California Courts and Ex Post Facto Laws

What is an “ex post facto” law? This phrase comes from Latin that basically means “after the fact” and its describes when a law is changed retroactively to capture previous conduct and subject that conduct to legal consequences. Ex post facto laws are prohibited by the federal and state Constitutions because otherwise these types of laws would make people criminally liable for conduct that was not unlawful at the time they occurred. The U.S. Supreme Court has held that people must be aware of the possible criminal penalties for their actions at the time they act.

California courts have explained that, “A statute must do one of three things to be an ex post facto law: (1) criminalize an act previously committed, which was innocent when done, (2) increase the punishment for a crime, after its commission, or (3) withhold a defense available according to the law when the act was committed. (Collins v. Youngblood (1990) 497 U.S. 37; Tapia v. Superior Court, 53 Cal.3d at p. 292.)”

In one appellate court decision, the judiciary said, “In this case, Mundy is being subjected to the exact same statutes which were in effect at the time his property was seized and forfeiture proceedings began. He cannot claim unfair surprise or vindictive government action under these circumstances. (See People v. McVickers (1992) 4 Cal. 4th 81, 85[purpose behind ex post facto prohibition is to give notice and ensure governmental accountability]; People v. McKinney (1979) 95 Cal. App. 3d 712, 745-746 [restoration of original punishment in effect at time of offense was not unjust or unfair].)”

Some have argued that ex post facto laws also implicate the equal protection clause of the U.S. Fourteenth Amendment. In this regard, one appeals court explained that, “The Fourteenth Amendment does not forbid statutes and statutory changes to have a beginning and thus to discriminate between the rights of an earlier and later time.” (Baker v. Superior Court (1984) 35 Cal. 3d 663, 668-669.”

In Baker, the petitioners challenged their continued commitment as mentally disordered sex offenders (MDSO’s) after the Legislature eliminated the MDSO program following their initial commitment. Petitioners alleged a denial of equal protection in that they were subject to indefinite commitment, while MDSO’s convicted under new laws would receive a determinate prison sentence. “However, the court determined equal protection principles do not require that all persons who commit the same offense suffer the same consequences regardless of the date of their misconduct. (Id. at p. 669.) Rather, the Legislature may properly specify that statutory amendments and additions are prospective only. (Id. at pp. 669-670.) Such laws do not violate equal protection principles. (Ibid.; see also Gov. Code, § 9606 [“Any statute may be repealed at any time, except when vested rights would be impaired.”].)