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People v. Callejas3/8/2000
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County. Meredith C. Taylor, Judge. Affirmed.
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).
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.
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.
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 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.)
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 "punishmen
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