Opinion
TOBRINER, J. Defendant Gregory Teron, convicted of first degree murder and sentenced to die, comes before us on automatic appeal, (la) After obtaining permission from the trial court to represent himself, defendant questioned no witnesses and presented neither evidence nor argument on his own behalf. Appointed appellate counsel now argues that the court erred in permitting defendant to represent himself. We conclude, however, that on the record before it the trial court properly ruled that defendant was competent to waive counsel and thus to represent himself. (See Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525].) A defendant is not obligated to present a vigorous defense; the decision to plead guilty, or simply not to oppose the prosecution case, is one which a competent defendant has a right to render.
We explain, however, that although the conviction for first degree murder must be affirmed, the judgment imposing the death penalty cannot stand. Defendant’s crime occurred on October 4, 1975; yet the state seeks to impose the death penalty under a statute effective August 11, 1977. The Legislature, in enacting the 1977 statute, plainly intended to increase the penalty for first degree murder under particular circumstances. An established principle of statutory interpretation declares that a statute which increases the penalty for a crime should be construed to apply only to crimes committed after the effective date of the new legislation. Accordingly, we conclude that the 1977 statute does not apply to defendant’s offense. In light of this conclusion, we have no occasion in the instant case to pass on the constitutional validity of the 1977 or 1978 death penalty legislation.
1. Summary of proceedings
On January 18, 1978, the Grand Jury of Orange County indicted defendant, accusing him of the murder of Earl Reed on October 4, 1975. The indictment specified that defendant personally committed the acts causing Reed’s death, and that defendant had been previously convicted of two other murders. Defendant pled not guilty.
[109]On April 7, 1978, defendant asked the court to relieve the public defender and to grant defendant permission to represent himself. Defendant offered to state the reasons for his request, but the court, advised by the public defender that the explanation might incriminate or prejudice defendant, declined to hear the explanation. Instead, the court interrogated defendant at length to determine that defendant’s waiver of counsel was voluntary, knowing, and intelligent; the court explained at length the dangers and disadvantages of self-representation.
The interrogation revealed that defendant was literate, had been educated through sophomore year in high school, and was familiar with criminal proceedings from past experience. In response to questions, defendant demonstrated that he understood the distinction between manslaughter, second degree murder, and first degree murder, but that he did not understand the felony-murder rule. He affirmed, however, that despite the deficiencies in his legal knowledge, he still wanted to represent himself. The court inquired if defendant had ever suffered from mental illness or received treatment for psychiatric disability; defendant responded “no.” Defendant then stated that “In the past, trials I’ve been involved in, I was never aware of the right that I could represent myself. . . . Now that it has come to my attention, I’m able to do so, that is what I want to do.”
The trial court expressly found that defendant “has made ... a voluntary and intelligent and understanding waiver of his right to be represented by counsel. I’m satisfied that the defendant is taking this action against the advice of this court, and he is fully advised and aware of the pitfalls, dangers and consequences of acting as his own attorney.” The court then granted defendant a seven-day continuance to prepare for trial, and offered to appoint the public defender as standby counsel (see Faretta v. California, supra, 422 U.S. 806, 834-835, fn. 46 [45 L.Ed.2d 562, 581]). The public defender declined the appointment, stating that “I don’t feel that I could ethically have any participation in this case in view of the way the defendant wants to proceed.”
On April 25, the day before trial was scheduled to begin, defendant waived trial by jury. The court took up the motion to suppress the tape recording of defendant’s confession, filed earlier by the public defender; defendant stated that “whichever portions of that tape recording that [the prosecutor] wants to admit is perfectly fine with me.”
Trial commenced on April 26. Prosecution witnesses testified that Reed, the victim, checked into the Caravan Inn in Anaheim at 9 p.m. on [110]October 3, 1975. Reed rented room 227; defendant occupied room 229 on a weekly basis. At about 3 a.m. a Mr. White, staying in room 228, heard a cry, “Help. They are killing me. This is murder.” Although similar cries continued for about five minutes, he did not investigate the source of the noise.
The next morning, the maid who entered to make up room 227 discovered Reed’s body. Police officers described the scene. The body was lying face down on the bed wrapped in the bedding. Reed’s face was bruised and had been bleeding and several teeth were dislodged. The police observed bloodstains on the pillowcase and a towel. The room had been ransacked, and Reed’s wallet was missing. An autopsy determined that Reed died from aspiration of blood caused by the extensive bleeding from his mouth and nose.
The prosecution then offered into evidence the tape recording of defendant’s confession. After determining that the confession was voluntary, the court admitted the tape. In his confession, defendant stated that he spoke to Reed in the Caravan Inn parking lot, decided at that time to rob Reed, and to kill Reed so he could get away with the robbery. Early in the morning Reed invited him to his room for beer. By this time both Reed and defendant had been drinking, and Reed was drunk. Defendant went to Reed’s bathroom and passed out briefly while sitting on the toilet. When defendant emerged from the bathroom, he demanded Reed’s money. Reed refused, and defendant struck him several times in the face, forcing Reed back onto the bed. Defendant then tried to strangle Reed, but Reed resisted and began yelling. Defendant then smothered Reed with a pillow until Reed died.1 Defendant searched the room, taking Reed’s wallet, which contained only $1.75, and three or four credit cards.
Police officers talked to defendant the next day, but made no arrest. Defendant promised to take a polygraph examination, but instead fled to Colorado. Two years later, following defendant’s conviction for murders in Michigan, he waived extradition and was returned to California.
During the prosecution case, defendant asked no questions of witnesses and presented only one objection; he suggested that the court should admit the transcripts of the taped confession instead of listening to the tape itself. The court overruled the objection on the ground that the tape was the best evidence of the confession.
[111]When the prosecution rested its case, the court inquired whether defendant desired to present evidence.' He replied “no.” The court then addressed him: “I think it would be wise of me to advise you that on the tape, you had indicated to Officer Johnson your state of intoxication on the night in question and your mental state on the occasion of the incident is important and relevant. Do you desire to present any evidence in that regard at this time?” Defendant replied “No, I do not.” Following a brief argument by the prosecutor, to which defendant did not reply, the court found defendant guilty of first degree murder.
Before beginning the special circumstance phase of the trial, the judge again warned defendant of the perils of self-representation; defendant again waived his right to representation by counsel and to trial by juiy. The prosecutor then introduced evidence that defendant had been convicted of two second degree murders in Michigan, and proved that the elements of second degree murder under Michigan law are the same as under California law. The court then found a special circumstance, that the defendant had personally committed the acts causing death and had “been convicted in a prior proceeding of the offense of murder of the first or second degree” (Pen. Code, § 190.2), permitting capital punishment.2
At the commencement of the penalty phase the defendant again waived right to counsel and to trial by juiy. The court admitted evidence relating to the murder of Mrs. Maxham in Michigan. That evidence showed that in October 1976, a year after the Reed murder, defendant rented a room from Maxham. On October 17, he became enraged when she criticized the condition of the room, beat her unconscious, and hanged her from the bedpost until she died. Defendant then took Maxham’s money and fled to Florida, where he was apprehended. Defendant’s taped confession also admitted the killing of Crane, his cellmate in the Michigan prison, and hinted that he had killed at least two other persons, a woman in California and a man in North Carolina.
Despite the advice of the court, defendant presented no evidence or argument on penalty. The court’s opinion reviewed the aggravating factors—in particular the multiple murders and the lack of remorse—and found no mitigating factors, since defendant had declined to introduce evidence on intoxication or mental illness. The court sentenced defendant [112]to death. The sentencing court certified the complete record on appeal on August 18, 1978.
On this automatic appeal, defendant is represented by counsel appointed by this court. Counsel raises only one significant issue relating to the guilt phase of the proceedings below; he contends that the court erred in permitting defendant to represent himself.3 With regard to the special circumstance and penalty phases, counsel raises a number of contentions: (1) that the court again erred in permitting defendant to represent himself; (2) that the 1977 death penalty statute does not apply to antecedent crimes; (3) that application of the 1977 statute to defendant’s crime would violate the ex post facto and equal protection clauses of the state and federal Constitutions; (4) that the death penalty provision of the 1977 statute violates the state constitutional provision prohibiting cruel or unusual punishment (Cal. Const., art. I, § 17); and (5) that the failure of the California statutes to grant appellate courts discretion to reduce death sentences to life imprisonment violates the Eighth Amendment to the United States Constitution. As we shall explain, we agree with counsel that the 1977 statute does not apply to a crime committed in 1975; that conclusion makes it unnecessary to consider defendant’s other contentions relating to the special circumstance and penalty trials.
2. The guilt phase: the court did not err in permitting defendant to represent himself at the guilt trial.
Faretta v. California, supra, 422 U.S. 806, established that a defendant competent to waive counsel has an affirmative right to represent [113]himself. As we explained in Ferrel v. Superior Court (1978) 20 Cal.2d 888, 891 [144 Cal.Rptr. 610, 576 P.2d 93]: “A defendant in a criminal proceeding has a federal constitutional right to represent himself without counsel if, upon timely motion . . . , the trial court determines that he voluntarily and intelligently elects to do so. . . . If these conditions are satisfied, the trial court must permit an accused to represent himself without regard to the apparent lack of wisdom of such a choice and even though the accused may conduct his own defense ultimately to his own detriment.” (20 Cal.3d at p. 891; see People v. Wilks (1978) 21 Cal.3d 460, 467-468 [146 Cal.Rptr. 364, 578 P.2d 1369].) (Citations omitted.) These principles apply to the trial of the guilt phase of a capital case. (See Thomas v. Superior Court (1976) 54 Cal.App.3d 1054, 1058 [126 Cal.Rptr. 830].)4
Before granting defendant leave to represent himself, the trial court must determine “whether the defendant has the mental capacity to waive his constitutional right to counsel with a realization of the probable risks and consequences of his action.” (Curry v. Superior Court (1977) 75 Cal.App.3d 221, 226 [141 Cal.Rptr. 884]; People v. Zatko (1978) 80 Cal.App.2d 534, 544-545 [145 Cal.Rptr. 643]; see People v. Lopez (1977) 71 Cal.App.3d 568, 572-574 [138 Cal.Rptr. 36]; Silten & Tullis, Mental Competency in Criminal Proceedings (1977) 28 Hastings L.J. 1053, 1065-1069.) It is not, however, essential that defendant be competent to serve as counsel in a criminal proceeding (Curry v. Superior Court, supra, 75 Cal.App.3d 221, 226); “his technical legal knowledge, as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself.” (Faretta v. California, supra, 422 U.S. 806, 836 [45 L.Ed.2d 562, 582].)
In Faretta, the Supreme Court, in holding that Faretta had a right to represent himself, observed that “The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” (422 U.S. at p. 835 [45 L.Ed.2d at p. 582].) The same description could be applied to defendant in the present case. Defendant Teron, who was literate, aware of his legal rights, and experienced in criminal proceedings, repeatedly and emphatically made clear his desire to represent himself. Interrogated at length by the trial court, Teron gave no indication in his replies that he was not competent to waive counsel. The trial court carefully and repeatedly warned defendant of the risks of self-representation; defendant acknowledged those risks and persisted in his course of action.
[114]In maintaining that the court nevertheless erred in permitting defendant to represent himself, the state public defender raises two contentions. First, he argues that the court should not have granted defendant’s motion without a psychiatric evaluation of defendant. We agree with the Court of Appeal’s observation in People v. Lopez, supra, 71 Cal.App.3d 568, 573, that: “If there is any question in the court’s mind as to a defendant’s mental capacity it would appear obvious that a rather careful inquiry into that subject should be made—probably by way of a psychiatric examination. It would be a trifle embarassing to get half way through a trial only to discover that a court has determined that a mentally deficient or seriously mentally ill person has been allowed to make a ‘knowing and intelligent’ decision to represent himself.”
With the aid of hindsight, taking account of evidence introduced at all phases of the trial, we can discern facts which might create a question concerning the possibility of mental illness.5 No such facts, however, were known to the court at the time of the Faretta hearing. Neither defendant nor the public defender suggested any basis for a psychiatric examination, and the court’s interrogation of defendant revealed nothing suggestive of mental illness. In short, when it granted defendant’s motion nothing in the record or known to the court suggested any factual basis which would give rise to any doubt respecting defendant’s mental capacity. “ ‘The determination of the trial judge as to the defendant’s competence to waive counsel involves an exercise of discretion by the trial judge which in the absence of an abuse of discretion will not be disturbed on appeal.’ ” (People v. Rhinehart (1973) 9 Cal.3d 139, 147-148 [107 Cal.Rptr. 34, 507 P.2d 642]; see People v. Elliott (1977) 70 Cal.App.3d 984, 990 [139 Cal.Rptr. 205]; Curry v. Superior Court, supra, 75 Cal.App.3d 221, 227.) On the record before us we find no abuse of discretion in the court’s failure to order a pretrial psychiatric examination.6
[115]Secondly, the state public defender argues that once it had become clear during the guilt trial that defendant did not intend to present a defense, the court should have revoked his right to represent himself. Defendant, however, bears no duty to present a defense. He has the right to plead guilty, even against the advice of counsel. (People v. Vaughn (1973) 9 Cal.3d 321, 327-328 [107 Cal.Rptr. 318, 508 P.2d 318].) A fortiori, having put the state to its proof, he has no obligation to try to rebut it. Thus the fact that defendant failed to present a defense does not demonstrate that he lacked the capacity to waive his right to counsel.7
3. The 1977 death penalty legislation does not apply to impose a death penalty for crimes committed before the effective date of that legislation.
In 1973, the California Legislature enacted a statute imposing a mandatoiy death penalty for first degree murder whenever the trier of fact found that any one of a number of designated “special circumstances” was present; one of the special circumstances enumerated in the 1973 legislation embodied cases in which the defendant personally committed the acts causing death and in any prior proceeding had been convicted of murder. (Stats. 1973, ch. 719, § 5, p. 1300.) The 1973 statute was in effect on October 4, 1975, the date of the murder of Earl Reed. On December 7, 1976, however, under compulsion of intervening decisions of the United States Supreme Court,8 we held that the procedures for imposition of the death penalty embodied in the 1973 legislation violated the United States Constitution. (Rockwell v. Superior Court (1976) 18 Cal.3d 420 [134 Cal.Rptr. 650, 556 P.2d 1101].) Thus, when the state first [116]filed charges against defendant in April of 1977, the State of California had no constitutional statute imposing the death penalty for the crime of which defendant was accused.
In August-1977, two years after the instant crime was committed, the Legislature enacted a new death penalty statute, effective August 11, 1977. (Stats. 1977, ch. 316, pp. 922-930.) In drafting the statute, the Legislature again enumerated a number of “special circumstances” —some similar to and some different from those embodied in the 1973 statute—under which a defendant, who had been found guilty of first degree murder, could be sentenced to death (Pen. Code, § 190.2); unlike the earlier death penalty statute invalidated in Rockwell, the new statute did not mandate the death penalty upon a finding that one of the special circumstances was present, but rather permitted the trier of fact to consider various aggravating or mitigating factors in determining whether capital punishment should be imposed in a particular case. (Pen. Code, § 190.3.) The new statute, in language similar to the 1973 statute, established as one “special circumstance” the fact that the defendant had personally committed the acts causing death and had “been convicted in a prior proceeding of the offense of murder of the first or second degree.” (Pen. Code, § 190.2, subd. (c)(5).)
After the 1977 legislation became effective, the district attorney sought, and the grand juiy returned, an indictment against defendant under the new death penalty law. Although defense counsel, prior to his removal at defendant’s request, objected that the 1977 statute could not properly be applied to a 1975 crime, the trial court rejected the objections. Following the procedures and substantive provisions of the 1977 law, the court imposed a sentence of death.
As we explain, we have concluded that the trial court erred in applying the 1977 statute to a crime committed before the effective date of that enactment.
For more than a century, section 3 of the Penal Code has specifically provided that no provision of the code “is retroactive, unless expressly so declared.” Although past decisions have held that this provision does not bar the retroactive application of amendatory legislation which mitigates or reduces the punishment for a crime (see, e.g., In re Estrada (1965) 63 Cal.2d 740, 746 [48 Cal.Rptr. 172, 408 P.2d 908]; People v. Rossi (1976) 18 Cal.3d 295 [134 Cal.Rptr. 64, 555 P.2d 1313]), our courts have pronounced that the canon of construction embodied in section 3 fully applies to penal measures which increase the punishment [117]for particular crimes. (See, e.g., Sekt v. Justice’s Court (1945) 26 Cal.2d 297, 308-309 [159 P.2d 17, 167 A.L.R. 833]; In re Estrada, supra, 63 Cal.2d 740, 747-748; People v. Daniels (1963) 222 Cal.App.2d 99, 101 [34 Cal.Rptr. 844]; see also White v. Brown (9th Cir. 1972) 468 F.2d 301, 303.)
In the instant case, the Legislature, in enacting the 1977 legislation, undoubtedly intended to increase the punishment for first degree murder committed under particular circumstances. As we have seen, prior to that enactment no constitutional death penalty statute in California generally applied to cases of first degree murder. The Legislature, in considering the measure, debated both the wisdom and morality of imposing the death penalty in any circumstance as well as the question of which particular “special circumstances” were sufficiently grave to permit the imposition of death as a sanction. In enacting the measure, the Legislature unquestionably believed that it was increasing the punishment that could be imposed on persons committing the crimes enumerated in the statute. Indeed, the Legislature specifically enacted the statute as an urgency measure because of its professed belief that the increased sanctions permitted by the new law were necessary for the immediate protection of the public. Consequently, the principle that statutes which increase the punishment for crime will be construed to apply only to crimes committed after their enactment governs the interpretation of the 1977 legislation, and precludes its retroactive application.
The Attorney General, seeking to avoid that conclusion, argues that the 1977 legislation should be regarded as simply a “procedural” measure that did not alter the substantive elements or punishment for criminal behavior, but rather merely changed the procedure under which existing crimes were to be tried. On this theory, the Attorney General argues that, like other statutes affecting only procedure, the 1977 legislation could be applied in this case since the trial in this matter occurred after the effective date of the legislation. (See People v. Ward (1958) 50 Cal.2d 702 [328 P.2d 777]; People v. Snipe (1972) 25 Cal.App.3d 742, 746 [102 Cal.Rptr. 6, 60 A.L.R.3d 1316].)
We find the Attorney General’s characterization of the 1977 legislative action is wholly unrealistic. Absolutely nothing in the legislative history suggests that the Legislature, in considering this controversial and highly charged legislation, believed that it was engaged in the mundane task of regulating criminal procedure. On the contrary, exchanges both in the Legislature itself, and between the Legislature and the Governor, abundantly show that the legislation at issue was involved in vitally [118]substantive policy considerations, concerning the appropriateness of enacting criminal measures authorizing anew the imposition of capital punishment in California. Under these circumstances, we believe that the legislation cannot be characterized as simply a “procedural” measure.9
We recognize that in Dobbert v. Florida (1977) 432 U.S. 282 [53 L.Ed.2d 344, 97 S.Ct. 2290], a majority of the United States Supreme Court indicated that, for purposes of the ex post facto clause of the federal Constitution, a Florida statute in some respects similar to the 1977 California legislation could be considered a “procedural” or “ameliorative” enactment. In Dobbert, however, the Supreme Court was not faced with the question—as we are today—of whether, as a matter of statutory interpretation, a penal measure should be interpreted to apply to offenses committed prior to the effective date of the legislation. In Dobbert, at the time the case reached the United States Supreme Court, the Florida Supreme Court had already determined that as a matter of state law the subsequent legislation applied to Dobbert’s previously committed offense (Dobbert v. State (Fla. 1976) 328 So.2d 433). Thus, the United States Supreme Court was concerned only with the constitutionality under the federal ex post facto clause of that retroactive application. We are not apprised of what circumstances led the Florida court to its conclusion, but, for the reasons discussed above, we are convinced that the 1977 [119]California legislation was intended to increase the available criminal punishment with respect to the “special circumstances” enumerated in the enactment. Consequently, the United States Supreme Court’s decision in Dobbert is inapposite to the present matter.
In sum, we think a realistic view of the matter clearly demonstrates that the trial court erred in applying the 1977 legislation to an offense committed in 1975. The 1977 Legislature was, of course, well aware of the 1976 United States Supreme Court decisions (see fn. 8, ante) and this court’s decision in Rockwell v. Superior Court, supra, and recognized that California law embodied no valid death penalty provision applicable in first degree murder cases. The Legislature set out to enact a new death penalty statute, thereby increasing the penalty for those first degree murders in which it believed death might be an appropriate sanction. Although California precedent and statutoiy canons of construction established that in the absence of explicit language to the contrary the judiciary would not apply the new legislation to antecedent crimes, the Legislature included no provision declaring that the new enactment would apply to previously committed offenses. Under these circumstances, we conclude that the statute may not properly be interpreted to apply to crimes committed before August 11, 1977. Defendant must be sentenced in accordance with the constitutionally valid provisions of the applicable criminal statute in effect at the time of the commission of the offense. (See, e.g., People v. Murphy (1972) 8 Cal.3d 349, 368 [105 Cal.Rptr. 138, 503 P.2d 594]; Rockwell v. Superior Court, supra, 18 Cal.3d 420, 445.)
In light of our conclusion that the 1977 death penalty legislation is not applicable to the instant case, we, of course, have no occasion to pass on the constitutional validity of that or any subsequent legislation.
The judgment against defendant is modified to provide for a sentence of life imprisonment and, as so modified, is affirmed.
Bird, C. J., Mosk, J., Manuel, J., and Newman, J., concurred.
Defendant’s confession is not inconsistent with the autopsy report. As the pathologist testified; by placing a pillow over Reed’s face defendant could have blocked the exit of blood from the wounds in Reed’s mouth, thus in effect drowning Reed in his own blood.
Defendant’s appointed counsel in the trial court in a pretrial motion contended that the charged special circumstance should not apply to defendant because the alleged prior convictions referred to the two Michigan murders which were committed subsequent to the California murder. Defense counsel on appeal did not renew that contention, and in view of our disposition of this appeal it is not necessary for us to resolve it today.
Defense counsel raises two other contentions which relate to the guilt trial. First, he argues that the state’s delay in bringing defendant to trial denied him due process of law. He notes that defendant first confessed to the Reed murder in December of 1976, but was not brought to California until January of 1978 and not tried until April 1978; the 1977 death penalty legislation took effect on August 11, 1977. Most of the delay, however, occurred while defendant was awaiting or undergoing trial in Michigan for two murders committed there. It is doubtful that Michigan would have agreed to turn defendant over to California until its own proceedings had terminated. Under these circumstances, we believe the delay prior to September 29, 1977, when defendant was convicted of the Michigan murders, was reasonable; the three-month further delay following the Michigan convictions did not prejudice defendant.
Defendant also argues that he was entitled to a postindictment preliminary hearing. Although Hawkins v. Superior Court (1978) 22 Cal.3d 584 [150 Cal.Rptr. 435, 586 P.2d 916], granted an indicted defendant a right to a preliminary hearing, our opinion expressly stated that “the rule announced herein shall apply only to the present case and to those indicted defendants who have not entered a plea at the time this opinion becomes final.” (22 Cal.3d at p. 594.) Since defendant Teron entered his plea before the Hawkins opinion became final, he cannot take advantage of our ruling in that case.
The California decisions interpreting Faretta are reviewed in Yegan, Faretta—The California Experience (1978) 53 State Bar J. 384.
Defendant’s confession suggested that after committing the Reed and Maxham murders he may have attempted sexual acts upon the victims’ bodies and then urinated on or in the vicinity of the bodies.
A closer question is whether the trial judge should have perceived indicia of mental incapacity before the close of the guilt trial and suspended proceedings to permit a psychiatric examination of defendant. The trial court, during the guilt trial, heard defendant’s confession, which included- discussion of defendant’s peculiar conduct in connection with the murders, even though it did not admit much of the confession into evidence until the penalty trial. Thus when the prosecution rested its case at the guilt trial the court had some reason to suspect defendant’s mental capacity, and would have acted within its discretion in requiring a psychiatric examination. We do not, however, believe the evidence of mental incapacity so compelling that the court’s failure to interrupt proceedings to order such an examination rises to the level of an abuse of discretion.
The trial court’s decision to permit defendant to represent himself in the special circumstance and penalty phases presents additional considerations not present at the guilt phase. In the first place, the court, having heard defendant’s confession and observed his failure to offer any defense at the guilt phase, may have had grounds to reconsider defendant’s mental competence to waive counsel. In the second place, the State of California asserts an independent interest in the accuracy of the special circumstance and penalty determinations. We do not, for example, permit a defendant to stipulate to the death penalty or to waive his right of automatic appeal. (See People v. Stanworth (1969) 71 Cal.2d 820, 833-834 [80 Cal.Rptr. 49, 457 P.2d 889].)
In view of our determination that no valid death penalty statute applied to defendant’s 1975 crime, we need not decide whether the court erred in permitting self-representation at the special circumstance or penalty trials.
See Gregg v. Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 859, 96 S.Ct. 2909]; Proffitt v. Florida (1976) 428 U.S. 242 [49 L.Ed.2d 913, 96 S.Ct. 2960]; Jurek v. Texas (1976) 428 U.S. 262 [49 L.Ed.2d 929, 96 S.Ct. 2950]; Woodson v. North Carolina (1976) 428 U.S. 280 [49 L.Ed.2d 944, 96 S.Ct. 2978]; Roberts v. Louisiana (1976) 428 U.S. 325.[49 L.Ed.2d 974, 96 S.Ct. 3001].
Citing In re Marriage of Bouquet (1976) 16 Cal.3d 583 [128 Cal.Rptr. 427, 546 P.2d 1371], the Attorney General argues that because the 1977 legislation was enacted to cure constitutional defects in the 1973 statutes, it should be given retroactive effect. In Bouquet, we faced the quite different question whether to apply amended Civil Code section 5118, which provided that the earnings of both spouses while living apart were separate property, or former section 5118 under which only the wife’s earnings were separate property. Noting that former section 5118 was constitutionally questionable, we stated that “We may reasonably infer . . . that the Legislature wished to replace the possibly infirm law with its constitutionally unobjectionable successor as soon as possible. . . [and thus] intended the amendment to have retroactive effect. . . . While this inference is hardly conclusive, it is of some value in ascertaining the Legislature’s intent.” (16 Cal.3d 583, 588.)
Bouquet is clearly distinguishable from the present case on a number of grounds. First, and most significantly, Bouquet did not involve a penal statute that imposed new and additional sanctions pursuant to new provisions; rather, it involved a statute concerned simply with the adjustment of property rights between married, but separated, persons. Thus, the fundamental principle of statutory construction, embodied in Penal Code section 3, which negates any retroactive operation of new penal sanctions was not applicable in that case.
Furthermore, Bouquet presented the court with only two alternatives: to apply the former, probably unconstitutional law or to apply the amended, constitutional law. In such a case, our court could reasonably infer that the Legislature intended the latter to apply. In the case at bar however, the inapplicability of the 1977 law does not leave the state with no criminal sanctions against defendant. Defendant, like all other persons who committed first degree murder prior to the enactment of the 1977 legislation, is subject to a sentence of life imprisonment as provided by the criminal statutes in effect at the time of the commission of the offense.