People v. Callejas
| Decision Date | 08 March 2000 |
| Docket Number | No. B131626.,B131626. |
| Citation | 78 Cal.App.4th 1206,93 Cal.Rptr.2d 748 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Carlos CALLEJAS, Defendant and Appellant. |
Jonathan B. Steiner, Richard Lennon, Los Angeles, Barbara Gash, California Appellate Project, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Sanjay T. Kumar, Supervising Deputy Attorney General, and G. Tracey Letteau, Deputy Attorney General, for Plaintiff and Respondent.
The only issue on appeal is whether the ex post facto clauses of the United States and California constitutions are violated by imposing a parole revocation fine on a parolee who committed his underlying crime before the fine was enacted. We conclude imposition of the fine is not an ex post facto increase in the punishment for the parolee's underlying offense because the parolee was given notice of the potential fine at the time of sentencing, the potential fine serves to deter parolee from violating his parole and there is no indication the parole revocation fine was enacted out of vindictiveness or malice toward parolees.
In 1993 Carlos Callejas was arrested for driving while having a blood alcohol level of .20 or higher. In 1998 he pled nolo contendere to this charge. Imposition of sentence was suspended and Callejas was placed on three years supervised probation. The terms of probation required Callejas to complete an 18-month alcohol rehabilitation program and attend Alcoholics Anonymous meetings a least five times per week. The trial court imposed a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b).1
In 1999 the trial court found Callejas violated the terms of his probation by failing to enroll in the alcohol rehabilitation program and attend the required number of AA meetings. The court revoked probation and sentenced Callejas to two years in state prison. As part of the sentence, the court imposed and stayed a parole revocation fine under section 1202.45 which was enacted in 1995 (Stats.1995, ch. 313, § 6), two years after Callejas committed the underlying offense. The fine will remain suspended unless Callejas violates his parole.2
Callejas appeals from the judgment revoking his probation contending imposition of the parole revocation fine was barred by the ex post facto clauses of the United States and California constitutions.3
Section 1202.45 was not in effect when Callejas committed his offense. A statute violates the ex post facto clause when, on its face or as applied, it retroactively "`increase[s] the punishment for criminal acts.'" (People v. Frazer, supra, 21 Cal.4th at p. 756, 88 Cal.Rptr.2d 312, 982 P.2d 180, quoting from Collins v. Youngblood (1990) 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30.) Thus the prohibition on ex post facto laws prevents the government from changing the punishment for a criminal act after the act has been performed. (Colder v. Bull (1798) 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648.)4
In determining whether a statute involves "punishment" for purposes of the ex post facto clause, our Supreme Court has held "two factors appear important in each case: whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature's contrary intent." (People v. Castellanos (1999) 21 Cal.4th 785, 795, 88 Cal.Rptr.2d 346, 982 P.2d 211; fn. omitted.)
No legislative history exists to shed light on the intent behind section 1202.45. (People v. Oganesyan (1999) 70 Cal. App.4th 1178, 1185, 83 Cal.Rptr.2d 157.) It has been judicially recognized, however, "the entire statutory scheme concerning restitution fines" including section 1202.45 "has as its legislative purpose the recoupment from prisoners and potentially from parolees who violate the conditions of their parole some of the costs of providing restitution to crime victims." (Id. at p. 1184, 83 Cal.Rptr.2d 157.) Notwithstanding their ameliorative purpose, the courts have consistently held restitution fines qualify as "punishment" for purposes of the ex post facto clause. (People v. Saelee (1995) 35 Cal.App.4th 27, 30-31, 40 Cal.Rptr.2d 790; People v. Downing (1985) 174 Cal.App.3d 667, 672, 220 Cal.Rptr. 225; and see People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955 [].) Therefore, although the purpose of a restitution fine is not punitive, we believe its consequences to the defendant are severe enough that it qualifies as punishment for purposes of the ex post facto clause. (Cf. People v. Walker (1991) 54 Cal.3d 1013, 1024, 1 Cal.Rptr.2d 902, 819 P.2d 861 [].)
It is also obvious section 1202.45 increases the penalty for which Callejas is eligible beyond that which existed at the time he committed his offense because at the time he committed his drunk driving offense the parole revocation fine did not exist.
However, to be an ex post facto law the statute "must apply to events occurring before its enactment[.]" (Weaver v. Graham (1981) 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17.) The difficulty in the present case lies in determining whether applying section 1202.45 to Callejas increases the quantum of punishment for his past offense of drunk driving or merely imposes new punishment for future misconduct which violates the terms of his parole. In other words, to which "event" is the new law being applied: the original offense or the subsequent parole violation?5
The People argue the parole revocation fine is not punishment for Callejas's underlying offense but rather a punishment conditioned on future misconduct while on parole for the underlying offense. Callejas maintains imposition of the parole revocation fine is not punishment for future misconduct but rather constitutes increased punishment for the past offense triggered by future misconduct.6
Each party finds support for its position in California and federal case law. We summarize their arguments below.
Callejas contends applying section 1202.45 to him would retroactively increase the punishment for his drunk driving offense. His original sentence included a restitution fine under section 1202.4 in the amount of $200. The effect of section 1202.45 is to double the amount of the restitution fine after he committed his offense. (See footnote 2, supra, page 749.) A law which increases the punishment for a crime after the crime has been committed is the very model of an ex post facto law. (Weaver v. Graham, supra, 450 U.S. at pp. 29, 33, 101 S.Ct. 960.) If the upper term for Callejas's offense had been four years at the time he committed it but the Legislature doubled that term to eight years prior to his trial it is beyond question Callejas could not be sentenced to the new eight-year term. By the same token, Callejas argues, he cannot be required to pay a fine twice the amount he could have been ordered to pay at the time he committed his offense.
Callejas further contends there is no merit to the People's argument the parole revocation fine represents punishment for his misconduct while on parole, not for his underlying offense. He points out the federal courts are nearly unanimous in holding provisions governing parole and supervised release violations cannot be altered as to the defendant after his underlying offense even though it is his future conduct on parole or supervised release which triggers the violation.7
The leading case involving retroactive application of parole violation statutes is Greenfield v. Scafati (D.Mass.1967) 277 F.Supp. 644, 645-646, affd. mem. (1968) 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250. In Greenfield a prisoner who was incarcerated following revocation of his parole challenged a Massachusetts statute adopted after he committed his underlying offense which prohibited a parole violator from receiving good-conduct credits during the first six months in custody following revocation. The court held application of the statute to Greenfield violated the ex post facto clause because the statute prevented him from being released as early as he might have been had he been able to amass good-conduct credits under the statute in effect at the time he committed the underlying offense. As to a prisoner in Greenfield's position: (277 F.Supp. at p. 646.) The court reached this conclusion despite the fact the new provision was necessarily triggered by conduct occurring after its enactment and petitioner had fair warning if he violated parole he would be subject to increased sanctions. (277 F.Supp. at pp. 645-646.)
Callejas notes the Supreme Court's per curiam affirmance of Greenfield is a decision on the merits (Hicks v. Miranda (1975) 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223) and is entitled to treatment as controlling authority (United States v. Paskow, supra, 11 F.3d at p. 878).
While following the holding in Greenfield federal courts have articulated several rationales for rejecting the argument post-offense alterations in parole violation statutes merely represent punishment for the defendant's future misconduct.
In Fender v. Thompson (4th Cir.1989) 883 F.2d 303, the court rejected the government's analogy to repeat offender statutes which have been upheld against ex...
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