Opinion
APPEAL from a judgment of the Superior Court of Los Angeles County. Meredith C. Taylor, Judge. Affirmed.
(Super. Ct. No. PA139914)
Jonathan B. Steiner, Richard Lennon, 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.
CERTIFIED FOR PUBLICATION
JOHNSON, Acting P.J.
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.
FACTS AND PROCEEDINGS BELOW
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).
. All statutory references are to the Penal Code unless otherwise noted.
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.
. Section 1202.45 provides: "In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of section 1202.4, assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of section 1202.4. This additional restitution fine shall be suspended unless the person's parole is revoked."
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.
. The United States Constitution bars the passage of ex post facto laws by the federal government (art. I, § 9) and by state governments (art. I, § 10). The California Constitution, article I, section 9 also bars the Legislature from enacting ex post facto laws. Because the ex post facto analysis is the same under both constitutions (People v. Frazer (1999) 21 Cal.4th 737, 754, fn. 15) we will refer simply to the "ex post facto clause."
DISCUSSION
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, quoting from Collins v. Youngblood (1990) 497 U.S. 37, 43.) 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. (Calder v. Bull (1798) 3 U.S. 386, 390.)
. "Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed" is an ex post facto law. (Ibid., Chase, J.)
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; 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; and see People v. McVickers (1992) 4 Cal.4th 81, 84 [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 [restitution fine is punishment for purposes of plea bargain].)
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.) 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?
. Section 3 provides: "No part of [the Penal Code] is retroactive, unless expressly so declared." However, an attempt to enforce this statutory restriction raises the same problem: Is application of section 1202.45 to Callejas a "retroactive" application of the statute? (Cf. In re Harper (1979) 96 Cal.App.3d 138, 141-142.)
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.
. The parties' disagreement comes as no surprise. James Wilson, a delegate to the constitutional convention, predicted that in attempting to apply the ex post facto clause "both sides will agree to the principle and will differ as to its application." (2 Farrand, The Records of the Federal Convention of 1787, p. 376, hereafter "Records of the Federal Convention.")
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 3.) 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.) 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.
. E.g., United States v. Lominac (4th Cir. 1998) 144 F.3d 308, 316; United States v. Dozier (3d Cir. 1997) 119 F.3d 239, 242-244; Williams v. Lee (8th Cir. 1994) 33 F.3d 1010, 1013-1014; United States v. Meeks (2d Cir. 1994) 25 F.3d 1117, 1123; United States v. Paskow (9th Cir. 1993) 11 F.3d 873, 883; but see United States v. Reese (6th Cir. 1995) 71 F.3d 582 , discussed below. The Supreme Court is expected to resolve this conflict among the circuits in Johnson v. United States (1999) No. 99-5153, cert. granted Oct. 18, 1999, 120 S.Ct. 370. The issue in Johnson is whether a statute imposing a renewed term of supervised release following the revocation of an earlier term can be constitutionally applied to a defendant whose underlying crime was committed before enactment of the statute. (Brief for Petitioner, Johnson v. United States, supra, No. 99-5153, p. i.)
The leading case involving retroactive application of parole violation statutes is Greenfield v. Scafati (D. Mass. 1967) 277 F.Supp. 644, 645-646, aff'd. mem. (1968) 390 U.S. 713. 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: "The difference between no penalty, other than a termination of the parole, and a substantial increase in imprisonment for violation, is far from inconsequential. To effect this by legislation enacted after the offense for which sentence was imposed cannot be constitutionally supported." (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 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 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.) 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.)
Applying like reasoning, the Ninth Circuit in United States v. Paskow, supra, concluded the sanctions imposed for supervised release violations constitute a portion of the sentence for the defendant's original crime and therefore a violation could not be considered a new offense for ex post facto purposes. (11 F.3d at p. 880-881.) For this reason, "[r]evocation of parole is not a punishment for a new offense, although the conduct on which revocation is based may be punished separately." Rather, "[f]or revocation purposes, the conduct simply triggers the execution of the conditions of the original sentence." (Id. at p. 881.)
Similarly, in the present case the amount of the fine under section 1202.45 is tied to the fine under section 1202.4 for the underlying offense. Section 1202.45 by its own terms sets the amount of the parole revocation fine "in the same amount as that imposed pursuant to subdivision (b) of section 1202.4." And, the amount of the fine under section 1202.4 is set "commensurate with the seriousness of the offense[.]" (§ 1202.4, subd. (b)(1).) Thus, Callejas maintains, the parole revocation fine is part of the punishment for the underlying offense, not for some future misconduct.
Callejas bolsters his position with two additional arguments why the parole revocation fine cannot be deemed punishment for future wrongdoing.
Conduct which results in parole revocation is often not a crime. Under section 3053, subdivision (a) the Board of Prison Terms may "impose on the parole any conditions that it may deem proper." Thus, parole may be revoked if the parolee moves without his parole agent's permission, drives a car, consumes alcohol, visits his ex-wife or does a myriad other things which do not themselves constitute crimes. (In re Silverstein (1942) 52 Cal.App.2d 725, 726-727.) If one accepts the People's argument the parole revocation fine is a punishment separate from the restitution fine imposed as part of the underlying sentence the one would also have to accept that the Legislature intended to authorize a fine of up to $10,000 (§ 1202.4, subd. (b)(1)) for failing to attend AA meetings or for moving from one county to another without permission. According to Callejas, the Legislature did not intend such an absurd result. Rather, the Legislature linked the parole revocation fine to the seriousness of the underlying offense, not the seriousness of the parole violation (§§ 1202.45, 1202.4, subd. (b)(1)), thus demonstrating the fine is further punishment for the underlying offense. (Cf. United States v. Beals, supra, 87 F.3d at p. 859.)
Finally, upon revocation of parole, suspension of the fine is lifted automatically "without the need for any further court proceeding." (§ 3060.1) Thus, when parole is revoked the fine is effective without any adjudication of bad conduct or the reason for the revocation. The only explanation for the total absence of due process in effectuating the fine, Callejas reasons, is that appropriate due process was afforded the defendant at the parole revocation hearing thereby further demonstrating the fine is an aspect of the original sentence and not a new punishment for subsequent behavior. (Cf. United States v. Meeks, supra, 25 F.3d at p. 1123.)
The People argue applying a parole revocation fine to Callejas would not retroactively increase the punishment for his drunk driving offense. His original sentence included a restitution fine of $200 which was based on the severity of his underlying offense-drunk driving. (§ 1202.4, subd. (b)(1).) The parole revocation fine has nothing to do with the original offense but results from Callejas's future, voluntary conduct. An ex post facto law "must apply to events occurring before its enactment." (Weaver v. Graham, supra, 450 U.S. at p. 29.) Because Callejas was not even on parole when section 1202.45 was enacted, any event resulting in revocation of his parole must necessarily occur after the enactment of the statute.
Two California Supreme Court cases support the People's position.
In People v. Hainline (1933) 219 Cal. 532, 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 "[t]he 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.)
More recently our Supreme Court addressed the retroactivity element of the ex post facto clause in In re Ramirez (1985) 39 Cal.3d 931. 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]." (Id. at pp. 936-937.)
Furthermore, the Ramirez court observed: "All that has changed are the sanctions for prison misconduct. . . . [P]etioner's effective sentence is not altered by the 1982 amendments unless petitioner, by his own actions, chooses to alter his sentence. . . . We conclude that the frequency and seriousness of a defendant's future prison misconduct is too contingent and remote to influence significantly either defendants or trial courts before plea and sentencing." (Id. at pp. 937-938.) The court supported its holding by reference to "the policy behind the ex post facto clauses that criminal laws must give fair warning to those who may fall within their ambit." (Id. at p. 938; citation omitted.) In the present case, the court found, "petitioner had fair warning that if he committed certain offenses after January 1, 1983, he would be subject to increased sanctions." (Ibid.)
The Ramirez court acknowledged the opinion in Greenfield v. Scafati, supra, but did not consider Greenfield controlling in "the future-prison-misconduct context" for two reasons: "(1) the focus of Greenfield was not on the effect on prison administration of a holding that the statute was invalid, but on conduct outside the prison walls; (2) invalidating the statute as to certain prisoners did not have the effect of immunizing their future conduct from sanctions for prison rule violations. As far as one can tell, they remained subject to loss of credits for 'misbehavior.'" (39 Cal.3d at p. 938.)
Ramirez has been followed in subsequent cases involving extended prison time for defendants who commit infractions while in prison. (In re LeDay (1985) 177 Cal.App.3d 461, 464-465; In re Nolasco (1986) 181 Cal.App.3d 39, 43.) Taken together, these cases arguably support the People's position a parole revocation term, or fine, is considered to be imposed for the parole violation rather than for the original offense. (See People v. Blunt (1986) 186 Cal.App.3d 1594, 1600.)
Much of the reasoning in Hainline and Ramirez is echoed in United States v. Reese, supra, which rejected the reasoning of the majority of circuits with respect to changes in supervised release (see discussion supra, at pp. 7-9s&sfn. 7) and concluded amending the terms of release after the defendant committed his crime was not an ex post facto violation.
The Reese court compared supervised release violation statutes to recidivist statutes which have long been upheld against ex post facto attack. (71 F.3d at pp. 587, 588; People v. Hainline, supra, 219 Cal. at pp. 535-536; and see discussion supra, pp. 8-9.)
The court also rejected the defendant's attempt to link punishment for violation of supervised release to punishment for the underlying offense through a cause-in-fact or "but for" test. This test led nowhere, the court concluded, because while it was true that "[i]f the predicate offense had not been committed, the later offense would not have resulted in such severe punishment" is was also true that "if the current offense had not been committed, there would have been no new or additional punishment." (71 F.3d at p. 588; cf. Ramirez, supra, 39 Cal.3d at p. 936.) The court also questioned whether a "but for" analysis could even be applied to statutes punishing post-offense conduct. "A person on supervised release, situated identically to Reese, who did not repeatedly test positive for drugs would have suffered no ill consequences from the passage of the new law . . . . When the punishment at issue here does not reach an identically situated prisoner who committed the same earlier conduct, it can hardly be logically argued that the punishment is being imposed 'because of' the earlier conduct." (71 F.3d at p. 590.) Finally, the court distinguished Greenfield v. Scafati, supra, on the simple ground that Massachusetts increased the time Greenfield was serving for his underlying crime while the statute in question punished Reese for a new offense. (Ibid.)
In the present case, the People argue the connection, if any, between Callejas's underlying offense and future misconduct on parole is too tenuous to support an ex post facto claim. Furthermore, as in Reese, Callejas will suffer no disadvantage as a result of the amended restitution scheme if he complies with the terms of his parole. If he does not comply he will suffer punishment in the form of a restitution fine but that punishment is the result of his parole violation, not his drunk driving. The People contend cases such as United States v. Paskow, supra 11 F.3d 873 are distinguishable because they start from the premise federal supervised release is part of the defendant's sentence. (Id. at p. 881.) In California, however, "the period of parole is not part of a defendant's prison term[.]" (People v. Jefferson (1999) 21 Cal.4th 86, 95.) Greenfield v. Scafati, the People maintain, is not controlling for the reasons explained in Reese, supra, 71 F.3d at p. 590 as well as for two other reasons. Although a summary affirmance by the United States Supreme Court is of some precedential value, that value is not the same as an OPINION treating the question on the merits. (Edelman v. Jordan (1974) 415 U.S. 651, 671.) Furthermore the Greenfield court did not address the argument the statute was not being applied ex post facto because it only punished the defendant's future conduct, not his past offense. Cases are not authority for propositions they do not discuss. (People v. Senior (1992) 3 Cal.App.4th 765, 781.)
Having reviewed the parties' arguments, the most we can say is that both sides have logical positions supported by case precedent and those precedents point in opposite directions. Nevertheless, lacking the attribute of Janus, the Roman god who could face in two directions at once, we need to make a choice. To do so we look to the reasons why the founding fathers thought it necessary to prohibit ex post facto laws.
The ex post facto clause serves three purposes. First and foremost, the Framers intended it to create a "constitutional bulwark" against "the favorite and most formidable instruments of tyranny" (The Federalist Nos. 44 (James Madison) and 84 (Alexander Hamilton)) including laws which "inflicted greater punishment than the law annexed to the offence" (Calder v. Bull, supra, 3 U.S. at p. 389 (Chase, J.).) (See also 2 Records of the Federal Convention, supra, at p. 375.) In addition, historical records and 200 years of Supreme Court precedent indicate a central concern of the Framers was that legislatures "give fair warning" when they increase the punishment for a crime. (The Federalist No. 44, supra; Calder v. Bull, supra, 3 U.S. at p. 388, Chase, J.; Miller v. Florida (1987) 482 U.S. 423, 430.) Finally, the ex post facto clause was intended to stop "the practice of arbitrary imprisonments" suffered by the Colonists under British rule. (The Federalist No. 84, supra.)
These considerations remain relevant today. (See e.g., Weaver v. Graham, supra, 450 U.S. at pp. 28-29; People v. Frazer, supra, 21 Cal.4th at p. 754.) They suggest the following test for determining whether a law is proscribed by the ex post facto prohibition. Does the law penalize activities in the absence of fair warning? Does retroactive application of the law have no apparent purpose other than to increase the punishment for an act after it is committed? Is the law a consequence of legislative vindictiveness? (See Note, Ex Post Facto Limitations on Legislative Power (1975) 73 Mich. L. Rev. 1465, 1501.)
The concept of prior notice embodied in the ex post facto clause is among "the first principles of the social compact" (The Federalist No. 44, supra) and so rooted in American notions of justice (Landgraf v. USI Film Products (1994) 511 U.S. 244, 265) it is difficult to imagine ex post facto laws would be enforceable even without a specific constitutional ban (2 Records of the Federal Convention, supra, at p. 376). Thus, while the Framers had good cause to fear a vindictive government, the most significant role of the ex post facto clause today is to give fair warning of the consequences of criminal behavior. (See, e.g., Miller v. Florida, supra, 482 U.S. at p. 430; Weaver v. Graham, supra, 450 U.S. at p. 28; Dobbert v. Florida (1977) 432 U.S. 282, 297.)
. "[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic." (Ibid.)
. Several delegates to the constitutional convention argued it was unnecessary to include an ex post facto clause in the constitution because "there was no lawyer, no civilian who would not say that ex post facto laws were void" (Oliver Ellsworth) and including a specific ban in the constitution would "proclaim that we are ignorant of the first principles of Legislation" (James Wilson). (Ibid.)
While fair warning is the most important indicator a law is not ex post facto, it is not conclusive. One can imagine a statute which would be unconstitutional even though it gave the defendant advance notice how his conduct would be punished. A legislature could not, for example, retroactively make a term mandatory when it was only the maximum permissible term at the time the defendant committed the offense, even though the defendant was on notice of the punishment the state would seek to impose on him if he was found guilty of the offense. (Lindsey v. Washington (1937) 301 U.S. 397, 401.) Such a law would violate the proscription against "arbitrary imprisonment" because it would not deter commission of the offense being punished-that offense already having been committed-it would serve no purpose other than to increase the punishment for the offense.
In addition, although we live in a very different society today than existed in 1787, it would be incorrect to state modern ex post facto jurisprudence does not inquire into legislative purpose. "On the contrary, the government's motivation is central to the question whether the legislation is 'vindictive' or 'arbitrary' and hence must be banned." (People v. McVickers, supra, 4 Cal.4th at p. 87, fn. 1.) Indeed, it can be argued retroactive statutes applied to parolees call for a "more searching judicial inquiry" because parolees constitute a politically powerless "discreet and insular minority." (United States v. Carolene Products Co. (1938) 304 U.S. 144, 153, fn. 4; and see Justice
. For discussions of the vindictive aspect of ex post facto laws see California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 520-522 (Stevens, J. dissenting); Logan, The Ex Post Facto Clause and the Jurisprudence of Punishment (1998) 35 Am. Crim. L. Rev. 1261, 1275-1280; Note, Risking Retroactive Punishment: Modifications of the Supervised Release Statute and the Ex Post Facto Prohibition (1999) 99 Colum. L. Rev. 1551, 1577-1579.
Stevens's dissent in California Dept. of Corrections v. Morales, supra, 514 U.S. at pp. 520-522.)
Applying the three=part test of notice, purpose and vindictiveness to the case before us we conclude the imposition of a parole revocation fine on Callejas does not violate the ex post facto clause.
Clearly, Callejas is on notice a violation of his parole will result in the imposition of a parole revocation fine and he knows the amount of the fine. He was informed of both when he was sentenced following revocation of his probation. It is equally true, of course, Callejas was not on notice of the possibility of a parole revocation fine when he committed the underlying crime. But that fact is only relevant if retroactive application of section 1202.45 has no apparent purpose other than to increase the punishment for the underlying offense.
We can easily discern two legitimate purposes for the retroactive application of the statute. One purpose is to recoup some of the costs of providing restitution to crime victims from parolees who violate the conditions of their parole. (People v. Oganesyan, supra, 70 Cal.App.4th at p. 1184.) More importantly, retroactive application of the parole revocation fine to persons who committed their crimes prior to its enactment acts as a deterrent to such persons violating their parole. The fact the statute has a prospective deterrent effect even if applied "retroactively" distinguishes it from statutes which, if applied retroactively, only increase the punishment for past offenses and thus have no deterrent effect. (Note, Ex Post Facto Limitations on Legislative Power, supra, 73 Mich. L. Rev. at pp. 1498-1500.)
Finally, our research convinces us the Legislature did not institute the parole revocation fine out of personal resentment or vindictive malice toward parolees. Rather, the statute is part of "a comprehensive constitutional and legislative scheme for providing restitution for crime victims." (People v. Oganesyan, supra, 70 Cal.App.4th at p. 1184.)
Parolees were not singled out to bear the cost of restitution. Article I, section 28 of the California Constitution provides "all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer." (Emphasis added.) A parolee bears no greater burden of restitution than any other person convicted of a crime unless the parolee violates the terms of parole-a matter entirely within the control of the parolee.
For all of the reasons stated above, we conclude there is no violation of the ex post facto clause when section 1202.45 is applied to persons who committed their underlying crimes prior to the statute's enactment.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., NEAL, J.