People v. Batman

Opinion

ROBIE, J.

Defendant Donald Allen Batman pled guilty to four counts of forgery and three counts of identity theft arising out of conduct in September and October of 2004. He received probation and was ordered to pay various fines and penalties, including DNA penalty assessments in the amount of $144. (Gov. Code, § 76104.6.)

On appeal, defendant contends, and the People concede, that the imposition of DNA penalty assessments violates the state and federal constitutional prohibitions against ex post facto laws. We agree and shall modify the judgment accordingly.

DISCUSSION

Article I, section 10 of the federal Constitution provides in part: “No state shall. . . pass any ... ex post facto law .. . .” Similarly, article I, section 9 of

[590]

our state Constitution provides in part: “A[n] ... ex post facto law . . . may not be passed.” Both the federal and state constitutional provisions are analyzed using federal standards.

(People

v.

McVickers

(1992) 4 Cal.4th 81, 84 [13 Cal.Rptr.2d 850, 840 P.2d 955].)

Therefore, a penalty assessment cannot be imposed without violating the constitutional prohibition of ex post facto laws if (1) the defendant’s criminal act preceded its enactment; and (2) the assessment is in fact a penalty.

(Trop v. Dulles

(1958) 356 U.S. 86, 95-96 [2 L.Ed.2d 630, 639-640, 78 S.Ct. 590] [an ex post facto prohibition applies “only to statutes imposing penalties,” i.e., punishment].)

The DNA penalty assessment was added by Proposition 69, a measure approved by the voters on November 2, 2004. (See 37A pt. 2 West’s Ann. Gov. Code (2005 ed.) foll. § 76104.6, p. 114.) That measure took effect the day after the election, i.e., on November 3. (See Cal. Const., art. II, § 10, subd. (a).) Defendant’s crimes, committed on September 19, September 20, and October 10, 2004, preceded enactment of the DNA penalty assessment.