276], Co. P.2d this Ry. Electric wherein [(1935)] action and existing on causes of procedural changes ‘operate stated defenses, it them as retrospective and is a misnomer designate having also, 638; Patterson 155 Cal. [citation].) effect.’ Estate (See, [(1909)] words, if and In other statutes become when may operative procedural invoked, enact- if the trial remedy postdates procedure ment, in the future time of occurrence regardless statute operates cases the of the events rise to the cause of action. In such giving [Citation.] they because constitute an statutory changes apply exception are said not construction, in fact but because are not statutory to the rule of general in- no as to whether the Legislature There is then retrospective. problem retroactively. tended the to operate changes however, “This assumes a clear-cut distinction between reasoning, purely ’ truth, re ‘substantive the distinction legislation. \’procedural’ purely its If lates not so much to the statute substantial form of effects. made, classified as ordinarily are even a statute which be changes might because on would retroactive existing rights procedural, operation *28 and effects of events would be the statute will legal changed, con in futuro unless the intent to the operate only legislative construed Com., Cas. Co. v. Ind. clearly Surety & Acc. trary (Aetna appears.” 393-394, 30 Cal.2d at italics added.) Aetna only Casualty
Not does the text from above undermine quoted to pro that the majority’s premise application procedural provision does on or after its effective date is so too ceedings ipso prospective, There, v. 1260. result in 49 Cal.3d reasoning People Hayes, supra, and such a to such provision proceed we held that the squarely actually could be—and under relevant facts was—“retroactive.” ings (Id. 1274.)1 Hayes, page pertinent People v. is as follows.
1The discussion generally presumed operate prospectively express “A statute absent an declara new retroactivity compelling implication Legislature and intended tion of or a clear
313 from Aetna the majority quote their In an attempt support position, however, court’s out, not state the does they set Casualty. The language which the court proceeds of one of the parties, instead that own view—but Com., 30 Cal.2d Co. v. Ind. Acc. Surety Aetna Cas. & reject. (See 1260, but rely Hayes, supra, on v. They People also pp. 393-394.) 155 Patterson (1909) cite Estate Finally, they of that case. miss the point 764 Co. Ry. (1935) P. Morris v. Electric 941]; Cal. 626 [102 Pacific P.2d 476]; v. Weiner 276]; (1954) Cal.App.2d P.2d Olivas [274 [43 552]; Cal.Rptr. v. Cal.App.3d Strauch Court Superior [165 Cal.Rptr. Court (1983) Cal.App.3d Andrus Municipal Court (1984) Cal.App.3d and 341]; Republic Corp. Superior Patterson and old decisions in Estate This court’s Cal.Rptr. 241]. but They clearly Morris are of no effect. were impliedly disapproved Olivas, are Aetna in the above text. Of less effect still Casualty quoted Strauch, Andrus, are inconsistent they To the extent Corp. Republic which, are notice—they with Aetna —of take no Casualty inexplicably, obviously without force.
Ill above, all For the reasons stated I conclude that 115 applies only to crimes committed on or after its effective date. writ,
I would therefore the alternative vacate the discharge stay, reverse the order of the Court of issu- with directions to cause the Appeal ance of a writ as peremptory prayed.
BROUSSARD,J. for the —I dissent reasons stated Justice Mosk part II of his dissenting opinion.
I must also dissent for an additional reason. It is
unfair for the
manifestly
in. In
majority
the rules after the votes are
Smith
change
otherwise. Court We find noth- ing presumption to overcome in this that case. by years “. . . prehypnotic question predates evidence in here the statute several manifestly regulatory .... It apply provisions would be unfair to of [Evidence Code] .... section 795 to retrial of this case To invoke section 795 to exclude [Evidence Code] giving such evidence on retrial be tantamount would the statute retroactive effect.” and proponents opponents effect told Our Smith decision would its would apply prospectively provisions to its effective date. More importantly, not crimes committed apply prior some need not consider whether voters in effect told the we so, and, if matters the fairness might pending provisions such application. the Smith rule when repudiate
We break faith with voters the initiative. have adopted new rules after voters apply that the fully must that the voters understood presume We crimes before its effective not committed would apply is repudiat- understood. That understanding date. the drafters so Certainly today’s decision. ed all of the But rules the midst
Many object game. people changing votes after the is over—after the object to the rules changing game should in. are