Sysop: Created page with "So definition of ex post facto is more or less: “A law imposes a prohibited disadvantage if it has ‘one or more of the following four effects: it makes criminal acts that were innocent when done; it makes the crime greater or more aggravated than it was when committed; it inflicts a greater punishment for the crime than was available when the crime was committed; or it alters the rules of evidence or the required proof for conviction.’” In re K.J. (2014) 224 Cal...."

2026-04-24T01:17:02Z

Created page with "So definition of ex post facto is more or less: “A law imposes a prohibited disadvantage if it has ‘one or more of the following four effects: it makes criminal acts that were innocent when done; it makes the crime greater or more aggravated than it was when committed; it inflicts a greater punishment for the crime than was available when the crime was committed; or it alters the rules of evidence or the required proof for conviction.’” In re K.J. (2014) 224 Cal...."

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So definition of ex post facto is more or less: “A law imposes a prohibited disadvantage if it has ‘one or more of the following four effects: it makes criminal acts that were innocent when done; it makes the crime greater or more aggravated than it was when committed; it inflicts a greater punishment for the crime than was available when the crime was committed; or it alters the rules of evidence or the required proof for conviction.’” In re K.J. (2014) 224 Cal.App.4th 1194, 1203 [169 Cal.Rptr.3d 484, 489]

So the following paragraph comes from a sentencing book:

The “plead and prove” issue is addressed in People v. Griffis, 212 Cal. App. 4th 956, 151 Cal. Rptr. 3d 508 (3d Dist. 2013). Relying heavily on two California Supreme Court cases, In re Varnell, 30 Cal. 4th 1132, 135 Cal. Rptr. 2d 619, 70 P.3d 1037 (2003), and People v. Lara, 54 Cal. 4th 896, 144 Cal. Rptr. 3d 169, 281 P.3d 72 (2012), Griffis concludes the exclusions under section 1170(h)(3) are merely “sentencing factors” that do not require pleading and proof. The exclusions set forth in the realignment legislation do not change the amount of time to be served, only where it is to be served. Pleading requirements generally are implied only where additional time in jail is required. The court also determined section 1170(f), concerning the inability to use section 1385 to strike a disqualifying factor, did not imply such a requirement.

So here’s the paragraph from Griffis:

Based on Lara 's explanation of the Ford and Lo Cicero rule, and the Supreme Court's application of that rule in Lara and Varnell, there is no basis for implying a pleading and proof requirement here for a prior conviction used to disqualify a defendant from serving his sentence in jail under the Realignment Act. A prior conviction used to determine where a defendant serves his or her sentence under the Realignment Act—prison or jail—does not operate to increase that sentence, prescribe a minimum term, or entirely preclude probation. It is true a prison sentence under the Realignment Act includes a period of parole, while a jail sentence does not, and it has been said in another context that the imposition of a period of parole constitutes an *964 increase in punishment because “[p]arole entails a significant array of impositions and liberty curtailment ....” (In re Carabes (1983) 144 Cal.App.3d 927, 932, 193 Cal.Rptr. 65.) That observation does not inform our inquiry here, however, because the question in this case is not simply whether a prison sentence under the Realignment Act might be characterized, in some manner, as more onerous than a jail sentence of equal length. Rather, the question is one of legislative intent, specifically, did the Legislature intend to require that a prior conviction or other factor disqualifying a defendant from a jail sentence under the Realignment Act be formally pled and proven? In the wake of Varnell and Lara, the answer to that question is plainly “no.”

People v. Griffis (2013) 212 Cal.App.4th 956, 963–964 [151 Cal.Rptr.3d 508, 512]

There may be a little issue because in this particular case, a commitment to state prison will cause post-release community supervision (PRCS) afterwards.

But there’s a case that says PRCS is not punishment. People v. Espinoza (2014) 226 Cal.App.4th 635, 640-641.

There’s also an interesting paragraphy from People v. Cruz (2012) 207 Cal.App.4th 664, 677:

“In our view, the sentencing changes created by section 1170, subdivision (h) do not directly affect a defendant's fundamental interest in liberty. His or her statutorily prescribed sentence is no greater under the law as it existed prior to the Act's operative date than under the Act's provisions. [Citations omitted.] We do not believe he or she has a protectable interest in serving that sentence in county jail as opposed to state prison. [Citations omitted.] Similarly, he or she has no fundamental interest in the possibility of a conditional early release via a hybrid sentence. [Citations omitted.]”

So I think the above is a decent argument that if the length of the sentence isn’t increased, and only the location is changed, that it does not violate ex post facto.

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