Opinion
A159489
02-16-2021
THE PEOPLE, Plaintiff and Respondent, v. SHELLY RENEA BRESHEARS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC203878A)
Defendant Shelly Breshears pleaded guilty to employee embezzlement and admitted that she took property exceeding $65,000 in value. The trial court sentenced her to four years in state prison, which included a one-year excessive taking enhancement under Penal Code former section 12022.6, subdivision (a)(1). The statute, in effect when the offense occurred, was repealed by its own terms a month before defendant was charged. On appeal, defendant contends the repeal of former section 12022.6 applies retroactively to her. We disagree and affirm.
Further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation of facts to those necessary to our decision. In February 2018, defendant was charged with one count of embezzlement by a clerk, agent or servant (§ 508). The complaint alleged that the crime occurred between June 20, 2013, and September 1, 2016, and that defendant took, damaged, or destroyed property with a value exceeding $65,000 (former § 12022.6, subd. (a)(1)).
In November 2019, defendant pleaded guilty to the embezzling count and admitted that she took property exceeding $65,000 in value. In her sentencing memo, defendant argued the excessive taking enhancement could not be applied to her because former section 12022.6 contained a sunset provision which caused it to be repealed by its own terms on January 1, 2018. Defendant asked the trial court to strike the enhancement.
Defense counsel added, however, "the caveat that if [former section 12022.6] is no longer valid at this time then any enhancement relating thereto would not apply to her sentence."
On January 9, 2020, the trial court sentenced defendant to four years in prison, comprised of the upper term of three years for the embezzlement count and one year for the excessive taking enhancement.
Defendant appealed.
DISCUSSION
Former section 12022.6 (hereafter section 12022.6) required the trial court to impose an additional and consecutive sentence enhancement of one year for property loss exceeding $65,000; two years for a loss greater than $200,000; three years for a loss greater than $1.3 million; or four years for a loss exceeding $3.2 million. (§ 12022.6, subd. (a).) The statute was repealed by way of a sunset clause: "It is the intent of the Legislature that the provisions of this section be reviewed within 10 years to consider the effects of inflation on the additional terms imposed. For that reason this section shall remain in effect only until January 1, 2018, and as of that date is repealed unless a later enacted statute, which is enacted before January 1, 2018, deletes or extends that date." (§ 12022.6, subd. (f).) The statute did not contain a saving clause limiting the scope of repeal, and the Legislature did not enact a new version of section 12022.6.
In In re Estrada (1965) 63 Cal.2d 740 (Estrada), the California Supreme Court held that when the Legislature amends a statute to lessen the punishment for a crime, the lighter punishment should be imposed for a crime committed before the effective date of the amendment if there is no saving clause in the amendment and it becomes effective before the defendant's judgment of conviction becomes final. (Id. at p. 744.) "The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not." (People v. Conley (2016) 63 Cal.4th 646, 657.)
In re Pedro T. (1994) 8 Cal.4th 1041 (Pedro T.), the Supreme Court clarified that an express savings clause is not necessary for the Legislature to preclude the retroactive ameliorative effect of a sunset provision. (Id. at pp. 1048-1049.) "[W]hat is required is that the Legislature demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it." (Id. at p. 1049.) At issue in Pedro T. was an amendatory statute to the Vehicle Code, effective January 1, 1990, that increased the punishment for vehicle theft, but provided that the lesser, pre-1990 punishment would be reinstated as of January 1, 1993, unless the Legislature directed otherwise. (Id. at p. 1043.) In holding that the Estrada presumption did not apply, Pedro T. looked to the purpose of the penalty enhancement and concluded that "[t]he utility of a three-year legislative experiment in enhanced penalties might be seriously undermined if those penalties, instead of applying to all offenders during the three years, could be imposed only on those whose convictions became final before the sunset date." (Id. at p. 1046.) Furthermore, "a rule that retroactively lessened the sentence imposed on an offender pursuant to a sunset clause would provide a motive for delay and manipulation in criminal proceedings." (Id. at pp. 1046-1047.)
Relying on Pedro T., the appellate courts in People v. Abrahamian (2020) 45 Cal.App.5th 314 (Abrahamian) and People v. Medeiros (2020) 46 Cal.App.5th 1142 (Medeiros) decided the very issue raised in this appeal. Both courts concluded that the repeal of section 12022.6 did not apply retroactively to defendants whose crimes were committed before the sunset date. (Abrahamian, at pp. 337-338; Medeiros, at p. 1157.)
In reaching this conclusion, Medeiros first looked to the statute's plain language, which "expressly declares that the intent of the Legislature in including a sunset provision is to allow for review of the effects of inflation on the threshold amounts applicable to the prison term enhancements. The statute also expressly states '[f]or that reason' the statute will remain in effect until January 1, 2018, at which time it is repealed. It is clear from this language that the Legislature planned the conditional repeal as a mechanism to review the effects of inflation, not because it determined enhancements should no longer apply for excessive taking in 10 years." (Medeiros, supra, 46 Cal.App.5th at p. 1151.)
Medeiros found further support for its conclusion in the Legislative Counsel's Digest, which states: " 'This bill would state the Legislature's intent that the provisions of the bill be reviewed within 10 years to consider the effects of inflation on its provision and that it be applied prospectively only." [Citations.] The use of the singular 'it' appears to refer only to 'the bill,' which suggests the Legislature intended that the entire bill, including the sunset provision, would apply prospectively." (Medeiros, supra, 46 Cal.App.5th at pp. 1151-1152.)
Additionally, Medeiros concluded the legislative history of section 12022.6 supported the prospective-only effect of the sunset provision. In 2007, the Legislature amended section 12022.6 to raise the monetary thresholds for the enhancement and to extend the repeal date to January 1, 2018. (Medeiros, supra, 46 Cal.App.5th at p. 1152, citing Stats. 2007, ch. 420, § 1, p. 3675.) Medeiros observed that the Assembly Floor Analysis of the 2007 amendments emphasized the legislation was " 'extremely useful' " to law enforcement in deterring white collar crime and historically had " 'overwhelming' " support from the Legislature. (Medeiros, at p. 1153.) The 2007 bill, which passed unanimously, "continued the historic pattern of adjusting the enhancement amounts to account for inflation and extending the sunset date. These facts, combined with the retention of express language in the statute regarding intent to review the threshold amounts for the effects of inflation, is persuasive evidence that the Legislature intended the sunset provision to operate as it had in the past—as an opportunity to review the loss thresholds, not as a permanent repeal of the enhancements." (Id. at pp. 1153-1154.)
With regard to the Legislature's failure to extend the sunset date or to reenact section 12022.6 after its repeal, Medeiros noted that " 'legislative inactivity after the passage of the sunset provision casts no light on the Legislature's intent when it enacted the statute.' " (Medeiros, supra, 46 Cal.App.5th at p. 1155, citing Pedro T., supra, 8 Cal.4th at pp. 1047-1048.)
Finally, Medeiros distinguished two cases cited by the appellant there (and by defendant here): People v. Rossi (1976) 18 Cal.3d 295 (Rossi) and People v. Hajek and Vo (2014) 58 Cal.4th 1144 (Hajek), overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216. As Medeiros observed, neither case involved a statute repealed by a sunset provision, and Rossi involved the decriminalization of conduct. "Here, by contrast, there was no elimination of liability for theft and thus no implied legislative pardon for Medeiros's actions." (Medeiros, supra, 46 Cal.App.5th at p. 1156.)
We agree with Medeiros's analysis and conclusions and adopt them here. Defendant's attempts to demonstrate that Medeiros was wrongly decided are unpersuasive.
Defendant first contends that Pedro T. provides no support for Medeiros's conclusion because unlike the statute considered in Pedro T., section 12022.6 was not a temporary "experiment," nor did it expressly state that punishment would be lessened after expiration. Thus, defendant contends, there are no concerns about undermining the Legislature's experiment in punishment or incentivizing delay.
These attempts to distinguish Pedro T. do not demonstrate that Medeiros was wrongly decided. On the contrary, as Medeiros aptly determined, "the fact that the 2007 amendment in this case was not a temporary experiment but a continuation of a long-standing policy of imposing harsher penalties for excessive taking reflects even stronger legislative intent that the enhancements apply throughout the effective period of the law." (Medeiros, supra, 46 Cal.App.5th at p. 1156.) Furthermore, the main import of Pedro T. as applied to section 12022.6 is its holding that the lack of a saving clause is not dispositive, as the Legislature can demonstrate its intention with sufficient clarity through other means. (Pedro T., supra, 8 Cal.4th at p. 1049.) In this regard, Pedro T. fully supports Medeiros's analysis and conclusion.
Addressing Medeiros's legislative history analysis, defendant emphasizes that an original version of the 2007 amendment of section 12022.6 deleted the sunset clause, but the clause was eventually added back in. Thus, defendant contends, the Legislature rejected making the penalties permanent and eventually chose not to continue them, indicating a belief that the penalties were unnecessary.
Again, we disagree, as defendant's contentions ignore the express statement of purpose of the sunset provision, which was to allow for review of the effects of inflation on the threshold amounts for the enhancements. (§ 12022.6, subd. (f); Medeiros, supra, 46 Cal.App.5th at p. 1151.) Furthermore, defendant improperly relies on legislative inactivity after the passage of the sunset provision to draw inferences about the Legislature's intent in enacting it. (Medeiros, at p. 1155.)
Defendant also points out that Medeiros admitted, in a footnote, a possible contrary interpretation of certain language in Assembly Bill No. 1705 (2007-2008 Reg. Sess.) that the Legislature only intended the increases in the threshold amounts of the penalties, and not the sunset provision, to apply prospectively. (Medeiros, supra, 46 Cal.App.5th at p. 1152, fn. 6.) But Medeiros's minor concession in this regard does nothing to undermine its broader analysis of section 12022.6's language and legislative history.
Finally, defendant argues that Medeiros's attempt to distinguish Rossi and Hajek construes the matter too narrowly. Again, we are unpersuaded. As Medeiros explained, Hajek is not controlling because the court there "did not discuss any evidence of legislative intent rebutting the Estrada presumption." (Medeiros, supra, 46 Cal.App.5th at p. 1157.) As for Rossi, the case involved an amendment to section 288a to proscribe only those acts of oral copulation committed by force, in state prison, or with a minor. In concluding the amendment should apply retroactively, Rossi found nothing in the amending legislation to suggest that the Legislature intended to preserve criminal sanctions for acts committed prior to repeal. (Rossi, supra, 18 Cal.3d at p. 303.) Moreover, the People had conceded the amendatory legislation gave "no indication that the Legislature intended to alter the established common law rules" reiterated in Estrada. (Rossi, at p. 303.) Here, by contrast, there is strong evidence of legislative intent to rebut the Estrada presumption in "both the text of [section 12022.6] and its legislative history." (Medeiros, supra, 46 Cal.App.5th at p. 1157.)
For all of these reasons, we agree with Medeiros and conclude the repeal of section 12022.6 does not apply retroactively.
DISPOSITION
The judgment is affirmed.
/s/_________
Fujisaki, Acting P.J. WE CONCUR: /s/_________
Jackson, J. /s/_________
Wiseman, J.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------