Ex Post Facto Punishment In California

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, 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.) 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.) 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; 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, 840 P.2d 955 noting for ex post facto purposes "there is little dispute that . . . extra fines are punishment".) 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 restitution fine is punishment for purposes of plea bargain.) 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 post facto challenges on the ground they punish the defendant's most recent conduct, not the original offense. (People v. Brady (1995) 34 Cal. App. 4th 65, 71-72 upholding "three strikes" law against ex post facto challenge and see Gryger v. Burke (1948) 334 U.S. 728, 732, 92 L. Ed. 1683, 68 S. Ct. 1256.) The problem with this analogy, the Fender court explained, is that rather than enhancing any new punishment for the new offense the consequences of the new offense take "the form of a post hoc alteration of the punishment for an earlier offense." (883 F.2d at pp. 306-307.)