53 Cal. 185 (1878)
In November 1974, Michael Jay Collins was indicted on fifteen separate felony counts, including one count of attempted burglary, six counts of burglary, two counts of forcible rape, three counts of assault with intent to commit rape, and three counts of forcible oral copulation, with a prior felony conviction also alleged.1 Pursuant to a plea bargain, Collins pleaded guilty to one count of oral copulation, the force allegation and prior conviction allegation were stricken, and the other fourteen counts were dismissed.2
After a hearing in February 1975, the court suspended criminal proceedings, found Collins to be a mentally disordered sex offender, and committed him to Patton State Hospital for an indefinite period.3 While Collins remained at the hospital, the Legislature repealed the former version of Penal Code section 288a and replaced it with a new section effective January 1, 1976, which no longer criminalized oral copulation between consenting nonprisoner adults.4
Criminal proceedings were reinstated in April 1976 after a determination that Collins was no longer a danger to others.5 Collins objected to the court's jurisdiction to sentence him due to the statutory change, but the court overruled the objection and imposed a sentence of one to fifteen years in state prison, crediting him with 556 days served at the hospital.6
Collins then appealed from the judgment of conviction.7
Whether a conviction for oral copulation may stand when the underlying conduct was decriminalized by legislative amendment before the judgment became final?8
No. Michael Jay Collins was indicted in November 1974 on fifteen separate felony counts including three counts of forcible oral copulation under former Penal Code section 288a.11 Pursuant to a plea bargain he pleaded guilty to one count of oral copulation after the force and prior conviction allegations were stricken and the remaining fourteen counts were dismissed.12 After commitment to Patton State Hospital the Legislature repealed the former section 288a and enacted a new version effective January 1, 1976 that no longer criminalized oral copulation between consenting nonprisoner adults.13 Criminal proceedings resumed in April 1976 and Collins's conviction had not become final when the new statute took effect.14
The rule from People v. Rossi therefore applies directly to these facts and bars the conviction from standing.15
The conviction cannot stand and must be reversed.16
Related opinions on this issue
Joined by Bird, C.j.
Justice Clark dissented from reversal of the judgment, and from part I of the majority opinion, for the reasons expressed in my dissenting opinion in People v. Rossi (1976) 18 Cal.3d 295, 304-307 [134 Cal. Rptr. 64, 555 P.2d 1313].17
Bird, C.J., concurred.18 Clark's dissent reflects his disagreement with the majority's application of the common law rule to reverse the conviction after the legislative repeal.19 By relying on his prior Rossi dissent, Clark maintains that the judgment should stand rather than be reversed on the basis of the statutory change.20
Whether the proper disposition is reversal of the judgment with directions to dismiss the count to which the defendant pleaded guilty?21
Yes. Because the act Collins admitted when he pleaded guilty is no longer punishable under the new section 288a the judgment of conviction must be reversed.24 The court directs dismissal of that count rather than correction of the sentence to no penalty.25 This disposition follows the precedent set in People v. Rossi and Spears v. County of Modoc where convictions based on subsequently decriminalized conduct were reversed outright.26
The judgment must be reversed with directions to dismiss the pleaded count.27
Whether counts dismissed pursuant to a plea bargain may be reinstated after reversal of the conviction on the pleaded count due to decriminalization and what limits apply to any resulting sentence?28
When reversal on grounds of decriminalization deprives the prosecution of the benefit of its plea bargain the dismissed counts may be reinstated.29 The defendant's potential sentence is limited to the term he faced under the original bargain to prevent penalizing him for pursuing a successful appeal.30
Yes. The state entered the plea bargain expecting Collins to remain vulnerable to a term of imprisonment and the reversal removes that vulnerability thereby depriving the prosecution of its benefit.31 Accordingly one or more of the fourteen dismissed counts may be revived.32 To restore balance without penalizing Collins for invoking the statutory change his maximum sentence is limited to three years the term prescribed by the Community Release Board under the determinate sentencing act.33
This remedy draws on double jeopardy principles from cases such as People v. Ali and People v. Hood that preclude increased punishment after a successful appeal.34
Dismissed counts may be reinstated subject to a three-year sentencing ceiling.35