Ex Post Facto
Category > Ex Post Facto
Imposition of the one strike law sentence following the continuous sexual abuse of a child conviction violated ex post facto provisions where the conduct ended before the law was amended to include section 288.5 offenses.Defendant was convicted of continuous sexual abuse of a child and given life sentences under the one strike law. However, because his conduct ended in 2004 and the one strike law was amended to include continuous sexual abuse of a child in 2006, imposition of the one strike term violated ex post fact principles. However, in the counts where the alleged conduct started before, but continued in 2006, and defendant did not show the abuse ended before the2006 amendment, there was no ex post facto violation.id: 24478
The new court facilities fee does not apply to cases where the conviction was rendered before the effective date of the statute. The new $30-35 court facilities fee imposed by Government Code section 70353 does not apply to cases in which the defendant's conviction, by plea or jury verdict, was rendered before the Jan. 1, 2009 effective date of the statute. id: 21630
The recent amendment to the definition of grand theft was applied retroactively, reducing defendant’s conviction to petty theft.Defendant took $700 from a woman and was convicted of grand theft. The jury was instructed that a defendant is guilty of the offense if he stole property worth more than $400. After he filed the notice of appeal, the legislature amended section 487, subd.(a) defining grand theft as the taking of more than $950. Defendant was entitled to the benefit of the amendment because his conviction was not yet final. The conviction was reduced to petty theft.id: 22664
Amended version of section 666, requiring three priors for felony theft offense, applies retroactively to all cases not final when the amendment went into effect. Defendant was convicted of petty theft by a repeat offender under Penal Code section 666. The provision was amended in 2010 to require at least three prior convictions unlike the old version which required only one. The provision applies retroactively to a case like the present one which was not yet final when the amendment went into effect. id: 22119
Use of a new limitations period to charge murder where the assault victim died 29 years after the attack violated ex post facto principles.Defendants were convicted of attempted murder and assault offenses committed against a sheriff’s deputy in 1980. At the time, the offense could only become murder or manslaughter if the victim died within three years and one day of the attack. The victim here died 29 years after the attack. Defendants were charged with murder since the Legislature eliminated the three years and a day limitations period in 1997. However, prosecuting defendants for murder in 2010 under the newer law violated the state and federal ex post facto prohibitions.id: 22370
Application of one strike law to a conviction for continuous abuse of a child violated ex post facto provisions where section 288.5 was only recently determined to qualify for the law.Defendant was convicted of continuous sexual abuse against a child in violation of section 288.5, for conduct that occurred between June of 1991 and June 1995. A one strike law allegation was also found true. However, section 288.5 was only added as a qualifying offense under the one strike law in 2006. It’s application, therefore violated the state and federal ex post facto prohibitions. id: 22386
The court erred by imposing a $300 fine under section 290.3, subd.(a) where the fine was $200 at the time of the sex offense.The imposition of the $300 fine under Penal Code Section 290.3, subd.(a) for failing to register as a sex offender violated ex post facto provisions because the fine was only $200 at the time of the sex offense. The fine was reduced to $200, subject to defendant’s ability to pay. However, the court increased the total defendant owed to $640 because the trial court failed to add the appropriate penalty assessments, state surcharge and state court construction penalty. id: 20887
Ex post facto principles prohibit imposing a parole revocation fine on a parolee who committed the underlying offense before the fine was enacted.The constitutional ban on ex post facto laws prohibits imposing a parole revocation fine on a parolee who committed the underlying offense before the fine was enacted.id: 14830
Montoya case regarding aiding and abetting liability for a burglary could not be applied retroactively, and failure to instruct on pre-Montoya law violated ex post facto provisions.The instant burglary was committed in April of 1992. At the time a person could not be liable for a burglary as an aider and abettor unless he or she formed the intent to aid and abet before or during entry by the actual perpetrator. In June 1994, the Supreme Court filed <i>People v. Montoya</i> (1994) 7 Cal.4th 1027, which held that for purposes of determining liability for aiding and abetting, a burglary is ongoing while the direct perpetrator remains in the burglarized premises. The trial court erred in failing to give the pre-<i>Montoya</i> instruction because that case cannot be applied retroactively. It did not matter that defendant knew his conduct was unlawful under different penal statutes. Moreover, defendant had no reasonable notice of the <i>Montoya</i> holding. The error required reversal where the prosecution presented two themes - defendant as the direct perpetrator, and aider and abettor, and it was unclear on which theory the jury relied.id: 9550
Defendant whose crime was committed before the increase in the minimum restitution fine was entitled to the lower fine as well as the ameliorative change of the ability to pay language.At the time defendant was sentenced Government Code section 13967, subdivision (a) provided for a minimum restitution fine of $200 subject to a defendant's ability to pay. However, at the time the offenses were committed the minimum fine was $100 but there was no ability to pay language in the statute. A restitution fine qualifies as punishment for ex post facto purposes. Defendant was entitled to the benefit of the lower fine and the ability to pay language.id: 9544
Imposition of state court facilities construction penalty which became effective after the charged offense violated ex post facto principles.Penal Code section 1465.7 (state surcharge on fines) and Government Code section 70372 (state court facilities construction penalty) became effective after the charged offenses although both were included in defendant's sentence. The Attorney General conceded that ex post facto principles precluded application of the former, but argued the state court facilities construction penalty was a user fee rather than a penalty. However, the Legislature intended the provision to be punitive as well as a source of income, and therefore it could not be imposed.id: 17963
Application of the one strike law to incidents which occurred before its effective date violated ex post facto prohibitions.The information charged four counts of sexual abuse against Dolores occurring between 1990 and 1993. Defendant was sentenced on forcible lewd conduct to 15 years-to life pursuant to the one strike law under Penal Code section 667.61, subd.(b). The one strike law became effective on November 30, 1994. Because the one strike law was adopted after the sexual abuse had occurred, applying it to the charges for that conduct violated the state and federal constitutional protection against ex post fact laws. However, application of the one strike law to the offenses committed against a second victim, Elizabeth, after the effective date of the provision, did not violate the ex post facto provisions, even though the earlier offenses against Dolores were used to create the multiple victim status which invoked the one strike law.id: 16955
There was a separation of powers violation where the refiling of a dismissed complaint under an amended version of section 803, subd.(g) took place after the prior dismissal became final and before the amendment became effective.In 1995, defendant was charged with sex offenses dating back 25 years. The charges were brought under Penal Code section 803, subd.(g) which attempted to revive the expired statute of limitations. The complaint was dismissed since the court found the new limitations period was not intended to revive actions time barred before the statute took effect in 1994. The ruling was affirmed on appeal and the Supreme Court first granted and then dismissed review. Section 803, subd.(g) was thereafter amended in 1996 and 1997 and expressly permitted the revival of such prosecutions even where the limitations period had previously expired. Separation of powers principles preclude retroactive application of refiling legislation in cases where the prior judgment of dismissal was entered before the legislation took effect. There was a separation of powers violation where the complaint was refiled under conditions that complied only with the 1997 version of section 803, subd.(g) not yet in effect when the prior judgment dismissing the same counts became final.id: 16621
Imposition of the DNA penalty assessment violated the ex post facto prohibitions where the qualifying offense was committed before the provision's effective date.The DNA penalty assessment described in Government Code section 76104.6 is a penalty and its imposition violated ex post facto prohibitions where defendant's qualifying offense was committed before its effective date.id: 20069
Imposition of the One Strike Law term violated defendant's right against ex post facto laws since there was no proof beyond a reasonable doubt that the crime was committed before the effective date of the One Strike Law. Defendant was charged with various sex offenses against children, pursuant to former Penal Code section 803, subd.(g)
which allowed for the extension of the statute of limitations. Imposition of the One Strike Law term of 15 years to life on the forcible lewd act violated his right against ex post facto laws since there was no proof beyond a reasonable doubt of his commission of the crime before the effective date of the One Strike Law.id: 19284
New prison regulation preventing reinstatement of forfeited credits violated ex post facto principles when applied to prisoners whose misconduct occurred before the promulgation of the regulation.A new regulation of the Department of Corrections, which prevents prisoners from obtaining reinstatement of conduct/work credits that had been forfeited for misconduct, violates the ex post facto prohibition when applied to prisoners whose misconduct was committed before the regulation was promulgated. This is so because the objective effect of the amendment is to lengthen the prisoner's term by barring him from earning credit restoration through good behavior. This constitutes punishment for ex post facto purposes.id: 15285
Ex post facto principles preclude application of Prop 21 provision to a hearing to be held after its effective date when the offense was committed prior to the effective date.The amended version of Welfare and Institutions Code section 777 contained in Proposition 21 cannot be applied to a hearing relating to the lifting of a stay of a Youth Authority commitment when the hearing is to be held after the effective date of Proposition 21 and when the offense for which the stayed Youth Authority commitment was imposed occurred before the effective date of Proposition 21.id: 15280
Sex offender's failure to register within 10 days of moving is not a continuing offense and proving a completed violation before section 290, subdivision (f) became effective violated ex post facto principles.Defendant, a convicted sex offender, was charged under Penal Code section 290, subdivision (f) with failing to notify law enforcement of his new address within ten days of moving. The provision was amended effective January 1, 1995, to mandate felony punishment. The prosecutor proved a violation in late 1994 but did not prove a violation in 1995. He argued the conduct occurred in 1994 and 1995, and prosecution was proper because the offense was a continuing one. However, the failure to register is not a continuing offense and the crime is complete when the tenth day after the move expires and the registrant has not given notice. Conviction under section 290, subdivision (f) violated ex post facto principles.id: 9556
Proposition 115 provisions that change the legal consequences of criminal behavior to defendant's detriment can only be applied to crimes occurring on or after June 6, 1990.Proposition 115 provisions which change the legal consequences of criminal behavior to the defendant's detriment cannot be applied to crimes committed before the measure's effective date. The provisions include: Section 9 (amending P.C. 189) which adds crimes to the list of felonies supporting a conviction of first degree murder; Those portions of section 10 (amending P.C. 190.2) which add special circumstances; That portion of section 10 (codified at P.C. 190.2, subdivision (d)) which provides that an accomplice, for a felony murder circumstance to be found true, must have been a major participant and have acted with reckless indifference to human life; Section 11 (adding P.C. 190.41) which provides that the corpus delicti of a felony-based special circumstance need not be proved independently of the defendant's extrajudicial statement; Section 12 (amending P.C. 190.5) which subjects a person between age 16 and 18 to the penalty of life without parole for first degree murder with special circumstances; Sections 13 and 14 (adding P.C. 206 and 206.1), which define the new crime of torture; Section 26 (adding P.C. 1385.1) which precludes a judge from striking a special circumstance that has been admitted or found to be true.id: 9553
Proposition 115 provisions favoring defendants may be applied to pending cases.There is a category of Proposition 115 cases which benefit defendants and these provisions may be applied to pending cases. Each of these provisions is contained in section 10. The section provides that the killing of a prosecutor or judge, to constitute a special circumstance, must be intentional (section 10, codified at P.C. 190.2, subdivision (a)(11) and (a)(12)). The section also provides that an accomplice, for a non-felony-murder special circumstance to be found true, must have had the intent to kill (section 10, codified at P.C. 190.2, subdivision (c)).id: 9551
A law governing the conduct of trials is being applied prospectively when it is applied to a trial occurring after the law's effective date.A statute is presumed to operate prospectively absent an express declaration to the contrary. Proposition 115 is silent on the issue of retrospectivity, and must therefore be construed to operate prospectively. However, a law governing the conduct of trials (as opposed to a law defining crimes or increasing punishment) is being applied prospectively when it is applied to a trial occurring after the law's effective date, regardless of when the underlying crime was committed or the underlying cause of action arose.id: 9299
The One Strike law sentence violated ex post facto principles because there was no proof that the molest offenses occurred after the effective date of the statute.The information charged 11 child molest counts based on conduct that occurred between 1992 and 1996. A defendant may be convicted of child molest based on generic testimony. Defendant was thereafter sentenced under the One Strike law which took effect in November of 1994. The prosecution's failure to prove the offenses occurred prior to the effective date of the statute rendered the One Strike sentence a violation of the ex post facto principles. Defendant was entitled to be sentenced under the previously applicable statutes even though no objection was raised in the trial court.id: 18908
The 1997 diversion statute - Penal Code section 1000 - applies prospectively to conduct committed on or after January 1, 1997.As a matter of statutory interpretation the 1997 version of Penal Code section 1000 operates prospectively only and therefore the diversion provisions of 1996 section 1000 apply to defendant's conduct on December 31, 1996. The trial court erred by requiring defendant to plead guilty to the charged offense and by following procedures for deferred entry of judgment under the 1997 section 1000 rather than diversion under the 1996 section 1000.id: 15291
Supreme Court says change in rules for corroborating evidence in sex case violated ex post facto clause.Defendant was convicted of fifteen counts of sexual offenses against his stepdaughter. Four counts were committed before Texas law was changed to allow conviction based solely on the victim's testimony. Under the earlier law, a victim's testimony about a sexual offense could not support a conviction unless corroborated by other evidence or the victim informed another person of the offense within six months of its occurrence. In a 5-4 opinion written by Justice Stevens, the Supreme Court held that applying the new amendment retrospectively to these four counts violated the ex post fact clause. In <i>Calder v. Bull</i>, 3 Dall. 386, 390 (1798) the court said that the prohibition against ex post facto laws applied to "[every law that alters the <i>legal</i> rules of <i>evidence</i>, and receives less, or different testimony than the law required at the time of the commission of the offense <i>in order to convict the offender</i>. The majority ruled that the court had repeatedly endorsed this understanding, and that the present case plainly fit within the <i>Calder</i> prohibition. The majority distinguished <i>Hopt v. Territory of Utah</i>, 110 S.Ct.574 (1884) and <i>Thompson v. Missouri</i>, 171 U.S. 380 (1898) on the ground that those cases involved witness competency, rather than sufficiency of the evidence. Justice Ginsburg dissented, joined by Chief Justice Rehnquist, and Justices O'Connor and Kennedy.id: 15054
Application of the mandatory consecutive sentence provision of the three strikes law to an offense committed before its enactment violated ex post facto principles.In 1993 defendant was convicted of possessing drugs in Marin County. He was sentenced to prison for four years with execution of the sentence suspended and a grant of probation. After the effective date of the three strikes law he committed another felony in Santa Clara County for which he received a 25 years to life sentence. The court also revoked probation and ordered the four year sentence on the Marin County offense to run consecutive to the three strikes sentence. That sentence was given because of a change in the law after the commission of that offense. Application of Penal Code section 667, subdivision (e)(2)(B) to increase the punishment for an offense committed before its enactment violated ex post facto provisions of the state and federal constitutions.id: 9381
The court erred in failing to inquire whether petitioner was disadvantaged by the ex post facto application of the 1983 regulations.Petitioner was convicted in 1975 of first degree murder and sentenced to life imprisonment. In 1983, the Board of Prison Terms held two hearings concerning his suitability for release, one under the Determinate Sentencing Law and the other under the Indeterminate Sentencing Law. Both panels used regulations promulgated after the date of petitioner's crime. Petitioner argued the use of such regulations violated ex post facto principles. Since the trial court failed to make the essential inquiry of whether the petitioner was disadvantaged by the ex post facto application of the 1983 regulations, the court prejudicially erred in ordering the Board to hold an additional hearing to explain why petitioner was not released within one year of his parole suitability date.id: 9561
Updated 6/1/2024The application of a kidnapping-felony murder theory to defendant’s section 1172.6 petitions did not violate ex post facto principles.The trial court denied the defendants’ petitions for resentencing under Penal Code section 1172.6. They argued the denial of their petitions in reliance on a theory of felony-murder based on kidnapping violates ex post facto principles because at the time of the offense, kidnapping was not an enumerated felony under section 189(a) to which felony-murder liability could attach. However, the superior court properly denied the resentencing petitions on the ground that they could be convicted under current law on a theory of first degree felony murder based on the kidnappings.id: 28279
Updated 2/26/2024Application of murder exclusion in mental health diversion statute was not ex post facto since neither the original provisions nor the amendment existed at the time of the offense. Defendant was convicted of second degree murder. He argued that under Penal Code section 1001.36, which became effective while his appeal was pending, defendant was entitled to a remand so the court could consider granting him pretrial mental health diversion. Section 1001.36 was enacted in 2018, but amended in 2019 to exclude murder convictions. Application of the amendment does not violate ex post facto or retroactivity principles since neither provision was in effect at the time defendant committed the murder.id: 26235
Updated 2/4/2024There was no ex post facto violation where the conspiracy straddled the effective date of the human trafficking statute. Defendant argued that his conspiracy to commit human trafficking offense violated the ex post facto provisions because the “agreement” and many of the overt acts in furtherance of the conspiracy, took place before Penal Code section 236.1 criminalized human trafficking. However, there was no ex post facto violation because the conspiracy straddled the effective date of the statute - it began before section 236.1's effective date and continued well after that date.id: 27310
Trial court’s modified CALCRIM 207 instruction resulted in an ex post facto violation where it instructed the jurors could convict based on acts committed before the time period charged in the information.Defendant was charged with molesting his stepdaughter sometime between December 1, 2006 and August 5, 2011. The trial court instructed that the prosecution was not required to prove the crime took place exactly during the period, but only that it happened after August 12, 2005. The instruction resulted in an ex post facto violation as jurors were told they could convict defendant based on acts committed before the charged time period. id: 24147
Amendment to section 731 that allowed a commitment to the DJF for minors who committed sex offenses was intended to apply retroactively.The minor was committed to The Division of Juvenile Facilities pursuant to an amendment to Welfare and Institutions Code section 731 that was enacted after his adjudication. The language of the amendment made clear that it was intended to apply retroactively. And retroactive application did not violate ex post facto provisions because there was nothing so punitive in the statute’s purpose or effect that would warrant the disregard of the Legislature’s express intent in enacting it.id: 23531
Application of Marsy’s Law procedure that extended time between parole hearing to those who committed crimes before the law did not violate ex post facto. In 2008, the voters approved Marsy’s Law as part of the Victim’s Bill of Rights Act. The changes became effective immediately and included an amendment to Penal Code section 3041.5 that increased the time between parole hearings but allowed for the advancement of a hearing due to changed circumstance. Application of this new procedure to prisoners who committed their crimes before the enactment of Marsy’s Law did not violate ex post facto principles. id: 23096
The amendment to the provision denying credits to validated gang members in the SHU applies only to inmates who continue a gang affiliation and therefore does not violate ex post facto principles.The amendment to Penal Code section 2933.6 denying conduct credits to validated gang members housed in a secured housing unit applies prospectively only to inmates who continue to demonstrate active gang affiliation after January 25, 2010, and therefore does not violate the prohibition against ex post facto laws.id: 22322
The Board’s decision to apply the 2008 amendment to section 3041.5, subd.(b)(3) when scheduling defendant’s next parole hearing in three years did not violate the ex post facto prohibitions. The Board of Parole Hearings found defendant unsuitable for parole. The Board’s reliance on a 2008 amendment to Penal Code section 3041.5, subd.(b)(3) which postponed his next parole hearing for three years did not violate the ex post facto prohibitions where the provision allows the Board to grant, and an inmate to request, an earlier parole hearing. id: 22412
Application of Marcy’s Law to extend time between parole hearings did not violate the ex post facto prohibition. The Board of Parole Hearings found defendant unsuitable for parole. The Board’s application of Marcy’s Law to schedule defendant’s next parole hearing three years from the date of the October 2009 hearing does not violate the prohibition against ex post facto laws. id: 22229
The trial court properly imposed the $20 court security fee even though the conviction predated the effective date of the fee provision. Defendant argued the trial court erred by imposing a $20 court security fee under Penal Code section 1465.8 because the fine provision was not enacted until after his conviction. However, the fee is not punishment and it may be imposed at sentencing even though the conviction occurred before the effective date of the fee.id: 22458
Marsy’s Law provision extending the scheduling of parole hearings did not violate ex post facto provisions because it did not increase punishment.In 2008. Marsy’s Law made amendments to Penal Code section 3041.5 which allowed the Board of Parole Hearings to schedule suitability hearing from three to 15 years after denials instead of the pasr one to five year period. Application of the amendments to defendant’s case did not violate ex post facto provisions because they did not increase the punishment for the crime but rather altered the method to be followed in fixing a parole release date.id: 22491
Application of amended provision denying credits for prison gang members in ad seg did not violate ex post facto prohibition where defendant remained a gang member after the effective date of the amendment. Penal Code section 2933.6, subd.(a) was amended, effective January 25, 2010, to make prior gang members who are placed in an administrative segregation unit upon validation, ineligible to earn sentence reduction conduct credits during such placement. Application of the provision to defendant did not violate the ex post facto provisions because it was not applied retrospectively to him. This was due to defendant’s choice to remain an active gang member after the effective date of the amended provision. Neither did application of the amended provision violate due process as his choice to remain a gang member was not “good behavior” and the evidence showed he continued to be a prison gang member.id: 22475
“Court facilities” fee applies to all criminal offenses, and is not punishment for ex post facto purposes.Defendant was convicted of several counts of lewd acts against children. He argued the court erred at sentencing by imposing a $30 “court facilities” fee under Government Code section 70703 because that statute only applies to Vehicle Code violations. However, the provision applies to all “criminal” offenses even though that term is defined to include traffic offenses. Moreover, even though the provision was enacted after defendant’s offenses, its application did not violate ex post fact principles because it attaches upon conviction and not commission of an offense, and it is not punishment. id: 21865
Jessica’s law is not improperly applied to defendants retroactively and did not violate ex post facto principles where the law became effective before defendants were released on parole.“Jessica’s Law” passed in 2006 as part of Proposition 83, placed restrictions on where sex offenders subject to lifetime registration could reside - they cannot live within 2000 feet of a school, park or where children gather. The Department of Corrections and Rehabilitation sought to enforce the law as a statutory parole condition serving notice on the subjects. Defendants were registered sex offenders convicted before the law was enacted but paroled after the effective date. There was no impermissible retroactive application of the law to defendants where each was released after the statute’s effective date. Moreover, the new law (Penal Code section 3003.5, subd.(b)) does not violate ex post facto provisions because it was not applied retroactively.id: 21381
Court facilities assessment can be imposed where the crimes occurred before the statute’s effective date.Defendant argued the trial court erred by imposing a $30 assessment under Government Code section 70373 because the crime occurred before the effective date of the statute. However, the date of the conviction, not the date of the crime, controls the application of the statute.id: 21664
The imposition of the court facilities fee to crimes committed before the statute was enacted does not violate the ex post facto provisions.The imposition of the $30 court facilities assessment mandated by Government Code section 70373 for crimes committed before the enactment of the statute does not violate the state and federal prohibitions against ex post facto laws because the assessment does not constitute punishment and is not so punitive as to override the Legislature's intent.id: 21481
The amended SVP Act is not punitive and therefore does not violate ex post facto.The amended SVP Act (Prop 83) which allows for an indefinite commitment does not violate the ex post facto prohibition because it is not punitive in nature.id: 21377
There was no ex post facto violation where the court admitted evidence of defendant’s prior domestic violence under section 1109 in a case where the crimes predated that provision. Defendant was convicted of one count of murder and another count of murder resulting from an incident that occurred in 1994. H was arrested for the events after spending several years in Mexico. Two years after the offenses, the legislature enacted section 1109 which was used at trial to show his propensity to commit domestic violence. Contrary to defendant’s claim, the application of section 1109 did not violate the prohibition against ex post facto laws.id: 21075
Admission of victim impact evidence did not violate ex post facto laws even though such evidence was not admissible at defendant's original trial.At defendant's second capital trial following an appellate reversal, he argued the introduction of victim impact evidence violated ex post facto principles because such evidence was not admissible at the time he committed his crimes. However, victim impact evidence does not increase punishment, or change the elements or facts necessary to convict. It is simply another form of informing the sentencing authority of the specific harm caused by defendant. The fact that the statute works to defendant's disadvantage did not constitute an ex post facto violation.id: 17973
Section 803, subd.(g) does not violate the prohibition against ex post facto laws.Penal Code section 803, subd.(g) which permits prosecution of certain time-barred chid molest offenses does not meet the definition of an ex post facto law even after the U.S. Supreme Court's decision in Carmell v. Texas (2000) 529 U.S. 513. The provision merely addresses when the state may prosecute certain charges. It does not alter the elements of the offenses or their punishment, or the amount or type of evidence required to convict an offender.id: 16884
Extension of the statute of limitations under section 803, subd.(g) for crimes that were not time-barred when the provision was enacted, does not violate ex post facto principles.Penal Code section 803, subd. (g) provides a special supplementary statute of limitations for certain sex crimes against minors. In People v. Frazer (1999) 21 Cal.4th 737, the California Supreme Court held the provision could be applied retroactively without violating ex post facto principles. In Stogner v. California (2003) 123 S.Ct. 2446, the United States Supreme Court ruled the provision, as applied to crimes that were already time-barred when the section was enacted, violates ex post facto principles. However, the Stogner ruling does not apply where, as here, the statute of limitations had not expired, but was extended by section 803, subd.(g).id: 17623
Penal Code section 803, subd.(g), does not violate ex post facto principles by extending the unexpired statute of limitations.Penal Code section 803, subd.(g) does not violate ex post facto principles when it is used to extend the unexpired time in which criminal charges may be brought for certain offenses involving substantial sexual conduct against minors.id: 17682
Section 803(g) did not violate the ex post facto clause where the statute of limitations had not yet run on the crime charged when the provision was enacted.On March 28, 2001, defendant was charged with felony child molestation which occurred between 1993 and 1995. Penal Code section 803, subd.(g) which extended the statute of limitations in certain cases, did not violate ex post facto principles. Contrary to the facts in Stogner v. California (2003) 123 S. Ct. 2446, the statute of limitations had not yet run on the crime charged when section 803, subd.(g) was enacted.id: 17779
Amendments to sex offender registration requirements since 1987 do not constitute punishment and may be applied retroactively except for the residency and monitoring provisions of Jessica’s Law which is applied prospectively only.Since March 1987, the sex offender registration laws have been amended to enhance registration requirements, create a public notification and inquiry system, require DNA collection and sampling, and impose residency restrictions and GPS monitoring. Application of the first three categories of amendments to defendant who was convicted and ordered to register in 1987 do not violate ex post facto provisions because they do not constitute punishment. However, the fourth category – the Jessica’s Law requirements – applies prospectively only so defendant will not be subject to its residency and GPS monitoring provisions. id: 20609
Indeterminate commitment under amended SVP act was not punishment and the application of that term to conduct committed before its enactment did not violate ex post facto provisions.Defendant argues that his involuntary commitment for an indeterminate term under the 2006 amendment to the SVP act violated ex post facto provisions because it applied to conduct committed before its enactment. However, there was no ex post facto violation where the indeterminate term was not linked to punishment but to the stated purpose of treating the committed person and protecting the public from SVPs.id: 20221
Juvenile court did not err in ordering CYA commitment and 2007 amendments to sections 731 and 733 which restrict CYA commitments need only be applied prospectively.Following a probation violation, the minor argued the juvenile court abused its discretion in committing him to the California Youth Authority. However, the record of the minor's long history of delinquency showed the commitment would probably benefit hm, that a less restrictive placement would be ineffective and would not promote public safety. He also claimed the recent amendments to Welfare and Institutions Code sections 731 and 733, restricting the cases that would result in CYA commitments should be applied retroactively. However, the provisions involve placement rather than punishment and need only be applied prospectively.id: 20104
The amended version of W&I Code section 777 contained in Prop. 21 can be applied to a hearing regarding the lifting of a stay of a CYA commitment where the probation violation occurred prior to the effective date of the initiative.The juvenile court erred by not making the findings required by former Welfare and Institutions Code section 777, subd.(a), before lifting the stay of the commitment to the Youth Authority. However, a remand is not necessary because Proposition 21, passed on March 7, 2000 deleted the requirement of such findings. Under Proposition 21, the juvenile court is only required to decide if a probation violation occurred prior to ordering into effect a stayed CYA commitment. Since the changes are procedural, the application of the initiative to conduct which occurred prior to its effective date does not invoke ex post facto protections.id: 15292
Application of the initiative amending the DNA act did not violate ex post facto provisions where requiring the sample was not punishment for the earlier act.In an earlier opinion, defendant's robbery conviction was affirmed, but the court struck the order to provide a DNA sample because robbery was not an enumerated offense under Penal Code section 296. Defendant moved to have his sample removed from the DNA data bank. Thereafter, the electorate passed Prop 69 which expanded the enumerated offenses to any felony. The trial court did not err in finding it would-be futile to destroy the sample previously given since a new sample would have to be provided. Moreover, the application of Prop 69 did not violate ex post facto principles because it did not punish him for previous conduct, but rather constituted a new offense of failing to give a sample under section 298.1.
id: 18951
Proposition 115 provisions regarding the conduct of trials may be applied to pending cases.Certain provisions of Proposition 115 address the conduct of trials rather than the definition of, punishment for, or defenses to crimes. These provisions may be applied to pending cases regardless of when the charged offense is alleged to have occurred. They include: Section 2 (adding Cal. Const. Art. I, 14.1) which eliminates postindictment preliminary hearings; Section 4 (adding Cal. Const. Art. I, 29) which gives the People the right to due process and speedy trial; Section 5 (adding Cal. Const. Art. I, 30) which provides that the Constitution shall not be applied to prohibit joinder, makes hearsay evidence admissible at preliminary hearings, and makes discovery reciprocal; Sections 6, 7 and 7.5 (repealing Code of Civil Procedure 223 and 223.5, and adding a new section 223) which reform voir dire; Sections 8, 15, 16, 17 and 18 (adding Evidence Code 1203.1, amending P.C. 859, 866 and 872, and adding 871.6) which reform preliminary hearing procedures; Section 19 (adding P.C. 954.1) which provides that the absence of cross-admissibility is not a ground for severance; Section 20 (adding P.C. 987.05), which requires appointment of counsel who is ready to proceed; Section 21 (Penal Code 1049.5) which provides that felony trials shall take place within 60 days of arraignment; Section 22 (adding P.C. 1050.1) which authorizes continuances to maintain joinder; Sections 23, 24, 25 and 27 (adding P.C. 1054 to 1054.7, and repealing 1102.5, 1102.7 and 1430) which reform discovery procedures and provide for reciprocal discovery; and Section 28 (adding P.C. 1511) which provides for appellate review of trial dates and continuances.id: 9552
Supreme Court finds that Alaska's Megan's Law does not violate Ex Post Facto ClauseAlaska's Sex Offender Registration Act requires a sex offender who lives in that state to provide the authorities with his address and other information. Some offenders must update the information yearly for 15 years; more serious violators have a lifetime registration requirement and must update the information every quarter. The information is maintained in a central registry, and much of it is published on the Internet. The Act's requirements apply retroactively to all sex offenders, and failure to register is a criminal offense. In Doe v. Otte, 259 F.3d 979 (9th Cir.2001), the Ninth Circuit held that the Act's effects were punitive and that its application to sex offenders who committed their offenses before the Act's passage violated the Ex Post Facto Clause. In a 6-3 decision, the Supreme Court reversed, finding that the Act creates a nonpunitive regulatory scheme and therefore does not implicate the Ex Post Facto Clause.id: 20150
Supreme Court says California law deferring parole hearings did not violate ex post facto clause.A 1981 amendment allowed the California Board of Prison Terms to defer suitability hearings for up to three years for prisoners convicted of more than one offense involving the taking of a life, if the Board finds it is not reasonable to expect that parole would be granted during the following years. California Penal Code section 3041.5(b)(2). Because the law applied only to prisoners whose chance of parole was remote and because it carefully tailored the Board's authority by requiring written findings justifying deferral, Justice Thomas' majority opinion held that the law did not violate the Ex Post Facto Clause, even when applied to a prisoner convicted of two murders before the date of the amendment. Justices Stevens and Souter dissented.id: 9559
Supreme Court reverses 9th Circuit on Washington's Sexually Violent Predator statute.In <i>Young v. Weston</i>, 192 F.3d 870 (9th Cir. 1999), the Ninth Circuit ordered the district court to hold a hearing on the allegations of a habeas corpus petitioner who was subjected to indefinite civil commitment under Washington's Sexually Violent Predator statute. The Supreme Court granted certiorari and reversed, holding that the Washington Supreme Court's prior determination that the statute was civil rather than criminal precluded the inmate's claim that "as applied" to his conditions of confinement, the statute violated double jeopardy and the ex post facto clause. Writing for the majority, Justice O'Connor noted that the Washington act was the pattern for the Kansas act upheld in <i>Kansas v. Hendricks</i>, 521 U.S. 346 (1997). The majority held that an "as applied" analysis could never conclusively resolve whether the particular scheme was punitive and would thereby prevent a final determination of the scheme's validity under the double jeopardy and ex post fact clauses. "Permitting respondents as-applied" challenge would invite an end run around the Washington Supreme Court's decision that the Act is civil in circumstances where a direct attack on the decision is not before this court." Justices Scalia, Souter and Thomas concurred separately. Justice Stevens dissented.id: 15135
Supreme Court finds that retroactive extension of statute of limitations for sex cases violates Ex Post Facto Clause.In 1994, California changed the statute of limitations for certain sex offenses to allow prosecution for any offense "one year after a report" by a person to a law enforcement agency that he or she had been the victim of sexual misconduct while under the age of 18. The new statute of limitations applied retroactively to offenses on which the statute had already run at the time that the 1994 law was enacted. By a 5-4 vote, the Supreme Court held that the Ex Post Facto Clause barred California from reviving previously time-barred criminal cases by extending the statute of limitations after the statute had already run.id: 20152
Supreme Court allows judicial abrogation of murder rule to be applied retroactively.At common law, a person could not be convicted of murder unless the victim died within a year and a day. In defendant's case, the Tennessee Supreme Court abolished the common law rule and then applied its decision to uphold defendant's conviction. In a 5-4 opinion written by Justice O'Connor, the Supreme Court found no violation of due process in applying the new rule retroactively. The ex post facto clause does not apply directly to judicial decision-making, but similar limits on retroactive application of judicial decisions "are inherent in the notion of due process." Nevertheless, the majority held that judicial abrogation of the "year-and-a-day" rule was not unexpected or indefensible, and therefore applying the new judicial rule retroactively did not offend the fair warning principle of the Due Process Clause. Justices Stevens, Scalia, Thomas and Breyer dissented.id: 15127
Application of a law extending the period a prior drunk driving conviction could be used to enhance a sentence did not violate due process or ex post facto principles.Defendant pled guilty to drunk driving at a time when a defendant convicted of a second offense within seven years received increased punishment. The statute was later amended to extend the seven years to ten years. Defendant reoffended more than seven but less than ten years later. The amended statute may be applied to defendant without violating ex post facto or due process principles.id: 19934
Retroactive application of Prop 21 provision preventing the sealing of juvenile records applied to minor and his honorable discharge from CYA did not permit sealing. The minor argued the trial court erred in determining that an amendment to Welfare and Institutions's Code section 781, which provided that persons over 14 years old who committed murder could not have their juvenile records sealed, applied to him. Contrary to the minor's claim, the amendment applies to offenses occurring before 2000. Moreover, it is not an ex post facto law because it is not punitive, and does not represent an arbitrary classification for equal protection purposes. Finally, the minor's honorable discharge from the California Youth
Authority did not permit sealing of the record notwithstanding the amendment to section 781.id: 19348
DNA testing is not "punishment" for ex post fact purposes.Defendant argued that subjecting him to the amended Penal Code section 296.1 violated ex post facto principles became his offense took place in 2001 and the law was not effective until 2004. However, subjecting a defendant to mandatory DNA testing is not punishment, and the court's order therefore did not violate ex post fact provisions.id: 19090
Section 803's extension of existing, unexpired limitations period did not violate the ex post facto prohibition.Defendant argued that subdivisions (f) and (g) of Penal Code section 803 were unconstitutional ex post facto laws which revived time-barred prosecutions because the standard limitations period had expired before the victim's report to the police. However, there was no ex post facto violation because subdivisions (f) and (g) became effective as to the charged offenses before the standard limitations period expired.id: 18442
Imposition of security fee on person convicted of offense committed before the effective date of the fee did not violate ex post facto provisions.Defendant argued that since he committed his offense prior to the effective date of Penal Code section 1465.8, subd.(a)(1), the imposition of the $20 court security fee violates the ex post facto provisions of the state and federal constitutions. However, the fee is nonpunitive in purpose and therefore does not violate ex post facto provisions.id: 17997
Failure to give version of CALJIC reasonable doubt instruction that existed at the time did not violate ex post facto or due process provisions.Defendant was convicted in 1982 of a 1980 murder. His conviction and death sentence were reversed. He was convicted and sentenced to death a second time. He argued the court at the second trial erred by failing to give the reasonable doubt instruction that was in effect at his first trial. That instruction referred to "moral evidence" and "moral certainty." However, since CALJIC instructions do not constitute legislative or decisional law and thus cannot implicate ex post facto concerns or due process, defendant's only argument is that the revised CALJIC 2.90 is defective. The case law makes clear the instruction is valid.id: 17972
Using Prop 21 provision applying preponderance standard to probation violations to minors whose original crimes predated Prop 21 did not violate ex post facto principles.Minors were on probation for crimes adjudicated under Welfare and Institutions Code section 602. The offenses were committed before the effective date of Proposition 21. After the effective date of the initiative, they committed alleged probation violations. The prosecution sought to adjudicate the violations under section 777, subd.(a)(2), the amended version which applies the preponderance of the evidence standard. The minors argued that use of the Prop 21 provision violated ex post fact principles. However, the amendment to section 777 did not affect the standard of proof used to adjudicate crimes, but rather only affects probation violation proceedings. Moreover, the amendments do not inflict new or increased punishment.id: 17928
Application of the "aggravated white collar crime enhancement" did not violate the ex post facto principles even though some of the transactions which triggered the enhancement occurred before its effective date.Defendant was convicted of several violations of securities fraud in a Ponzi scheme. His sentence was enhanced by Penal Code section 186.11, since the amount taken exceeded $500,000. The enhancement became effective in 1996. The jury's finding included transactions that occurred from 1993 to 1996. Defendant argued ex post facto principles precluded application of the enhancement because the $500,000 minimum was met with transactions that occurred prior to the effective date of the amendment. However, once defendant continued to defraud investors after the effective date of the amendment, he was on notice of the consequences. After ignoring the warning, he may not invoke the protections of the ex post facto clause.id: 17870
Allowing Governor to review determination of suitability for parole does not violate ex post facto principles.The circumstance that the Governor, in reviewing the Board of Prison Term's decisions, frequently may disagree with the Board's determination that a prisoner is suitable for parole, does not transform the review procedure of California Constitution article V, section 8(b), into an unconstitutional ex post facto law.id: 17668
California Constitutional provision granting the Governor authority to review parole board decisions did not constitute an increase in punishment for purposes of the ex post facto clause. Petitioner argued the Governor's review of the parole board's decision (finding petitioner suitable for parole) was barred by the ex post facto clause of the state and federal constitutions, because article V, section 8, subd.(b) of the California Constitution - the provision that grants the Governor the authority to review the board's parole decisions - was adopted in 1988, after petitioner had committed the underlying offense. However, the type of procedural change implemented by article 5, section 8(b) - i.e., a change that simply created a new level of review, within the executive branch, of parole decisions concerning a specified category of prisoners but that did not change the substantive standard governing the grant or denial of parole - is not the type of change to which the ex post facto clause applies.id: 17115
Application of Prop 21 provision restricting the sealing of juvenile records did not violate ex post facto or equal protection principles.The trial court granted defendant's petition to seal his juvenile records, concluding the application of the amendments to Welfare and Institutions Code section 781, enacted as part of Prop 21, would violate state and federal equal protection and ex post facto principles. However, application of the amended section 781 does not violate ex post facto laws since the amendments are not punitive in nature. Moreover, there is no equal protection violation in allowing adults convicted of certain offenses to expungement of the convictions while denying minors the opportunity to seal their juvenile records, because the juvenile and adult justice systems are different, and the affected parties are therefore not similarly situated.id: 17130
Prop 21 gang registration requirement does not constitute "punishment" for ex post facto purposes.Defendant argued the gang registration requirement, which was enacted as part of Proposition 21, could not be applied to him because his offense took place in November of 1999, and Prop 21 became effective in March 2000. However, the gang registration requirement does not constitute "punishment" for ex post facto purposes.id: 16977
1994 amendment to section 3041.5, allowing deferral of parole hearing for five years, applied to defendant who was convicted of murder in 1986.In 1990, the Legislature amended Penal Code section 3041.5 by permitting a five year extension for parole hearings where the defendant was convicted of more than one murder. In 1994, the section was amended again to allow a five year extension for any single murder conviction. Defendant argued the1994 amendment did not apply to him because his murder conviction occurred in 1986, and section 2 of the 1990 amendment provided a window period by which his parole hearing dates could not be set for five years. However, defendant could not avail himself of the window period since the only prisoners entitled to that protection were those with multiple murder convictions. Moreover, application of the 1994 amendment to defendant did not violate ex post facto principles.id: 16745
Prior convictions that were added to the list of serious felonies by Prop 21 may be used as strike priors even though they were committed before the effective date of Prop 21.Proposition 21 amended Penal Code section 1192.7 by adding certain offenses to the list of serious felonies used for purposes of the three strikes law. Among the additions was discharging a firearm at a dwelling or vehicle pursuant to Penal Code section 246. Defendant's prior conviction for violating section 246 occurred in 1993, well before the effective date of Prop 21 (March 8, 2000). The trial court ruled that allowing the prior conviction suffered before the effective date of Prop 21 would violate ex post facto principles. However, the Court of Appeal reversed. If a defendant's current offense was committed after the effective date of Prop 21, a determination of whether the prior conviction was a serious felony under the three strikes law must be based on the definition of serious felony under section 1192.7, subd.(c) in effect on March 8, 2000.id: 16460
Failure to object to ex post facto application of new Evidence Code provision regarding violent character constituted a waiver of the issue.Defendant argued the court erred in applying Evidence Code section 1103 (amended after the crime but before trial) to admit evidence of his character for violence. He claimed that admitting this evidence violated the Ex Post Facto Clause of the United Stated Constitution. However, not only did trial counsel fail to object to use of the amended statute, he urged its application. This permitted the defense to prove specific instances of violence by the victim.id: 16417
Mentally disordered offender statutory scheme is civil and does not violate ex post facto clauses.The date of defendant's offenses - January 16, 1989 - was during the period after the mentally disordered offender (MDO) statutory scheme was declared unconstitutional in <i>People v. Gibson</i> (1988) 204 Cal.App.3d 1425, and before the Legislature amended the statutes effective July 1989, to comply with <i>Gibson</i>. Defendant argued there was no valid MDO statute in existence at the time of his offenses and retroactively applying the amended statute violated the state and federal ex post facto clauses. However, the MDO statutory scheme is civil and does not violate ex post facto provisions.id: 15283
New hearsay exceptions allowing statements of child abuse victims can be applied to offenses occurring before their effective date without violating ex post facto provisions.Evidence Code sections 1360 and 1253 permit the court to admit a child abuse victim's hearsay statement. The provisions became effective in January 1996, which was after the conduct which was the subject of defendant's prosecution. However, since the provisions do not alter the definition of a crime, increase punishment, or eliminate a defense, it does not violate ex post facto principles to apply them to offenses which occurred before their effective date.id: 15284
No ex post facto violation where abuse began before, but continued after the effective date of section 288.5.Penal Code section 288.5 provides that any person who resides with or has recurring access to a child under the age of 14, and who molests the child at least three times during a period of not less than three months is guilty of "continuous sexual abuse," a felony. When the sexual abuse begins before, but continues after, section 288.5's effective date, the abusive conduct falls within the statutory language and does not violate ex post facto principles.id: 15286
Provision reviving an expired statute of limitations period in child molest cases does not violate ex post facto principles.Penal Code section 803, subdivision (g) permits prosecution of alleged child molesters after the statute of limitations has expired in those cases, as long as the prosecution begins within one year of the complaint and there is corroboration of the alleged act. By its own terms, the new law applies whether the crime occurred before or after section 803, subdivision (g) became effective. Defendant argued the provision constituted an impermissible ex post facto law. However, the Court found the new expanded statute of limitations does not retroactively alter the definition of a crime or increase the punishment for the crime of child molestation.id: 15287
Requirement that a person register as a sex offender does not constitute punishment for ex post facto purposes.Following defendant's conviction of a series of criminal offenses, the trial court ordered him to register as a sex offender pursuant to a provision in Penal Code section 290 that became effective after defendant committed those crimes. He argued that requiring him to register as a sex offender violated ex post facto principles. However, the trial court's order was valid because the requirement that a person register as a sex offender does not constitute punishment for purposes of ex post facto analysis.id: 15288
SVP Act does not violate ex post facto laws where confinement for offenses committed before effective date of the Act does not constitute "punishment".Defendant argued the Sexually Violent Predators Act under Welfare and Institutions Code section 6600 violated ex post facto principles by permitting commitments based on offenses committed before the effective date of the Act. However, the SVP Act does not impose liability or punishment for criminal conduct and therefore does not implicate ex post facto concerns.id: 15290
Jail booking fees provision enacted after the instant offense was not punitive and did not violate ex post facto principles.Defendant argued the imposition of the jail booking fees authorized by Government Code section 29550.2 violated the prohibition against ex post fact laws because she committed the DUI violation before section 29550.2 was enacted. However, because the fees in question are not punitive in purpose or effect, they do not run afoul of the prohibition against ex post facto laws.id: 15281
MDO laws are part of a civil scheme which does not implicate the rule against ex post facto laws.Defendant argued his conviction for arson of property did not qualify as mentally disordered offender crime (under Penal Code section 2962) at the time of his commitment and that a recent amendment to the MDO law, which enlarged the list of qualifying offenses to include arson of property "where the act posed a substantial danger of physical harm to others" was an ex post facto law if applied to his case. However, the MDO statutes are part of a civil scheme which does not implicate the rule against ex post facto laws. Moreover, defendant's arson offense, where he poured gasoline on his wife's car and set it on fire in a residential neighborhood, posed a "substantial danger" to the occupants of those nearby structures, within the meaning of the amended law.id: 15282
Supreme Court allows retroactive application of state law increasing intervals between parole reviews.In a 6-3 opinion written by Justice Kennedy, the Supreme Court held that retroactive application of the Georgia parole board's amended rule increasing the interval for required reconsideration of parole from every three years to every eight years for inmates serving life sentences, did not necessarily violate the ex post facto clause. The majority noted that under <i>California Dept. of Corrections v. Morales</i>, 514 U.S. 499 (1995), the controlling inquiry is whether retroactive application creates "a sufficient risk of increasing the measure of punishment attached to the covered crimes." <i>Id</i>. at 509. On the record in this case, the majority was unable to conclude that "the change in Georgia law lengthened respondent's time of actual imprisonment." Nevertheless, because the Court of Appeals erred in failing to consider the parole board's internal policy statement and the prisoner claimed he had not been permitted sufficient discovery, the majority said the matter of adequate discovery could be considered on remand. Justice Scalia concurred in part, Justice Souter dissented, joined by Justices Stevens and Ginsburg.id: 15053
A post-crime amendment which restricts the availability of a certificate of rehabilitation does not violate ex post facto principles because it does not impose punishment.Defendant was a convicted child molester who sought a certificate of rehabilitation long after he finished serving his sentence. The superior court denied the petition under a statutory amendment, adopted after defendant committed his crimes, which makes a certificate of rehabilitation unavailable to persons who, like defendant, have been convicted of particular offenses. Defendant argued the amendment retroactively increases the punishment for his crimes in violation of the ex post facto prohibitions in the state and federal constitutions. However, because a certificate of rehabilitation has no direct or ameliorative effect on the "punishment" for a crime, a post-crime amendment which restricts the availability of the certificate does not increase punishment in violation of the ex post fact clause.id: 14829
The commission of a crime while on OR enhancement did not violate ex post facto where it was triggered by the act of committing a new felony while released.The enhancement under Penal Code section 12022.1 was substantially amended and became effective in late 1985, after the arrest warrant was issued for defendant. Defendant argued that use of the new section violated the institutional prohibition against ex post facto laws. However, the act triggering the enhancement was not, as defendant argued, that a bench warrant was issued for him in 1985 revoking his release on his own recognizance. The act was committing a new felony while released and there was no ex post facto violation.id: 9560
15% credit limit applies to continuous course of conduct offense where offense began before the statute's enactment.The 15% conduct credit limits under Penal Code section 2933.1, subdivision (c) apply to a sentence imposed upon conviction after a plea of no contest to charges of a continuous course of conduct begun before the statute's enactment but completed after its operative date. Application of the statute did not violate the constitutional prohibition against ex post facto laws.id: 9539
1993 law which prohibited the possession of a firearm within 10 years after conviction of certain offenses did not punish defendant for the original offense and did not violate ex post facto principles.In 1981 defendant pled guilty to a misdemeanor assault. Effective 1993, Penal Code section 12021, subdivision (c), made it an offense to possess any firearm within ten years after conviction of various misdemeanor offenses, including defendant's previous assault. Applying section 12021, subdivision (c), to defendant did not violate constitutional ex post facto principles because defendant was convicted based on conduct occurring after the effective date of the statute. The statute does not punish defendant from his original offense.id: 9540
Application of Evidence Code section 1108 which alters the rules of evidence but does not affect the definition of a crime, punishment, or a defense did not violate ex post facto provisions.Defendant committed an offense in August 1995. Evidence Code section 1108, relaxing the rules for admitting evidence of prior sex offenses, was enacted in 1995, but did not become effective until January 1, 1996. Defendant's trial commenced after January 1, 1996, and the court applied section 1108. Defendant argued the application of section 1108 violated the prohibition against ex post facto laws. However, since section 1108 does not alter the definition of a crime, increase punishment, or eliminate a defense, it does not violate the ex post facto clause.id: 9541
Application of statute imposing a continued duty on registered sex offenders to provide address changes did not constitute increased punishment and did not violate ex post facto principles even though it was enacted after the original offense.Defendant was convicted of violating Penal code section 290, subdivision (f), which requires that sex offenders subject to the registration requirements of section 190 inform authorities of any change of residence. Defendant argued he was not required to register under section 190, subdivision (f) because he had been relieved of all registration requirements in 1983, when his probation was discharged and his record was cleared under section 1203.4. At that time, section 2901, effective in January of 1992, was the law and that section provided registration requirements continued notwithstanding a section 1203.4 record clearance. Application of section 290.1 did not violate ex post facto principles even though it was enacted after defendant committed the original offense in 1980. The registration requirement did not constitute increased punishment.id: 9542
Change in law permitting deduction of restitution payments from prison wages did not violate ex post facto.At the time of the original sentencing, Penal Code section 2085.5 only authorized the Director of Corrections to deduct restitution fines from prison wages. In 1994, the law was amended to permit the Director to also deduct direct restitution payments from prison wages. The change permitting deduction of restitution payments from prison wages did not violate ex post facto principles since it did not increase defendant's liability for such payments or make the punishment for the offense more burdensome.id: 9543
Defendant's participation in the conspiracy was properly subject to the increased penalty which took effect while the criminal scheme was ongoing.Defendant argued his sentence for conspiring to commit insurance fraud and grand theft violated state and federal prohibitions of ex post facto laws. He claimed an unconstitutional increased sentence was imposed under a statutory amendment which took effect after the conspiracy began but before it ended. The evidence showed he participated in the conspiracy between 1988 and 1991. The increased penalty took effect in January of 1989. (Insurance Code section 550.) Defendant's participation in the conspiracy was properly subject to the increased penalty which took effect while the criminal scheme was ongoing. There was no ex post facto violation.id: 9545
Denial of restoration of forfeited worktime credits did not violate ex post facto principles where, at the time of the prison misconduct the Director had discretion to grant restoration.Defendant argued he was unfairly denied the restoration of worktime credits he forfeited when he was disciplined for manufacturing alcohol in prison. He claimed the amended version of California Code of Regulations, Title 15, section 3327, subdivision (a)(1), which precludes the restoration of forfeited credits, may not be applied to him without violating the state and federal constitutional prohibition against ex post facto laws. However, at the time of his prison misconduct, defendant's right to reinstatement of forfeited credits was limited to that provided in Penal Code section 2933, i.e., he was not entitled to restoration of credits except at the discretion of the Director.id: 9546
Direct restitution order did not violate ex post facto laws where the harm being compensated was the cumulative result of a series of acts beginning before the law was enacted and ending after the enactment.Appellant pled guilty to seven sex offenses<197>four occurring in 1986 and three in 1987 and was ordered to pay $500.00 restitution to the crime victim's fund under Government Code section 13967, subdivision (a). Later, under section 13967, subdivision (c) (enacted at the beginning of 1987) he was ordered to pay $10,000.00 directly to the victim. Appellant argued the direct restitution to the victim violated the constitutional prohibition against ex post facto laws. However, under the facts of the case, there was no retrospective application of subdivision (c). The fact that some of the offenses giving rise to the harm occurred before the enactment of subdivision (c) was irrelevant. The harm being compensated (psychiatric counseling) was the cumulative result of a continuing series of acts stretching over 1986 and 1987.id: 9547
Failure to comply with interim sex offender registration requirements is a continuing offense and therefore felony prosecution is not ex post facto.When a registered sex offender changes his or her residence address, the offender must notify the law enforcement agency of the last registration within a specified period. (Penal Code section 290, subdivision (f).) Prior to January 1, 1995, failure to provide such notification was a misdemeanor; thereafter, the Legislature declared it a felony. Felony prosecution is not prohibited as ex post facto if the defendant's address change and failure to notify occurred when the violation was classified as a misdemeanor because the Legislature intended section 290, subdivision (f), to describe a continuing affirmative duty.id: 9548
Mentally Disordered Offender Law's extended treatment provisions have no penal consequences when applied to offenders whose parole is completed and therefore does not violate ex post facto principles.Penal Code section 2970 which provides for the extended involuntary treatment provisions of the Mentally Disordered Offender Law to paroled prisoners who committed their predicate crimes prior to the passage of legislation which cured previously identified constitutional defects in the law did not constitute an ex post facto law. The law imposes no punishment for a crime after its commission and does not deprive an MDO of any defense available at the time the criminal act was committed.id: 9549
Provision codifying the Anderson Rule may be applied to crimes committed before Proposition 115's effective date.Section 10 of Proposition 115 codifies the rule of <i>People v. Anderson</i>, (1987) 43 Cal.3d 1104, to the effect that an actual killer, for a special circumstance to be found true, need not have the intent to kill unless the applicable special circumstance specifically so requires. (Proposition 115, section 10, codified at P.C. 190.2 subdivision (b)). This provision, which does not change existing law, may be applied to crimes committed before Proposition 115's effective date.id: 9554
Reverting to an earlier version of the civil forfeiture law did not violate ex post facto principles.The trial court dismissed the prosecution's action for civil forfeiture (in relation to controlled substances) after finding there was no current forfeiture law in effect. While there has been confusion among the various forfeiture statutes as to which, if any, controlled the instant action the Court of Appeal determined the statute in effect on December 31, 1993, the Katz law, reviving the law as it read in 1988, governed proceedings commenced before January 1, 1994. Application of the Katz law did not violate ex post facto provisions.id: 9555
Sexually Violent Predator law is not a penal statute and therefore does not violate ex post facto or double jeopardy provisions.Defendant argued the Sexually Violent Predators Law (Welfare and Institutions Code section 6600, et seq.) which provides for an extended commitment for certain sex offenders whose mental disorder persists, violates constitutional prohibitions against ex post facto and double jeopardy because it is penal in purpose and effect and constitutes increased punishment for a crime committed before its enactment. However, the Sexually Violent Predator law does not violate ex post facto principles because it is not a penal statute. Its goals are incapacitation and treatment rather than retribution and deterrence. Moreover, the law does not punish the defendant twice for the same crime and consequently does not violate double jeopardy provisions.id: 9557
Supreme Court holds procedural change insufficient to establish ex post facto clause violation.Defendant was sentenced to both imprisonment and a fine for a crime that, under state law, was not punishable by fine. Thereafter, a new state statute became effective, overruling the previous approach by permitting an appellate court to reform an improper jury verdict rather than remanding for a new trial. Defendant argued that this change violated the ex post facto clause. Overruling prior cases supporting defendant's view in an opinion for six members of the Court, Chief Justice Rehnquist concluded that an ex post facto clause violation cannot be established simply by identifying the deprivation of a 'substantial protection' under law existing at the time of the crime. The statute was constitutional because it did not punish an act previously committed that was innocent when performed, did not make more burdensome the punishment for a crime, and did not deprive defendant of a defense available according to law at the time the act was committed. Concurring in the judgment, Justices Stevens, Brennan, and Marshall would have denied relief without overruling precedent.id: 9558
Once defendant pled no contest and avoided a three strikes prosecution, he could not later raise the issue that application of the provision to him violated ex post facto principles.Defendant who was facing a possible three strikes prosecution pled no contest to failing to register as a sex offender (Penal Code section 1290, subdivision (g)(2)) and he admitted a strike prior. He was sentenced to four years in prison. On appeal he argued the 1994 amendment to section 290, subdivision (g)(2) providing for a state prison sentence, violated ex post facto principles. However, because he received a substantial benefit in the negotiated disposition he was estopped from raising the argument. Moreover, he failed to object to any defect in the charging date in the trial court, and thereafter failed to obtain a certificate of probable cause. He could not raise a new theory based upon an asserted factual mistake for the first time on appeal.id: 9390
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245