In Re Pine

Opinion

REYNOSO, J.

By this writ of habeas corpus we are asked to determine when a judgment becomes final after conviction for purposes of applying a statutory amendment which decreases punishment for the same crime. We hold that a judgment is not final so long as the courts may provide a remedy on direct review. That includes the time within which to petition to the United States Supreme Court for writ of certiorari.

[595]

Petitioner challenges the refusal of the Director of Corrections to apply the provisions of section 11352 of the Health and Safety Code, as amended, to mitigate his terms of imprisonment. The amendment deleted the requirement of a minimum mandatory term of imprisonment to be eligible for parole consideration.

1

A brief history will place the material dates in perspective. Petitioner was convicted on April 18, 1974, pursuant to his pleas of guilty to three counts of selling and furnishing cocaine in violation of Health and Safety Code section 11352. Petitioner was sentenced to the terms prescribed by law, the sentences to run concurrently as to each count. After the conviction was affirmed by the Court of Appeal, First Appellate District, the California Supreme Court denied petitioner’s application for hearing on December 4, 1975. By amendment enacted in 1975, those provisions of section 11352 of the Health and Safety Code which required a minimum mandatoiy term of imprisonment to be eligible for parole consideration were deleted. (Stats. 1975, ch. 1087, § 3.) The effective date of that amendment was January 1, 1976. (Const., art. IV, § 8.)

The narrow issue to be determined in this petition is whether the judgment in the case at bench became final before the effective date of the statute.

The finality of a judgment has been defined as that point at which the courts can no longer provide a remedy on direct review. This includes the time within which to petition the United States Supreme Court for writ of certiorari. Thus, in

In re Dabney

(1969) 71 Cal.2d 1, 11 [76 Cal.Rptr. 636, 452 P.2d 924], the court reasoned “Petitioner’s conviction only became final for retroactivity purposes . . . when the period during which he might have applied for certiorari ended.” (Cf.