Ex Post Facto Clause and Future Crimes

In People v. Hainline (1933) 219 Cal. 532, 28 P.2d 16, the court adopted the future misconduct rationale in rejecting an ex post facto challenge to a law which stripped second offenders of protections otherwise afforded them by their successful completion of probation for their previous offense. At the time defendant committed his prior burglary offense the law provided that upon successful completion of probation "the court shall thereupon dismiss the accusation or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted." Following defendant's successful completion of probation he obtained a dismissal of the underlying charges. In the meantime the Legislature had amended the law to provide "if the probationer commits a second offense he shall forfeit all rights with which he was clothed at the time the court ordered the information dismissed . . . ." ( Id. at pp. 534-535.) Four years after obtaining dismissal of the previous offense, defendant was arrested and charged with burglary and with having suffered a prior conviction. A jury found him guilty and found true the prior conviction allegation. on appeal, defendant contended the amendment which purported to deny him the protections he had earned from successful completion of his probation violated the ex post facto clause. The Supreme Court disagreed finding "the amendment is not ex post facto and violates no constitutional provisions of the federal or state government, and is in harmony with our statutes. It provides clearly for the punishment of future crimes." (Id. at pp. 535-536.) Quoting from a leading commentator on the constitution, the court explained: "'A law is not objectionable as ex post facto which, in providing for the punishment of future offenses, authorizes the offender's conduct in the past to be taken into account, and the punishment to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offense than for the first, and it has not been deemed objectionable that in providing for such heavier penalties the prior conviction authorized to be taken into account may have taken place before the law was passed. In such cases it is the second or subsequent offense that is punished, not the first." (Id. at p. 536, citations omitted.) The Supreme Court addressed the retroactivity element of the ex post facto clause in In re Ramirez (1985) 39 Cal. 3d 931, 218 Cal. Rptr. 324, 705 P.2d 897. The issue in Ramirez was whether rules adopted in 1982 pertaining to the forfeiture of behavior credits for misconduct while in prison could be applied to a prisoner who committed his underlying crime prior to 1982. the Supreme Court held applying the new rules to petitioner did not violate the ex post facto clause. (Id. at p. 936.) Rejecting petitioner's argument the new rules related to his original offense, not to the infraction he committed in prison, the court reasoned as follows: "It is true that the 1982 amendments apply to petitioner only because he is a prisoner and that he is a prisoner only because of an act committed before the 1982 amendments. Nonetheless, the increased sanctions are imposed solely because of petitioner's prison misconduct occurring after the 1982 amendments became effective. In other words, the 1982 amendments apply only to events occurring after their enactment. If any aspect of prison life is unconnected to a prisoner's original crime, it would seem to be the sanctions for his misconduct while in prison. Accordingly, the 1982 amendments, which change the sanctions for that misconduct, do not relate to petitioner's original crime and are not retrospective under Weaver supra." (39 Cal. 3d at pp. 936-937.)