Rossi

*298 Opinion

Defendant appeals from a judgment of conviction entered after a nonjury trial in which the court found her guilty of five counts charging violation of section 288a of the Penal Code. Defendant contends that her conviction should be reversed because, before the conviction became final, the Legislature amended section 288a of the Penal Code so as to legalize her conduct. We conclude that in light of the intervening amendment the conviction must be reversed.

The relevant facts are undisputed. Defendant, a part-time instructor in psychology at UCLA, is a married woman with two children. During the filming of several low-budget movies, she committed several sexual acts which constituted violations of former section 288a. 1 After the trial court rendered its judgment of conviction, it suspended proceedings and placed defendant on probation for three years. Defendant has appealed.

At the time defendant committed the charged acts, Penal Code section 288a broadly proscribed all oral copulation, even between consenting adults. 2 On January 1, 1976, after the rendition of judgment but before its finality by the lapse of the period for appeal, amended section 288a took effect.…

I concur in the judgment under the compulsion of In re Estrada (1965) 63 Cal.2d 740 [ 48 Cal.Rptr. 172 , 408 P.2d 948 ].

The question presented by this appeal is whether our general saving statute (Gov. Code, § 9608) is applicable when the statute under which the defendant was convicted is, in effect, repealed before judgment becomes final. The majority, relying on In re Estrada (1965) 63 *305 Cal.2d 740 [ 48 Cal.Rptr. 172 , 408 P.2d 948 ], hold section 9608 inapplicable. I dissent. Estrada, properly understood, does not support their conclusion. To the contrary, when Justice Peters’ majority opinion in Estrada is read in light of his concurring and dissenting opinion in People v. Harmon (1960) 54 Cal.2d 9, 27-33 [ 4 Cal.Rptr. 161 , 351 P.2d 329 ], it becomes clear that Estrada supports the opposite conclusion.

The fundamental premise of Justice Peters’ argument, which was unsuccessful in Harmon but prevailed in Estrada , is that section 9608 “tells us that the Legislature intended that the offender be punished, but it offers no clue as to what statute shall be applied.” (Harmon, at p. 30.) Permitting defendant to entirely escape punishment for her offense is, of course,…

Defendant appeals from a judgment of conviction entered after a nonjury trial in which the court found her guilty of five counts charging violation of section 288a of the Penal Code. Defendant contends that her conviction should be reversed because, before the conviction became final, the Legislature amended section 288a of the Penal Code so as to legalize her conduct. We conclude that in light of the intervening amendment the conviction must be reversed.

The relevant facts are undisputed. Defendant, a part-time instructor in psychology at UCLA, is a married woman with two children. During the filming of several low-budget movies, she committed several sexual acts which constituted violations of former section 288a. [1] After the trial court rendered its judgment of conviction, it suspended proceedings and placed defendant on probation for three years. Defendant has appealed.

At the time defendant committed the charged acts, Penal Code section 288a broadly proscribed all oral copulation, even between consenting adults. [2] On January 1, 1976, after the rendition of judgment but before its finality by the lapse of the period for appeal, amended section 288a…