In Re Daup

63 Cal.2d 754 (1965) 408 P.2d 957 48 Cal. Rptr. 181 In re WILLIAM J. DAUP on Habeas Corpus.

Docket No. Crim. 8813. Supreme Court of California. In Bank.

December 23, 1965. [755] William J. Daup, in pro. per., and Robert N. Beechinor, under appointment by the Supreme Court, for Petitioner.

Thomas C. Lynch, Attorney General, Robert R. Granucci, Paul N. Halvonik and Edward P. O'Brien, Deputy Attorneys General, for Respondents.

PETERS, J.

This petition involves the same issue resolved today in In re Estrada, ante, page 740 [48 Cal. Rptr. 172, 408 P.2d 948]. The problem is whether, when a law providing punishment for a criminal act is amended so as to ameliorate the punishment after the act is committed but before the judgment of conviction has become final, does the law as it read when the act was committed or as amended apply? In the Estrada case, supra, it is held that the amended statute is applicable, and that People v. Harmon, 54 Cal.2d 9 [4 Cal. Rptr. 161, 351 P.2d 329], holding to the contrary should be disapproved.

[1] The problem arises under the following circumstances. In June of 1963 petitioner escaped from a prison camp. In July of 1963 he was charged with violating section 4531 of the Penal Code. At that time the section provided: "Every prisoner committed to a State prison who escapes ... is punishable by imprisonment in a State prison for a term of not less than one year...." The possible maximum was life.

Effective as of September 20, 1963, before petitioner's trial or sentence, section 4531 was repealed, and its principles amended into section 4530. As then enacted subdivision (b) of section 4530 provided that an escape without force or violence "is punishable by imprisonment in the state prison for a term of not less than six months nor more than five years."

On November 26, 1963, several months after the effective date of the amendment, petitioner was sentenced to the state prison "for the term provided by law." His term was thereafter [756]