Petition for Writ of Certiorari — Forrester v. California (No. 07-1456)

Vr Supreme Court US.

(—) 07145 6 MAY 19 2008

No OFFICE OF THE CLERK

In The

Supreme Court of the United States

JASON MICHAEL FORRESTER,

Petitioner,

Vv.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondents.

On Petition For Writ Of Certiorari

To The Superior Court of California,

County of San Luis Obispo

HONORABLE STEPHEN B. SEFTON,

COMMISSIONER

PETITION FOR WRIT OF CERTIORARI

LAW OFFICES OF CHAD R. MADDOX

CHAD R. MADDOX, SBN 206204

2100 N. BROADWAY #201

SANTA ANA, CA 92706

TELEPHONE: (714) 547-4500

— ATTORNEY FOR THE PETITIONER

COUNSEL OF RECORD

F

QUESTIONS PRESENTED

1. Whether extending the exposure to an

enhancement under VC§23546 from 7 years to 10

years, after the initial 7 years has lapsed, violates the

prohibition against Ex Post Facto laws in light of

Stogner v. California (2003) 539 U.S. 607?

2. Whether the lapsing of the original exposure

period of 7 years vested a right to a defense such that

changing the statute to allow the State to plead the

alleged prior deprived the defendant of the defense in

violation of the Due Process clause?

3. Whether the prosecution of the enhancement

violated the terms of the plea agreement from the

first conviction?

ll

TABLE OF CONTENTS

Questions Presented..........c.seccsereeeee neces 1

Table of Authorities...............sceseeseeseeees lil

Opinions Below.............:cssceeenveneeeeeneeees 1

FUPISCICHION......0000ccccsccscercccccssescesccecorcs 1

Relevant Provisions Involved.............+++. 2

el Licekiasscrsscncrccssersesecces 4

Reasons for Granting the Petition............ 5

nd sence tedesecnncencsevevecss 16

Appendix vl

Trial Court Opimion................s.eee eee 1

Superior Court

Appellate Department Opinion.......... 15

Court of Appeal,

Second District Opinion.................... 22

California Supreme Court

Request for Review Denied..............--. 28

ll

TABLE OF AUTHORITIES

Cases

Buckley v. Terhune

CE NE Bs Discs cvssccsev nce tersinsestsnveesovenas

Calder v. Bull

(1700) 0 U.S. GE Dall.) BOG... casscccsccccssrcsess

Collins v. Youngblood

(1990) 497 U.S. 37 .ccccccceescceeeeceeees co aaa

Commonwealth v. Guimento

(1985) 341 Pa. Super. 95.........sccsecssceeeseess

Franco- Lopez

B12 F.Bd At GEO... cccceccsccesccscveseccarsevccscsens

People v. Chesebro

(1990) 185 Mich. App. 412............c:cceeeeeee

People v. Sweet

(1989)207 Cal. App. 3d 78, 83.............e0+e0.

State v. Cookman

(1904) 127 Ove. Anis. FBS oo. ....ccseccesccrsesess

Stogner v. California

CS BT OE oon co cviveckctosciianee

Thompson v. State,

CRT Be WR FIs csoicicsnscchdarnccvecncncasersssavie

United States v. Packwood

F.2d 1009, 1012 (9th Cir. 1998)............ eee

Page

United States v. Pruitt

32 F.3d 431, 433 (9% Cir. 1994)

United States v. Transfiguration

(2006) 442 F.3d 1222

Weaver, v. Graham

CO MN Te Boos ckce ssiivsv'senssrdcnscosscvanss

Statutes

CALIFORNIA VEHICLE CODE

§ 2B103B.5.........cccccceeeersescesecesons cen eeseseeenes 4

§ 23152

§ 23546

Constitutional Provisions

U.S. Constitution

Article 1, Section 9

U.S. Constitution

Article 1, Section 10

U.S. Constitution

14th Amendment, Section 1

28 U.S.C. §1257

28. U.S.C. §2254(d)(1)

28 U.S.C. §2254(d)(2)

1

OPINIONS BELOW

The opinion of the California Court of Appeal

Second Appellate District, is reported at (2007) 156

Cal.App.4th 1021.

JURISDICTION

The decision of the California Court of Appeal

Second Appellate District, affirming the Superior

Court of California, San Luis Obispo County was filed

on November 8, 2007.

A timely petition for review by the California

Supreme Court was denied February 20, 2008.

Petitioner invokes the jurisdiction of this Court under

28 USC §1257 on the ground that his rights under

Article I, Section 9, clause 3, of the U.S. Constitution,

and Article I, Section 10, clause 1, of the U.S.

Constitution, and Amendment 14, to the US.

Constitution, have all been violated by the

enforcement of the State Statute. In addition, the

sentence based upon the enhancement 1s contrary to

clearly established federal law in violation of 28

U.S.C. § 2254(d)(1), and resulted from an

unreasonable determination of the facts in violation

of U.S.C. § 2254(d)(2).

RELEVANT PROVISIONS INVOLVED

1. Article I, Sec. 9 of the U.S. Constitution:

No Bill of Attainder or ex post facto Law shall

be passed.

2. Article 1, Sec. 10 of the U.S. Constitution:

2

No state shall enter into any treaty, alliance, or

confederation; grant letters of marque and

reprisal; coin money; emit bills of credit; make

anything but gold and silver coin a tender in

payment of debts; pass any bill of attainder, ex

post facto law, or law impairing the obligation

of contracts, or grant any title of nobility.

3 14th Amendment, Sec. 1 of the U.S. Constitution:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

state wherein they reside. No state shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

4. 28 U.S.C. § 2254(d)(1):

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shail not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings unless

the adjudication of the claim—

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States.

5. 28 U.S.C. § 2254(d)(2):

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings unless

the adjudication of the claim--

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

4

STATEMENT OF THE CASE

This case raises, for the first time, whether an

enhancement statute can be revived without violating

the Ex Post Facto prohibitions. The issues are

strikingly similar to those raised in Stogner Vv.

California (2003) 539 U.S. 607 which ruled that a

statute of limitations could not be revived.

Petitioner was charged with violating

Californias DUI statute (VC§23152) including

allegations of two prior violations of similar offenses

(“wet reckless” under VC§23103.5) in January of 1997

and February of 2001. The use of the 1997 prior as

an enhancement is the central focus of this Writ.

In January 1997, DUI offenders were exposed

to an enhancement for 7 years pursuant to California

VC§23546. Effective September 20, 2000, the statute

was changed to extend the exposure period from 7 to

10 years.

On May 16, 2006, Petitioner timely filed a

motion with the San Luis Obispo County Court to

dismiss the prior convictions from the complaint. Ina

written opinion filed on October 2, 2006, the Motion

was denied by the trial court judge.

On November 3, 2006, Petitioner filed a timely

notice appeal with the Appellate Department for the

San Luis Obispo County Superior Court. On March

23, 2007, the Appellate Department affirmed the trial

court ruling.

Petitioner filed for, and was granted a Request

for Transfer to the California Court of Appeal. After

review of the Petitioner’s appeal, the California Court

of Appeal, Second District affirmed the Appellate

Department decision. The opinion of the California

Court of Appeal Second Appellate District, 1s reported

at 2007 156 Cal.App.4th 1021.

5

On December 18, 2007 Petitioner then filed a

timely request for review with the California

Supreme Court. On February 14, 2008, Petitioner's

request for review was denied.

The pertinent part of the record, including the

trial court opinion, the appellate department opinion,

and the court of appeal opinion are all duplicated in

the Appendix hereto, pursuant to Superior Court

Rule 14.1(g).

REASONS FOR GRANTING THE PETITION

1. California has failed to _ recognize’ the

Constitutional protections against Ex Post Facto

enhancement statutes and the effect of the U.S.

Supreme Court holdings in Stogner_v. California

(2003) 539 U.S. 607.

A. The Trial Court's Ruling

The trial court refused to recognize the obvious

conflicts between the many holdings within the

thorough U.S. Supreme Court’s 47 page decision in

Stogner and the flippant holdings within the

California Court of Appeal’s 5 page decision in Sweet.

In pertinent part, the trial court made the following

ruling in its written opinion:

“Taken in its literal interpretation, the Court

in Stogner said no more than legislation

allowing prosecution of time barred claims

violates the ex post facto clause of the

Constitution.” (Pg. 5, Par.2.)

6

In fact, the U.S. Supreme Court in Stogner, Supra

(hereinafter Stogner) said a great deal more than

that, and made several pertinent rulings in direct

conflict with People _v. Sweet (1989) 207 Cal.App.3d

78 (the California case relied upon by the California

Courts, hereinafter Sweet). Yet it stated:

“In summary, People v. Sweet is controlling

authority in this case and its holding is

unaffected by the holding in [The United

States Supreme Court decision] Stogner.’

(Pg.5, Par.3.)

B. The Appellate Department Opinion

The Appellate Department pointed out that

recidivist statutes are not a violation of the ex post

facto prohibition per se, citing a string of cases. (Pg.2,

Par.5). But it failed to note that none of those cases

dealt with a defendant which had previously been

exposed to a recidivist statute which was revived

after the exposure period had lapsed. Instead, the

Appellate Department focused on the fact that the

defendant had committed a new crime (a fact which is

sure to be present in every case dealing with a

recidivist statute).

The Appellate Department failed to acknowledge

the crucial fact that the Defendant had already been

exposed to an enhancement period which had lapsed.

In pertinent part it stated:

“Stogner does not change the outcome of this

case. There is a critical difference, one of

Constitional dimension, between reviving a

prosecution in its entirety (the situation in

Stogner and enhancing the sentence in a new

7

criminal prosecution based upon new criminal

conduct (this case). Unlike the situation in

Stogner, Mr. Forrester has never been free of

criminal liability.”

But Forrester has been free from the criminal

liability sought - a minimum jail sentence. He was

free from that prosecution once the original exposure

period lapsed.

C. The Court of Appeals Opinion

The Court of Appeal, Second Appellate District

originally decided Sweet, and wasn't about to admit

it’s holdings were flawed simply because the U.S.

Supreme Court made contrary holdings. Instead, it

played the label game — attempting to make a

distinction between a statute referred to as a “statute

of limitations” and the one here, referred to as an

“enhancement statute.” It stated:

“Here Forrester’s prosecution stems from a

law that became effective more than a year

before the date of his arrest, and one that

appraised him of the possible consequences of

a new violation. Unlike Stogner, Forrester

has not been charged with a crime for which

the statute of limitations has run. He has not

been deprived of a “vested defense” because

the statute extending the maximum period of

prior offenses was enacted before the current

offense.”

8

D. New Enhancement Statute Violates Ex Post

Facto Clauses Just Like New Statute Of

Limitations

lL. Category 2

The application of the new statute violates

category 2 described in Calder v. Bull (1798) 3 U.S. (3

Dall.) 386, as it was understood by the U.S. Supreme

Court in Stogner.

Appellant was not subject to a mandatory

minimum sentence which included 120 days of

custody, once the original exposure period of 7 years

had lapsed. But for the change in the statute the

State would be barred from pleading an irrelevant

prior (one older than 7 years).

The Court in Stogner, recognized that reviving

punishments which have already expired inflicts

punishment “for past criminal conduct that ... did not

trigger any such liability.” Id, at 613. The new statute

here attempts to revive a punishment, the mandatory

minimum sentence of 120 days custody in the same

way the statute in Stogner revived punishment.

The Jabel applied to the type of statute as an

“enhancement” as opposed to a “statute of

limitations” is not dispositive. Weaver, v. Graham

(1981) 450 U.S. 24

The opinion in Stogner did not only find that

an increased “statute of limitations” to be an ex post

facto law, but instead found a// “laws reviving time:

barred prosecutions are ex post facto”. Supra, at 607,

617, and 627. Therefore, the revival of a prosecution

which is time-barred (one alleging the prior as an

enhancement) is prohibited.

ll. Category 3:

The new statute changes the punishment, and

inflicts a greater punishment, than the law annexed

to the prior DUI crimes, when committed. At the

time of the 1997 offense, the period of time that the

defendant was exposed to a mandatory custody

sentence of 120 days for a future offense was 7 years.

The new statute increases that exposure period to 10

years. An increased exposure period adds on 3 years

of exposure to the 120 day minimum sentence.

ii. Category 4:

Here, the new statute changes the rules of

evidence to receive different evidence because it

allows the prosecution to allege and prove a prior

older than 7 years old when it would not have been

able to so plead prior to the new statute’s enactment.

The Stogner Court reasoned:

“Consequently, to resurrect a prosecution

after the relevant statute of limitations has

expired is to eliminate a currently existing

conclusive presumption forbidding

prosecution, and thereby to permit conviction

on a quantum of evidence where that

quantum, at the time the new law is enacted,

would have been legally insufficient. And, in

that sense, the new law would "violate"

previous evidence-related legal rules by

authorizing the courts to "receiv[e] evidence .

_ which the courts of justice would not

[previously have] admit[ted]" as sufficient

proof of a crime...”.

10

Here, to resurrect the exposure to the

enhanced penalty, is to “eliminate a currently

existing conclusive presumption forbidding’ the

pleading of the prior offense and permit an increased

punishment “on a quantum of evidence where that

quantum, at the time the new law [was] enacted,

would have been legally insufficient”.

The statute revives the procedural ability of

the State to plead the 1997 prior. By doing so, the

statute makes the 1997 prior relevant which would

otherwise not be relevant.

E. The Lapse Of The Exposure Period Vested A

Defense To Prosecution Of The Enhancement

Just Like Lapse Of Statute Of Limitations

Vests A Defense To Prosecution Of That

Crime

Sweet held that the Ex Post Facto doctrine

does not apply to a statute of limitations. Supra, at

page 84. The U.S. Supreme Court in Stogner held the

reverse, specifically striking down a statute of

limitations on ex post facto grounds.

The argument that the defendant had a “vested

right” to a defense was rejected in Sweet when that

Court stated: “[Wle are unpersuaded that

appellants... had a ‘vested right”. Supra, at 85.

However, the majority opinion in Stogner clearly

recognized a vested right where a_ statute of

limitations period had lapsed. The Stogner Court

cited:

“Cf. Thompson v. State, (1877) 54 Miss. 740

(stating, without specifying further grounds,

that a new law could not take away a vested

statute-of-limitations defense); State v.

11

Cookman (1994) 127 Ore. App. 283 (holding

that a law resvurrecting a time-barred

criminal case “violates the Due Process

Clause” "),... Commonwealth v. Guimento

(1985) 341 Pa. Super. 95 (enforcing a state

ban on ex post facto laws apparently

equivalent to the federal prohibition); People

v. Chesebro (1996) 185 Mich. App. 412

(reciting "the general rule" that, "where a

complete defense has arisen under [a statute

of limitations], it cannot be taken away by a

subsequent repeal thereof").” Supra, at page

617 and 618.

Sweet didn’t even use the correct test to decide

the Ex Post Facto issues. It used the “disadvantage

formula.” The case of Collins v. Youngblood (1990)

497 U.S. 37 clarified that such a test was flawed.

However, at the time the ex post facto issues were

visited by the Calitornia Court of Appeal in Sweet in

1989, the correct test was not yet underlined by the

Collins decision.

2. California failed to properly recognize federal

law requiring interpretation of the plea agreement

from the 1997 prior in favor of the defendant.

The trial court ruled that the plea form

executed by defendant in his 1997 case did not

constitute a contract which promised a 7-year limit to

exposing the defendant to the 120-day minimum

penalty for subsequent offenses. It stated:

“Here, the language of the agreement is clear

and unambiguous. Paragraph 5 reflects

minimum and maximum sentences that were

12

applicable at the time of the 1997 conviction.

The category of “OTHER” simply is not part of

the minimum and maximum = sentence.

Looking objectively at the surrounding

circumstances it is unrealistic to conclude

that the court and the prosecutor waived the

application of future amendments of Vehicle

Code section 23546 particularly where the

Legislature had previously amended the

statute’s look back period to 7 from 5 years.

Likewise, it is impractical to think that the

parties can enter into a contract that

effectively prohibits or prevents the

Legislature from exercising its right to enact,

as shown above, lawful statutes. Even if

there was a valid contract limiting the

prosecution to a seven year look back period

for any subsequent DUI conviction of

Forrester, the public purpose would override

that contractual limitation.” (Court’s Ruling

Pg.10, Par.1-2.)

The factual determination that the plea

agreement clearly and unambiguously did not contain

a term which limited the exposure period to 7 years is

an umreasonable determination of the facts in

violation of U.S.C. § 2254(d)(2). Paragraph 5 of the

plea agreement specifically referred to minimum

penalties, to which the defendant would be exposed,

should he violate a DUI statute within the next 7

years.

According to the trial court’s interpretation,

mentioning what minimum penalties exist for crimes

within 7 years is meaningless because the same may

hold true for those committed in 8 years, 9 years, or

10 years later. Why would the contract single out a

13

reference only to those within 7 years, if the 7 year

period had no significance? It wouldn't, and thus the

trial court’s factual determination that the agreement

- js unambiguous is unreasonable.

Moreover, the California court must interpret the

ambiguity over this 7-year language in favor of the

party which did not draft it — the Defendant in this

case. See United States v. Transfiguracion (2006) 442

F.3d 1222; 2006 U.S. App. LEXIS 8176, and Buckley

v. Terhune (2006) 441 F.3d 688; 2006 U.S. App.

LEXIS 6612. The Transfiguracion Court said:

“One tenet of contract law we have

steadfastly applied to plea agreements...

is... the principle that ambiguities in

contracts “are to be construed

unfavorably to the drafter.” BLACK’S

LAW DICTIONARY 328 (7th ed. 1999).

In context of plea agreements, the

government is usually the drafter and

must ordinarily bear the “responsibility

for any lack of clarity.” Franco-Lopez,

312 F.3d at 989 (internal quotation

marks omitted). Ambiguities are

therefore construed “in favor of the

defendant.” Jd. (internal quotation

marks omitted)...”

The Defendant did not draft the chart which

indicated the future minimum penalties. Therefore,

the proper interpretation is that the contract did limit

the application of those minimum penalties to only

offenses committed within the next 7 years.

The Transfiguracion Court went on to say:

14

“As a defendant’s liberty is at stake, the

government is ordinarily held to the

literal terms of the plea agreement it

made, United States v. Packwood, 848

F.2d 1009, 1012 (9th Cir. 1988), so that

“(t]he government gets what it bargains

for but nothing more,” United States

v.Pruitt, 32 F.3d 431, 483 (9th Cir.

1994).”

The State got more than it bargained for here. It

was allowed to expose the defendant to the 120-day

custody penalty as a minimum penalty for an offense

committed more than 7 years later.

Therefore, the trial court interpreted the

ambiguous terms in error by interpreting them in

favor of the prosecution. By doing so, the trial court's

interpretation of the plea agreement was contrary to

clearly established federal law in violation of 28

U.S.C. § 2254(d)(1).

CONCLUSION

The Defendant respectfully requests that the

Petition for Writ of Habeas Corpus be granted, and

that the Writ issue.

Respectfully submitted,

Chad R. Maddox

2100 N. Broadway #201

Santa Ana, CA 92706

Telephone: [714] 547-4500

FAX: [714] 547-4600

Counsel of Record

V1

APPENDIX

Opinion from Trial Court Judge on original

motion filed with the Superior Court.

Opinion from Appellate Department

Justices of the San Luis Obispo County

Superior Court.

Opinion from the California Court of

Appeal, Second District, (2007) 156

Cal.App.4 1021.

Denial of Petitioner’s request for review by

the California Supreme Court.

1

SUPERIOR COURT, SAN LUIS OBISPO COUNTY For Court Use Only

Sar Luis Obispo Branch, County Government Center, 050 Monterey Street

Room 220, San Luis Obispo. CA 93408

x Peo Robles Branch, 649 10° Street, Paso Robles, CA 9946 FILED

Grover Beach Branch, 214 South 10* Street, Graver Beach, CA 99433

OCT 02 2006

San Luis Obispo

ee Superior Court

Plaintiff, /s/

S. St. John,

Deputy Clerk

People of the State of California,

V.

Jason Michael Forrester,

Docket No. M385438A

Defendant.

Ruling on Motion to Strike Prior Complaint

FACTS

The People's amended complaint charges

defendant with a violation of Vehicle Code Section

23152 (a) and (b) that occurred on or about March

11,2006. The amended complaint further alleges that

defendant has two prior convictions of Vehicle Code

Section 23105.5, one in January 1997 and the other in

February 2001. Those prior convictions can serve as

an enhancement of any conviction of the March 2006

offense pursuant to the current version of Vehicle

Code section 23546.

Defendant's motion to strike is based upon

the contention that use of the 1997 conviction, as

allowed under the current version of Vehicle Code

section 23546, violates the ex post facto clause of the

US Constitution, Article I, section 10.

In 1997, Vehicle Code section 23546 allowed

the court to consider DUI convictions that occurred

within 7 years prior to the subject conviction for the

purpose of enhancing sentences. Effective January of

2005, Vehicle Code section 23546 was amended to

allow the court to consider convictions that occurred

10 years prior to the current offense, thereby

2

increasing the original 7 year period. Defendant

contends that the court’s ability to consider the 1997

conviction expired and use of the current 10 year

period violates prohibitions against ex post facto

legislation.

APPLICABILITY OF PEOPLE v, SWEET

(1989) 207 Cal App. 3d 78

The defendant acknowledges that People v,

Sweet. (1989) 207 Cal. App, 3d 78 is the controlling

authority on the issue presented here. To avoid the

impact of Sweet, Defendant contends that the

opinions in Sweet on the subject are mere dicta and

should not be followed. Alternatively, defendant

contends that the opinion in Stogner v. California

(2003) 539 U.S. 607, has impliedly overruled the

holding in Sweet.

The court in People v. Sweet was confronted

with the 1986 amendment to Vehicle Code 23546

where the legislature increased the time period for

the court to consider prior convictions from 5 to 7

years. People v. Sweet, dealing with the exact

problem we are confronted with here, held that

Vehicle Code section 23545 did not violate Ex Post

Facto laws.

The defendant urges the court to disregard the

holding in Sweet as dictum because the opinion did

not clearly indicate that the prior conviction was

between 5 and 7 years of the current conviction. If the

prior conviction was committed vithin 5 years of the

current conviction, the court’s discussion of the

implications of the 1986 amendment on the ex post

facto prohibition was unnecessary and therefore,

dictum. The argument is without merit.

3

The court in Sweet summarized the appellant's

position as follows: “Appellants claim that use of their

prior conviction over five years before the current

offense, though less than seven years is barred”

(People v. Sweet, supra., 207 Cal.App. 3"4 at page 81)

The court clearly considered a conviction that

sccurred between the 5» and 7 year of the then

present conviction. Consequently, Sweet is directly on

point.

Defendant’ relies on Stogner v. California

(2003) 539 U.S. 607 to establish that Sweet is

impliedly overruled.

In Stogner, the defendant had been charged

with crimes of sexual child abuse occurring between

1955 and 1973. The legislature enacted legislation

that revived time barred claims. The applicable

limitations period for claims against Stogner had run

over 22 years prior to the date the prosecution was

initiated. The US Supreme Court held that the

legislation violated the ex post facto clause of the US

Constitution.

First, the defendant contends that the Sweet

court did not properly recognize that the punishment

of the present conviction, based on both prior and

subsequent offenses, aggravated the subsequent

offense, "in the sense that, and to the extent that, it

‘inflicted punishment’ for past criminal conduct. ..

'‘(Stogner v. California, supra, 539 U.S. at 613)."

Stogner stated, "After (but not before) the

original statute of limitations had expired, a party

such as Stogner was not ‘liable to any punishment.’

California's flew statute therefore ‘aggravated’

' Stogner's alleged crime, or made it "greater than

what it was, when committed, ‘in the sense that, and

to the extent that, it ‘inflicted punishment’ for past

criminal conduct that (when the law was enacted) did

4

not trigger any such liability." Jd.

Vehicle Code section 23546 imposes no new or

additional punishment for a previous crime. That

section reads in pertinent part, "If a person is

convicted of a violation of Section 23152 and the

offense occurred within 10 years of two separate

violations of Section 23101, as specified in Section 23

J 03 .5, 23 J 52, or 23 153, or any combination

thereof, that resulted in convictions, that person shall

be punished ... " by enhanced penalties. "There 1s no

constitutional bar preventing application of the

statute to later offenses solely because the prior

conviction which serves as a basis for enhancement

was committed before the habitual offender statute

was enacted." (People v. Sweet (1989) 207 Cal. App.3d

78,83; People:. v. Mesce (1997) 52 Car. App, 4th 618,

623-624). The statute enhances the punishment for

the commission of a present crime and has no bearing

on the punishment previously ordered and served for

all original offense. In other words, Vehicle Code

section 23546 speaks to the conviction of a present

offense and does not renew or revive the ability to

punish a defendant for the crime committed within

the previous 10 years.

Defendant contends that the court in Sweet

improperly described an extension of the "limitations

period as procedural, as if the linguistic distinction

would foreclose ex post facto analysis.” This

interpretation is inaccurate. In fact, the Court

concluded that a limitations period is substantive and

bars prosecution if criminal acts occur outside the

statutory period for prosecuting the crime. (People v.

Sweet, supra, 207 Cal. App. 3d at page 84). Similarly,

statutes which modify the effects of a defendant's

probation have been held to violate the ex post fac.10

clause because, as with a limitations period, it,

D

"affects the substantive rights and deprives the

defendant of a protection he became entitled under [a]

previous statute." (People v. Sweet, 207 Cal. App. 3d

at page 84). Neither circumstance applies here. The

enhancements under Vehicle Code section 23546 do

not punish the defendant for a crime previously

committed, nor alter the punishment previously

imposed and completed. One cannot say that if a

defendant was driving a vehicle in 2006 with

excessive alcohol 1 in his or her system that he or she

could be convicted under Vehicle Code section 23546.

The offense is described in Vehicle Code section

23152(a) and (b). Vehicle Code section 23546 merely

enhances the punishment for that offense. There is

simply no impact or effect on the prior conviction of a

person driving a vehicle in violation of the DUI

statutes.

Lastly, the defendant argues that the Court in

Sweet did not consider the question of proof. Citing

Stogner v. California, supra, 539U.5. at 616,

Defendant states “...specifically, the Court did not

address whether the legislative amendment by

resurrecting the prior convictions, in effect,

‘authorizled] the courts to receivle] evidence...which

the courts...would not [previously haveladmitted!’ as

sufficient proof of the prior conviction.”

The ability to prosecute a crime is not

resurrected here. The defendant was convicted of

driving under the influence in 1997; a sentence was

imposed and served. None of these facts are required

to prove that the defendant committed a violation of

Vehicle Code section 23152(a) or (b) on the day cited.

More importantly, the defendant conveniently

substitutes the word “conviction” for the “crime” in

discussing the statement by the Court in Stogner.

Taken in its literal interpretation, the Court in

6

Stogner said no more than legislation allowing

prosecution of time barred claims violates the ex post

facto clause of the Constitution. Conviction of the

defendant for a current offense is not dependent on

the conviction of the defendant of a_ similar

crime 1997.

In summary, People v. Sweet is controlling

authority in this case and its holding is unaffected by

the holding in Stogner.

IS THERE OTHER AUTHORITY SUPPORTING

DEFENDANT'S POSITION?

Notwithstanding the applicability of Sweet, the

defendant takes the position of that John L. v.

Superior Court (2004) 33 Cal.4* 158) supports his

position that the current amendment to Vehicle Code

section 23546 is ex post facto legislation because it 1s

retrospective in nature and fails two criteria

described in Calder v. Bull (1778) 3 U,S. (3Dall.) 386.

The court in John L. states, "Both this Court

and the Courts of Appeal have long held that someone

who was convicted and sentenced for one crime, and

commits a new crime or other misconduct while

either on conditional release or in custody for the

original conviction, 1s subject to new penalties and

adverse procedural laws enacted between the time of

the two acts." (John L. v. Superior Court, supra, 33

Cal. 4th at page 174). !

The same is logically true for someone, such as

the defendant, who has been convicted. sentence and

completed the punishment for a DUI and then

charged with a subsequent, yet similar, crime after

a. "i . err ” 5 7 » ’ rye ‘

See footnote 5 of John L. v. Superior Court, surpra, 33 Cal.4th

at page 213 where the Supreme Court cites a number of cases

supporting this proposition

7

legislation increasing punishment for that crime. See

People v. Mesce (1997) 52, Cal. App. 41k 618,632

where the court observed that the Legislature may

properly view recidivism as grounds to enhance

penalties.

In an effort to distinguish John L. and the

supporting authorities it cites, Defendant relies on

People v Mesce (1997) 52 Cal. App. 4th 618 to

establish that. unlike’ recidivist enhancement

statutes, Vehicle Code section 23546 violates the ex

post facto clause.

Mesce was convicted of misdemeanor assault.

Thereafter, the legislature enacted a statute making

it unlawful for a misdemeanant such as Mesce to

carry a firearm within 10 years of a conviction. Mesce

was subsequently convicted on a new charge of

assault with a deadly weapon involving use of a

firearm. The Mesce Court reasoned that there is no ex

post facto concern when a person is convicted of crime

A and is subsequently convicted of crime B after a

habitual criminal statute was enacted following the

conviction of crime A.

Defendant states that the existence of Vehicle

Code Section 23546 imports an additional element, C.

Thus, Defendant reasons, the instant case 1s

distinguishable from Mesce. because there was

already a recidivist statute in effect when the

legislature changed the look back period from 7 to 10

years.

The distinction raised by defendant docs not

justify the court to disregard Mesce, particularly in

light of People v. Mills, (1992) 6 Cal. App.4th 1278.

In Mills, defendant was convicted on a

marijuana charge which prohibited him from

thereafter possessing a concealed weapon under

Penal Code section 12021. After that date, the

8

legislature amended Penal Code section 12021 by

making it unlawful for a person convicted of

marijuana possession from carry any firearm,

concealable or otherwise, Mills was convicted for

possessing a shotgun and the amendment to Penal

Code section 12021 was held not to: be ex post facto.

Just as Penal Code 12021 was in existence and

amended in Mills, Vehicle Code section 23546 was in

existence at the time of Defendant's 1997 conviction

--and amended, causing defendant to be subject to

enhanced penalties if subsequently convicted after

the amendment Mills and Mesce dictate the outcome

in this case.

The defendant's final position regarding ex post

facto concerns rests on the principles expressed in

Calder v. Bull. supra, as analyzed in Stogner v.

California, supra. First, Forrester contends that

Vehicle Code section 23546 aggravates the crime he

committed in 1997, or otherwise makes its

consequences greater then when it was committed.

The result, then, brings into play category 2 under

Calder v. Bull, supra.

Category 2, referenced in Calder. provides that

a law is ex post facto if a statute inflicts punishment

where the defendant was not, by law, liable to any

punishment. (Stogner v. California 539 U.S. at 612).

The difficulty with the defendant’s arguments is that

Vehicle Code section 23546 docs not punish the

defendant for his conduct occurring in 1997, but

punishes the conduct occurring in 2006. (People v.

Mesce (1997), 52 Cal. App. 4111618, 624, 625, 626;

People v. Mills (1992) 6 Cal. App. 4th 1278, 12155:

John L. v. Superior Court (2004) 33 Cal. 4th 158,

People v. Sweet (1989) 207 Cal.App. 3d 78,87; Stogner

v. California (2003) 539 U.S. 607, 613).

9

Next, the defendant contends that the 4th

category in Calder causes Vehicle Code section 23546

to be ex post facto. The defendant believes that this

statute alters, “the legal rules of evidence, and

receives less, or different testimony, then the law

required at the time of the commission of the offense

in order to convict the offender.” (Stogner v.

California 539 U.S. 539 607, 615).

John L. v. Superior Court, 33 Cal.4 158 at

179, summarized the above described Calder

standard as follows: “...the proscribed retroactive

change is one affecting the criminal trial for the act

subject to ex post facto protection. The fourth Calder

category (Citations omitted) is limited on its face to

amendments reducing the quantum of evidence or

otherwise easing the burden of proof required to

‘convict’ someone of a charged crime.” (Emphasis

added)

Vehicle Code section 23546 does not define a

crime for which a person can be convicted. It is a

statute that enhances punishment for a crime. As a

result, the 4th Ca/der category simply does not apply.

DID THE COURT. THE PROSECUTOR AND

THE DEFENDANT ENTER A CONTRACT

PROHIBITING ENFORCMENT

OF A 10 YEAR LOOK BACK PERIOD?

Defendant's final argument is that the plea

form executed by the defendant constituted a contract

which promised a maximum look back period for

subsequent DUI offenses to 7 years. This reliance

apparently predicated on the language in paragraph 5

of the plea form which states in pertinent part that

the court and defendant’s counsel have advised him,

to his satisfactory understanding of the “elements of

10

the offense, the possible defenses, and the direct

consequences of [his]plea including minimum and

maximura sentences set forth below.” (Emphasis

added). Page 3 of the plea form sets forth a chart

describing penalties for driving under the influence

effective January 1, 1994. Below that is another chart

entitled “PENALTIES FOR RECKLESS DRIVING

(§23103 UNDER §23103.5),” containing categories of

“NATURE OF OFFENSES,” which describes reckless

driving as a reduced offense from a DUL “MINIMUM

AND MAXIMUM SENTENCES,” which sets forth the

jail terms and fines possible with or without

probation; and a category entitled, “OTHER,” which

specifies that penalties will increase on a subsequent

DUI conviction within 7 years.

If the plea form constitutes a contractual

agreement, as opposed to a mere advisement of

potential consequences as a matter of law at the time

of a plea, our Supreme Court in People v. Shelton

(2006) 37 Cal.4t 756, 767, describes the following

rules to be applied:

“A negotiated plea agreement is a form of

contract, and it is interpreted according to

general contract principals. (Citations

omitted) The fundamental goal of contractual

interpretation is to give effect to the mutual

intention of the parties. (Civ. Code, § 1636.) If

contractual language is clear and explicit, it

governs. (Civ. Code, § 1638.) On the other

hand, ‘[ilf the terms of a promise are in any

respect ambiguous or uncertain, it must be

interpreted in the sense in which the

promisor believed, at the time of making it,

that the promisee understood it.’ (UId., 1649,

other citations omitted.) ‘The mutual

11

intention to which the courts give effect is

determined by objective manifestations of the

parties' intent, including the words used in

the agreement, as well as extrinsic evidence of

such objective matters as the surrounding

circumstances under which the parties

negotiated or entered into the contract; the

object, nature and subject matter of the

contract; and the subsequent conduct of the

parties. (Civ. Code §§ 1635-1656; Code of Civ.

Proc., 1859-1861; 1864;"

Here the language of the agreement is clear

and unambiguous. Paragraph 5 reflects minimum

and maximum sentences that were applicable at the’

time of the 1997 conviction. The category of “OTHER”

simply is not part of the minimum and maximum

sentence. Looking objectively at the surrounding

circumstances it is unrealistic to conclude that the

court and the prosecutor waived the application of

future amendments of Vehicle Code section 23546

particularly where the Legislature had previously

amended the statute’s look back period to 7 from 5

years. Likewise, it is impractical to think that the

parties can enter into a contract that effectively

prohibits the legislature from exercising its right to

enact, as shown above, lawful statutes.

Even if there was a valid contract limiting the

prosecution to a 7 year look back period for any

subsequent DUI conviction of Forrester, the public

would override that contractual limitation.

“Assuming 'the state regulation constitutes a

substantial impairment, the State, in justification,

must have a significant and legitimate pubiic purpose

behind the regulation ... such as the remedying of a

broad and general social or economic problem ... [T]he

12

public purpose need not be addressed to an

emergency or temporary situation ... [{] Once a

legitimate public purpose has been identified, the

next inquiry is whether the adjustment of 'the rights

aud responsibilities of contracting parties lis based]

upon reasonable conditions and lis] of a character

appropriate to the public purpose justifying [the

legislations] adoption.’ (Citations omitted). [Als is

customary in reviewing economic and _ social

regulation, ... courts properly defer to legislative

judgment as to the necessity and reasonableness of a

particular measure. ™ (Citations omitted). Hull v.

Butte Home Health, Inc., (1997) 60 Cal.App. 4th 308,

321.

In accordance with Assembly Bill 757, Chapter

450, 1989 Legislative Session, the Department of

Motor Vehicles(DMV) prepares a report entitled

Annual Report of the California DUI Management

System. According to the report, in 2004 there were

180,957 arrests for driving under the influence or

alcohol or drugs. Alcohol related reckless driving

convictions amounted to 13,973 Of these were

133,143 convictions. According to the report in 2004

convictions amounted to 13.973. Deaths resulting

from alcohol related driving equaled 1462, being over

25% of all traffic related fatalities, an increase of 1.2%

from 2003, In 2005, California led the nation in

deaths arising from alcohol related driving accidents.

(http://madd.org/sats/11087;

http://madd.org/stats110213). In addition, over 31,690

injuries occurred in 2004.

Equally alarming is the cost associated with

alcohol and drug impaired driving. In 1999, the

estimated cost incurred by the public for alcohol and

drug related accidents was $12 billion, 55.5 of which

being direct economic cost!’ and $6.5 billion being

13

quality. of live costs.

(http :www.nhtsa.doi.gov/people/injury/alcohol/impair

ed driving pg2/CA.htm). With these costs undoubtedly

being higher today and California accounting for

approximately 10% of all alcohol related traffic deaths

in the Country in 2005, the cost to Californians is

more than $55 million for actual costs and $65 million

for quality of life costs. (http ://madd.org/stats/1784:

http://madd.org/stats/11087;

http://madd.org/stats/10213;

http;//www.nhtsa.dot.gov/people/injury/alcohol/impair

ed driving pg2/CAhtm).

The most important tact as it relates to a

justification for the legislature to amend Vehicle Code

sections 23540 and 23546 is that there is a direct

relationship to license suspension and reduction of

subsequent accident and our recidivism rates of

drunk drivers. (See DMV Drunk Driving and License

Suspension Policy at

http://www.dmv.ca.gov/about/profile/rd/rdc4.htm).

For these reasons, there is a significant and

legitimate public purpose behind the amendment

Vehicle Code §§ 23540 and 23546, This court will

defer to the legislature's judgment as to the necessity

and reasonableness of the amended statutes.

CONCLUSION

Based upon the foregoing, the defendant's

motion to strike a prior conviction from the complaint

is denied.

The defendant shall appear on October 27,

2006) in the above entitled court at 8:30 A.M. for

further arraignment.

14

Dated: October 2, 2006

HSI

Stephen B. Sefton,

Commissioner

15

NOT TO BE PUBLISHED

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN LUIS OBISPO

APPELLATE DIVISION

JASON MICHAEL Case No. M385438A

FORRESTER,

Petitioner, ORDER AFFIRMING

JUDGMENT OF

v. CONVICTION

SUPERIOR COURT OF

THE COUNTY OF SAN

LUIS OBISPO,

Respondent.

STATEMENT OF FACTS

This appeal involves the proper application of a

driving-under-the-influence (“DUI”) sentencing

enhancement. In 1997, Vehicle Code Sections 23540

and 23546 provided that DUlI-related convictions

could be used to increase the punishment for

subsequent DUI convictions for no longer than seven

years. However, on September 16, 2004, the

California Legislature amended these tow provisions

to extend the usage period for prior convictions from

seven to ten years. The 2004 amendments became

effective on January 1, 2005.

On March 11, 2006, Appellant Jason Michael

Forrester (“Forrester or Appellant”) was arrested for

driving under the influence of alcohol (Vehicle Code

16

§23152(a)) and for driving with an elevated blood

alcohol level (Vehicle Code §23152(b)). His

contemporaneous blood alcohol concentration was

18%.

On April 2, 2006, the District Attorney charged

Forrester with misdemeanor violations of Vehicle

Code §§23152(a) and (b), and also alleged, as a

sentencing enhancement, that Forrester had suffered

two prior qualifying convictions, one of which was

incurred on January 2, 1997, more than seven years

prior to his most recent arrest.

- On May 16, 2006, Forrester filed a motion to

strike his prior convictions, which was opposed by the

prosecution. On October 2, 2006, in a written opinion,

Forrester’s motion to strike was denied by the trial

court. On November 3, 2006, Forrester pled no

contest to a violation Vehicle Code §23152(b) and

admitted the two prior alleged offenses. That same

day he filed a notice of appeal. On November 13,

2006, he was granted a certificate of probable cause

by the trial court.

DISCUSSION

Appellate claims that the prosecutor’s use of

his January 2, 1997 driving-under-the-influence

conviction violates the ex-post facto clause of the state

and federal Constitutions. He also claims that Vehicle

Code §§23540 and 23546 violate the due process

clause of the federal Constitution and that the state is

barred by the doctrine of entrapment by estoppel.

As a starting point, there is plentiful authority

stating that statutes imposing increased punishment

on recidivists based on crimes that occurred before

the habitual offender legislation was enacted do not

17

violate ex post facto prohibitions. See, e.g., Gyger v.

Burke (1948) 334 U.S. 728, 732; People v. Eribarne

(2004) 124 Cal.App,.4th 1463, 1469; Gonzales v.

Superior Court (1995) 27 Cal.App.4th 1302, 1309;

People v. Hatchis (1995) 33 Cal.App.4% 1526, 1527-

28; People v. Sweet (1989) 207 Cal.App.3d 78, 82-85,

People v. Weaver (1984) 161 Cal.App.3d 119, 124-25.

Generally speaking, there are four criteria that

come into play when conducting an ex post facto

analysis. As phrased in terms that apply to this case,

the four questions are whether the 2005 DUI statute

(a) makes criminal an action that was innocent when

done; (b) makes more serious an act already criminal

when done; (c) inflicts greater punishment than

existed when the act was committed; or (d) permits

Forrester to be convicted with less evidence than was

required when the act was done. See People v.

Weaver, 161 Cal.App.3d at 124-125, citing Calder v.

Bull (1798) 3 U.S. (3 Dall.) 386, 390.

It is readily apparent that Mr. Forrester’s case

fits into none of these categories. First, his DUI

offenses was indeed a crime under the operative DUI

statute when he drove his car on March 11, 2006.

Second, the enhanced penalty was already on the

books when his criminal act occurred. Third, the

punishment Mr. Forrester faces now is the same

punishment that was acted in existence in March

2006, when his criminal act was committed. Fourth,

the evidence needed to convict him of the crime is the

same today as it was on March 11, 2006. In terms of

proof, the prosecution still had to prove beyond a

reasonable doubt that the Forrester. was guilty of

driving under the influence, i.e. his identity as the

driver erratic driving patterns, failed field sobriety

tests, blood levels and other pertinent issues.

18

Forrester strenuously urges that the Supreme

Court’s decision in Stogner v. California (2003) 539

U.S. 607, changed the legal landscape. In Stogner the

issue was whether the State of California could,

consistent with due process and ex post facto

limitations, revive a child molestation prosecution by

increasing the duration of the statute of limitations

once the original statute had expired. The Supreme

Court concluded that California was barred from

doing so because the new statute of limitations

attached criminal liability to a situation “where the

party was not, by law, liable to any punishment” at

the time the criminal case was revived. 539 U.S. 613.

In other words, California could not belatedly

prosecute someone who, for some period of time, was

completely immune from prosecution due to the

expiration of a statute of limitations.

Stogner does not changed the outcome of this

case. There is a criminal difference, one of

Constitutional dimension, between receiving a

prosecution in its entirety (the situation in Stogner)

and enhancing the sentence in a new criminal

prosecution based upon new criminal conduct (this

case). Unlike the situation in Stogner, Mr. Forrester

has never been free of criminal liability. His

prosecution is based on a law that became effective

more than one year before the date of his first arrest,

and one that apprised him of the _ possible

consequences of a new violation.

It is true that Mr. Forrester’s penalty 1s

increased based upon his pre-existing conviction.

However, this is not, as Forrester claims, a statute of

limitations issue. Forrester was convicted of his

earlier DUI charge, and completed his sentence in

that case long before the 2005 Legislation was

enacted. Courts have routinely rejected ex post facto

19

challenges to statutes, like this one, having increased

penalties for recidivist behavior. These courts reason

that the sentence imposed upon a habitual offender is

not an additional punishment for the earlier crime,

but rather a stiffened penalty for the later crime,

which is aggravated because of its repetitive nature.

See e.g. People v. Eribarne (2004) 124 Cal.App,.4th

1463, 1469 (Three strikes law); Gonzales v. Superior

Court (1995) 27 Cal.App.4th 1302, 1309 (same);

People v. Hatchis (1995) 33 Cal.App.4** 1526, 1527-28

(same);-85; People v. Weaver (1984) 161 Cal.App.3d

119, 124-25 (upholding 5-year felony enhancement).

Forrester maintains that this case is different

from other recidivist cases because the earlier DUI

statute under which Mr. Forrester was convicted had

a 7-year “sunset” or “washout” provision that should

prevent the State from alleging his 1997 conviction as

a prior after it “expired’ in 2004. However, the Court

agrees with the discussion in Sweet 207 Cal.App.3d

at 83, that the “washout” provision is a distinction

without a substantive difference as far as the ex post

facto analysis is concerned.

Without question there is some superficial

unfairness in the legislature’s decision to change its

mind and extend the “washout” period from seven to

ten years well after Mr. Forrester entered his plea on

January 2, 1997. To some extent the legislature is

changing the deal more than seven years after the

fact. However, the legislature’s decision is not, for

several reasons, so fundamentally unjust as to violate

due process. Sweet, 207 Cal.App 3d at 83°86. First,

citizens are presumed to know the law. People v.

Hgedorn (2005) 127 Cal.App.4th 734, 748; Rhodes v.

Sargent (1911) 17 Cal.App. 54, 58. As of January

2005, Mr. Forrester was on either actual or presumed

notice that his punishment might be increased if he

20

re-offended. He should have adjusted his conduct

accordingly. Second, although Mr. Forrester may well

have been advised of the then-existing “washout”

period, there is no evidence that he entered his earlier

plea in specific reliance upon his ability to commit

future crimes without having that earlier offense

come back to haunt him. Sweet, 207 Cal.App.3d at 83°

86. Third, any such reliance would be unreasonable

under the law. The “washout” advisement is at best a

collateral consequence of his plea. Id. At 85°86.

Lastly, entrapment by estoppel does not fit

under the facts presented. As stated there is no

evidence in the record that Mr. Forrester reasonably

relied on any assurance given to him by anyone. See

Sweet, 207 Cal.App.3d at 85; compare Cox v.

Louisiana (1965) 379 U.S. 59 (entrapment by estoppel

arose from explicit personal statement’ by chief of

police). !

The Court sees no constitutional infirmities in

the 2005 DUI statute and finds no fundamental

unfairness in subjecting Mr. Forrester to an increased

period in which a court may consider his 1997 DUI

conviction.

The Judgment of conviction is affirmed.

DATED: March 23, 2007

pak Sil

CRANDALL, J.

"The unsigned Plea of Guilty and Waiver of Rights Form

(Exhibit A), apparently dated weeks after Forrester’s 1997 plea,

does not support Forrester’s argument that he reasonably relied

on some prosecutorial assurance or that entrapment by estoppel

should come into play.

21

WE CONCUR:

: MSIL AEE a be Si

LABARBAERA, PW. PIQUET, J.

22

Court of Appeal, Second Appellate District, Div. 6 -—

No. B198662

S159176

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B198662

Plaintiff and (Super. Ct. No. M385438A)

Respondent, (San Luis Obispo County)

V.

JASON MICHAEL

FORRESTER,

Defendant and

Appellant.

In People v. Sweet (1989) 207 Cal.App.3d 78

(Sweet), defendant pled guilty to driving under the

influence of alcohol (DUI). At the time of his plea, a

defendant convicted of a subsequent DUI offense

within five years receives increased punishment.

After Sweet's plea, the Legislature amended the

statute to extend the five years to seven years. Sweet

reoffended more than five but less than seven years

later. In Sweet, we held that the statute may

constitutionally be applied to prior DUI convictions

23

entered when five years was the maximum period in

which prior convictions could be used for increased

sentence. (/d. at p. 83.)

Jason Michael Forrester is in a_ similar

predicament. The statute was again amended to

extend the seven years to ten years. (Veh. Code,

§§ 23540 & 23546.) Faced with the seemingly

insuperable Sweet precedent, Forrester asks us to

reexamine our holding in light of Stogner v.

California (2003) 539 U.S. 607. We have, and

conclude nothing has changed. Forrester's enhanced

sentence does not violate ex post facto or due process

principles. We affirm the judgment.

Factual and Procedural Background

Forrester suffered two DUI convictions, one in

1997 and another in 2001. In 1997, sections 23540

and 23546 provided that DUlI-related convictions

increase punishment for subsequent DUI convictions

occurring within seven years. Effective January 1,

2005, the California Legislature amended these

statutes to extend the period to 10 years.

In March 2006, Forrester was again charged

with DUI offenses. (§§ 23152, subd. (a) & 23152,

subd. (b).) The People alleged his two prior

convictions to enhance his sentence.

Forrester moved to strike his prior 1997

conviction. He argues, as did defendant Sweet, that

to enhance his sentence with this prior conviction

violates the ex post facto clause. The trial court

denied the motion and Forrester pled no contest to a

violation of section 23152, subdivision (b), and

admitted the two prior convictions. He was sentenced

to confinement in county jail. The trial court stayed

execution of his sentence pending appeal and

24

granted him a certificate of probabie cause.

The Appellate Division of the Superior Court

affirmed. It concluded that use of the 1997 prior

conviction to enhance Forrester's sentence does not

violate ex post facto principles. We granted

Forrester's request to transfer the case here for

resolution of the constitutional issues.

Ex Post Facto Clause and Due Process

Forrester acknowledges our analysis in Sweet

and other precedent. Ex post facto laws (1)

criminalize formerly innocent actions after their

commission; (2) aggravate a crime after its

commission; (3) increase the punishment associated

with the crime after its commission; or (4) alter the

legal rules of evidence required to convict the

offender. (Miller v. Florida (1987) 482 U.S. 423, 429;

Sweet, supra, 207 Cal.App.3d at p. 82.) "Statutes

enacting punishment for a defendant convicted of

violating section 23152 with prior convictions do not

have the effect of being ex post facto laws.

[Citations.] It is the law in effect at the time of

commission of the offense which controls.

[Citations.]" (Sweet, at p. 82.)

In 2006, when Forrester committed the current

DUI offense, the law provided that an individual with

p-ior section 23103.5 convictions within the last 10

years would be subject to enhanced punishment if

convicted of violating section 23152, subdivision (a).

(§§ 23540, 23546 & 23550.) “There is no

constitutional bar preventing application of the

statute to later offenses solely because the prior

conviction which serves as a basis for enhancement

was committed before the habitual offender statute

was enacted." (Sweet, supra, 207 Cal.App.3d at p. 83)

25

The crime Forrester is punished for is not the prior

conviction, "but the subsequent offense of which the

prior conviction constitutes only one element.

[Citation.]" (/bid.) ,

Courts have routinely rejected ex post facto

challenges to statutes that increase penalties for

recidivism. Courts reason that the sentence imposed

upon a habitual offender is not an additional

punishment for the earlier crime, but a punishment

for the later crime, which is aggravated because of its

repetitive nature. (See, e.g., Gryger v. Burke (1948)

334 U.S. 728, 732; People v. Snook (1997) 16 Tal.4th

1210, 1221; People v. Eribarne (2004) 124

Cal.App.4th 1463, 1469 [three strikes law]; People v.

Wohl (1991) 226 Cal.App.3d 270, 273 [rejecting ex

post facto contention where DUI conviction is

elevated to felony on fourth conviction].).

Additionally, it is well established that even

expungement of a conviction will not eliminate all

consequences associated with that conviction. (People

v. Jacob (1985) 174 Cal.App.2d 1166, 1173.)

Forrester argues that Sweet is no longer good

law because Stogner v. California, supra, 539 U.S.

607, compels a different result. In Stogner, the State

of California attempted to revive the statute of

limitations for the crime of child molestation after the

original statute of limitations had expired. The

United States Supreme Court held that California

was barred from doing so because the new statute of

limitations attached criminal liability "'. .. where the

party was not, by law, liable to any punishment." Ud.

at p. 613.)

The Appellate Division correctly noted the

difference between reviving a prosecution in its

entirety after the statute of limitations has run, and

enhancing the sentence in a new criminal prosecution

26

stemming from mew criminal conduct. Here

Forrester's prosecution stems from a law that became

effective more than one year before the date of his

arrest, and one that apprised him of the possible

consequences of a new violation. Unlike Stogner,

Forrester has not been charged with a crime for

which the statute of limitations has run. He has not

been deprived of a "vested defense" because the

statute extending the maximum period of prior

offenses was enacted before the current offense. (See

Sweet, supra, 207 Cal.App.3d at pp. 82, 86.)

Violation of Forrester's 1997 Plea Agreement

and Estoppel

Forrester next contends that the plea

agreement he signed in 1997 is a contract in which

the district attorney promised he would receive an

enhanced sentence only for DUI oftenses committed

within seven years. He relies on language in the plea

form stating that the court and counsel advised him

of the elements of the offense, the possible defenses,

and the direct consequences of his plea, including the

minimum and maximum sentences listed on a chart

appearing on the second page of the plea form. A

chart lists the penalties for DUI convictions effective

January 1, 1994, depending upon the number of prior

DUI offenses committed within the previous seven

years. The chart simply provides information

concerning the relevant law at that time. No

language in the plea agreement, nor any evidence

supports the contention that Forrester relied on the

information in the chart in entering his plea. Nor

would such reliance have been reasonable.

For these reasons, there is no merit to

Forrester's contention the state is estopped from

27

using his 1997 conviction. (See Hair v. State of

California (1991) 2 Cal.App.4th 321, 328-329.)

The judgvaent is affirmed.

CERTIFIED FOR PUBLICATION.

GILBERT, P.J.

We concur:

YEGAN, J., COFFEE, J.

Stephen B. Sefton, Judge

Superior Court County of San Luis Obispo

Law Offices of Tony Marlow, Anthony J. Marlow and

Midori Hill Feldman, for Defendant and Appellant.

Gerald T. Shea, District Attorney, Kathleen Philpot

Secrest, Deputy District Attorney, County of San Luis

Obispo, for Plaintiff and Respondent.

28

IN THE SUPREME COURT OF CALIFORNIA

En Banc

THE PEOPLE, Plaintiff and Respondent,

V.

JASON MICHAEL FORRESTER, Defendant and

Appellant

The Petition for review is denied.

SUPREME COURT

FILED

FEB 20, 2008

Frederick K. Ohlrich, Clerk

Deputy

MHS!

Chief Justice