People v. Superior Court (Dillon)

[689]

Opinion

ELKINGTON, Acting P. J.

Following filing of our earlier opinion in this mandate proceeding, the Supreme Court granted a hearing on Dillon’s petition. Thereafter, October 20, 1980, that court decided

In re Jeanice D.

(1980) 28 Cal.3d 210 [168 Cal.Rptr. 455, 617 P.2d 1087], after which it ordered that the above entitled cause “is retransferred to the Court of Appeal, First District, Division One, with directions to refile its prior opinion with appropriate reference to

In re Jeanice D.

(1980) 28 Cal.3d 210”

*

[168 Cal.Rptr. 455, 617 P.2d 1087].

With such appropriate modification we restate, and refile, our earlier opinion and judgment.

These proceedings in mandate concern Penal Code section 190, as reenacted by the state’s electors through the initiative process, November 7, 1978, by adoption of the so-called “Proposition 7, Murder, Penalty, Initiative Statute.” The issue is whether the newly enacted statute had the effect,

retroactively,

of permitting commitment to the California Youth Authority of a person, convicted in the superior court of first degree murder without a finding of special circumstances, who was less than 21 years of age at the time of his apprehension for that offense.

Prior to November 7, 1978,

Penal Code section 190—absent a finding of special circumstances calling for a penalty of death or life imprisonment without possibility of parole—fixed the penalty for first degree murder at “confinement in state prison for life.”

At that time

by virtue of Penal Code section 3046 one so sentenced (without a finding of special circumstances) became eligible for parole consideration after serving

seven years.