Tapia v. Superior Court

MOSK,J.

—I dissent.

The issue on review is “whether the provisions of Proposition 115 should be applied to prosecutions of crimes committed before its effective date.”

Although it may be difficult to discern from the majority opinion, the primary and indeed dispositive question is what did the electorate intend in this regard. The presumption here—long settled in both statutory and decisional law—is that the voters determined that the measure in its entirety would apply prospectively, specifically, only to offenses occurring on or after its effective date. Since the voters did not speak on the subject, that presumption remains unrebutted.

It is simply inconceivable that the electorate could have been as subtle and indeed perverse as the majority suggest—that the voters could have intended that certain specific sections and clauses and phrases and words would apply prospectively, and that others would not.

Manifestly, the intent that appears in the majority opinion is not that of the electorate—but only that of the majority.

The majority compound their error by a continuing, callous lack of concern for the rule of article II, section 8, subdivision (d), of the California Constitution. That provision prohibits initiative measures—such as Proposition 115—from embracing more than one subject. In our sister states, the single-subject rule is not a dead letter. (Cf. Porten Sullivan Corp. v. State (1990) 318 Md. 387, 403-409 [568 A.2d 1111] [sustaining a single-subject challenge to a statute]; Brookfield v. Milw. Sewerage (1988) 144 Wis.2d 896, 921-922 [426 N.W.2d. 591] [same].) Regrettably, it is here.

Perhaps unwittingly, however, the majority belatedly confirm the view I expressed in dissent in Raven v. Deukmejian (1990) 52 Cal.3d 336 [276 Cal.Rptr. 326, 801 P.2d 1077]—that Proposition 115 does in fact violate the single-subject rule. Indeed, they now all but expressly concede the point, as *303their distinction of individual provisions within larger groups within still broader categories plainly reveals. To hold, as a majority of this court did in Raven, that such a “grabbag” measure comprises one subject strains credulity and makes a mockery of the constitutional prohibition. By now recognizing the multitudinous and discrete parts and subparts and subsubparts of the measure, the majority here impliedly admit that Raven’s rejection of the single-subject challenge was erroneous. In the interest of candor, they should do so explicitly. The words of the aphorism quoted by Justice Rutledge in his dissent in Wolf v. Colorado (1949) 338 U.S. 25, 47 [93 L.Ed. 1782, 1795, 69 S.Ct. 1359], are appropriate: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

I

Petitioner, Robert Alan Tapia, stands accused in the Tulare Superior Court of having committed certain crimes on February 12, 1989, including first degree murder under special circumstances.

At the June 5, 1990, Primary Election, the voters approved an initiative constitutional amendment and statute that was designated on the ballot as Proposition 115—the self-styled “Crime Victims Justice Reform Act.” On June 6 the measure purportedly became effective. (See Cal. Const., art. II, § 10, subd. (a) [statutory provisions]; id., art. XVIII, § 4 [constitutional provisions].)

Subsequently, Tapia moved the superior court for an order that Proposition 115 was not applicable in his case. He argued that the measure operated prospectively, specifically, only to crimes committed on or after its effective date. He addressed Proposition 115 as a whole. He also focused on certain specific sections, which relate to voir dire and reciprocal discovery. Section 6 of Proposition 115 repeals former Code of Civil Procedure section 223 (Stats. 1988, ch. 1245, § 2, No. 11 West’s Cal. Legis. Service, p. 3153 [No. 5 Deering’s Adv. Legis. Service, p. 4674]), which granted the parties the right to conduct voir dire. Section 7 adds a new Code of Civil Procedure section 223, which deprives the parties of that right. Sections 5, 15, 23, 24, 25, and 27 deal in whole or in part, directly or indirectly, with the separate subject of reciprocal discovery. The People responded to the motion. Their argument was directed solely to the voir dire provisions. They later represented that they would not invoke the reciprocal discovery provisions. The superior court denied the motion, ruling that Proposition 115 was applicable in its entirety, including specifically the provisions relating to voir dire.

Thereafter, Tapia submitted to the Fifth District Court of Appeal a petition for writ of mandate and/or prohibition against Proposition 115 *304with a request for a stay. Its grounds included, among others, the prospectivity claim presented to the superior court. The Court of Appeal summarily denied relief solely on the procedural ground that this court was the appropriate forum.

Coming here, Tapia sought review and a stay of proceedings in the superior court pendente lite. We stayed the proceedings as prayed. Shortly thereafter, we granted review as to “whether the provisions of Proposition 115 should be applied to prosecutions of crimes committed before its effective date.” We then caused an alternative writ of mandate to issue.

II

After careful consideration, I would resolve the issue on review in the negative and award Tapia the relief he seeks. To properly explain my reasons, I must first set out the pertinent legal and factual background.

There is a long-standing presumption in California—and generally (see United States v. Security Industrial Bank (1982) 459 U.S. 70, 79-80 [74 L.Ed.2d 235, 243-244, 103 S.Ct. 407])—that new nondecisional law operates prospectively. (See generally Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1205-1209 [246 Cal.Rptr. 629, 753 P.2d 585], and cases cited therein, including Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393 [182 P.2d 159] (hereafter sometimes Aetna Casualty); People v. Hayes (1989) 49 Cal.3d 1260, 1274 [265 Cal.Rptr. 132, 783 P.2d 719]; 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, §§ 495-496, pp. 685-690 (hereafter 7 Witkin); see also, e.g., Pen. Code, § 3 [stating that “No part of” Penal Code “is retroactive, unless expressly so declared.”]; Code Civ. Proc., § 3 [stating same as to Code of Civil Procedure—which, as its name indicates, deals with procedure].)

“Prospective operation” means that the measure in question applies only to conduct that occurs, or conditions that arise, on or after its effective date. (See, e.g., Evangelatos v. Superior Court, supra, 44 Cal. 3d at p. 1206; Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at p. 391; Russell v. Superior Court (1986) 185 Cal.App.3d 810, 814 [230 Cal.Rptr. 102]; see also People v. Hayes, supra, 49 Cal.3d at p. 1274.) By contrast, “retroactivity” implicates such prior conduct or conditions in some significant way. (See, e.g., Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1206; Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at p. 391; Russell v. Superior Court, supra, 185 Cal.App.3d at p. 814; see also People v. Hayes, supra, 49 Cal. 3d at p. 1274.)

The presumption of prospectivity is not narrowly cabined by constitutional concerns about ex post facto effects, but is broadly based on policy *305considerations involving fairness. (See Russell v. Superior Court, supra, 185 Cal.App.3d at p. 814 [“Retroactive laws are generally disfavored because the parties affected have no notice of the new law affecting past conduct. ‘[S]uch laws disturb feelings of security in past transactions.”’]; see also Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 390 [1 L.Ed. 648, 650] (lead opn. of Chase, J.) [“Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law . . . .”].) This proposition is firmly established. Otherwise, untenable results would follow. For example, prospectivity would be reducible to the ex post facto prohibition— and would therefore be nothing in itself. Also, prospectivity could not be “presumed” but would in fact be mandated as a result of constitutional compulsion.

The presumption arises whether the law is constitutional (see, e.g., Will-cox v. Edwards (1912) 162 Cal. 455, 460 [123 P. 276]) or statutory (see, e.g., Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at p. 393), and whether the lawgiver is the people (see, e.g., Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1205-1209) or their representatives (see, e.g., Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at p. 393).

The presumption extends to procedural law as well as substantive. (E.g., Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at pp. 393-394; Russell v. Superior Court, supra, 185 Cal.App.3d at p. 815; 7 Witkin, supra, Constitutional Law, § 495, at p. 686; see, e.g., Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1205-1206.) This is because both procedure and substance can implicate considerations of fairness. (See Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at pp. 393-394; Russell v. Superior Court, supra, 185 Cal.App.3d at pp. 814-815.) Moreover, the presumption is not automatically satisfied whenever a procedural law is applied to proceedings on or after its effective date. (See, e.g., People v. Hayes, supra, 49 Cal. 3d at p. 1274; Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1205-1206; Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at pp. 393-394.) Such application in futuro may nevertheless affect conduct or conditions in the past. (See, e.g., People v. Hayes, supra, 49 Cal.3d at p. 1274; Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at p.394.)

The presumption, of course, is not irrebuttable. But “in the absence of an express retroactivity provision, a [law] will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1209; accord, Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at p. 393 [stating that “statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent”].)

*306At the June 8, 1982, Primary Election, the voters approved an initiative constitutional amendment and statute that was designated on the ballot as Proposition 8—the self-styled “Victims’ Bill of Rights.” On June 9 the measure purportedly became effective. (See Cal. Const., art. II, § 10, subd. (a) [statutory provisions]; id., art. XVIII, § 4 [constitutional provisions].) Proposition 8 was a complex enactment containing several provisions, some substantive, some procedural, and some both.

In People v. Smith (1983) 34 Cal.3d 251 [193 Cal.Rptr. 692, 667 P.2d 149] (hereafter sometimes Smith), we held that Proposition 8 applied prospectively, specifically, only to crimes committed on or after its effective date.

Our first reason was to effectuate the intent of the voters insofar as it could be ascertained. “[T]he primary stated purpose of Proposition 8 is to deter the commission of crimes.” (34 Cal.3d at p. 258.) “It is obvious that no such reform, no matter how effective, can deter criminal behavior or avert disruption of life if that behavior or disruption has already taken place .... Accordingly, by declaring the purpose of Proposition 8 to be the deterrence of crime the voters must have intended the measure to apply only to offenses that could be deterred, i.e., that had not already been committed by the time Proposition 8 was adopted.” (Id. at pp. 258-259, italics in original.)

Our second—and clearly dispositive—reason was to interpret Proposition 8 in such a way as to avoid doubts as to its constitutionality under the ex post facto clause of the state charter.

“In the present context, the potential constitutional defect in Proposition 8 is that if construed to apply to crimes committed before its adoption, it may amount to an ex post facto law. Our state Constitution, upon which we rely, prohibits such laws. (Cal. Const., art. I, § 9.) The general guidelines for enforcing the ex post facto prohibition are well known, but its specific applications may present difficult questions.” (34 Cal.3d at p.259.)

“Beyond [the] two manifest constraints [against criminalizing an act that was innocent when done and increasing punishment for a crime after its commission], the picture is much less clear.” (34 Cal.3d at p. 259.)

“As to all but the most obvious examples of ex post facto legislation,. . . the general rule is that there is no general rule. Each new statute challenged on this ground must be individually weighed in the constitutional scales, in the context of a specific case, and the outcome will often depend on matters of degree ....

*307“This task is difficult enough to perform with consistency when, as usually occurs, the Legislature adopts one statute at a time or a multisection act that is either all ‘substantive’ or all ‘procedural.’ It is even more problematic when the legislation is a seemingly random mixture of provisions of both kinds. Viewed functionally, Proposition 8 is such a composite.” (34 Cal. 3d at p. 260.)

“To avert . . . uncertainties, to minimize multiplicity of litigation, to forestall inconsistency of results in the inevitable close cases, and in general to avoid doubts as to the constitutionality of this measure under the ex post facto clause, we construe Proposition 8 to apply only to criminal proceedings arising out of offenses committed on or after the date it took effect.” (34 Cal.3d at p.262.)

Our third and final reason was simply to draw a line that would “avoid a number of practical consequences adverse to the administration of justice and the right of fair trial.” (34 Cal.3d at p.262.)

Next, in Evangelatos v. Superior Court, supra, 44 Cal.3d 1188, 1205-1209, we reaffirmed the presumption of prospectivity “on an elaborate review of the case law.” (7 Witkin, supra, Constitutional Law, § 496, at p. 688.)

Subsequently, the drafters of what would become Proposition 115 set out to do their work. They comprised “50 prosecutors.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Primary Elec. (June 5, 1990), rebuttal to argument against Prop. 115, p. 35, “prosecutors” emphasized in original.)

Finally, as noted, at the June 5, 1990, Primary Election the voters approved Proposition 115.

I turn now to the issue on review, viz., “whether the provisions of Proposition 115 should be applied to prosecutions of crimes committed before its effective date.” Considering that question against the legal and factual background set out above, I believe that the answer must be negative.

To begin with, People v. Smith, supra, 34 Cal.3d 251, is controlling. As stated, Proposition 8—the so-called “Victims’ Bill of Rights”—was a complex measure containing several provisions, some substantive, some procedural, and some both. Proposition 115—the so-called “Crime Victims Justice Reform Act”—is an even more complex measure containing more than three times as many provisions, many substantive, many procedural, and many both. In Smith, we concluded that Proposition 8 applied only to crimes committed on or after its effective date. In this case, under the *308authority of Smith, we should come to the same conclusion as to Proposition 115. Certainly, in Raven v. Deukmejian, supra, 52 Cal.3d at pages 346 to 349, a majority of this court held that Proposition 8 and Proposition 115 were virtually indistinguishable—at least for purposes of single-subject review. Consistency would seem to require them to adopt a similar interpretation on the issue before us. But no, they are of a contrary view this time.

Curiously, the majority now claim in substance that Smith is not controlling because its reasoning is not applicable.

Specifically, the majority assert that Smith’s “intent” ground is absent because “the primary stated purpose” of Proposition 115 is not “to deter the commission of crimes.” (People v. Smith, supra, 34 Cal.3d at p. 258.) But clearly, one of the primary purposes of the measure is such. As declared in subdivision (c) of section 1 of Proposition 115, among the express “goals of the people in enacting this measure” was “to create a system ... in which society as a whole can be free from the fear of crime in our homes, neighborhoods, and schools.” Whether or not deterrence was “the primary stated purpose” (People v. Smith, supra, 34 Cal.3d at p. 258, italics added) seems of no consequence here.

The majority next assert that Smith’s ’’constitutional construction” ground is absent because—on June 21, 1990, more than two weeks after Proposition 115 was approved—the law under the ex post facto clause was simplified by the United States Supreme Court in Collins v. Youngblood (1990) _ U.S. _ [111 L.Ed.2d 30, 110 S.Ct. 2715] (hereafter Youngblood).

In Youngblood, I acknowledge, the court did indeed simplify the law under the ex post facto clause of the United States Constitution. (U.S. Const., art. I, § 10, cl. 1.) It generally repudiated the 19th-century interpretation of the provision—the ultimate source of “the general rule . . . that there is no general rule” (People v. Smith, supra, 34 Cal. 3d at p. 260)— which traces its roots to the beginning of that century, if not before. (See United States v. Hall (C.C.D.Pa. 1809) (No. 15,285) 26 F. Cas. 84, 86, affd. (1810) 10 U.S. (6 Cranch) 171 [3 L.Ed. 189] [“An ex post facto law is one . . . which, in relation to the offence, or its consequences, alters the situation of a party, to his disadvantage.”]; see also Calder v. Bull, supra, 3 U.S. (3 Dall.) at p. 391 [1 L.Ed. at p. 650] (lead opn. of Chase, J.) [Ex post facto laws are “those that create or aggravate the crime; or increase the punishment, or change the rules of evidence, for the purpose of conviction.” (Italics added.)].) In addition, it overruled two of its own decisions that reflected that interpretation, Kring v. Missouri (1883) 107 U.S. 221 [27 L.Ed. 506, 2 *309S.Ct. 443], and Thompson v. Utah (1898) 170 U.S. 343 [42 L.Ed. 1061, 18 S.Ct. 620].

But in Smith—contrary to the majority’s implication—we were simply not concerned with the ex post facto clause of the United States Constitution. Rather, we expressly relied on the ex post facto clause of the California Constitution (Cal. Const., art. I, § 9)—and on that clause alone. (See People v. Smith, supra, 34 Cal.3d at p. 259.)

There is no sufficient reason to believe that the federal and state provisions are coterminous. Indeed, article I, section 24, of the state instrument declares: “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”

The framers of the California Constitution of 1879—our present state charter—derived their ex post facto clause from the Constitution of 1849— our original organic law. (Compare Cal. Const, of 1879, art. I, § 16, reprinted in 1 Swindler, Sources and Documents of United States Constitutions (1973) p. 471 (hereafter 1 Swindler), with Cal. Const, of 1849, art. I, § 16, reprinted in 1 Swindler, supra, at p. 448.) The framers of the Constitution of 1849, in turn, evidently derived their clause from previously adopted constitutions of sister states. (See generally Fritz, More Than “Shreds and Patches”: California’s First Bill of Rights (1989) 17 Hastings Const. L.Q. 13, 16-20.)

To be sure, in seeking the original understanding of the ex post facto clause of the California Constitution, we cannot neglect the 19th-century interpretation of its federal counterpart. There is no evidence that the original understanding of our provision was contrary to the 19th-century interpretation of the federal. Nor is there any evidence that the subsequent construction of the former was somehow “compelled” by the construction of the latter.

In spite of the foregoing, the majority evidently believe that the ex post facto clauses of the United States and California Constitutions are in fact of similar scope and content. But if, as they suggest, the framers of the state instruments simply adopted the federal provision as their own, they must have adopted it as then interpreted. (Cf. State of California ex rel. Van de Kamp v. Texaco, Inc. (1988) 46 Cal.3d 1147, 1162 [252 Cal.Rptr. 221, 762 P.2d 385] [making such an inference with regard to the Cartwright Act, Stats. 1907, ch. 530, pp. 984-987].) That, however, is the very fact they seek to disprove. Contrary to their implication, as noted above the 19th-century interpretation of the federal ex post facto clause traces its roots to the *310beginning of the century, not its end. In Youngblood, the court held only that this interpetation should not have arisen—not that it did not.

The majority finally assert that Smith’s “administrative concerns” ground is absent essentially because Youngblood has simplified the law under the ex post facto clause of the United States Constitution. But as explained above, such recent simplification is irrelevant.

In any event, even if arguendo People v. Smith, supra, 34 Cal.3d 251, were not controlling, I believe that Proposition 115 must be applied only to crimes committed on or after its effective date. Indeed, the legal and factual background presented above virtually compels the conclusion.

It is axiomatic that when we set about to construe any law, our first and last obligation is to effectuate the intent of the lawgiver insofar as we are able to determine its object and to accomplish its goal. In many circumstances, that task is difficult to perform and uncertain of result. Here, it is not.

When those who drafted what would become Proposition 115 commenced their labor, they did so with notice of the presumption of prospectivity, which had recently been reaffirmed in Evangelatos v. Superior Court, supra, 44 Cal.3d 1188, and also with notice of the prospective application of Proposition 8, which had been adopted in People v. Smith, supra, 34 Cal.3d 251. In the typical case, we would have to be content to declare that the drafters had constructive knowledge of these matters. But in this case—in which the measure was “written” by “50 prosecutors” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Primary Elec. (June 5, 1990), rebuttal to argument against Prop. 115, p. 35, “written” and “prosecutors” emphasized in original)—we can confidently infer that those who framed the language had actual knowledge.

On completing their labor, the drafters of Proposition 115 had produced a measure that was similar to Proposition 8. As noted, the latter was a complex measure containing several provisions, some substantive, some procedural, and some both. The former is an even more complex measure containing more than three times as many provisions, many substantive, many procedural, and many both.

In view of these facts, the following conclusions are practically inescapable.

First, it must be presumed that Proposition 115 was intended to operate prospectively, specifically, only to crimes committed on or after its effective date.

*311Second, this presumption can be rebutted only if Proposition 115 contains “an express retroactivity provision” or if “it is very clear from extrinsic sources” that retroactivity was indeed intended. (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1209.)

Third and final, the presumption is in fact not rebutted: Proposition 115 does not contain any express retroactivity provision, and the extrinsic sources do not reveal—clearly or otherwise—any intent in that regard.

Again, the majority are of the opposite view. To be sure, they recognize that the presumption of prospectivity operates and concede that it is not rebutted. But they then go on to state in substance that the “prospective/retroactive” distinction turns solely on whether the legal consequences of past conduct are changed, and that the application of a procedural provision to proceedings on or after its effective date is ipso facto prospective.

The majority’s discussion, however, does not meet the analysis of intent presented above. Therefore, even if it were sound, it would nevertheless be insufficient.

But the fact is that the majority’s discussion is simply not sound. Both of the premises on which it is based are unsupported.

It is not the case that the ‘‘prospective/retroactive’ ’ distinction turns solely on whether the legal consequences of past conduct are changed. If it did, prospectivity would be reducible to the ex post facto prohibition—and would therefore be nothing in itself. The majority are surely right in stating that a change in the legal consequences of past conduct is a sufficient condition of retroactivity. But they are just as surely wrong in implying that such a change is a necessary condition. “Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law . . . .” (Calder v. Bull, supra, 3 U.S. (3 Dall.) at p. 390 [1 L.Ed. at p. 650] (lead opn. of Chase, J.).)

Neither is it the case that the application of a procedural provision to proceedings on or after its effective date is ipso facto prospective. Indeed, settled law is to the contrary. (See People v. Hayes, supra, 49 Cal. 3d at p. 1274; Evangelatos v. Superior Court, supra, 44 Cal. 3d at pp. 1205-1206; Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at pp. 393-394.)

The text of Aetna Casualty, which is the leading authority on this point, undermines the majority’s premise. I quote it below in extenso.

*312“It is an established canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent. [Citations.] It is contended . . . that this rule of statutory construction has no application to procedural statutes ....

“Davis & McMillan v. Industrial Acc. Com., [(1926) 198 Cal. 631] at page 638 [246 P. 1046, 46 A.L.R. 1095], contains language ... to the effect that the presumption against retrospective construction does not apply to statutes relating merely to remedies and modes of procedure. [Citation.] A different theory is offered to reach the same result in Morris v. Pacific Electric Ry. Co. [(1935)] 2 Cal.2d 764, 768 [43 P.2d 276], wherein this court stated that procedural changes ‘operate on existing causes of action and defenses, and it is a misnomer to designate them as having retrospective effect.’ (See, also, Estate of Patterson [(1909)] 155 Cal. 626, 638; [citation].) In other words, procedural statutes may become operative only when and if the procedure or remedy is invoked, and if the trial postdates the enactment, the statute operates in the future regardless of the time of occurrence of the events giving rise to the cause of action. [Citation.] In such cases the statutory changes are said to apply not because they constitute an exception to the general rule of statutory construction, but because they are not in fact retrospective. There is then no problem as to whether the Legislature intended the changes to operate retroactively.

“This reasoning, however, assumes a clear-cut distinction between purely \’procedural’ and purely ‘substantive legislation. In truth, the distinction relates not so much to the form of the statute as to its effects. If substantial changes are made, even in a statute which might ordinarily be classified as procedural, the operation on existing rights would be retroactive because the legal effects of past events would be changed, and the statute will be construed to operate only in futuro unless the legislative intent to the contrary clearly appears.” (Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at pp. 393-394, italics added.)

Not only does the text from Aetna Casualty quoted above undermine the majority’s premise that the application of a procedural provision to proceedings on or after its effective date is ipso facto prospective, so too does the reasoning and result in People v. Hayes, supra, 49 Cal.3d 1260. There, we squarely held that the application of such a provision to such proceedings could be—and under the relevant facts actually was—“retroactive.” (Id. at p. 1274.)1

*313In an attempt to support their position, the majority quote from Aetna Casualty. The language they set out, however, does not state the court’s own view—but instead that of one of the parties, which the court proceeds to reject. (See Aetna Cas. & Surety Co. v. Ind. Acc. Com., supra, 30 Cal.2d at pp. 393-394.) They also rely on People v. Hayes, supra, 49 Cal. 3d 1260, but miss the point of that case. Finally, they cite Estate of Patterson (1909) 155 Cal. 626 [102 P. 941]; Morris v. Pacific Electric Ry. Co. (1935) 2 Cal.2d 764 [43 P.2d 276]; Olivas v. Weiner (1954) 127 Cal.App.2d 597 [274 P.2d 476]; Strauch v. Superior Court (1980) 107 Cal.App.3d 45 [165 Cal.Rptr. 552]; Andrus v. Municipal Court (1983) 143 Cal.App.3d 1041 [192 Cal.Rptr. 341]; and Republic Corp. v. Superior Court (1984) 160 Cal.App.3d 1253 [207 Cal.Rptr. 241]. This court’s old decisions in Estate of Patterson and Morris are of no effect. They were impliedly but clearly disapproved in Aetna Casualty in the above quoted text. Of less effect still are Olivas, Strauch, Andrus, and Republic Corp. To the extent they are inconsistent with Aetna Casualty —of which, inexplicably, they take no notice—they are obviously without force.

Ill

For all the reasons stated above, I conclude that Proposition 115 applies only to crimes committed on or after its effective date.

I would therefore discharge the alternative writ, vacate the stay, and reverse the order of the Court of Appeal with directions to cause the issuance of a peremptory writ as prayed.

The pertinent discussion in People v. Hayes, supra, 49 Cal.3d at page 1274, is as follows. “A new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended *313otherwise. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206-1209.) We find nothing to overcome that presumption in this case.

“. . . The prehypnotic evidence in question here predates the statute by several years .... It would be manifestly unfair to apply the regulatory provisions of [Evidence Code] section 795 to retrial of this case .... To invoke [Evidence Code] section 795 to exclude such evidence on retrial would be tantamount to giving the statute retroactive effect.”