right to fair warning in California

1996(People v. King (1993) 5 Cal.4th 59, 70-81 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ] [overruling limitation on consecutive enhancements under section 12022.5]; In re Baert (1988) 205 Cal.App.3d 514, 518-519 [ 252 Cal.Rptr. 418 ] [eliminating proof of intent to kill as an element of the felony-murder special circumstance]; Bouie v. City of Columbia (1964) 378 U.S. 347, 353 [ 12 L.Ed.2d 894, 899-900 , 84 S.Ct. 1697 ] [judicial expansion of South Carolina’s criminal trespass law].) These cases are inapplicable as they are based upon “ ‘the notion that persons have a right to fair warning of that condu

1996(People v. King (1993) 5 Cal.4th 59, 70-81 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ] [overruling limitation on consecutive enhancements under section 12022.5]; In re Baert (1988) 205 Cal.App.3d 514, 518-519 [ 252 Cal.Rptr. 418 ] [eliminating proof of intent to kill as an element of the felony-murder special circumstance]; Bouie v. City of Columbia (1964) 378 U.S. 347, 353 [ 12 L.Ed.2d 894, 899-900 , 84 S.Ct. 1697 ] [judicial expansion of South Carolina’s criminal trespass law].) These cases are inapplicable as they are based upon “ ‘the notion that persons have a right to fair warning of that condu

2014I, § 9.) The prohibition is based on the principle that “persons have a right to fair warning of that conduct which will give rise to criminal penalties . . . .” (See Marks v. United States (1977) 430 U.S. 188, 191 .) Thus, laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts” are unconstitutional.

1997“The Ex Post Facto Clause is a limitation upon the powers of the Legislature [citation], and does not of its own force apply to the Judicial Branch of government. [Citation.] But the principle on which the Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. [Citations.] As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.” (Marks v. United States (1977) 430 U.S. 188 , 191-192 [ 97 S.Ct. 990, 992-993 , 51 L.Ed.

1994The principle on which the due process provisions are based is “ ‘the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 586 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ].) *1550 Indeed, this was the very point made by the trial court in dismissing the special circumstance allegations.

1994The principle on which the due process provisions are based is “ ‘the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 586 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ].) *1550 Indeed, this was the very point made by the trial court in dismissing the special circumstance allegations.

2023“Although ‘limitations on ex post facto judicial decisionmaking are inherent in the notion of due process,’ the due process clause does not require the application of strict ex post facto principles in the context of judicial decisionmaking. [Citation.] Rather, judicial decisions are reviewed under ‘core due process concepts of notice, foreseeability, and, in particular, the right to fair warning.’ ” (People v. Sandoval (2007) 41 Cal.4th 825, 855 , quoting Rogers v. Tennessee (2001) 532 U.S. 451, 456, 459 (Rogers).) 15 On the other hand, the Ex Post Facto Clause prohibits “[a]ny law that appli

2007(Rogers v. Tennessee (2001) 532 U.S. 451, 456 [ 149 L.Ed.2d 697 , 121 S.Ct. 1693 ] (Rogers).) Rather, judicial decisions are reviewed under “core due process concepts of notice, foreseeability, and, in particular, the right to fair warning.” (Id. at p. 459.) Rogers explains the difference between a challenge made to a statute directly under the ex post facto clause and an ex post facto challenge made under the due process clause to a change in the law that is accomplished by judicial decision.

1988I, § 9.) An ex post facto law is “any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed . . . .” (Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [ 70 L.Ed. 216, 217 , 46 S.Ct. 68 ]; Bouie v. *518 Columbia (1964) 378 U.S. 347, 353 [ 12 L.Ed.2d 894, 899-900 , 84 S.Ct. 1697 ].) “The Ex Post Facto Clause is a limitation upon the powers of the legislature, [cita

1988I, § 9.) An ex post facto law is “any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed . . . .” (Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [ 70 L.Ed. 216, 217 , 46 S.Ct. 68 ]; Bouie v. *518 Columbia (1964) 378 U.S. 347, 353 [ 12 L.Ed.2d 894, 899-900 , 84 S.Ct. 1697 ].) “The Ex Post Facto Clause is a limitation upon the powers of the legislature, [cita

1991I, § 9.) Although these provisions are limitations on the powers of the legislative, not judicial, branch (Marks v. United States (1977) 430 U.S. 188, 191 [ 51 L.Ed.2d 260, 264 , 97 S.Ct. 990 ]; Ross v. Oregon (1912) 227 U.S. 150, 161 [ 57 L.Ed. 458, 463 , 33 S.Ct. 220 ]), “the principle on which the [ex post facto] Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. [Citations.] As such, that right is protected against judicial action by the Due Process Clause o

1991I, § 9.) Although these provisions are limitations on the powers of the legislative, not judicial, branch (Marks v. United States (1977) 430 U.S. 188, 191 [ 51 L.Ed.2d 260, 264 , 97 S.Ct. 990 ]; Ross v. Oregon (1912) 227 U.S. 150, 161 [ 57 L.Ed. 458, 463 , 33 S.Ct. 220 ]), “the principle on which the [ex post facto] Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. [Citations.] As such, that right is protected against judicial action by the Due Process Clause o

1996(People v. King (1993) 5 Cal.4th 59, 70-81 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ] [overruling limitation on consecutive enhancements under section 12022.5]; In re Baert (1988) 205 Cal.App.3d 514, 518-519 [ 252 Cal.Rptr. 418 ] [eliminating proof of intent to kill as an element of the felony-murder special circumstance]; Bouie v. City of Columbia (1964) 378 U.S. 347, 353 [ 12 L.Ed.2d 894, 899-900 , 84 S.Ct. 1697 ] [judicial expansion of South Carolina’s criminal trespass law].) These cases are inapplicable as they are based upon “ ‘the notion that persons have a right to fair warning of that condu

1996(People v. King (1993) 5 Cal.4th 59, 70-81 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ] [overruling limitation on consecutive enhancements under section 12022.5]; In re Baert (1988) 205 Cal.App.3d 514, 518-519 [ 252 Cal.Rptr. 418 ] [eliminating proof of intent to kill as an element of the felony-murder special circumstance]; Bouie v. City of Columbia (1964) 378 U.S. 347, 353 [ 12 L.Ed.2d 894, 899-900 , 84 S.Ct. 1697 ] [judicial expansion of South Carolina’s criminal trespass law].) These cases are inapplicable as they are based upon “ ‘the notion that persons have a right to fair warning of that condu

1997“The Ex Post Facto Clause is a limitation upon the powers of the Legislature [citation], and does not of its own force apply to the Judicial Branch of government. [Citation.] But the principle on which the Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. [Citations.] As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.” (Marks v. United States (1977) 430 U.S. 188 , 191-192 [ 97 S.Ct. 990, 992-993 , 51 L.Ed.

1997“The Ex Post Facto Clause is a limitation upon the powers of the Legislature [citation], and does not of its own force apply to the Judicial Branch of government. [Citation.] But the principle on which the Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. [Citations.] As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.” (Marks v. United States (1977) 430 U.S. 188 , 191-192 [ 97 S.Ct. 990, 992-993 , 51 L.Ed.

1996(People v. King (1993) 5 Cal.4th 59, 70-81 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ] [overruling limitation on consecutive enhancements under section 12022.5]; In re Baert (1988) 205 Cal.App.3d 514, 518-519 [ 252 Cal.Rptr. 418 ] [eliminating proof of intent to kill as an element of the felony-murder special circumstance]; Bouie v. City of Columbia (1964) 378 U.S. 347, 353 [ 12 L.Ed.2d 894, 899-900 , 84 S.Ct. 1697 ] [judicial expansion of South Carolina’s criminal trespass law].) These cases are inapplicable as they are based upon “ ‘the notion that persons have a right to fair warning of that condu

1996(People v. King (1993) 5 Cal.4th 59, 70-81 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ] [overruling limitation on consecutive enhancements under section 12022.5]; In re Baert (1988) 205 Cal.App.3d 514, 518-519 [ 252 Cal.Rptr. 418 ] [eliminating proof of intent to kill as an element of the felony-murder special circumstance]; Bouie v. City of Columbia (1964) 378 U.S. 347, 353 [ 12 L.Ed.2d 894, 899-900 , 84 S.Ct. 1697 ] [judicial expansion of South Carolina’s criminal trespass law].) These cases are inapplicable as they are based upon “ ‘the notion that persons have a right to fair warning of that condu

1997“The Ex Post Facto Clause is a limitation upon the powers of the Legislature [citation], and does not of its own force apply to the Judicial Branch of government. [Citation.] But the principle on which the Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. [Citations.] As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.” (Marks v. United States (1977) 430 U.S. 188 , 191-192 [ 97 S.Ct. 990, 992-993 , 51 L.Ed.

1997“The Ex Post Facto Clause is a limitation upon the powers of the Legislature [citation], and does not of its own force apply to the Judicial Branch of government. [Citation.] But the principle on which the Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. [Citations.] As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.” (Marks v. United States (1977) 430 U.S. 188 , 191-192 [ 97 S.Ct. 990, 992-993 , 51 L.Ed.

1997Collins reaffirmed (id. at pp. 42-43, 44 [110 S.Ct. at pp. 2719-2720]) the understanding of the ex post facto clause provided in Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [ 46 S.Ct. 68, 68 , 70 L.Ed. 216 ], namely “that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." But Collins explained that the third prong of

1997Collins reaffirmed (id. at pp. 42-43, 44 [110 S.Ct. at pp. 2719-2720]) the understanding of the ex post facto clause provided in Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [ 46 S.Ct. 68, 68 , 70 L.Ed. 216 ], namely “that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." But Collins explained that the third prong of

1997Collins reaffirmed (id. at pp. 42-43, 44 [110 S.Ct. at pp. 2719-2720]) the understanding of the ex post facto clause provided in Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [ 46 S.Ct. 68, 68 , 70 L.Ed. 216 ], namely “that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." But Collins explained that the third prong of

1997Collins reaffirmed (id. at pp. 42-43, 44 [110 S.Ct. at pp. 2719-2720]) the understanding of the ex post facto clause provided in Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [ 46 S.Ct. 68, 68 , 70 L.Ed. 216 ], namely “that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." But Collins explained that the third prong of

1997Collins reaffirmed (id. at pp. 42-43, 44 [110 S.Ct. at pp. 2719-2720]) the understanding of the ex post facto clause provided in Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [ 46 S.Ct. 68, 68 , 70 L.Ed. 216 ], namely “that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." But Collins explained that the third prong of

1996I, § 9; see People v. Davis (1994) 7 Cal.4th 797, 811 [ 30 Cal.Rptr.2d 50 , 872 P.2d 591 ].) Although these provisions expressly limit only legislative power, the principle underlying the ex post facto prohibition—that people have a right to fair warning of that conduct which will give rise to criminal penalties—is so fundamental that the prohibition applies equally to judicial decisions.

1996I, § 9; see People v. Davis (1994) 7 Cal.4th 797, 811 [ 30 Cal.Rptr.2d 50 , 872 P.2d 591 ].) Although these provisions expressly limit only legislative power, the principle underlying the ex post facto prohibition—that people have a right to fair warning of that conduct which will give rise to criminal penalties—is so fundamental that the prohibition applies equally to judicial decisions.

1996(People v. King (1993) 5 Cal.4th 59, 79 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ]; People v. Wharton (1991) 53 Cal.3d 522 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ]; see Ross v. Oregon (1913) 227 U.S. 150, 161 [ 57 L.Ed. 458, 463 , 33 S.Ct. 220 ].) Thus, “[i]f a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect.” (Bouie v. City of Columbia (1964) 378 U.S. 347, 354 [ 12 L.Ed.2d 894, 900 , 84 S.Ct. 1697 ]; Rose v. Locke (1975) 423 U.S. 48, 50 [ 46 L.Ed.2d 185, 1

1996(People v. King (1993) 5 Cal.4th 59, 79 [ 19 Cal.Rptr.2d 233 , 851 P.2d 27 ]; People v. Wharton (1991) 53 Cal.3d 522 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ]; see Ross v. Oregon (1913) 227 U.S. 150, 161 [ 57 L.Ed. 458, 463 , 33 S.Ct. 220 ].) Thus, “[i]f a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect.” (Bouie v. City of Columbia (1964) 378 U.S. 347, 354 [ 12 L.Ed.2d 894, 900 , 84 S.Ct. 1697 ]; Rose v. Locke (1975) 423 U.S. 48, 50 [ 46 L.Ed.2d 185, 1

1992(Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-297 [ 279 Cal.Rptr. 592 , 807 P.2d 434 ].) “ ‘[T]he principle on which the [ex post facto] Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 586 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ].) Most of the difficulties in applying the constitutional provisions occur in the interpretation of the prohibitions against retroactively increasing punishment for a crime which carried a

1992(Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-297 [ 279 Cal.Rptr. 592 , 807 P.2d 434 ].) “ ‘[T]he principle on which the [ex post facto] Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 586 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ].) Most of the difficulties in applying the constitutional provisions occur in the interpretation of the prohibitions against retroactively increasing punishment for a crime which carried a

1991The United States Supreme Court has explained that the Fifth Amendment forbids only the retroactive application of an "unexpected" or "unforeseeable judicial enlargement of a criminal statute." ( Bouie v. City of Columbia, supra, 378 U.S. at pp. 353, 354 [12 L.Ed.2d at pp. 899-900].) California case law is in accord. ( Keeler v. Superior Court, supra, 2 Cal.3d at pp. 634-635; In re Baert, supra, 205 Cal. App.3d at p. 520 [finding Anderson 's overruling of Carlos was "an unforeseeable judicial enlargement of a criminal statute," citing Bouie ]; Walker v. Meehan (1987) 194 Cal. App.3d 1290, 1303

1991The United States Supreme Court has explained that the Fifth Amendment forbids only the retroactive application of an "unexpected" or "unforeseeable judicial enlargement of a criminal statute." ( Bouie v. City of Columbia, supra, 378 U.S. at pp. 353, 354 [12 L.Ed.2d at pp. 899-900].) California case law is in accord. ( Keeler v. Superior Court, supra, 2 Cal.3d at pp. 634-635; In re Baert, supra, 205 Cal. App.3d at p. 520 [finding Anderson 's overruling of Carlos was "an unforeseeable judicial enlargement of a criminal statute," citing Bouie ]; Walker v. Meehan (1987) 194 Cal. App.3d 1290, 1303

1991The United States Supreme Court has explained that the Fifth Amendment forbids only the retroactive application of an “unexpected” or “unforeseeable judicial enlargement of a criminal statute.” (Bouie v. City of Columbia, supra, 378 U.S. at pp. 353, 354 [12 L.Ed.2d at pp. 899-900].) California case law is in accord. {Keeler v. Superior Court, supra, 2 Cal.3d at pp. 634-635; In re Baert, supra, 205 Cal.App.3d at p. 520 [finding Anderson's overruling of Carlos was “an unforeseeable judicial enlargement of a criminal statute,” citing Bouie]; Walker v. Meehan (1987) 194 Cal.App.3d 1290, 1303 [ 240

1991The United States Supreme Court has explained that the Fifth Amendment forbids only the retroactive application of an “unexpected” or “unforeseeable judicial enlargement of a criminal statute.” (Bouie v. City of Columbia, supra, 378 U.S. at pp. 353, 354 [12 L.Ed.2d at pp. 899-900].) California case law is in accord. {Keeler v. Superior Court, supra, 2 Cal.3d at pp. 634-635; In re Baert, supra, 205 Cal.App.3d at p. 520 [finding Anderson's overruling of Carlos was “an unforeseeable judicial enlargement of a criminal statute,” citing Bouie]; Walker v. Meehan (1987) 194 Cal.App.3d 1290, 1303 [ 240

1991I, § 9.) Although these provisions are limitations on the powers of the legislative, not judicial, branch (Marks v. United States (1977) 430 U.S. 188, 191 [ 51 L.Ed.2d 260, 264 , 97 S.Ct. 990 ]; Ross v. Oregon (1912) 227 U.S. 150, 161 [ 57 L.Ed. 458, 463 , 33 S.Ct. 220 ]), “the principle on which the [ex post facto] Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. [Citations.] As such, that right is protected against judicial action by the Due Process Clause o

1991I, § 9.) Although these provisions are limitations on the powers of the legislative, not judicial, branch (Marks v. United States (1977) 430 U.S. 188, 191 [ 51 L.Ed.2d 260, 264 , 97 S.Ct. 990 ]; Ross v. Oregon (1912) 227 U.S. 150, 161 [ 57 L.Ed. 458, 463 , 33 S.Ct. 220 ]), “the principle on which the [ex post facto] Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. [Citations.] As such, that right is protected against judicial action by the Due Process Clause o

1988I, § 9.) An ex post facto law is “any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed . . . .” (Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [ 70 L.Ed. 216, 217 , 46 S.Ct. 68 ]; Bouie v. *518 Columbia (1964) 378 U.S. 347, 353 [ 12 L.Ed.2d 894, 899-900 , 84 S.Ct. 1697 ].) “The Ex Post Facto Clause is a limitation upon the powers of the legislature, [cita

1988I, § 9.) An ex post facto law is “any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed . . . .” (Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [ 70 L.Ed. 216, 217 , 46 S.Ct. 68 ]; Bouie v. *518 Columbia (1964) 378 U.S. 347, 353 [ 12 L.Ed.2d 894, 899-900 , 84 S.Ct. 1697 ].) “The Ex Post Facto Clause is a limitation upon the powers of the legislature, [cita