In Re Moreno

California Court of Appeal May 27, 1976 No. Crim. 8646Published

Before: Paras

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Holding. The court held that an amendatory statute reducing a criminal penalty does not apply to defendants whose judgments became final prior to the effective date of the amendment. Consequently, the petitioner is not entitled to the benefit of the amendment to section 11352.

Issues

Whether the rule in In re Estrada applies to cases where the judgment became final prior to the enactment of an ameliorative law.
Whether the refusal to apply a statute reducing a penalty retroactively violates the Equal Protection Clause.

Disposition. denied

Quotations verified verbatim against the opinion

“the Estrada holding does not apply to cases where, as here, the judgment became final prior to enactment of the ameliorative law.”

“Equal protection is not denied where an amendatory statute reducing a penalty is not applied to persons whose convictions were final before the effective date of the ameliorative amendment.”

Opinion

PARAS, J.

On September 18, 1974, petitioner was sentenced to state prison upon his bargained plea of guilty to a violation of section 11352 of the Health and Safety Code (sale of a controlled substance). Two alleged prior convictions were stricken. Petitioner took no appeal.

At the time of sentence section 11352 required that a person convicted thereunder without prior convictions be imprisoned for at least three years before eligibility for parole. Accordingly, with appropriate credit for presentence and post-sentence jail custody (Pen. Code, § 2900.5), petitioner’s minimum eligible parole date is June 17, 1977.

Effective January 1, 1976, an amendment to section 11352 deleted its requirement of at least three years’ imprisonment without possibility of parole. (Stats. 1975, ch. 1087, § 3.) Petitioner contends that he is entitled to the benefit of the amendment, notwithstanding that it is silent on the question of retroactivity. If petitioner is correct, he would now be eligible

[742]

for parole, having served one-third of the five-year minimum term prescribed by section 11352. (See Pen. Code, §§ 3049, 2900.5;

In re Kapperman

(1974) 11 Cal.3d 542, 547 [114 Cal.Rptr. 97, 522 P.2d 657].)

. Petitioner relies upon

In re Estrada

(1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948], which holds that when a statute mitigating punishment becomes effective áfter the commission of the prohibited act but “before final judgment,” the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature. (See also

People

Francis

(1969) 71 Cal.2d 66, 75-76 [75 Cal.Rptr. 199, 450 P.2d 591].)

In Re Moreno

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PARAS, J.

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