In Re Ramirez

REYNOSO, J.

I dissent. In dealing with the issue of retrospectivity, the United States Supreme Court in Weaver v. Graham (1981) 450 U.S. 24, at page 31 [67 L.Ed.2d 17, at p. 24, 101 S.Ct. 960], stated: “The critical question is whether the law changes the legal consequences of acts completed before its effective date. In the context of this case, the question can be recast as asking whether [the state statute] applies to prisoners convicted for acts committed before the provision’s effective date. Clearly, the answer is in the affirmative.” I find this holding squarely on point and controlling.

The majority seeks to distinguish Weaver on two grounds. First, it concludes that the 1982 amendments are not retrospective because they apply only to events occurring after their enactment. The majority contends that any increased sanctions in the 1982 amendments relate to a subsequent prison infraction, not to the original offense. Second, the majority seems to hold that the ex post facto clauses do not apply because the 1982 amendments do not increase the petitioner’s maximum sentence nor reduce good behavior credits.

The majority is wrong on both counts.

First, the majority fails to acknowledge that sanctions are also one determinant of petitioner’s total prison term. Once this determinant is changed, petitioner’s effective sentence is altered. That is what Weaver v. Graham is all about. (Weaver, 450 U.S. at p. 32 [67 L.Ed.2d at p. 25].) The incorrectness of the majority’s line of analysis is demonstrated by the contrary and correct analysis of Greenfield v. Scafati (D.Mass. 1967) 277 F.Supp. 644, summarily affirmed (1968) 390 U.S. 713 [20 L.Ed.2d 250, 88 S.Ct. 1409], cited with approval in Weaver.

In Greenfield, the state Legislature amended a statute regulating “good conduct” deductions from sentences, making violation of parole grounds for forfeiture of good conduct deductions. It also decided to apply the amended statute to persons, such as the petitioner, who were already under sentence.

*940In that case, the petitioner acted in violation of his parole after the statute was amended. Accordingly, the amended statute would not have altered the petitioner’s effective sentence unless petitioner, by his own actions, chose to alter his sentence by violating parole. The petitioner also had fair warning that if he committed certain parole violations, he would be subject to increased sanctions. Despite these factors, the court concluded that application of the amended statute to the petitioner was unconstitutional as an ex post facto law. It reasoned that the difference between mere termination of parole under the former statute and an increased punishment under the new statute was substantial. “To effect this by legislation enacted after the offense for which sentence was imposed cannot be constitutionally supported.” (Greenfield, 277 F.Supp. at p. 646.)1

Similarly, our focus should be on the petitioner’s offense in this case. The state is not punishing petitioner for a new crime by proceeding to trial on the charge of altering paperwork relating to a television. Instead, the state is increasing the punishment for an offense committed before the additional sanctions were enacted. As we stated previously, “[t]he tenor of Weaver seems unmistakable: prejudicial changes in punishment enacted after commission of a crime are suspect on ex post facto grounds.” (In re Stanworth (1982) 33 Cal.3d 176, 181 [187 Cal.Rptr. 783, 654 P.2d 1311].)

Second, the majority finds that the 1982 amendments’ increased sanctions do not constitute “punitive conditions outside the sentence.” (Weaver, 450 U.S. at p. 32 [67 L.Ed.2d at p. 25].) The Supreme Court in Weaver found that a reduction in a gain-time provision changed the quantum of punishment. (Id., at p. 33 [67 L.Ed.2d at p. 25].) It is difficult to understand why increasing sanctions for prison misconduct would not also be regarded as a punitive condition.

To bolster its position, the majority raises the paper tiger of prison administration, claiming that inconsistent disciplinary rules for prison infractions would result in immunity from punishment for some prisoners. Not true! Nothing prevents prison authorities from enforcing a uniform disciplinary standard by resort to criminal prosecution of all inmates convicted for acts committed before January 1, 1983, for any criminal act they commit while in prison.

In summary, it seems clear that the 1982 amendments are retrospective when applied to an offender such as petitioner who was convicted before *941the amendments’ effective date.2 Since the amendments disadvantage the petitioner, I would hold them unconstitutional as an ex post facto law.

Bird, C. J., concurred.

Petitioner’s application for a rehearing was denied October 25, 1985.

See also Beebe v. Phelps (5th Cir. 1981) 650 F.2d 774, 776 (revised statute that revoked accrued “good time” for violation of parole held unconstitutional as applied to petitioner who was originally sentenced before enactment of statute).

See, e.g., Knuck v. Wainwright (11th Cir. 1985) 759 F.2d 856, 859 (change in administrative construction of gain-time statute was retrospective as applied to petitioner whose offense occurred four years before the change in interpretation); Burnside v. White (8th Cir. 1985) 760 F.2d 217, 220 (amended parole statute was retrospective as applied to petitioner convicted for acts committed before the statute’s effective date).