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300.14 Ex Post Facto, Due Process, Notice, Abatement And Retroactivity

    300.14.1 Constitutional Claims: Ex Post Facto: General Principles
                    300.14.1.1 Purposes Of Ex Post Fact Rules
                    300.14.1.2 Applicability: Whether Statute Redefines Substantive Law, Increases Consequences Or Makes It Easier To Convict
                    300.14.1.3 Changes In Rules Of Evidence
                    300.14.1.4 Ex Post Facto: Seven Factor Test
                    300.14.1.5 Removal Of Discretion
                    300.14.1.6 Right On Direct Appeal To Benefit Of Intervening Decision
                    300.14.1.7 Applicability To Continuing Conduct
    300.14.2 Constitutional Claims: Ex Post Facto: Critical Point Is Date Crime Was Committed
    300.14.3 Constitutional Claims: Due Process/Notice
    300.14.4 Due Process/Notice: Changing The Rules In The Middle Of The Game
    300.14.5 Constitutional Claims: Abatement

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PRACTICE NOTE: "The two primary purposes underlying the Ex Post Facto Clause are the assurance of fair notice and the prevention of arbitrary and vindictive prosecutions." (Cook and Hermann, Criminal Defense Checklist (West, 1998 ed.) § 7.07(2).)    

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PRACTICE NOTE: A statute which makes more burdensome the punishment for a crime, after its commission, violates article I, § 9, clause 3, of the U.S. Constitution as an ex post facto determination of criminal liability. (Collins v. Youngblood (1990) 497 US 37, 42 [110 SCt 2715; 111 LEd2d 30], quoting Beazell v. Ohio (1925) 269 US 167, 169-70 [46 SCt 68 70; LEd2d 216].) "A statute violates the Ex Post Facto Clause if it retroactively redefines a substantive criminal law or attaches increased consequences to crimes already committed." (Cook and Hermann, Criminal Defense Checklist (West, 1998 ed.) § 7.07(1).)

    A change in the law that removes discretion from the sentencer violates the ex post facto clause even if the sentence the defendant actually receives is no more onerous than the sentence he could have received under the law prior to the contested change. (Murtishaw v. Woodford (9th Cir. 2001) 255 F3d 926, 965.)

    Ex Post Facto: General Rules. Under Carmell v. Texas (2000) 529 US 513 [146 LEd2d 577; 120 SCt 1620] the following constitute ex post facto laws: (1) every law that makes an action criminal which was done before the passing of the law, and which was innocent when done; (2) every law that aggravates a crime, or makes it greater than it was, when committed; (3) every law that changes the punishment, and inflicts greater punishment, than the law annexed to the crime, when committed; (4) every law that alters the legal rules of evidence, and requires less, or different, evidence than the law required at the time of the commission of the offense, in order to convict the offender.

RESEARCH NOTES:

See Capital Punishment Handbook [1.17 a. Ex Post Facto And Related Due Process Considerations: General Principles And Authorities].

See also Capital Punishment Handbook [1.18.2 a. Retroactivity Of New Statutes: General Principles And Authorities].

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PRACTICE NOTE: Carmell v. Texas (2000) 529 US 513 [146 LEd2d 577; 120 SCt 1620] held that ex post facto principles were implicated by the failure to apply a Texas witness-corroboration rule which was repealed after commission of the crime. The corroboration requirement altered the rules of evidence so that less or different evidence was required to convict. Carmell distinguished rules changing the admissibility of evidence (which apply to both sides), from rules which impact the sufficiency of evidence to convict.

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PRACTICE NOTE: Smith v. Doe (2003) 538 US 84 [155 LEd2d 164; 123 SCt 1140] held that, in analyzing the effect of sex-offender registration statutes, it is helpful for reviewing courts to refer to the seven factors set forth in Kennedy v. Mendoza-Martinez (1963) 372 US 144, 168-69 [9 LEd2d 644; 83 SCt 554]; see also Hatton v. Bonner (9th Cir. 2003) 346 F3d 938, 946.) Those factors are (1) whether the sanction involves an affirmative disability or restraint; (2) whether the sanction has historically been regarded as a punishment; (3) whether the sanction comes into play only on a finding of scienter; (4) whether the sanction's operation will promote the traditional aims of punishment--retribution and deterrence; (5) whether the behavior to which the sanction applies is already a crime; (6) whether an alternative purpose to which the sanction rationally may be connected is assign-able to it; and (7) whether the sanction appears excessive in relation to the alternative purpose assigned. (Mendoza-Martinez, 372 US at 168-69.)    

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PRACTICE NOTE: A change in the law that removes discretion from the sentencer violates the ex post facto clause even if the sentence the defendant actually received is no more onerous than the sentence he could have received under the law prior to the contested change. (Murtishaw v. Woodford (9th Cir. 2001) 255 F3d 926, 965; see also Lindsey v. Washington (1937) 301 US 397 [81 LEd2d 1182; 57 SCt 797].)  

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PRACTICE NOTE: See U.S. v. Nordby (9th Cir. 2000) 225 F3d 1053, 1059 [citing Griffith v. Kentucky (1987) 479 US 314, 328 [93 LEd2d 649; 107 SCt 708]].    

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PRACTICE NOTE: People v. Grant (CA 99) 20 C4th 150 [83 CR2d 295] concluded that where criminal conduct begins before enactment of the statute (PC 288.5) but continues after the effective date of the statute, conviction does not violate ex post facto principles.

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PRACTICE NOTE: "The critical point for determining the applicability of the Ex Post Facto Clause is the date on which the crime was alleged to have been committed." (Cook and Hermann, Criminal Defense Checklist (West, 1998 ed.) § 7.07(3); see also U.S. v. MacDonald (E.D.N.C. 1985) 607 FSupp 1183, 1186; People v. Williams (CA 1983) 140 CA3d 445, 449.)

See Capital Punishment Handbook [1.17 a. Ex Post Facto And Related Due Process Considerations: General Principles And Authorities].

See also Capital Punishment Handbook [1.18.2 a. Retroactivity Of New Statutes: General Principles And Authorities].

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PRACTICE NOTE: The Ex Post Facto Clause is a limitation upon the powers of the Legislature. (See Calder v. Bull (1798) 3 US 386 [1 LEd 648].) Hence, it does not, of its own force, apply to the Judicial Branch of government. (See Marks v. U.S. (1977) 430 US 188, 191 [97 SCt 990; 51 LEd2d 260].) It is the Due Process Clause which protects criminal defendants against novel developments in judicial doctrine. (See Ibid.; see also Bouie v. City of Columbia (1964) 378 US 347, 354 [84 SCt 1697; 12 LEd2d 894] ["An unforeseeable and unsupported state court decision on a question of state procedure does not constitute an adequate ground to preclude this Court's review of a federal question"]; see also U.S. v. Ruiz (9th Cir. 1991) 935 F2d 1033, 1035; People v. Davis (CA 1994) 7 C4th 797, 811 [30 CR2d 50].)

    "If the 14th Amendment is violated when a person is required to speculate as to the meaning of penal statutes,...or to guess at [the statute’s] meaning and differ as to its application, the violation is that much greater when, because the uncertainty as to the statute’s meaning is itself not revealed until the court’s decision, a person is not even afforded an opportunity to engage in such speculation before committing the act in question." (Bouie, 378 US at 352.)

    "[W]hen an unforeseeable state court’s construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in a sense of fair warning that his contemplated conduct constitutes a crime." (Pope v. Netherland (4th Cir. 1997) 113 F3d 1364, 1368-69; see also Ostrosky v. State (9th Cir. 1990) 913 F2d 590, 598 [reasonable mistake in relying on judicial decision may be a defense].)

    In determining whether fair notice was given, "the touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal." (U.S. v. Brumley (5th Cir. 1997) 116 F3d 728, 732.)

    This principle may also have relevance in the context of a mistake of law defense. "There is an exception to the mistake of law doctrine, in circumstances where the mistake results from the defendant’s reasonable reliance upon an official -- but mistaken or later overruled -- statement of the law." (U.S. v. Albertini (9th Cir. 1987) 830 F2d 985, 989.)

See Capital Punishment Handbook [1.17 a. Ex Post Facto And Related Due Process Considerations: General Principles And Authorities].

See also Capital Punishment Handbook [1.18.1 a. Retroactivity Of New Constitutional Rules Of Criminal Procedure: General Principles].

See also Capital Punishment Handbook [1.18.2 a. Retroactivity Of New Statutes: General Principles And Authorities].

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PRACTICE NOTE: It is well settled that where a new rule is adopted by a court that changes a previously settled rule, the new rule should not be given retroactive application when to do so would be fundamentally unfair. (People v. Collins (CA 1986) 42 C3d 378, 388 [228 CR 899]; Coleman v. McCormick (9th Cir. 1989) 874 F2d 1280, 1286-88; U.S. v. Givens (9th Cir. 1985) 767 F2d 574, 578.) For example, People v. Dennis (CA 1998) 17 C4th 468, 532-35 [71 CR2d 680], the court implicitly recognized that the defendant could be unfairly surprised if the trial court, at the end of the evidence, changed its midtrial rulings regarding cautionary and limiting instructions as to the evidence admitted.

    Hence, where the defendant has relied upon an established rule in making decisions and developing strategies at trial, any subsequent change in that rule should not be applied to the defendant who in good faith relied upon the rule at trial.

RESEARCH NOTES:

See Capital Punishment Handbook [1.17 a. Ex Post Facto And Related Due Process Considerations: General Principles And Authorities].

See also Capital Punishment Handbook [1.18.1 a. Retroactivity Of New Constitutional Rules Of Criminal Procedure: General Principles].

See also Capital Punishment Handbook [1.18.2 a. Retroactivity Of New Statutes: General Principles And Authorities].

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PRACTICE NOTE: See People v. Nasalga (CA 1996) 12 C4th 784, 797 [50 CR2d 88] [defendant entitled to ameliorative effect of amendments to statute enacted subsequent to the offense with no savings clause].

See Capital Punishment Handbook [1.17 a. Ex Post Facto And Related Due Process Considerations: General Principles And Authorities].

See also Capital Punishment Handbook [1.18.2 a. Retroactivity Of New Statutes: General Principles And Authorities].