In Re Kirk

63 Cal.2d 761 (1965) In re LOY ROLLIN KIRK on Habeas Corpus.

Crim. No. 9195. Supreme Court of California. In Bank.

Dec. 23, 1965. Loy Rollin Kirk, in pro. per., and Robert N. Beechinor, under appointment by the Supreme Court, for Petitioner.

Thomas C. Lynch, Attorney General, Doris H. Maier, Assistant Attorney General, Edsel W. Haws and Richard K. Turner, Deputy Attorneys General, for Respondents.

PETERS, J.

This case presents the same problem involved in In re Estrada, ante, p. 740 [48 Cal.Rptr. 172, 408 P.2d 948], this day decided. That problem, as applied to this case, is whether petitioner is entitled to the benefits of a statute ameliorating the punishment passed after the criminal act was committed but before the judgment of conviction became final. In the Estrada case, supra, we held that an accused man was entitled to the benefits of the amendatory act. Under the rule there announced petitioner in the instant case is also entitled to the benefit of the amendatory act.

[1] Petitioner is presently confined in Folsom State Prison pursuant to three judgments. Two of them found him guilty of first degree robbery in violation of section 211 of the Penal Code. The third, which is the one involved in this proceeding, is for issuing checks, totaling $75, without sufficient funds in violation of section 476a of the Penal Code. [fn. 1]

At the time of rendition of the judgment of conviction for issuing the checks, subdivision (b) of section 476a of the Penal Code provided that, if the total amount of all checks that the defendant is convicted of issuing does not exceed $50, [763] the offense is punishable only by imprisonment in the county jail for not more than one year. Under subdivision (a) of the section the penalty for other violations of the section is imprisonment in the county jail for not more than one year or in the state prison for not more than 14 years.prior to the affirmance of the conviction by the District Court of Appeal in April of 1964, subdivision (b) was amended by increasing the amount from $50 to $100. Under the present statute a person such as petitioner who is convicted of issuing checks totaling $75 would be subject to imprisonment in the county jail only and would not be subject to imprisonment in state prison.