ex post facto clause in California

2025I, § 9.) The ex post facto clause forbids the enactment of “ ‘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.’ ” (Collins v. Youngblood (1990) 497 U.S. 37, 42 ; see People v. White (2017) 2 Cal.5th 349, 360 .) We review an ex post facto claim de novo.

2025I, § 9.) The ex post facto clause forbids the enactment of “ ‘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.’ ” (Collins v. Youngblood (1990) 497 U.S. 37, 42 ; see People v. White (2017) 2 Cal.5th 349, 360 .) We review an ex post facto claim de novo.

2025I, § 9.) 7 “The [United States] Supreme Court has identified ‘two critical elements [that] must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.’” (People v. Gonzales (2021) 65 Cal.App.5th 1167 , 1173 (Gonzales), quoting Weaver v. Graham (1981) 450 U.S. 24, 28-29 ; accord, People v. Delgado (2006) 140 Cal.App.4th 1157, 1164 .) “[O]ne of the primary purposes of the ex post facto clause [is] to prevent unforeseeable punishment.” (People v. Sn

2016Defendant overstates authority as holding that the critical determinant in ex post facto analysis is whether “the system itself ha[s] been altered to the prisoner’s detriment.” (In re Ramirez (1985) 39 Cal.3d 931, 936 ; Weaver v. Graham (1981) 450 U.S. 24 [ 67 L.Ed.2d 17 ] (Weaver).) Weaver found an ex post facto violation in a Florida statute that reduced the amount of credits prisoners could earn going forward.

2016“The ex post facto clause does not prohibit all increased burdens; it only prohibits more burdensome punishment.” (People v. Acuna (2000) 77 Cal.App.4th 1056, 1059 ; California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 509 [ 115 S.Ct. 1597 , 131 L.Ed.2d 588 ] [“the question of what legislative adjustments ‘will be held to be of sufficient moment to transgress the constitutional prohibition’ must be a matter of ‘degree’”].) An adjustment that “creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for co

2016“The ex post facto clause does not prohibit all increased burdens; it only prohibits more burdensome punishment.” (People v. Acuna (2000) 77 Cal.App.4th 1056, 1059 ; California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 509 [ 115 S.Ct. 1597 , 131 L.Ed.2d 588 ] [“the question of what legislative adjustments ‘will be held to be of sufficient moment to transgress the constitutional prohibition’ must be a matter of ‘degree’”].) An adjustment that “creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for co

2016"The traditional understanding of the ex post facto clause was expressed in Beazell v. Ohio (1925) 269 U.S. 167, 169-170 [citations], as follows: 'It is settled . . . 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 [a] crime of any defense available according to law at the time when the act [was] committed, is prohibited as ex post facto.' " (People v. Delgado (2006) 140 Cal.App.4th 1157, 1164 (Delgado).) Courts have found that a

2014I, § 9). 3 The United States Supreme Court expressed the principles underlying the federal ex post facto clause in Beazell v. Ohio (1925) 269 U.S. 167 , 169-170 *589 [ 70 L.Ed. 216 , 46 S.Ct. 68 ]: “It is settled . . . 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 [a] crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” The California Supreme Court discussed th

2025I, § 9.) Because “the imposition of restitution fines constitutes punishment, . . . [it] is subject to the proscriptions of the ex post facto clause and other constitutional provisions.” (People v. Souza (2012) 54 Cal.4th 90, 143 .) Thus, the trial court was required to apply the law in effect when Thompson committed the offenses in 2013 when determining his restitution fine.

2023“It is well established that the imposition of restitution fines constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause and other constitutional provisions.” (People v. Souza (2012) 54 Cal.4th 90, 143 .) “Former [Penal Code] section 1202.4 and Government Code former section 13967 required setting a restitution fine of between $200 and $10,000, but additionally provided that in a case in which a victim has suffered an economic loss as a result of a defendant’s conduct, a court may order that restitution be paid directly to the victim in the amount of t

2018I, § 9 ) prohibit legislation " 'which makes more burdensome the punishment for a crime, after its commission ....' " ( Collins v. Youngblood (1990) 497 U.S. 37 , 42, 110 S.Ct. 2715 , 111 L.Ed.2d 30 ( Collins ); People v. McVickers (1992) 4 Cal.4th 81 , 84, 13 Cal.Rptr.2d 850 , 840 P.2d 955 .) The ex post facto prohibition is intended to ensure that individuals have " 'fair warning' about the effect of criminal statutes [and] 'restricts governmental power *155 by restraining arbitrary and potentially vindictive legislation.' " ( Landgraf v. USI Film Products (1994) 511 U.S. 244 , 267, 114 S.Ct

2018I, § 9 ) prohibit legislation " 'which makes more burdensome the punishment for a crime, after its commission ....' " ( Collins v. Youngblood (1990) 497 U.S. 37 , 42, 110 S.Ct. 2715 , 111 L.Ed.2d 30 ( Collins ); People v. McVickers (1992) 4 Cal.4th 81 , 84, 13 Cal.Rptr.2d 850 , 840 P.2d 955 .) The ex post facto prohibition is intended to ensure that individuals have " 'fair warning' about the effect of criminal statutes [and] 'restricts governmental power *155 by restraining arbitrary and potentially vindictive legislation.' " ( Landgraf v. USI Film Products (1994) 511 U.S. 244 , 267, 114 S.Ct

2025Rather, it looks to whether a defendant could be convicted under current law despite the elimination of certain theories of murder that were 7 “We interpret the ex post facto clause of the California Constitution ‘no differently than its federal counterpart.’” (People v. Gonzales (2021) 65 Cal.App.5th 1167 , 1173, fn. 3, quoting People v. Snook (1997) 16 Cal.4th 1210, 1220 ; accord, Tapia, supra, 53 Cal.3d at pp. 295-296.) 14 available to the prosecution when the defendant was convicted before the enactment of Senate Bill No. 1437.” (Ibid.) The Hill court also observed that “courts have unifor

2025(See Lynce v. Mathis (1997) 519 U.S. 433, 441 [a law that violates the ex post facto clause has two components, “a law must be retrospective—that is, ‘it must apply to events occurring before its enactment’—and it ‘must disadvantage the offender affected by it,’ [citation], by altering the definition of criminal conduct . . .”]; Tapia v. Superior Court (1991) 53 Cal.3d 282, 294 [“ ‘ “any statute [1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one char

2018I, § 9 ) prohibit legislation " 'which makes more burdensome the punishment for a crime, after its commission ....' " ( Collins v. Youngblood (1990) 497 U.S. 37 , 42, 110 S.Ct. 2715 , 111 L.Ed.2d 30 ( Collins ); People v. McVickers (1992) 4 Cal.4th 81 , 84, 13 Cal.Rptr.2d 850 , 840 P.2d 955 .) The ex post facto prohibition is intended to ensure that individuals have " 'fair warning' about the effect of criminal statutes [and] 'restricts governmental power *155 by restraining arbitrary and potentially vindictive legislation.' " ( Landgraf v. USI Film Products (1994) 511 U.S. 244 , 267, 114 S.Ct

2018I, § 9 ) prohibit legislation " 'which makes more burdensome the punishment for a crime, after its commission ....' " ( Collins v. Youngblood (1990) 497 U.S. 37 , 42, 110 S.Ct. 2715 , 111 L.Ed.2d 30 ( Collins ); People v. McVickers (1992) 4 Cal.4th 81 , 84, 13 Cal.Rptr.2d 850 , 840 P.2d 955 .) The ex post facto prohibition is intended to ensure that individuals have " 'fair warning' about the effect of criminal statutes [and] 'restricts governmental power *155 by restraining arbitrary and potentially vindictive legislation.' " ( Landgraf v. USI Film Products (1994) 511 U.S. 244 , 267, 114 S.Ct

2025(See Lynce v. Mathis (1997) 519 U.S. 433, 441 [a law that violates the ex post facto clause has two components, “a law must be retrospective—that is, ‘it must apply to events occurring before its enactment’—and it ‘must disadvantage the offender affected by it,’ [citation], by altering the definition of criminal conduct . . .”]; Tapia v. Superior Court (1991) 53 Cal.3d 282, 294 [“ ‘ “any statute [1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one char

2006(California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 506-507, fn. 3 [ 131 L.Ed.2d 588 , 115 S.Ct. 1597 ] (Morales); People v. McVickers, supra, 4 Cal.4th at p. 84 .) The standard for determining whether a law violates the ex post facto clause has two components, “a law must be retrospective—that is, ‘it must apply to events occurring before its enactment’—and it ‘must disadvantage the offender affected by it’ . . . by altering the definition of criminal conduct or increasing the punishment for the crime . . . .” (Lynce v. Mathis (1997) 519 U.S. 433, 441 [ 137 L.Ed.2d 63 , 117 S.Ct.

2025(Smith v. Doe (2003) 538 U.S. 84 , 89–90 (Smith) [upholding Alaska’s Megan’s Law against claim that it imposed retroactive punishment in violation of the ex post facto clause of the United States Constitution].) 22. concluded that release of information to the public regarding these offenders would “further the primary government interest of protecting vulnerable populations from potential harm.” (Stats. 1996, ch. 908, § 1(d), p. 5105; see §§ 290.45, 290.46.) The United States enacted the Sex Offender Registration and Notification Act (SORNA) (Pub.L.

2018The Supreme Court in Smith considered for the first time whether the sex offender registration and notification law constituted retroactive punishment forbidden by the ex post facto clause. ( Id. at p. 92, 123 S.Ct. 1140 .) "The framework for our inquiry ... is well established.

2021In McKee I, the California Supreme court reiterated its decision in Hubbart v. Superior Court (1999) 19 Cal.4th 1138 that the SVPA was not punitive because it had two nonpunitive objectives, “treatment for the individual committed and protection of the public.” (McKee I, supra, 47 Cal.4th at p. 1194 .) After examining the amended SVPA, the McKee I court determined that “the Proposition 83 amendments at issue here cannot be regarded to have changed the essentially nonpunitive purpose of the [SVPA],” and therefore that the amended SVPA does not violate the ex post facto clause.

2018I, § 9 ) prohibit legislation " 'which makes more burdensome the punishment for a crime, after its commission ....' " ( Collins v. Youngblood (1990) 497 U.S. 37 , 42, 110 S.Ct. 2715 , 111 L.Ed.2d 30 ( Collins ); People v. McVickers (1992) 4 Cal.4th 81 , 84, 13 Cal.Rptr.2d 850 , 840 P.2d 955 .) The ex post facto prohibition is intended to ensure that individuals have " 'fair warning' about the effect of criminal statutes [and] 'restricts governmental power *155 by restraining arbitrary and potentially vindictive legislation.' " ( Landgraf v. USI Film Products (1994) 511 U.S. 244 , 267, 114 S.Ct

2021(People v. Souza (2012) 54 Cal.4th 90, 143 (Souza); People v. Saelee (1995) 35 Cal.App.4th 27, 30-31 ; People v. Kramis (2012) 209 Cal.App.4th 346, 349-350 [“It is the fact of the conviction that triggers imposition of a section 1202.4, subdivision (b)(1) restitution fine.”].) “It is well established that the imposition of restitution fines constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause and other constitutional provisions.” (Souza, supra, 54 Cal.4th at p. 143 .) The application of the law in effect at the time of sentencing, as opposed to the

2016Accordingly, defendant contends the imposition of this $3,360 restitution fund fine, and corresponding $3,360 parole revocation fine, was an unauthorized sentence and violates the prohibition against ex post facto laws. “[A] restitution fine qualifies as punishment for purposes of the prohibition against ex post facto laws.” (People v. Saelee (1995) 35 Cal.App.4th 27, 30 ; see also People v. Downing (1985) 174 Cal.App.3d 667, 672 .) Applying a later version of the statute 3 constitutes an error and an ex post facto violation.

2015“Although the Latin phrase ‘ex post fact’ literally encompasses any law passed ‘after the fact,’ it has long been recognized by this Court that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.” (Collins v. Youngblood (1990) 497 U.S. 37, 41 .) The high court has stated the prohibition of the ex post facto clause in simple terms: “Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” (Id. at p. 43; People v. Castellanos (1999) 21 Cal.4th 785, 791 .) Whil

2008People v. Castellanos In People v. Castellanos (1999) 21 Cal.4th 785, 788 [ 88 Cal.Rptr.2d 346 , 982 P.2d 211 ] ( Castellanos) , the California Supreme Court addressed whether retroactive application of the sex offender registration requirement imposed by former section 290 constituted an ex post facto violation.

2022With respect to the 2019 cases, defendant argues that imposing revocation fines would violate the ex post facto clause because the trial court revoked mandatory supervision in the 2019 cases, citing People v. Callejas (2000) 85 Cal.App.4th 667 in support.

2022(Id. at p. 670.) 4 “A statute violates the ex post facto clause when, on its face or as applied, it retroactively ‘ “increase[s] the punishment for criminal acts.’ ” 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.” (People v. Callejas, supra, 85 Cal.App.4th at p. 670 , fns. omitted.) Unlike the defendant in Callejas, here defendant committed the crimes underlying his 2019 convictions many years after section 1202.45 was enacted.

2025I, § 9.) 7 “The [United States] Supreme Court has identified ‘two critical elements [that] must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.’” (People v. Gonzales (2021) 65 Cal.App.5th 1167 , 1173 (Gonzales), quoting Weaver v. Graham (1981) 450 U.S. 24, 28-29 ; accord, People v. Delgado (2006) 140 Cal.App.4th 1157, 1164 .) “[O]ne of the primary purposes of the ex post facto clause [is] to prevent unforeseeable punishment.” (People v. Sn

2025Rather, it looks to whether a defendant could be convicted under current law despite the elimination of certain theories of murder that were 7 “We interpret the ex post facto clause of the California Constitution ‘no differently than its federal counterpart.’” (People v. Gonzales (2021) 65 Cal.App.5th 1167 , 1173, fn. 3, quoting People v. Snook (1997) 16 Cal.4th 1210, 1220 ; accord, Tapia, supra, 53 Cal.3d at pp. 295-296.) 14 available to the prosecution when the defendant was convicted before the enactment of Senate Bill No. 1437.” (Ibid.) The Hill court also observed that “courts have unifor

2022(Rojas, at p. 1307.) The Rojas court noted “‘[i]t would be inappropriate … to review the record and select among acts that occurred before and after that date, or to infer that certain acts probably occurred after that date.’” (Ibid., quoting People v. Hiscox, supra, 136 Cal.App.4th at p. 261 .) “‘For a court to hypothesize which acts the jury may have based its verdicts on, or what dates might be attached to certain acts based on ambiguous evidence, would amount to “judicial impingement upon the traditional role of the jury.”’” (Rojas, at p. 1307, quoting Blakely v. Washington (2004) 542 U.S.

2022(People v. Hiscox (2006) 136 Cal.App.4th 253, 256 .) The record must show beyond a reasonable doubt that the ex post facto clauses were not violated. “[W]here an instruction violates the ex post facto bar, the error is of federal constitutional dimension, reviewable under the Chapman harmless-beyond-a-reasonable- doubt standard.” (People v. Farley (1996) 45 Cal.App.4th 1697, 1710 , fn. omitted; see Chapman v. California (1967) 386 U.S. 18, 24 .) C.

2004(See, e.g., Collins, supra, 497 U.S. at pp. 39-40, 110 S.Ct. 2715 [allowing correction of flawed verdict on appeal and denying new jury trial]; see id. at pp. 50-52, 110 S.Ct. 2715 , overruling both Kring v. Missouri (1883) 107 U.S. 221 , 2 S.Ct. 443 , 27 L.Ed. 506 [barring withdrawal of acquittal defense to first degree murder based on prior guilty plea to lesser offense] and Thompson v. Utah (1898) 170 U.S. 343 , 18 S.Ct. 620 , 42 L.Ed. 1061 [barring reduction in size of criminal juries].) We now use these principles and authorities to analyze the elements of the ex post facto violation alle

2004(See, e.g., Collins, supra, 497 U.S. at pp. 39-40, 110 S.Ct. 2715 [allowing correction of flawed verdict on appeal and denying new jury trial]; see id. at pp. 50-52, 110 S.Ct. 2715 , overruling both Kring v. Missouri (1883) 107 U.S. 221 , 2 S.Ct. 443 , 27 L.Ed. 506 [barring withdrawal of acquittal defense to first degree murder based on prior guilty plea to lesser offense] and Thompson v. Utah (1898) 170 U.S. 343 , 18 S.Ct. 620 , 42 L.Ed. 1061 [barring reduction in size of criminal juries].) We now use these principles and authorities to analyze the elements of the ex post facto violation alle

2015We will follow Valenzuela and hold that a fine that violates ex post facto principles is an unauthorized sentence that we may review even when raised for the first time on appeal. ( Valenzuela, supra, 172 Cal.App.4th at pp. 1248-1249.) That a defendant may not prevail on the merits of an ex post facto claim does not mean the claim has been forfeited.

2015I, § 9; People v. Callejas (2000) 85 Cal.App.4th 667, 670 .) As our high court has noted, “It is well established that the imposition of restitution fines constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause and other constitutional provisions.” (People v. Souza (2012) 54 Cal.4th 90, 143 ; see also People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248 ; People v. Saelee (1995) 35 Cal.App.4th 27, 30-31 .) Accordingly, the amount of a restitution fine is calculated as of the date of the offense.

2020The court rejected the defendant’s reliance upon Landgraf, supra, 511 U.S. 244 , for the proposition that punitive damages are criminal in nature because the Landgraf court’s comments on this point were dicta, as its ex post facto concerns were discussed in analyzing whether the Legislature intended the law to operate retroactively, not whether the law in fact violated the ex post facto clause.

2020The court rejected the defendant’s reliance upon Landgraf, supra, 511 U.S. 244 , for the proposition that punitive damages are criminal in nature because the Landgraf court’s comments on this point were dicta, as its ex post facto concerns were discussed in analyzing whether the Legislature intended the law to operate retroactively, not whether the law in fact violated the ex post facto clause.

2013The 1981 amendment “authorized the Board to defer subsequent suitability hearings for up to three years if the prisoner has been convicted of ‘more than one offense which involves the taking of a life’ and if the Board ‘finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding.’ [Citation.]” (Id. at p. 503.) The high court began its analysis by rejecting the prisoner’s reliance on three cases in which a violation of the ex post facto clause was found: Lindsey v. Washington (1937) 301 U.S. 397 [ 81 L.Ed. 1

2013The 1981 amendment “authorized the Board to defer subsequent suitability hearings for up to three years if the prisoner has been convicted of ‘more than one offense which involves the taking of a life’ and if the Board ‘finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding.’ [Citation.]” (Id. at p. 503.) The high court began its analysis by rejecting the prisoner’s reliance on three cases in which a violation of the ex post facto clause was found: Lindsey v. Washington (1937) 301 U.S. 397 [ 81 L.Ed. 1

2016Defendant overstates authority as holding that the critical determinant in ex post facto analysis is whether “the system itself ha[s] been altered to the prisoner’s detriment.” (In re Ramirez (1985) 39 Cal.3d 931, 936 ; Weaver v. Graham (1981) 450 U.S. 24 [ 67 L.Ed.2d 17 ] (Weaver).) Weaver found an ex post facto violation in a Florida statute that reduced the amount of credits prisoners could earn going forward.

2016(Id. at p. 33.) Ramirez, supra, 39 Cal.3d 931 , held that a new statutory plan reducing sentence credits 7 (§§ 2931-2932) was not an ex post facto violation when applied to existing prisoners.

2013(Id. at p. 522 [ 146 L.Ed.2d at p. 588 ].) Because the defendant would have been acquitted under the former law, the United States Supreme Court held application of the new law to the defendant violated 25 the ex post facto clause of the Constitution, but noted that nothing prohibited prospective application of the change in law.

2013As the Court recently explained, changes to rules on witness competency and evidence admissibility are outside the scope of the ex post facto clause provided the rules leave untouched the amount or degree of proof essential to conviction. ( Carmell, supra, 529 U.S. at pp. 1638-1640.) In Carmell, the court held that a law permitting conviction for child sexual abuse upon the victim’s testimony alone, without corroboration as previously required, changed the quantum of evidence necessary to sustain a conviction and, thus, its retrospective application violated the ex post facto prohibition.

2025I, § 9.) 7 “The [United States] Supreme Court has identified ‘two critical elements [that] must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.’” (People v. Gonzales (2021) 65 Cal.App.5th 1167 , 1173 (Gonzales), quoting Weaver v. Graham (1981) 450 U.S. 24, 28-29 ; accord, People v. Delgado (2006) 140 Cal.App.4th 1157, 1164 .) “[O]ne of the primary purposes of the ex post facto clause [is] to prevent unforeseeable punishment.” (People v. Sn

2025I, § 9.) “The standard for determining whether a law violates the ex post facto clause has two components, ‘a law must be retrospective—that is, “it must apply to events occurring before its enactment”—and it “must disadvantage the offender affected by it” . . . by altering the definition of criminal conduct or increasing the punishment for the crime . . . .’ ” (People v. Delgado (2006) 140 Cal.App.4th 1157, 1164 .) But section 1279.5 is not a criminal law and has no impact upon Wheeler’s sentence or punishment.

2016We agree. “[A] defendant’s failure to object in the trial court to the imposition of a restitution fine constitutes a waiver of the right to complain thereof on appeal.” (People v. Gibson (1994) 27 Cal.App.4th 1466, 1469 .) The forfeiture rule applies “to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.” (People v. Scott, supra, 9 Cal.4th at p. 353 .) By failing to object to imposition of the restitution fine, defendant forfeited his right to object and cannot raise the ex post facto claim.

2013(People v. Scott (1994) 9 Cal.4th 331, 351 .) The "unauthorized sentence" exception to the forfeiture rule does not apply because the $240 fines were lawfully imposed pursuant to the 2010 version of section 1202.4, subdivision (b)(1), authorizing a fine not "less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000)." (Scott, at p. 354.) Forfeiture aside, the primary purpose of the ex post facto clause is "to prevent unforeseeable punishment." (People v. Snook (1997) 16 Cal.4th 1210, 1221 .) An increase in the minimum punishment, as long as it remains below the prev

2016I, § 10, cl. 1). 4 In order to violate the ex post facto clause, the statute “must be retroactive, and must implicate at least one of the four categories described in Calder v. Bull (1798) 3 U.S. (3 Dall.) 386 , 390 . . . . [Citation.] To be considered retroactive, the law must ‘ “change[] the legal consequences of an act completed before [the law’s] effective date,” namely the defendant’s criminal behavior.’ [Citations.] ‘In other words, the operative event for retroactivity purposes, and the necessary reference point for any ex post facto analysis, is criminal conduct committed before the di

2016I, § 10, cl. 1). 4 In order to violate the ex post facto clause, the statute “must be retroactive, and must implicate at least one of the four categories described in Calder v. Bull (1798) 3 U.S. (3 Dall.) 386 , 390 . . . . [Citation.] To be considered retroactive, the law must ‘ “change[] the legal consequences of an act completed before [the law’s] effective date,” namely the defendant’s criminal behavior.’ [Citations.] ‘In other words, the operative event for retroactivity purposes, and the necessary reference point for any ex post facto analysis, is criminal conduct committed before the di

2021In McKee I, the California Supreme court reiterated its decision in Hubbart v. Superior Court (1999) 19 Cal.4th 1138 that the SVPA was not punitive because it had two nonpunitive objectives, “treatment for the individual committed and protection of the public.” (McKee I, supra, 47 Cal.4th at p. 1194 .) After examining the amended SVPA, the McKee I court determined that “the Proposition 83 amendments at issue here cannot be regarded to have changed the essentially nonpunitive purpose of the [SVPA],” and therefore that the amended SVPA does not violate the ex post facto clause.

2018I, § 9 ) prohibit legislation " 'which makes more burdensome the punishment for a crime, after its commission ....' " ( Collins v. Youngblood (1990) 497 U.S. 37 , 42, 110 S.Ct. 2715 , 111 L.Ed.2d 30 ( Collins ); People v. McVickers (1992) 4 Cal.4th 81 , 84, 13 Cal.Rptr.2d 850 , 840 P.2d 955 .) The ex post facto prohibition is intended to ensure that individuals have " 'fair warning' about the effect of criminal statutes [and] 'restricts governmental power *155 by restraining arbitrary and potentially vindictive legislation.' " ( Landgraf v. USI Film Products (1994) 511 U.S. 244 , 267, 114 S.Ct